-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WTYMmcEMf21D3Fy4F4lK+p3msgQ8JqQOdigBncO8cw9g/2jLo1m8H3TyDUsHVCJZ sn/5C4ytNnSjAB2hCm4O+Q== 0000950172-02-000936.txt : 20020508 0000950172-02-000936.hdr.sgml : 20020508 ACCESSION NUMBER: 0000950172-02-000936 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20020508 GROUP MEMBERS: RAG AKTIENGESELLSCHAFT GROUP MEMBERS: STEAG AG GROUP MEMBERS: STEAG ELECTRONIC SYSTEMS AG SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MATTSON TECHNOLOGY INC CENTRAL INDEX KEY: 0000928421 STANDARD INDUSTRIAL CLASSIFICATION: SPECIAL INDUSTRY MACHINERY, NEC [3559] IRS NUMBER: 770208119 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-47406 FILM NUMBER: 02638578 BUSINESS ADDRESS: STREET 1: 2800 BAYVIEW DR CITY: FREMONT STATE: CA ZIP: 94538 BUSINESS PHONE: 5106575900 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: RAG AKTIENGESELLSCHAFT CENTRAL INDEX KEY: 0001172895 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: RELLINGHAUSER STRASSE 1-11 CITY: ESSEN STATE: I8 ZIP: 45128 MAIL ADDRESS: STREET 1: RELLINGHAUSER STRASSE 1-11 CITY: ESSEN STATE: I8 ZIP: 45128 SC 13D/A 1 s73071.txt AMENDMENT #1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Rule 13d-101) Under the Securities Exchange Act of 1934 Amendment No. 1 Mattson Technology, Inc. - ----------------------------------------------------------------------------- (Name of Issuer) Common Stock, Par Value $0.001 Per Share - ----------------------------------------------------------------------------- (Title of Class of Securities) 57723100 - ----------------------------------------------------------------------------- (CUSIP Number) Michael Schuh General Counsel STEAG Electronic Systems AG Ruettenscheider Strasse 1-3 45128 Essen, Germany 011-49-201-801-2113 - ----------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copy to: Marc R. Packer, Esq. Skadden, Arps, Slate, Meagher & Flom LLP 525 University Avenue Palo Alto, CA 94301 650-470-4500 April 30, 2002 - ----------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box /_/. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 (the "Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D CUSIP No. 57723100 - ---------- ------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON STEAG Electronic Systems AG - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (See Instructions) (b) - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS (See Instructions) OO - ------------------------------------------------------------------------------ 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION Germany - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER NUMBER OF 13,173,644 SHARES ---------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY 0 OWNED BY ---------------------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 13,173,644 REPORTING ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER PERSON 0 WITH - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 13,173,644 - ------------------------------------------------------------------------------ 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 29.6% (see Item 5) - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON (See Instructions) CO - ------------------------------------------------------------------------------ SCHEDULE 13D CUSIP No. 57723100 - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON STEAG AG - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (See Instructions) (b) - -------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS (See Instructions) OO - ------------------------------------------------------------------------------ 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION Germany - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER NUMBER OF 13,173,644 SHARES ---------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY 0 OWNED BY ---------------------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 13,173,644 REPORTING ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER PERSON 0 WITH - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 13,173,644 - ------------------------------------------------------------------------------ 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 29.6% (see Item 5) - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON (See Instructions) CO - ------------------------------------------------------------------------------ SCHEDULE 13D CUSIP No. 57723100 - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON RAG Aktiengesellschaft - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) (b) - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS (See Instructions) OO - ------------------------------------------------------------------------------ 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION Germany - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER NUMBER OF 13,173,644 SHARES ---------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY 0 OWNED BY ---------------------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 13,173,644 REPORTING ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER PERSON 0 WITH - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 13,173,644 - ------------------------------------------------------------------------------ 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 29.6% (see Item 5) - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON (See Instructions) CO - ------------------------------------------------------------------------------ This Amendment No. 1 to Schedule 13D (this "Amendment") is being filed pursuant to Rule 13d-2(a) of the Rules and Regulations promulgated under the Securities and Exchange Act of 1934, as amended, to amend the statement on Schedule 13D filed on January 11, 2001 (the "Original Statement") by STEAG Electronic Systems AG ("SES") and STEAG AG ("STEAG"), with respect to the common stock, par value $0.001 per share (the "Mattson Stock"), of Mattson Technology, Inc., a Delaware corporation ("Mattson"). The information set forth in response to each separate Item shall be deemed to be a response to all Items where such information is relevant. Item 2. Identity and Background. Item 2 of the Original Statement is hereby amended and restated to read in its entirety as follows: (a) This Statement is filed by SES, STEAG and RAG Aktiengesellschaft ("RAG"). Each of SES, STEAG and RAG is organized under the laws of the Federal Republic of Germany. SES is the direct holder of shares of Mattson Stock. STEAG owns all of the capital stock of SES and, as a result, is the indirect beneficial owner of the shares of Mattson Stock held directly by SES. Subsequent to the filing of the Original Statement, RAG acquired, directly or indirectly, all of the capital stock of STEAG that it did not previously own. By virtue of its direct and indirect ownership of all of the capital stock of STEAG, RAG may be deemed to be the indirect beneficial owner of the shares of Mattson Stock held directly by SES. (b) The business address of each of SES and STEAG is Ruettenscheider Strasse 1-3, 45128 Essen, Germany. The business address of RAG is Rellinghauser Strasse 1-11, 45128 Essen, Germany. (c) SES is engaged in the optical storage and photomask businesses. STEAG is a power generation and electronics company. RAG is an international mining and technology group. (d) During the last five years, none of SES, STEAG, RAG, nor, to the best knowledge of each of SES, STEAG and RAG, any of the individuals referred to in Schedule A, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) During the last five years, none of SES, STEAG, RAG nor, to the best knowledge of each of SES, STEAG and RAG, any of the individuals referred to in Schedule A, has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. (f) The name, citizenship, business address, principal occupation or employment and certain other information relating to the executive officers and directors of each of SES, STEAG and RAG are set forth on Schedule A attached hereto and incorporated by reference herein. Item 3. Source and Amount of Funds or Other Consideration. Item 3 of the Original Statement is hereby amended and supplemented by adding the following language thereto: On April 30, 2002, pursuant to the terms of a Share Purchase Agreement, dated as of April 5, 2002, between SES and Mattson (the "Purchase Agreement"), SES acquired 1,323,644 newly-issued shares of Mattson Stock in exchange for cancellation of $8,140,410.60 of the principal amount outstanding under a promissory note issued to it by Mattson on November 5, 2001. All references to, and summaries of, the Purchase Agreement in this Item 3 are qualified in their entirety by reference to the Purchase Agreement, a copy of which is attached hereto as Exhibit 4 and is incorporated by reference herein. Item 4. Purpose of Transaction. Item 4 of the Original Statement is hereby amended and supplemented by incorporating by reference herein the information set forth or incorporated by reference in Item 3 of this Amendment and by adding the following language thereto: Mattson and SES amended the Strategic Business Combination Agreement, dated as of June 27, 2000, as initially amended as of December 15, 2000 (as so initially amended, the "Combination Agreement"), pursuant to the Second Amendment to the Strategic Business Combination Agreement, dated as of November 5, 2001 (the "Second Amendment to the Combination Agreement"). The Second Amendment to the Combination Agreement provided for, among other things, the amendment of the secured promissory note issued to SES in connection with the initial acquisition of Mattson Stock by SES by extending the maturity date and capitalizing accrued interest, and the issuance to SES of a second, secured promissory note relating to the payment to SES of profits of two former subsidiaries of SES, as required under the Combination Agreement. All references to, and summaries of, the Second Amendment to the Combination Agreement in this Item 4 are qualified in their entirety by reference to the Second Amendment to the Combination Agreement, a copy of which is attached hereto as Exhibit 5 and is incorporated by reference herein. Simultaneously with the execution of the Second Amendment to the Combination Agreement, on November 5, 2001, Mattson, SES and Brad Mattson amended the Stockholder Agreement, dated as of December 15, 2000 (the "Amendment to the Stockholder Agreement"). The Amendment to the Stockholder Agreement, among other things, eliminated the restrictions on future dispositions of shares of Mattson Stock by SES. All references to, and summaries of, the Amendment to the Stockholder Agreement in this Item 4 are qualified in their entirety by reference to the Amendment to the Stockholder Agreement, a copy of which is attached hereto as Exhibit 6 and is incorporated by reference herein. On April 5, 2002, SES and Mattson entered into the Purchase Agreement in connection with a private placement of 7,423,644 shares of Mattson Stock (the "Private Placement"). Pursuant to the Purchase Agreement, SES purchased 1,323,644 shares of Mattson Stock. In accordance with the terms of the Purchase Agreement, Mattson filed a registration statement with the Securities and Exchange Commission (the "SEC") on Form S-3 relating to the resale of the shares of Mattson Stock issued in the Private Placement (the "Registration Statement"). Upon the effectiveness of the Registration Statement (which was declared effective on April 30, 2002), except as described in the following sentence, SES may sell these shares from time to time in the public markets, in privately negotiated transactions or otherwise, subject to certain limitations on the timing, amount and method of such sales imposed by SEC regulations. SES has agreed that, without the consent of Bear, Stearns & Co., Inc., during the period ending 90 days after the date that the Registration Statement became effective, it will not directly or indirectly offer, sell, agree to offer or sell, solicit offers to purchase, grant any call option or purchase any put option with respect