-----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, UMseKPYcoOnFpdcMeeU7XwAp7JjjxxoIWr28QCmQgxWRxkLCuWpsxwPjHrzAhs0J +pHeRdyDwB5XfZUSjkgo6w== 0000950172-04-002491.txt : 20041029 0000950172-04-002491.hdr.sgml : 20041029 20041029131614 ACCESSION NUMBER: 0000950172-04-002491 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20041029 DATE AS OF CHANGE: 20041029 GROUP MEMBERS: RAG AKTIENGESELLSCHAFT GROUP MEMBERS: STEAG AKTIENGESELLSCHAFT 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: 005-46189 FILM NUMBER: 041105350 BUSINESS ADDRESS: STREET 1: 2800 BAYVIEW DR CITY: FREMONT STATE: CA ZIP: 94538 BUSINESS PHONE: 5106575900 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: STEAG ELECTRONIC SYSTEMS AG CENTRAL INDEX KEY: 0001077320 IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: RUTTENSCHEIDER STRASSE 1-3 CITY: ESSEN STATE: 2M ZIP: 45128 BUSINESS PHONE: 4152686203 FORMER COMPANY: FORMER CONFORMED NAME: STEAG ELECTRONIC SYSTEMS GMBH DATE OF NAME CHANGE: 19990121 SC 13D/A 1 pa151579.txt SC 13D - AMENDMENT NO. 4 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 4)(1) Mattson Technology, Inc. (Name of Issuer) Common Stock, Par Value $0.001 Per Share (Title of Class of Securities) 57723100 (CUSIP Number) Andreas Neipp VP Planning and Coordination STEAG Electronic Systems AG Ruettenscheider Strasse 1-3 45128 Essen, Germany Telephone: 011-49-201-801-2215 (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 Telephone: 650-470-4500 October 27, 2004 (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), 13d-1(f) or 13d-1(g), check the following box [ ]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. 1 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 Page 2 of 12 Pages - ----------------------------- ---------------------------- - ---------- --------------------------------------------------------------------- 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 (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 8,861,144 SHARES -------- --------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY 271,147 OWNED BY -------- --------------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 8,861,144 REPORTING -------- --------------------------------------------------- 10 SHARED DISPOSITIVE POWER PERSON 271,147 WITH - ---------- --------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,132,291 - ---------- --------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ---------- --------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.5% (see Item 5) - ---------- --------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) CO - ---------- --------------------------------------------------------------------- SCHEDULE 13D - ----------------------------- ---------------------------- CUSIP No. 57723100 Page 3 of 12 Pages - ----------------------------- ---------------------------- - ---------- --------------------------------------------------------------------- 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 8,861,144 SHARES -------- --------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY 271,147 OWNED BY -------- --------------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 8,861,144 REPORTING -------- --------------------------------------------------- 10 SHARED DISPOSITIVE POWER PERSON 271,147 WITH - ---------- --------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,132,291 - ---------- --------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ---------- --------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.5% (see Item 5) - ---------- --------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) CO - ---------- --------------------------------------------------------------------- - ----------------------------- ---------------------------- CUSIP No. 57723100 Page 4 of 12 Pages - ----------------------------- ---------------------------- - ---------- --------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON STEAG 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) Not applicable - ---------- --------------------------------------------------------------------- 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 0 SHARES -------- --------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY 0 OWNED BY -------- --------------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 0 REPORTING -------- --------------------------------------------------- 10 SHARED DISPOSITIVE POWER PERSON 0 WITH - ---------- --------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 - ---------- --------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ---------- --------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% (see Item 5) - ---------- --------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) CO - ---------- --------------------------------------------------------------------- This Amendment No. 4 to Schedule 13D (this "Amendment No. 4") is being filed by STEAG Electronic Systems AG ("SES"), RAG Aktiengesellschaft ("RAG") and STEAG Aktiengesellschaft ("STEAG") pursuant to Rule 13d-2(a) of the Rules and Regulations promulgated under the Securities and Exchange Act of 1934, as amended, to amend and supplement the statement on Schedule 13D filed on January 11, 2001 by SES and STEAG, as amended and supplemented by SES, STEAG and RAG by Amendment No. 1 on May 8, 2002, Amendment No. 2 on February 11, 2004 and Amendment No. 3 on February 13, 2004 (the "Amended Statement"), with respect to the common stock, par value $0.001 per share ("Mattson Stock"), of Mattson Technology, Inc., a Delaware corporation ("Mattson"). STEAG is filing this Amendment No. 4 jointly with SES and RAG solely to report that it no longer beneficially owns any shares of Mattson Stock. Capitalized terms used in this Amendment No. 4 and not otherwise defined herein have the meanings set forth in the Amended Statement. 