to, pledge, borrow or otherwise dispose of any shares of Mattson Stock, or enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Mattson Stock. Item 5. Interest in Securities of the Issuer. Item 5 of the Original Statement is hereby amended and restated to read in its entirety as follows: (a) SES, STEAG and RAG each beneficially owns 13,173,644 shares of Mattson Stock, which represents approximately 29.6% of the outstanding shares of Mattson Stock based on an aggregate of 44,544,979 shares reported to be outstanding on April 30, 2002 in the Prospectus dated April 30, 2002, filed by Mattson with the SEC on May 2, 2002 pursuant to Rule 424(b)(3) under the Securities Act of 1933, as amended. Mr. Werner Brust-Haas, a member of the Supervisory Board of SES, has informed SES that he beneficially owns 185 shares of Mattson Stock, representing less than 1% of the outstanding shares of Mattson Stock, based on the number of outstanding shares of Mattson Stock referenced above. Dr. Jochen Melchior, Chairman of the Management Board of STEAG and Chairman of the Supervisory Board of SES, has informed STEAG and SES that he holds options to purchase 30,000 shares of Mattson Stock, of which options to acquire 12,000 shares of Mattson Stock are exercisable within 60 days. Accordingly, Dr. Melchior beneficially owns 12,000 shares of Mattson Stock, representing less than 1% of the outstanding shares of Mattson Stock, based on the number of outstanding shares of Mattson Stock referenced above. Except as described in this statement, none of SES, STEAG, RAG nor, to the best knowledge of each of SES, STEAG and RAG, any of the individuals referred to in Schedule A, beneficially owns any Mattson Stock or securities convertible into Mattson Stock. (b) SES (directly) and STEAG and RAG (each, indirectly) each has the sole power to vote and dispose of 13,173,644 shares of Mattson Stock. Mr. Brust-Haas has informed SES that he has the sole power to vote and dispose of 185 shares of Mattson Stock. Dr. Melchior has the sole power to vote and dispose of 12,000 shares of Mattson Stock, which he has the right to acquire pursuant to options exercisable within 60 days. (c) The information set forth or incorporated by reference in Items 3 and 4 of this Amendment is incorporated by reference herein. Except as described in this Amendment, none of SES, STEAG, RAG nor, to the best knowledge of each of SES, STEAG and RAG, any of the individuals referred to in Schedule A, has effected any transaction in Mattson Stock during the 60 days preceding the date of this Amendment. (d) Not applicable. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. Item 6 of the Original Statement is hereby amended and supplemented by incorporating by reference herein the information set forth or incorporated by reference in Items 3, 4 and 5 of this Amendment. Item 7. Material to be filed as Exhibits. Exhibit 4 Share Purchase Agreement, dated as of April 5, 2002, by and among Mattson Technology, Inc. and STEAG Electronic Systems AG. Exhibit 5 Second Amendment to the Strategic Business Combination Agreement, dated as of November 5, 2001, by and among Mattson Technology, Inc. and STEAG Electronic Systems AG. Exhibit 6 Amendment to Stockholder Agreement, dated as of November 5, 2001, by and among Mattson Technology, Inc., STEAG Electronic Systems AG and Brad Mattson dated as of November 5, 2002. Exhibit 7 Joint Filing Agreement, dated May 7, 2002, by and among RAG Aktiengesellschaft, STEAG AG and STEAG Electronic Systems AG. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: May 7, 2002 STEAG Electronic Systems AG By: /s/ Michael Willems ----------------------------- Name: Michael Willems Title: Chairman of the Board of Management By: /s/ Andreas Neipp ----------------------------- Name: Andreas Neipp Title: Executive Manager STEAG AG By: /s/ Michael Willems ----------------------------- Name: Michael Willems Title: Member of the Board of Management By: /s/ Michael W. Schuh ----------------------------- Name: Michael W. Schuh Title: Officer with Statutory Authority RAG Aktiengesellschaft By: /s/ Dr. Thomas Kruper ----------------------------- Name: Dr. Thomas Kruper Title: Officer with Statutory Authority By: /s/ Dr. Norbert Schellen ----------------------------- Name: Dr. Norbert Schellen Title: Officer with Statutory Authority SCHEDULE A A. Directors and Executive Officers of RAG. The following table sets forth the name, current business or home address, citizenship and present principal occupation of each of the executive officers and directors of RAG. Unless otherwise indicated, each of these individuals are citizens of the Federal Republic of Germany.
Name and Business or Home Address Position with RAG and Present Principal and Citizenship Occupation or Employment Dr. Norbert Bluem, MdB Member of the Supervisory Board of RAG Platz der Republik1 Federal Minister (ret.) 11011 Berlin Germany Guenter Dickhausen Member of the Supervisory Board of RAG Burgstrasse 29-30 Member of the Federal Executive Board of the DGB 10178 Berlin (German Trade Union Federation) Germany Anke Fuchs, MdB Member of the Supervisory Board of RAG Platz der Republik 1 Vice President of the German Federal Parliament 11011 Berlin Germany Norbert Formanski, MdB Member of the Supervisory Board of RAG Heinrich-Obenhaus-Strasse 11 Chairmann of Works Council of the Lippe Mine 45701 Herten Germany Dr. Hans Michael Gaul Member of the Supervisory Board of RAG E.ON AG Member of the Supervisory Board of STEAG E.ON-Platz 1 Member of the Management Board of E.ON 40479 Duesseldorf Germany Ulrich Hartmann Chairman of the Supervisory Board of RAG E.ON AG Chairman of the Management Board of E.ON E.ON-Platz 1 40479 Duesseldorf Germany Fritz Kollorz Deputy Chairman of the Supervisory Board of RAG Koenigsworther Platz 6 Vice-Chairman of the Supervisory Board of STEAG 30167 Hannover Member of the Executive Main Board of the IG BCE Germany Dr. Manfred Krueper Member of the Supervisory Board of RAG E.ON AG Member of the Management Board of E.ON E.ON-Platz 1 40479 Duesseldorf Germany Friedhelm Ost MdB Member of the Supervisory Board RAG Platz der Republik Member of Lower House of German Parliament (ret.) 11011 Berlin Germany Dr. Gert Maichel Deputy Chairman of the Supervisory Board of RAG Huyssenallee 2 Member of the Management Board of RWE AG 45128 Essen Germany Dr. Ulrich Middelmann Member of the Supervisory Board of RAG Thyssen Krupp AG Member of the Management Board of ThyssenKrupp AG August-Thyssen-Strasse1 40211 Duesseldorf Germany Ludwig Ladzinski Member of the Supervisory Board of RAG Deutsche Steinkohle AG Chairman of the General Works Council of Deutsche Horsthofstrasse 10 Steinkohle AG 46244 Bottrop Germany Harry Laufer Member of the Supervisory Board of RAG Bergwerk Warndt/Luisenthal Chairman of the Works Council of the Warndt/Liusenthal Am Alten Schacht 15 Mine 66773 Schwalbach Germany Hans W. Reich Member of the Supervisory Board of RAG Palmengartenstrasse 5-9 Management Board Spokesman of the Kreditanstalt fur 60325 Frankfurt Wiederaufbau Germany Dr. Peter Schoerner Member of the Management Board of RAG RAG AG Member of the Supervisory Board of STEAG Rellinhauser Strasse 1-11 45128 Essen Germany Professor Dr. Ekkehard Schulz Deputy Chairman of the Supervisory Board of RAG ThyssenKrupp AG Chairman of the Management Board of ThyssenKrupp AG Kaiser-Wilhelm-Strasse 100 47166 Duisburg Germany Hans-Juergen Schneider Deputy Chairman of the Supervisory Board of RAG AG RAG Rellinghauser Strasse 1-11 Chairman of the Working Group of Works 45128 Essen Councils in the RAG Group Germany Karl Starzacher Chairman of the Management Board of RAG RAG AG Chairman of the Supervisory Board of Rellinghauser Strasse 1-11 STEAG 45128 Essen Germany Dr. Klaus Sturany Member of the Supervisory Board of RAG RWE AG Member of Management Board of RWE AG Opernplatz 1 45128 Essen Germany Citizen of Austria Klaus Suedhofer First Deputy Chairman of the Supervisory IG Bergbau, Chemie, Energie Board of RAG Koenigsworther Platz 6 Deputy Secretary General of IG BCE 30167 Hannover Germany Dr. Werner Tegtmeier Member of the Supervisory Board of RAG Am Park 85 Under Secretary of the Federal Ministry for 53757 St. Augustin-Niederpleis Labor and Social Affairs (ret.) Germany Ulrich Weber Member of the Management Board of RAG RAG AG Member of the Supervisory Board of STEAG Rellinghauser Strasse 1-11 45128 Essen Germany Fritz Ziegler Member of the Supervisory Board of RAG Kleine Trift 14 Regional Chief Executive (ret.) 58739 Wickede/Ruhr Chairman of the Management Board of VEW (ret.) Germany
B. Directors and Executive Officers of STEAG. The following table sets forth the name, current business or home address, citizenship and present principal occupation of each of the executive officers and directors of STEAG. Each of these individuals are citizens of the Federal Republic of Germany.
Position with STEAG and Present Name and Business or Home Address Principal Occupation or Employment Gerd Bode Member of the Supervisory Board of STEAG Kraftwerk Herne Chairman of the Works Council, Kraftwerk Herne Hertener Strasse 16 44653 Herne Germany Johannes Dreckmann Member of the Supervisory Board of STEAG Kraftwerk Walsum Vice-Chairman of the Works Council, Kraftwerk Walsum Dr.-Wilhelm-Roelen-Strasse 129 47179 Duisberg Germany Dr. Hermann Farwick Member of the Supervisory Board of STEAG Kraftwerksbetriebe Voerde Power Plant Director, Kraftwerk Voerde Frankfurter Strasse 430 46562 Voerde Germany Dr. Hans-Michael Gaul Member of the Supervisory Board of RAG E.ON AG Member of the Supervisory Board of STEAG E.ON-Platz 1 Member of the Management Board of E.ON 40479 Duesseldorf Germany Ursel Gelhorn Member of the Supervisory Board of STEAG STEAG AG Chairman of the Works Council Ruttenscheider Strasse 1-3 45128 Essen Germany Dr. Reiner Hagemann Member of the Supervisory Board of STEAG Allianz-Versicherungs AG Chairman of the Management Board of Allianz Koeniginstrasse 28 Versicherungs-AG 80802 Muenchen Germany Kurt Hay Member of the Supervisory Board of STEAG Industriegewerkschaft Bergbau, Chemie, District Secretary of IG BCE Union Energie Herner Strasse 18 45657 Recklinghausen Germany Hermann Huef Member of the Supervisory Board of STEAG Kraftwerk Luenen Chairman of the Works Council of Kraftwerk Luenen Moltkestrasse 215 44536 Luenen Germany Dr. Ing. Gerd Jaeger Member of the Supervisory Board of STEAG RWE Power AG Member of the Management Board of RWE Power AG Huyssenallee 2 45128 Essen Germany Dr. Friedrich Jansen Member of the Supervisory Board of STEAG Ruhrgas AG Member of the Management Board of Ruhrgas AG Huttropstrasse 60 45138 Essen Germany Fritz Kollorz Deputy Chairman of the Supervisory Board of RAG Industriegewerkschaft Bergbau, Chemie, Vice Chairman of the Supervisory Board of STEAG Energie Member of the Executive Main Board Koenigswirther Platz 6 of the IG BCE Union 30167 Hanover Germany Dr. Jochen Melchior Chairman of the Management Board of STEAG STEAG AG Chairman of the Supervisory Board of SES Ruttenscheider Strasse 1-3 45128 Essen Germany Dr. Johnnes Ringel Member of the Supervisory Board of STEAG Westdeutsche Landesbank Girozentrale Member of the Management Board of Westdeutsche Landesbank Herzogstrasse 15 Girozentrale 40217 Duesseldorf Germany Dr. Peter Schorner Member of the Management Board RAG RAG Aktiengesellschaft Member of the Supervisory Board of STEAG Rellinghauser Strasse 1-11 45128 Essen Germany Dr. Heinz Scholtholt Member of the Management Board of STEAG STEAG AG Member of the Supervisory Board of SES Ruttenscheider Strasse 1-3 45128 Essen Germany Peter Schwarz Member of the Supervisory Board of STEAG STEAG AG Chairman of the Central Works Council Ruttenscheider Strasse 1-3 45128 Essen Germany Hermann Springer Member of the Supervisory Board of STEAG Kraftwerks Bergkamen Chairman of the Works Council of Kraftwerk Bergkamen Westenhellweg 110 59192 Bergkamen Germany Dr. Juergen Stadelhofer Member of the Supervisory Board of STEAG RAG Coal International AG Chairman of the Management Board of RAG Coal Rellinghauser Strasse 1-11 International AG 45128 Essen Germany Karl Starzacher Chairman of the Management Board of RAG RAG Aktiengesellschaft Chairman of the Supervisory Board of STEAG Rellinger Strasse 1-11 45128 Essen Germany Dr. Joerg Terrahe Member of the Management Board of STEAG STEAG AG Member of the Supervisory Board of SES Ruttenscheider Strasse 1-3 45128 Essen Germany Ulrich Weber Member of the Management Board of RAG RAG Aktiengesellschaft Member of the Supervisory Board of STEAG Rellinghauser Strasse 1-11 45128 Essen Germany Michael Willems Member of the Management Board of STEAG STEAG AG Chairman of the Management Board of SES Ruttenscheider Strasse 1-3 45128 Essen Germany Prof. Dr. Franz-Josef Wodopia Member of the Supervisory Board of RAG Grosse Egge 11 Member of the Supervisory Board of STEAG 30826 Garbsen Germany
C. Directors and Executive Officers of SES The following table sets forth the name, current business or home address, citizenship and present principal occupation of each of the executive officers and directors of SES. Each of these individuals are citizens of the Federal Republic of Germany.
Position with SES and Present Name and Business or Home Address Principal Occupation or Employment Werner Brust-Haas Member of the Supervisory Board of SES Erwin-Baelz Strasse 14 74321 Bietigheim-Bissingen Germany Hans-Peter Knapp Member of the Supervisory Board of SES In-der-See-Strasse 16 76703 Kraichtal Germany Carmen-Sylvia Koester Member of the Supervisory Board of SES Senior Vice RAG Aktiengesellschaft President Head of Corporate Development/ Rellinghauser Strasse 1-11 M&A 45128 Essen Germany Dr. Jochen Melchior Chairman of the Management Board of STEAG STEAG AG Chairman of the Supervisory Board of SES Ruttenscheider Strasse 1-3 45128 Essen Germany Dr. Heinz Scholtholt Member of the Management Board of STEAG STEAG AG Member of the Supervisory Board of SES Ruttenscheider Strasse 1-3 45128 Essen Germany Dr. Joerg Terrahe Member of the Management Board of STEAG STEAG AG Member of the Supervisory Board of SES Ruttenscheider Strasse 1-3 45128 Essen Germany Ernst Wunderlich Member of the Supervisory Board of SES Gabriel-von-Seidl-Strasse 35a 82031 Gruenwald Germany Michael Willems Member of the Management Board of STEAG STEAG AG Chairman of the Management Board of SES Ruettenscheider Strasse 1-3 45128 Essen Germany
EXHIBIT INDEX Exhibit Number Document Exhibit 4 Share Purchase Agreement, dated as of April 5, 2002, by and among Mattson Technology, Inc. and STEAG Electronic Systems AG. Exhibit 5 Second Amendment to the Strategic Business Combination Agreement, dated as of November 5, 2001, by and among Mattson Technology, Inc. and STEAG Electronic Systems AG. Exhibit 6 Amendment to Stockholder Agreement, dated as of November 5, 2001, by and among Mattson Technology, Inc., STEAG Electronic Systems AG and Brad Mattson dated as of November 5, 2002. Exhibit 7 Joint Filing Agreement, dated May 7, 2002, by and among RAG Aktiengesellschaft, STEAG AG and STEAG Electronic Systems AG. EX-99.1 3 s75172.txt EXHIBIT 4 - SHARE PURCHASE AGREEMENT MATTSON TECHNOLOGY, INC. SHARE PURCHASE AGREEMENT This SHARE PURCHASE AGREEMENT (this "Agreement"), is made and entered into as of the 5th day of April, 2002, by and among MATTSON TECHNOLOGY, INC., a Delaware corporation (the "Company"), and STEAG Electronic Systems AG (the "Purchaser"). 1. AUTHORIZATION OF SALE OF THE SHARES Subject to the terms and conditions of this Agreement, the Company hereby agrees to the cancellation of indebtedness owed by the Company to the Purchaser in consideration for the purchase of shares (the "Shares") of common stock, par value $0.001 (the "Common Stock") of the Company hereunder. In a parallel transaction, the Company has authorized the sale of up to Seven Million Four Hundred Thousand (7,400,000) shares of Common Stock of the Company (the "PIPE Transaction"). 2. AGREEMENT TO SELL AND PURCHASE THE SHARES 2.1 Purchase and Sale Subject to the terms and conditions of this Agreement (the "Purchase Agreement"), the Purchaser agrees to purchase, and the Company agrees to sell and issue to the Purchaser, at the Closing (as defined below), 1,323,644 of the Shares (the "Purchaser's Shares"). 2.2 Purchase Price The purchase price of each Share shall be $6.15 (the "Per Share Price"). Purchaser shall pay for the Shares to be purchased hereunder by canceling $8,140,410.60 of the principal amount outstanding under that certain promissory note issued by the Company to the Purchaser, dated July 2, 2002 (the "Promissory Note"), equal to the aggregate price for such Shares set forth above. The Company shall not, during the period beginning on the date of this Agreement and ending ninety (90) days after the Closing Date (as defined below), without adjusting the price per Share hereunder accordingly, sell or issue or enter into an agreement to sell or issue (i) shares of Common Stock at a price per share of less than the Per Share Price, except (A) issuances of shares of Common Stock pursuant to the exercise of either options or warrants that were issued prior to January 1, 2002 or options that were issued or granted in the ordinary course of business to employees or non-employee service providers (including those issued after the date of this Agreement in accordance with (ii) below) pursuant to the Company's stock option plans, and (B) issuances of shares of Common Stock in the ordinary course of business to employees pursuant to the Company's stock purchase plan (the Company's stock option and stock purchase plans are, together, the "Stock Plans") or (ii) options, warrants or any other securities that can be converted into, or otherwise exchanged for, shares of Common Stock at a conversion, exchange or exercise price per share of less than the Per Share Price, except grants to employees and consultants of the Company of options to purchase up to an aggregate of 1,200,000 shares of Common Stock in which the exercise price for each such option granted to an employee or consultant is equal to or greater than the closing price of the Common Stock traded on the NASDAQ stock market system on the day of grant of such option. In the event the Company sells or issues, or enters into an agreement to sell or issue, shares of Common Stock, options, warrants or other securities that requires adjustment to the price per share hereunder in accordance with the previous sentence, the Company shall, within ten (10) business days of such sale or issuance, pay to the Purchaser a cash amount equal to the number of Purchaser's Shares multiplied by the difference between the Per Share Price and the per share price paid or to be paid upon such sale or issuance or agreement to sell or issue. 3. DELIVERY OF THE SHARES AT THE CLOSING (a) The completion of the purchase and sale of the Shares (the "Closing") shall occur at the offices of Wilson Sonsini Goodrich & Rosati, Professional Corporation, 650 Page Mill Road, Palo Alto California 94304, as soon as practicable and as agreed by the parties hereto following notification by the Securities and Exchange Commission (the "Commission") to the Company of the Commission's willingness to declare effective the registration statement to be filed by the Company pursuant to Section 7.1 hereof (the "Registration Statement") at a time (the "Closing Date") to be agreed upon by the Company and Bear Stearns & Co. Inc. (the "Placement Agent") and of which the Purchasers will be notified by facsimile transmission or otherwise. (b) At the Closing, the Company shall authorize its transfer agent (the "Transfer Agent") to issue to the Purchaser one or more stock certificates, as designated by the Purchaser, registered in the name of the Purchaser, or in such nominee name(s) as designated by the Purchaser in writing, representing the Purchaser's Shares. The Company will deliver such certificate(s) (the "Certificates") against delivery of payment for the Purchaser's Shares by the Purchaser. Prior to the Purchaser's delivery of payment for the Purchaser's Shares, the Company will deliver via facsimile a copy of the Certificates to be delivered upon Closing to the office of the Purchasers (at the fax number indicated on the signature pages attached hereto). (c) The Company's obligation to complete the purchase and sale of the Purchaser's Shares shall be subject to the following conditions, any one or more of which may be waived by the Company: (i) receipt by the Company of the original Promissory Note, a portion of the principal amount of which shall have been canceled in the full amount of the purchase price for the Shares being purchased hereunder; and (ii) the accuracy in all material respects of the representations and warranties made by the Purchaser and the fulfillment in all material respects of those undertakings of the Purchaser to be fulfilled before the Closing. (d) The Purchaser's obligation to accept delivery of such stock certificates and to pay for the Purchaser's Shares evidenced by the Certificates shall be subject to the following conditions, any one or more of which may be waived by the Purchaser with respect to the Purchaser's obligation: (i) the representations and warranties made by the Company in this Agreement shall be accurate in all material respects and the undertakings of the Company shall have been fulfilled in all material respects on or before the Closing; (ii) the Company shall have delivered to the Purchaser a certificate executed by the president and the chief financial officer of the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Purchaser, to the effect that the representations and warranties of the Company set forth in Section 4 hereof are true and correct in all material respects as of the date of this Agreement and as of the Closing Date, and that the Company has complied with all the agreements and satisfied all the conditions in this Agreement on its part to be performed or satisfied on or before the Closing Date; (iii) the Company shall have delivered to the Purchasers and the Placement Agent a legal opinion in a form reasonably acceptable to the Purchaser and the Placement Agents; (iv) the Company shall have delivered to the Purchaser a new promissory note in principal amount equal to the portion of the Promissory Note that is not canceled in consideration for the Shares purchased hereunder (with such amount to be adjusted to reflect any interest that has accrued and remains unpaid under the Promissory Note as of the Closing Date); (v) the Company shall have obtained gross proceeds of at least Twenty Five Million Dollars ($25,000,000) from the sale of the shares in the PIPE Transaction at the Closing; (vi) the Commission shall have notified the Company of the Commission's willingness to declare the Registration Statement effective; and (vii) the Closing shall have occurred no later than one hundred twenty (120) days after the date hereof. 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY Except as set forth on the Schedule of Exceptions delivered to the Purchaser and signed by the Company's Chief Financial Officer, the Company hereby represents, warrants and covenants to the Purchaser as follows (which representations, warranties and covenants shall be deemed to apply, where appropriate, to each subsidiary of the Company): 4.1 Organization and Qualification The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware. The Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as currently conducted and to enter into and perform its obligations under this Agreement. The Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not, singly or in the aggregate, materially and adversely affect the business, financial condition, properties, operations, assets or business affairs or prospects in the year 2002 of the Company and its subsidiaries, taken as a whole (a "Material Adverse Effect"). 4.2 Capitalization (a) The authorized capital stock of the Company consists of 120,000,000 shares of Common Stock and 2,000,000 shares of Preferred Stock. (b) As of the date of this Agreement, the issued and outstanding capital stock of the Company consists of 37,118,222 shares of Common Stock (excluding any shares issued upon the exercise of stock options after March 15, 2002). The shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and have not been issued in violation of or are not otherwise subject to any preemptive or other similar rights. (c) The Company has reserved 8,934,000 shares of Common Stock for issuance upon the exercise of stock options granted or available for future grant under the Company's Stock Plans. (d) Up to 3,482,000 shares of Common Stock may be issued upon conversion of outstanding indebtedness owed to the Purchaser. With the exception of the foregoing, there are no outstanding subscriptions, options, warrants, convertible or exchangeable securities or other rights granted to or by the Company to purchase shares of Common Stock or other securities of the Company and, except as provided in connection with the PIPE Transaction, there are no current commitments to issue any shares of Common Stock or any security convertible into or exchangeable for Common Stock. Each of the Purchaser and the Company's executive officers and directors has executed a lock-up agreement in the form previously furnished to the Purchaser. 4.3 Issuance, Sale and Delivery of the Shares (a) The Shares have been duly authorized for issuance and sale to the Purchasers pursuant to the Purchase Agreements and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth in this Agreement, will be validly issued and fully paid and nonassessable and free and clear of all pledges, liens and encumbrances. The certificates evidencing the Shares are in due and proper form under Delaware law. (b) The issuance of the Shares is not subject to preemptive or other similar rights except such as have been waived or complied with. No further approval or authority of the shareholders or the Board of Directors of the Company will be required for the issuance and sale of the Shares to be sold by the Company as contemplated in the Purchase Agreements. (c) Subject to the accuracy of the Purchasers' representations and warranties in Section 5 of this Agreement, the offer, sale, and issuance of the Shares in conformity with the terms of this Agreement constitute transactions exempt from the registration requirements of Section 5 of the Securities Act and from the registration or qualification requirements of the laws of any applicable state or United States jurisdiction. 4.4 Financial Statements The financial statements included (as exhibits or otherwise) in the Company Documents (as defined below) present fairly the financial position of the Company as of the dates indicated and the results of their operations for the periods specified. Except as otherwise stated in such Company Documents, such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis, and any supporting schedules included with the financial statements present fairly the information stated in such schedule and reflected in the financial statements. The financial and statistical data set forth in the Company Documents were prepared on an accounting basis consistent with such financial statements. 4.5 No Material Change Since December 31, 2001, (i) the Company has not incurred any liabilities or obligations, indirect, or contingent, or entered into any verbal or written agreement or other transaction that was not in the ordinary course of business or that would have a Material Adverse Effect on the Company; (ii) the Company has not sustained any material loss or interference with its businesses or properties from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) the Company has not paid or declared any dividends or other distributions with respect to its capital stock and the Company is not in default in the payment of principal or interest on any outstanding debt obligations; (iv) other than in connection with grants or exercises of stock options or issuances of shares to its employees under the Company's Stock Plans, there has not been any change in the capital stock of the Company or increase in indebtedness material to the Company; (v) the Company has not incurred or sustained any other event or change that would have a Material Adverse Effect on the Company; and (vi) the Company has conducted its business only in the ordinary course of business in accordance with past practice. The Company has no material contingent obligations, except as set forth in the financial statements included in the Company Documents. 4.6 Environmental Except as would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect, (a) the Company is in compliance with all applicable Environmental Laws (as defined below); (b) the Company has all permits, authorizations and approvals required under any applicable Environmental Laws and is in compliance with the requirements of such permits authorizations and approvals, except where the failure to comply would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect; (c) there are no pending or, to the best knowledge of the Company, threatened Environmental Claims (as defined below) against the Company; and (d) under applicable law, to the Company's knowledge, there are no circumstances with respect to any property or operations of the Company that are reasonably likely to form the basis of an Environmental Claim against the Company. For purposes of this Agreement, the following terms shall have the following meanings: "Environmental Law" means any United States (or other applicable jurisdiction's) Federal, state, local or municipal statute, law, rule, regulation, ordinance, code, policy or rule of common law and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment binding on the Company, relating to the environment, health, safety or any chemical, material or substance, exposure to which is prohibited, limited or regulated by any governmental authority. "Environmental Claims" means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations or proceedings relating in any way to any Environmental Law. 4.7 No Defaults The Company is not in violation of its certificate of incorporation or bylaws or in material default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, deed, trust, note, lease, sublease, voting agreement, voting trust, or other instrument or material agreement to which the Company is a party or by which it may be bound, or to which any of the property or assets of the Company is subject. 4.8 Labor Matters No labor dispute with the employees of the Company exists or, to the best knowledge of the Company, is imminent, which would reasonably likely result in a Material Adverse Effect. 4.9 No Actions There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company which, singly or in the aggregate, might reasonably be expected to have a Material Adverse Effect and/or which might materially and adversely affect the consummation of this Agreement, nor, to the best knowledge of the Company, is there any reasonable basis therefor. The Company is not in default with respect to any judgment, order or decree of any court or governmental agency or instrumentality which, singly or in the aggregate, would have a Material Adverse Effect on the Company. 4.10 Intellectual Property (a) The Company, to the best of its knowledge in the course of diligent inquiry (which shall be deemed to exclude any patent searches not actually conducted), owns or is licensed to use all patents, patent applications, inventions, trademarks, trade names, applications for registration of trademarks, service marks, service mark applications, copyrights, know-how, manufacturing processes, formulae, trade secrets, licenses and rights in any thereof and any other intangible property and assets that are material to the business of the Company as now conducted and as proposed to be conducted in the year 2002 (in this Agreement called the "Proprietary Rights"), or is seeking, or will seek, to obtain rights to use such Proprietary Rights that are material to the business of the Company as proposed to be conducted in the year 2002. (b) The Company does not have any knowledge of, and the Company has not given or received any notice of, any pending conflicts with or infringement of the rights of others with respect to any Proprietary Rights or with respect to any license of Proprietary Rights which are material to the business of the Company. (c) No action, suit, arbitration, or legal, administrative or other proceeding, or investigation is pending, or, to the best knowledge of the Company, threatened, which involves any Proprietary Rights and which could reasonably be expected to have a Material Adverse Effect, nor, to the best knowledge of the Company, is there any reasonable basis therefor. (d) The Company is not subject to any judgment, order, writ, injunction or decree of any court or any Federal, state, local, foreign or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, or any arbitrator, and has not entered into or is not a party to any contract which restricts or impairs the use of any such Proprietary Rights in a manner which would have a material adverse effect on the use of any of the Proprietary Rights. (e) The Company has not received written notice of any pending conflict with or infringement upon any third-party proprietary rights, which could reasonably be expected to have a Material Adverse Effect. (f) The Company has not entered into any consent, indemnification, forbearance to sue or settlement agreement with respect to Proprietary Rights other than in the ordinary course of business. (g) The Company has complied, in all material respects, with its obligations relating to the protection of the Proprietary Rights which are material to the business of the Company used pursuant to licenses. (h) To the best knowledge of the Company, no person is infringing on or violating the Proprietary Rights, which infringement or violation could reasonably be expected to have a Material Adverse Effect. 4.11 Permits The Company possesses and is operating in compliance with all material licenses, certificates, consents, authorities, approvals and permits from all state, federal, foreign and other regulatory agencies or bodies necessary to conduct the businesses now operated by it, except where the failure to be in compliance would not reasonably be expected to have a Material Adverse Effect and the Company has not received any notice of proceedings relating to the revocation or modification of any such permit or any circumstance which would lead it to believe that such proceedings are reasonably likely which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effect. 4.12 Due Execution, Delivery and Performance (a) This Agreement has been duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and except as enforceability may be subject to general principals of equity and except as indemnification provisions herein may be held violative of public policy and legality unenforceable. (b) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated in this Agreement and the fulfillment of the terms of this Agreement, including the sale, issuance and delivery of the Shares, (i) have been duly authorized by all necessary corporate action on the part of the Company, its directors and stockholders; (ii) will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to, any contract, indenture, mortgage, loan agreement, deed, trust, note, lease, sublease, voting agreement, voting trust or other instrument or agreement to which the Company is a party or by which it may be bound, or to which any of the property or assets of the Company is subject and in each case which would reasonably likely have a Material Adverse Effect; (iii) will not trigger anti-dilution rights or other rights to acquire additional equity securities of the Company except for those which have been waived or complied with; and (iv) will not result in any violation of the provisions of the certificate of incorporation or bylaws of the Company or any applicable statute, law, rule, regulation, ordinance, decision, directive or order and in each case which would reasonably likely have a Material Adverse Effect. 4.13 Properties The Company has good and marketable title to its properties, free and clear of all material security interests, mortgages, pledges, liens, charges, encumbrances and claims of record. The properties of the Company are, in the aggregate, in good repair (reasonable wear and tear excepted), and suitable for their respective uses. Any real property held under lease by the Company is held under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the conduct of the business of the Company. The Company owns or leases all such properties as are necessary to its business or operations as now conducted. 4.14 Compliance The Company has conducted and, to its knowledge, is conducting its business in compliance with all applicable Federal, state, local and foreign statutes, laws, rules, regulations, ordinances, codes, decisions, decrees, directives and orders, except where the failure to do so would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect. 4.15 Security Measures The Company takes reasonable security measures designed to enable the Company to assert trade secret protection in its non-patented technology for which the Company can obtain trade secret protection. 4.16 Contributions To the best of the Company's knowledge, neither the Company nor any employee or agent of the Company on the Company's behalf, has made any payment of funds of the Company or received or retained any funds in violation of any law, rule or regulation. 4.17 Use of Proceeds; Investment Company The Company intends to use the proceeds from the sale of the Shares for working capital and other general corporate purposes, including the possible repayment of debt. The Company is not now, and after the sale of the Shares under this Agreement and under all other agreements and the application of the net proceeds from the sale of the Shares described in the proceeding sentence will not be, an "investment company" within the meaning of the Investment Company Act of 1940, as amended. 4.18 Prior Offerings All offers and sales of capital stock of the Company before the date of this Agreement were at all relevant times duly registered or exempt from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act") and were duly registered or subject to an available exemption from the registration requirements of the applicable state securities or Blue Sky laws, except for violations that would not have a Material Adverse Effect. 4.19 Taxes The Company has filed all material tax returns required to be filed, which returns are true and correct in all material respects, and the Company is not in default in the payment of any taxes, including penalties and interest, assessments, fees and other charges, shown thereon due or otherwise assessed, other than those being contested in good faith and for which adequate reserves have been provided or those currently payable without interest which were payable pursuant to said returns or any assessments with respect thereto. 4.20 Other Governmental Proceedings To the Company's knowledge, there are no rulemaking or similar proceedings before any Federal, state, local or foreign government bodies that involve the Company or that affect the particular industry in which the Company operates in a way that is materially different than other industries, which, if the subject of an action unfavorable to the Company, could involve a prospective Material Adverse Effect. 4.21 Non-Competition Agreements To the knowledge of the Company, any full-time employee who has entered into any non-competition, non-disclosure, confidentiality or other similar agreement with any party other than the Company is neither in violation of nor is expected to be in violation of that agreement as a result of the business currently conducted or expected to be conducted by the Company or such person's performance of his or her obligations to the Company. The Company has not received written notice that any consultant or scientific advisor of the Company is currently in violation of any non-competition, non-disclosure, confidentiality or similar agreement. 4.22 Transfer Taxes On the Closing Date, all stock transfer or other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Purchaser's Shares to be sold to the Purchaser under this Agreement will be, or will have been, fully paid or provided for by the Company and all laws imposing such taxes will be or will have been fully complied with. 4.23 Insurance The Company maintains insurance of the type and in the amount that the Company reasonably believes is adequate for its business, including, but not limited to, insurance covering all real and personal property owned or leased by the Company against theft, damage, destruction, acts of vandalism and all other risks customarily insured against by similarly situated companies, all of which insurance is in full force and effect. 4.24 Governmental/ Regulatory Consents No registration, authorization, approval, qualification or consent with or required by any court or governmental/ regulatory authority or agency is necessary in connection with the execution and delivery of this Agreement or the offering, issuance or sale of the Shares, except for any required filings with the Commission, in connection with any applicable State or Blue Sky law, or with Nasdaq or the National Association of Securities Dealers, Inc. 4.25 Securities and Exchange Commission Filings The Company has timely filed with the Commission all documents required to be filed by the Company under the Securities Exchange Act of 1934, as amended (the "Exchange Act.") 4.26 Additional Information The Company represents and warrants that the information contained in the following documents (the "Company Documents"), which will be provided to Purchaser before the Closing, is or will be true and correct in all material respects as of their respective final dates, and do not omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made and at the time that they were made, not misleading, as of their respective dates. (a) the Company's Annual Report on Form 10-K for the year ended December 31, 2001; (b) Notice of Annual Meeting of Shareholders and Proxy Statement for the Company's Annual Meeting held on May 16, 2001; (c) the Confidential Private Placement Memorandum, dated as of March 14, 2002, including all addenda and exhibits thereto, taken together (the "Private Placement Memorandum"); and (d) all other documents, if any, filed by the Company with the Commission since September 30, 2001 pursuant to the reporting requirements of the Exchange Act. 4.27 Contracts The contracts described in the Company Documents or incorporated by reference therein are in full force and effect on the date hereof, except for contracts the termination or expiration of which would not, singly or in the aggregate, have a Material Adverse Effect on the Company. Neither the Company nor, to the best knowledge of the Company, any other party is in material breach of or default under any such contracts. 4.28 No Integrated Offering Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has directly or indirectly made any offers or sales in any security or solicited any offers to buy any security under circumstances that would require registration under the Securities Act of the issuance of the Shares to the Purchasers, except pursuant to this Agreement. The issuance of the Shares to the Purchasers will not be integrated with any other issuance of the Company's securities (past, current or future) for purposes of the Securities Act or any applicable rules of Nasdaq (or of any national securities exchange on which the Company's Common Stock is then traded), except where such action would not cause the representations set forth in Section 4.3(c) above to be untrue. The Company will not make any offers or sales of any security (other than the Shares) that would cause this Offering of the Shares to be integrated with any other offering of securities by the Company for purposes of any registration requirement under the Securities Act or any applicable rules of Nasdaq (or of any national securities exchange on which the Company's Common Stock is then traded), except where such action would not cause the representations set forth in Section 4.3(c) to be untrue. 4.29 Listing of Shares On or prior to the Closing Date, the Company agrees to secure the listing of the Shares upon each national securities exchange or automated quotation system upon which shares of Common Stock are then listed and, so long as any Purchaser owns any of the Shares, shall maintain such listing of all Shares. The Company has taken no action designed to delist, or which is likely to have the effect of delisting, the Common Stock from any of the national securities exchange or automated quotation system upon which the shares of Common Stock are then listed. 4.30 No Manipulation of Stock The Company has not taken and will not, in violation of applicable law, take any action outside the ordinary course of business designed to or that might reasonably be expected to cause or result in unlawful manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares. 4.31 [Reserved] 4.32 No Material Nonpublic Information Immediately prior to the Closing, the Private Placement Memorandum, as supplemented, will include no material nonpublic information with respect to the Company. 4.33 Reliance by Placement Agent The Company hereby acknowledges that the Placement Agent may rely on the representations, warranties and covenants set forth in this Agreement as if such representations, warranties and covenants were made to the Placement Agent directly. 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER 5.1 Securities Law Representations and Warranties The Purchaser represents, warrants and covenants to the Company as follows: (a) The Purchaser is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in shares representing an investment decision like that involved in the purchase of the Purchaser's Shares, including investments in securities issued by the Company, and has requested, received, reviewed and considered all information it deems relevant in making an informed decision to purchase the Purchaser's Shares. (b) The Purchaser is acquiring the number of Shares set forth in Section 2 above in the ordinary course of its business and for its own account for investment (as defined for purposes of the Hart-Scott-Rodino Antitrust Improvement Act of 1976 and the regulations thereunder) only, and has no present intention of distributing any of the Purchaser's Shares nor any arrangement or understanding with any other persons regarding the distribution of such Shares within the meaning of Section 2(11) of the Securities Act, other than as contemplated in Section 7 of this Agreement. (c) The Purchaser will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Purchaser's Shares except in compliance with the Securities Act and the rules and regulations promulgated thereunder (the "Rules and Regulations"). (d) The Purchaser has completed or caused to be completed the Stock Certificate Questionnaire and the Registration Statement Questionnaire, attached to this Agreement as Appendices I and II, for use in preparation of the Registration Statement (as defined in Section 7.1 below), and the answers to the Questionnaires are true and correct as of the date of this Agreement and will be true and correct as of the effective date of the Registration Statement; provided that the Purchaser shall be entitled to update such information by providing notice thereof to the Company before the effective date of such Registration Statement. (e) The Purchaser has, in connection with its decision to purchase the Purchaser's Shares, relied solely upon the Company Documents and the representations and warranties of the Company contained in this Agreement. (f) The Purchaser is an "accredited investor" within the meaning of Rule 501 of Regulation D promulgated under the Securities Act. (g) The Purchaser understands that the Shares are being offered and sold to it in reliance upon specific exemptions from the registration requirements of the Securities Act, the Rules and Regulations and state securities laws and that the Company is relying upon the truth and accuracy of, and the Purchaser's compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire the Shares. (h) Until the filing of the Registration Statement, the Purchaser agrees with the Placement Agent and the Company to keep confidential all information concerning this private placement. The Purchaser understands that the information contained in the Private Placement Memorandum is strictly confidential and proprietary to the Company and has been prepared from the Company's publicly available documents and other information and is being submitted to the Purchaser solely for such Purchaser's confidential use. The Purchaser agrees to use the information contained in the Private Placement Memorandum for the sole purpose of evaluating a possible investment in the Shares and the Purchaser hereby acknowledges that it is prohibited from reproducing and distributing to third parties the Private Placement Memorandum, this Purchase Agreement, or any other offering materials or other information provided by the Company in connection with the Purchaser's consideration of its investment in the Company, in whole or in part, or divulging or discussing any of their contents to third parties. Further, the Purchaser understands that the existence, nature and content of all conversations and presentations, if any, regarding the Company and this offering must be kept strictly confidential. The Purchaser understands that the federal securities laws may impose restrictions on trading based on information regarding this offering. In addition, the Purchaser hereby acknowledges that unauthorized disclosure of information regarding this offering may cause the Company to violate Regulation FD and agrees not to engage in any such unauthorized disclosure. The restrictions in this paragraph shall cease upon the filing of the Registration Statement. (i) The Purchaser understands that its investment in the Shares involves a significant degree of risk and that the market price of the Common Stock has been and continues to be volatile and that no representation is being made as to the future value or trading volume of the Common Stock. The Purchaser has the knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares and has the ability to bear the economic risks of an investment in the Shares. (j) The Purchaser understands that no United States federal or state agency or any other government or governmental agency has passed upon or made any recommendation or endorsement of the Shares. (k) The Purchaser understands that, until such time as the Registration Statement has been declared effective or the Shares may be sold pursuant to Rule 144(k) under the Securities Act without any restriction as to the number of securities as of a particular date that can then be immediately sold, the Shares may bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of the certificates for the Shares): "The securities represented by this certificate were issued in a transaction that was not registered under the Securities Act of 1933, as amended or any state or other securities law. The securities may not be sold, pledged, transferred or assigned in the absence of an effective registration statement for the securities under said Act, or an opinion of counsel, in form, substance and scope reasonably acceptable to the Company, that registration is not required under said Act or unless sold pursuant to Rule 144 under said Act." 5.2 Resales of Shares (a) The Purchaser hereby covenants with the Company not to make any sale of the Purchaser's Shares without satisfying the requirements of this Agreement, the Securities Act and the Rules and Regulations, including, in the event of any resale under the Registration Statement, the prospectus delivery requirements under the Securities Act, and the Purchaser acknowledges and agrees that such Shares are not transferable on the books of the Company pursuant to a resale under the Registration Statement unless the certificate submitted to the transfer agent evidencing the Purchaser's Shares is accompanied by a separate officer's certificate (i) in the form of Appendix III to this Agreement; (ii) executed by an officer of, or other authorized person designated by, the Purchaser; and (iii) to the effect that (A) the Purchaser's Shares have been sold in accordance with the Registration Statement and (B) the requirement of delivering a current prospectus has been satisfied. (b) The Purchaser acknowledges that there may occasionally be times when the Company determines, in good faith following consultation with its Board of Directors or a committee thereof, that the use of the prospectus forming a part of the Registration Statement (the "Prospectus," as further defined in Section 7.3.1 below) should be suspended until such time as an amendment or supplement to the Registration Statement or the Prospectus has been filed by the Company and any such amendment to the Registration Statement is declared effective by the Commission, or until such time as the Company has filed an appropriate report with the Commission pursuant to the Exchange Act. The Purchaser hereby covenants that it will not sell any Shares pursuant to the Prospectus during the period commencing at the time at which the Company gives the Purchaser written notice of the suspension of the use of the Prospectus and ending at the time the Company gives the Purchaser written notice that the Purchaser may thereafter effect sales pursuant to the Prospectus. The Company may, upon written notice to the Purchasers, suspend the use of the Prospectus one or more times for up to an aggregate of sixty (60) days in any 365-day period (less the number of days in such 365-day period that the Purchasers must suspend their use of the Prospectus pursuant to the first sentence of this paragraph) based on the reasonable determination of the Company's Board of Directors that there is a significant business purpose for such determination, such as pending corporate developments, public filings with the Commission or similar events. The Company shall in no event be required to disclose the business purpose for which it has suspended the use of the Prospectus if the Company determines in its good faith judgment that the business purpose should remain confidential. In addition, the Company shall notify each Purchaser (i) of any request by the Commission for an amendment or any supplement to such Registration Statement or any related prospectus, or any other information request by any other governmental agency directly relating to this Offering, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of such Registration Statement or of any order preventing or suspending the use of any related prospectus or the initiation or threat of any proceeding for that purpose. (c) The Purchaser further covenants to notify the Company promptly of the sale of any of its Shares, other than sales pursuant to a Registration Statement contemplated in Section 7 of this Agreement or sales upon termination of the transfer restrictions pursuant to Section 7.4 of this Agreement. 5.3 Due Execution, Delivery and Performance The Purchaser represents and warrants to the Company as follows: (a) The Purchaser has full right, power authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Purchaser and constitutes a valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms. (b) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated in this Agreement and the fulfillment of the terms of this Agreement have been duly authorized by all necessary corporate, agency or other action and will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Purchaser pursuant to, any contract, indenture, mortgage, loan agreement, deed, trust, note, lease, sublease, voting agreement, voting trust or other instrument or agreement to which the Purchaser is a party or by which it or any of them may be bound, or to which any of the property or assets of the Purchaser is subject, nor will such action result in any violation of the provisions of the charter or bylaws of the Purchaser or any applicable statute, law, rule, regulation, ordinance, decision, directive or order. 5.4 Prohibition on Shorting The Purchaser represents, warrants and covenants to each of the purchasers in the PIPE Transaction and the Company that the Purchaser, its affiliates and related entities, (a) has not held, is not currently holding and will not hold any (i) short positions in the Company's securities or (ii) put or other option to dispose of the Company's securities, and (b) has not entered into and will not enter into any transaction that has the effect of or is equivalent to selling short the Company's securities. The parties to this Agreement intend that each of the Purchasers and the Company be direct beneficiaries of the rights and benefits arising from the representations, warranties and covenants made by the Purchaser under this Section 5.4, and expressly acknowledge and agree that any such beneficiary may exercise and enforce such rights and benefits. 5.5 Reliance by the Placement Agent; Lock-up Agreement The Purchaser hereby acknowledges that the Placement Agent may rely on the representations, warranties and covenants set forth in this Section 5 as if such representations, warranties and covenants were made to the Placement Agent directly. The Purchaser further acknowledges that it has executed and delivered to the Placement Agent a lock-up agreement in the form furnished by the Placement Agent (and that such agreement applies to the Shares purchased hereunder) and hereby agrees to abide by the terms of such agreement. 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. Notwithstanding any investigation made by any party to this Agreement, all covenants, agreements, representations and warranties made by the Company and the Purchaser in this Agreement and in the certificates for the Purchaser's Shares delivered pursuant to this Agreement shall survive the execution of this Agreement, the delivery to the Purchaser of the Purchaser's Shares being purchased and the payment therefor; provided, that the representations and warranties contained herein shall survive for a period of only two (2) years after the Closing Date. 7. FORM D FILING; REGISTRATION The Company shall file in a timely manner a Form D relating to the sale of the Shares under this Agreement, pursuant to Securities and Exchange Commission Regulation D. In addition, Purchaser's Shares shall be subject to the registration rights granted pursuant to the terms of Section 5 of the Stockholder Agreement by and between the Company, Purchaser and Brad Mattson, dated as of December 15, 2000, as amended by Amendment to Stockholder Agreement dated as of November 5, 2001 (collectively the "Stockholder Agreement"), and such Purchaser's Shares shall be deemed to be "Registrable Securities" as defined in the Stockholder Agreement, with all rights and obligations attendant thereto. In accordance with such registration rights, the Company hereby agrees to include Purchaser's Shares in the registration statement on Form S-3 to be filed in accordance with the terms of the PIPE Transaction. 8. BROKER'S FEE The Purchaser acknowledges that the Company intends to pay to the Placement Agent and ABN AMRO Incorporated a fee in respect of the sale of the Shares to the Purchasers. Each of the parties to this Agreement hereby represents that, on the basis of any actions and agreements by it, there are no other brokers or finders entitled to compensation in connection with the sale of the Shares to the Purchasers. The Company shall indemnify and hold harmless the Purchaser from and against all fees, commissions or other payments owing by the Company or the Other Purchasers to the Placement Agent, ABN AMRO Incorporated or any other person or firm acting on behalf of the Company hereunder. 9. NOTICES All notices, requests, consents and other communications under this Agreement shall be in writing, shall be mailed by first-class registered or certified airmail, confirmed facsimile or nationally recognized overnight express courier postage prepaid, and shall be delivered as addressed as follows: (a) if to the Company, to: Mattson Technology, Inc. 2800 Bayview Drive Fremont, CA 94538 Attention: Chief Financial Officer with a copy to: Gray Cary Ware & Freidenrich LLP 400 Hamilton Avenue Palo Alto, CA 94301 Attention: Bradley J. Rock, Esq. or to such other person at such other place as the Company shall designate to the Purchaser in writing; and (b) if to the Purchaser, at its address as set forth on the signature page to this Agreement, or at such other address or addresses as may have been furnished to the Company in writing. Such notice shall be deemed effectively given upon confirmation of receipt by facsimile, one business day after deposit with such overnight courier or three days after deposit of such registered or certified airmail with the U.S. Postal Service, as applicable. 10. MODIFICATION; AMENDMENT This Agreement may not be modified or amended except pursuant to an instrument in writing signed by the Company and each of the Purchasers. 11. TERMINATION This Agreement may be terminated by the Purchaser if the Closing has not occurred on or before one hundred twenty (120) days from the date of this Agreement. This Agreement may be terminated by the Company if the Closing has not occurred on or before one hundred eighty (180) days from the date of this Agreement; provided, the Company has used its reasonable best efforts to cause the Commission to declare the Registration Statement effective. 12. HEADINGS The headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be part of this Agreement. 13. SEVERABILITY If any provision contained in this Agreement should be held to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained in this Agreement shall not in any way be affected or impaired thereby. 14. GOVERNING LAW; JURISDICTION This Agreement shall be governed by and construed in accordance with the laws of the state of Delaware and the federal law of the United States of America. The parties hereto hereby submit to the jurisdiction of the courts of the United States of America sitting in the State of Wisconsin, over any action, suit, or proceeding arising out of or relating to this Agreement. Nothing herein shall affect the right of the Purchaser to serve process in any manner permitted by law or limit the right of the Purchaser to bring proceedings against the Company in the competent courts of any other jurisdiction or jurisdictions. 15. COUNTERPARTS This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute but one instrument, and shall become effective when one or more counterparts have been signed by each party to this Agreement and delivered to the other parties. [Signature pages follow] SHARE PURCHASE AGREEMENT SIGNATURE PAGE IN WITNESS WHEREOF, the parties to this Agreement have caused this Agreement to be executed by their duly authorized representatives as of the day and year first above written. MATTSON TECHNOLOGY, INC., By /s/Ludger Viefhues ------------------------------------- Name: Ludger Viefhues Its: _______________________________ STEAG ELECTRONIC SYSTEMS AG By: /s/ Michael Williems ------------------------------------- Name: Michael Williems Title: Chairman of the Board of Managers By: /s/ Andreas Neipp ------------------------------------- Name: Andreas Neipp Title: Executive Manager APPENDIX I MATTSON TECHNOLOGY, INC. STOCK CERTIFICATE QUESTIONNAIRE Pursuant to Section 3 of the Agreement, please provide us with the following information: 1. The exact name that your Shares are to be registered in (this is the name that will appear on your stock certificate(s)). You may use a nominee name if appropriate: ---------------------------------- 2. The relationship between the Purchaser of the Purchaser's Shares and the Registered Holder listed in response to item 1 above: ---------------------------------- 3. The mailing address of the Registered Holder listed in response to item 1 above: ---------------------------------- ---------------------------------- ---------------------------------- ---------------------------------- 4. The Social Security Number or Tax Identification Number of the Registered Holder listed in response to item 1 above: 5. Special Instructions: -------------------------------------------------------------- -------------------------------------------------------------- -------------------------------------------------------------- Appendix II MATTSON TECHNOLOGY, INC. REGISTRATION STATEMENT QUESTIONNAIRE In connection with the preparation of the Registration Statement, please provide us with the following information: 1. Pursuant to the "Selling Shareholder" section of the Registration Statement, please state your or your organization's name exactly as it should appear in the Registration Statement: ------------------------------------------------------- 2. Please provide the number of shares that you or your organization will own immediately after Closing, including those Shares purchased by you or your organization pursuant to this Purchase Agreement and those shares purchased by you or your organization through other transactions: --------------------------------------------- 3. Have you or your organization had any position, office or other material relationship within the past three years with the Company or its affiliates? _____ Yes _____ No If yes, please indicate the nature of any such relationships below: -------------------------------------------------------------- -------------------------------------------------------------- -------------------------------------------------------------- APPENDIX III PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE The undersigned, an officer of, or other person duly authorized by - ----------------------------------------------------------------------------- [fill in official name of individual or institution] hereby certifies that he/she/it is the Purchaser of the shares evidenced by the attached certificate, and as such, sold such shares on ________________, 200__ in accordance with Registration Statement number 333-________________, and complied with the requirement of delivering a current prospectus in connection with such sale. Print or Type: Name of Purchaser (Individual or Institution): - ------------------------------------------------------------------------------ Name of Individual representing Purchaser (if an Institution) - ------------------------------------------------------------------------------ Title of Individual representing Purchaser (if an Institution): - ------------------------------------------------------------------------------ Signature: Individual Purchaser or Individual representing Purchaser: - ------------------------------------------------------------------------------ EX-99.2 4 s75165.txt EXHIBIT 5 - SECOND AMENDMENT TO COM. AGMT. SECOND AMENDMENT TO STRATEGIC BUSINESS COMBINATION AGREEMENT THIS SECOND AMENDMENT TO STRATEGIC BUSINESS COMBINATION AGREEMENT (the "Second Amendment"), dated as of November 5th, 2001, is entered into by and among STEAG Electronic Systems, AG, an Aktiengesellschaft organized and existing under the laws of the Federal Republic of Germany ("STEAG"), and Mattson Technology, Inc., a Delaware corporation ("Mattson"). RECITALS A. Mattson and STEAG have entered into that certain Strategic Business Combination Agreement, dated as of June 27, 2000, as amended December 15, 2000 (the "Agreement"). B. Mattson has caused Silicon Valley Bank to amend the terms of that certain Standby Letter Of Credit No. SVB00IS3367, dated December 29, 2000, as amended September 20, 2001 (the "Letter of Credit"). C. STEAG and Mattson desire to amend the Agreement as set forth below. NOW, THEREFORE, in consideration of the agreements, and subject to the satisfaction or waiver of the conditions herein contained, the parties hereby agree as follows: 1. Definitions. Unless otherwise defined herein or the context otherwise requires, capitalized terms used in the Second Amendment shall have the respective meanings ascribed to such terms in the Agreement. Upon the effectiveness of the Second Amendment, the terms defined in the Second Amendment shall be incorporated into the Agreement as if such terms were originally defined therein. 2. Second Amendment Closing. The closing of the transactions contemplated hereby shall take place, and the amendments to the Agreement contained herein shall become effective, upon a closing (the "Second Amendment Closing") which shall take place upon November 5th, 2001 (or on such other date as the parties agree, the "Second Amendment Closing Date"), at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 525 University Avenue, Eleventh Floor, Palo Alto, CA 94301, or at such other location as the parties agree. 3. Post Closing Adjustments. Section 2.9 of the Agreement shall be amended with the addition of the following paragraphs immediately after Section 2.9(d) of the Agreement: "(e) Agreement on Amounts Due. Notwithstanding the foregoing provisions of this Section 2.9(d): (i) the amount of fiscal year 2000 profit due to STEAG from STEAG RTP Systems GmbH (the predecessor in interest to Mattson Thermal Products GmbH, or "MTP"), is agreed and stipulated by the parties to be DM 19,747,143.03 (the "MTP Profit"); (ii) the amount of fiscal year 2000 profit due to STEAG from STEAG MicroTech GmbH (the predecessor in interest to Mattson Wet Products GmbH or "MWP") is agreed and stipulated by the parties to be DM 3,478,184.72 (the "MWP Profit"); (iii) the difference between such aggregate profit payments and the Year 2000 Profit Estimate due to STEAG from Mattson pursuant to Section 2.9(d) (the "Profit Differential Payment") is agreed and stipulated to by DM 13,757,682.70; and (iv) the date on which each of the MTP Profit, MWP Profit and the Profit Differential Payment shall bear interest from April 1, 2001 at the rate of six percent (6%) per annum until the earliest of (A) the payment to STEAG by MTP, MWP, or Mattson of such amounts or (B) the execution and delivery of the Profits Note (as defined below). (f) Method of Payment. Not later than the Second Amendment Closing, MTP, MWP and Mattson shall pay amounts equal to the MTP Profit, the MWP Profit and the Profit Differential Payment, respectively, in cash by wire transfer to STEAG; provided, that Mattson may, at its option by written notice to STEAG, cause STEAG to offset the Profit Differential Payment against the proceeds of the STEAG Loan. With respect to interest payments due with respect to the MTP Profit, the MWP Profit, and the Profit Differential Payment, Mattson may, at its option by written notice to STEAG, cause STEAG to offset such interest accrued for the period from July 2, 2001 to the Second Amendment Closing Date against the proceeds of the STEAG Loan).(1) - ------------------- (1) Interest accrued for the period from April 1, 2001, to July 1, 2001, will be capitalized and added to the principal balance of the Profits Note, while interest accrued for the period from July 2, 2001 will be paid in cash at the Second Amendment Closing, either in the form of a cash payment by MTP or MWP to STEAG, or by an offset against the proceeds of the STEAG loan. (g) Waiver. The agreements and stipulations contained in Section 2.9(e) as to the amounts due under Section 2.9 of the Agreement shall be final and irrevocable, and in consideration of the payment of the MTP Profit, the MWP Profit, and the Profit Differential Payment, and subject to the making of the STEAG Loan, each party hereby waives any right to dispute or contest the amounts set forth herein, either pursuant to the terms of the Agreement or otherwise." 4. STEAG Loan. A new Section 2.10 of the Agreement shall be added which shall read in its entirety as follows: "2.10 STEAG Loan. Upon the satisfaction of the conditions to the obligations of STEAG to consummate the Second Amendment Closing, including but not limited to the receipt by STEAG of the MTP Profit and the MWP Profit and the execution and delivery to STEAG by Mattson of a promissory note (the "Profits Note") in the form attached as Exhibit A to the Second Amendment, dated as of the Second Amendment Closing Date, and in a principal amount equal to [Thirty Seven Million Five Hundred Thirty-Seven Thousand Seven Hundred Fifty-Five 61/100 Deutsche Marks (DM 37,537,755.61)] (the "Profits Note Principal Amount"),(2) STEAG shall make a loan (the "STEAG Loan") to Mattson of the Profits Note Principal Amount. Upon the Second Amendment Closing, STEAG shall pay to Mattson the Profits Note Principal Amount, in cash by wire transfer to Mattson, net of any offset with respect to the Profit Differential Payment or interest accrued for the period from July 2, 2001 to the Second Amendment Closing Date." - ------------------- (2) The Profits Note Principal Amount assumes the treatment of interest set forth in Footnote 1, above. 5. Additional Covenants of Mattson. A new Section 6.24 shall be added to the Agreement to read in its entirety as follows: "6.24 Additional Covenants of Mattson. From the date of the Second Amendment until the Mattson Secured Note (as may be amended from time to time) and the Profits Note have been repaid in full, except as expressly contemplated or permitted by this Agreement or to the extent STEAG shall otherwise consent in writing, neither Mattson nor any of its subsidiaries shall: (a) acquire or agree to acquire by merging or consolidating with, or by purchasing all or a substantial equity interest in or all or a substantial portion of the assets of, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets other than assets acquired in the ordinary course of business which are immaterial in nature or amount (any of such transaction, an "Acquisition Transaction"); provided, however, that Mattson or its subsidiaries may agree to, or consummate, an Acquisition Transaction, provided that (i) the consideration to be paid by Mattson in such Acquisition Transaction shall consist solely of newly issued shares of Mattson Common Stock, (ii) in the event of a merger or consolidation, Mattson is the surviving corporation upon consummation of such Acquisition Transaction, and (iii) the holders of Mattson Common Stock immediately prior to such Acquisition Transaction shall, immediately following such Acquisition Transaction, own more than 50% of the Mattson Common Stock outstanding after such Acquisition Transaction, and (iv) neither the consummation of such Acquisition Transaction, nor any of the agreements relating to such Acquisition Transaction, would impair or limit the ability of Mattson to repay any amounts due under the Profits Note or the Prolongation Note; and provided, further; that Mattson or its subsidiaries may enter into intercompany consolidation or merger transactions if such transactions would not otherwise impair or limit the ability of Mattson to repay any amounts due under the Profits Note or the Prolongation Note; (b) (i) declare, set aside or pay any dividends on or make other distributions in respect of any of its capital stock, (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock or (iii) directly or indirectly repurchase, redeem or otherwise acquire, any shares of its capital stock; (c) incur any indebtedness for money borrowed or issue any debt securities; assume, guarantee, or otherwise become liable or responsible for the obligations of any other person; or make any loans or capital contributions to, or investments in, any other person, except for Authorized New Debt. For the purposes of this Agreement, "Authorized New Debt" means (i) a credit line with Tokyo Mitsubishi Bank, not to exceed (Y)900 million in principal amount; (ii) a credit line with Silicon Valley Bank, not to exceed US $20 million in principal amount; (iii) an offering of subordinated debt securities to the public or to Qualified Institutional Buyers (as defined in rules promulgated under the Securities Act) not to exceed US $100 million in principal amount; or (iv) a syndicated bank loan, not to exceed US $50 million in principal amount; or (d) agree in writing to do any of the foregoing." 6. Fees and Expenses. A new Section 6.25 shall be added to the Agreement to read in its entirety as follows: "6.25 Fees and Expenses. At the Second Amendment Closing, Mattson shall pay to STEAG an amount in cash equal to STEAG's out of pocket expenses (including legal fees and disbursements), not to exceed $30,000, incurred through the Second Amendment Closing Date in connection with the preparation, negotiation, and execution of the Second Amendment and the transactions contemplated hereby (the "STEAG Expenses")." 7. Prolongation Note. A new subsection (m) shall be added to Section 7.3 of the Agreement to read in its entirety as follows: "(m) Prolongation Note. At the Second Amendment Closing, Mattson shall make and deliver to STEAG an amendment and restatement of the Mattson Secured Note in the form attached as Exhibit B to the Second Amendment (the "Prolongation Note")." 8. Tax Indemnification. The following sentence is hereby added after the first sentence of Section 9.1(b) of the Agreement: "Notwithstanding the foregoing, any Damages arising from a breach of Section 3.13 that relate to the STEAG Subsidiaries, and the subsequent obligation of STEAG to indemnify Mattson for Damages resulting therefrom, shall be subject to offset by any refunds for overpayment of taxes, or other similar gains or payments, made to or recognized by any STEAG Subsidiary that relates to tax periods prior to the Closing. For the avoidance of doubt, by way of example and without limitation, in the event that STEAG RTP Systems, Inc. (or its successor in interest) shall be liable to the State of California for any Taxes for any tax period ending on or before the Closing Date (the amount of such liability, the "California Tax Liability"), and in the event that STEAG RTP Systems GmbH (or its successor in interest) shall be eligible to receive a credit for the overpayment of Taxes in the Federal Republic of Germany for any tax period ending on or before the Closing Date (the amount of such credit, the "German Tax Credit"), then STEAG shall not be obligated to indemnify Mattson under this Section 3.13 unless the California Tax Liability shall exceed the German Tax Credit, and then STEAG's liability for indemnification shall be limited to the amount by which the California Tax Liability shall exceed the German Tax Credit." 9. Conditions to Second Amendment Closing. The obligations of STEAG to consummate the Second Amendment Closing shall be subject to the satisfaction, or the waiver by STEAG, of the following conditions: (a) Profits Note. Mattson shall have made and delivered to STEAG the Profits Note, and shall not, as of the Second Amendment Closing Date, have suffered an Event of Default (as defined in the Profits Note) under the Profits Note, nor shall there exist any facts or circumstances which would constitute (with or without notice or lapse of time or both) and Event of Default thereunder. (b) Profit Payments. MTP and MWP shall have delivered the payment of the MTP Profit and the MWP Profit, respectively, and shall have paid the Accrued Interest thereon, in cash, by execution of the Profits Note, or a permitted combination thereof. (c) Globalzession. Mattson shall have executed and delivered the "Globalzession" in the form attached as Exhibit C hereto, and such Globalzession shall remain in full force and effect. (d) Prolongation Note. Mattson shall have made and delivered to STEAG the Prolongation Note, and shall not, as of the Second Amendment Closing Date, have suffered an Event of Default (as defined in the Prolongation Note) under the Prolongation Note, nor shall there exist any facts or circumstances which would constitute (with or without notice or lapse of time or both) an Event of Default thereunder. (e) Letter of Credit. The Letter of Credit, as amended, shall remain in full force and effect. (f) Amendment to Stockholder Agreement. Mattson and Brad Mattson shall have executed and delivered to STEAG an amendment to the Stockholder Agreement in the form attached as Exhibit D hereto, and such amendment shall remain in full force and effect. (g) Fees and Expenses. Mattson shall have paid to STEAG in immediately available funds an amount equal to the amount of the STEAG Expenses. IN WITNESS WHEREOF, STEAG and Mattson have caused this Second Amendment to be signed by their respective officers thereunto duly authorized as of the date first written above. MATTSON TECHNOLOGY, INC. By: /s/ Ludger Viefhues ------------------------ STEAG ELECTRONIC SYSTEMS, AG By: /s/ Michael Williams ------------------------ EX-99.3 5 s75166.txt EXHIBIT 6 - AMENDMENT TO STOCKHOLDER AGREEMENT AMENDMENT TO STOCKHOLDER AGREEMENT THIS STOCKHOLDER AGREEMENT (the "Amendment"), dated as of November 5th, 2001, is entered into by and among MATTSON TECHNOLOGY, INC., a Delaware corporation (the "Company") STEAG Electronic Systems, AG, an Aktiengesellschaft organized and existing under the laws of the Federal Republic of Germany ("Stockholder"), and BRAD MATTSON, an individual. ("Mattson"). RECITALS A. The Company, Stockholder and Mattson have entered into that certain Stockholder Agreement, dated as of December 15, 2000 (the "Agreement"). B. The Company, Stockholder and Mattson desire to amend the Agreement as set forth below. NOW, THEREFORE, in consideration of the agreements herein contained, the parties hereby agree that the entire text of each of Section 1.4 of the Agreement and Article 4 (commencing with Section 4.1 and ending in Section 4.6) are hereby deleted in their entirety and replaced in each case with the notation "[Deleted]", provided that the Article and Section numbers shall remain in place to preserve the original numbering of the Agreement. IN WITNESS WHEREOF, the Company Stockholder and Mattson have executed this Amendment as of the date first written above. BRAD MATTSON MATTSON TECHNOLOGY, INC. /s/ Brad Mattson By: /s/ Ludger Viefhues - ----------------- ----------------------- STEAG ELECTRONIC SYSTEMS, AG By: /s/ Michael Williams ------------------------ EX-99.4 6 s74218.txt EXHIBIT 7 - JOINT FILING AGREEMENT JOINT FILING AGREEMENT The undersigned agree, in accordance with the provisions of Rule 13d-1(k)(1) promulgated under the Securities Exchange Act of 1934, as amended, to the joint filing on behalf of each of them of Amendment No. 1 to Schedule 13D (including additional amendments thereof) pertaining to the ownership by them of common stock, par value $0.001 per share, of Mattson Technology, Inc., a Delaware corporation. The undersigned consent and agree to the inclusion of this Agreement as an exhibit to such joint filing. The undersigned further agree that each person on whose behalf such statement is filed is responsible for its timely filing and for the timely filing of any amendment thereto and for the completeness and accuracy of the information concerning such person contained therein and that such person is not responsible for the completeness and accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that such information is inaccurate. This Agreement may be executed in counterparts, all of which taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 7th day of May 2002. STEAG ELECTRONIC SYSTEMS AG By: /s/ Michael Williems ------------------------------------- Name: Michael Williems Title: Chairman of the Board of Managers By: /s/ Andreas Neipp ------------------------------------- Name: Andreas Neipp Title: Executive Manager STEAG AG By: /s/ Michael Williems ------------------------------------- Name: Michael Williems Title: Member of the Board of Managers By: /s/ Michael Schuh ------------------------------------- Name: Michael Schuh Title: Officer with Statutory Authority RAG AG By: /s/ Dr. Thomas Kruper ------------------------------------- Name: Dr. Thomas Kruper Title: Officer with Statutory Authority By: /s/ Dr. Norbert Schellen ------------------------------------ Name: Dr. Norbert Schellen Title: Officer with Statutory Authority -----END PRIVACY-ENHANCED MESSAGE-----