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. This Amendment No. 4 is being filed to reflect the receipt of 271,147 shares of Mattson Stock by West STEAG Partners GmbH, a German limited liability corporation ("WSP"), pursuant to the terms of the acquisition of Vortek Industries Ltd., a corporation amalgamated under the laws of British Columbia, Canada ("Vortek"), by Mattson on October 27, 2004 (the "Vortek Transaction"). WSP is a venture capital firm, 50% of the capital of which is owned by SES. RAG and SES may be deemed to beneficially own the shares of Mattson Stock acquired by WSP in the Vortek Transaction based on SES's ownership of 50% of the capital of WSP. WSP does not act, and has no agreement with SES or RAG to act, together with SES and/or RAG for the purpose of acquiring, holding, voting or disposing of Mattson Stock. Accordingly, WSP does not beneficially own any of the shares of Mattson Stock beneficially owned by SES and RAG other than the 271,147 shares of Mattson Stock that WSP received in the Vortek Transaction. ITEM 2. IDENTITY AND BACKGROUND. STEAG, which previously owned directly all of the capital stock of SES, transferred its entire equity interest in SES to SES Beteiligungs-GmbH, a German limited liability corporation and an indirect, wholly owned subsidiary of RAG ("BG"). Based in part on the organizational instruments and internal governance rules of RAG and its subsidiaries, as well as the fact that all of the members of the Supervisory Board of SES are designated by RAG, all voting and investment power with respect to the Mattson Stock owned by SES is controlled by RAG. Accordingly, BG has no power to vote or direct the voting of, and no power to dispose of or direct the disposition of, the shares of Mattson Stock beneficially owned by SES. Item 2 of the Amended Statement is hereby amended and restated to read in its entirety as follows: (a) This Statement is filed by SES and RAG. Each of SES and RAG is organized under the laws of the Federal Republic of Germany. SES is the direct holder of shares of Mattson Stock. RAG owns, indirectly, all of the capital stock of SES and, as a result, may be deemed to be the indirect beneficial owner of the shares of Mattson Stock held directly by SES. (b) The business address of SES 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. RAG is an international chemical, mining, energy and real estate group. (d) During the last five years, none of SES, RAG or, to the best knowledge of each of SES 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, RAG or, to the best knowledge of each of SES 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 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 Amended Statement is hereby amended and supplemented by adding the following language at the end thereof: Pursuant to the terms of the definitive agreement between Mattson and Vortek relating to the Vortek Transaction, upon consummation of the Vortek Transaction on October 27, 2004, WSP received, and RAG and SES may be deemed to have acquired beneficial ownership of 271,147 shares of Mattson Stock in exchange for WSP's investment in stock and debt of Vortek. ITEM 4. PURPOSE OF TRANSACTION. Item 4 of the Amended Statement is hereby amended and supplemented by adding the following language at the end thereof: WSP is a venture capital firm that had previously invested in the stock and debt of Vortek. WSP received, and RAG and SES may be deemed to have acquired beneficial ownership of 271,147 shares of Mattson Stock in the Vortek Transaction solely as a result of Mattson's acquisition of Vortek in exchange for newly issued shares of Mattson Stock. In connection with the Vortek Transaction, Vortek and certain other investors in Vortek entered into a Stock Registration and Restriction Agreement, dated as of October 27, 2004, pursuant to which Mattson agreed to register the shares of Mattson Stock issued in the Vortek Transaction under the Securities Act of 1933, as amended (the "Securities Act"), and the recipients of such shares of Mattson Stock agreed to certain restrictions on the transfer of such shares. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Item 5(a) of the Amended Statement is hereby amended and restated to read in its entirety as follows: (a) SES and RAG each beneficially own 9,132,291 shares of Mattson Stock, which represents approximately 17.5% of the outstanding shares of Mattson Stock based on 52,209,589 shares of Mattson Stock that Mattson has advised SES was outstanding as of October 27, 2004 (the "Outstanding Shares"). Dr. Jochen Melchior, Chairman of the Supervisory Board of SES, has informed SES that he beneficially owns 275 shares of Mattson Stock and options to purchase 85,000 shares of Mattson Stock, of which options to acquire 39,500 shares are currently vested and exercisable or will be vested and exercisable within 60 days. Accordingly, Dr. Melchior holds 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 Amendment, none of SES, RAG nor, to the best knowledge of each of SES and RAG, any of the individuals referred to in Schedule A, beneficially owns any Mattson Stock or securities convertible into Mattson Stock. Item 5(b) of the Amended Statement is hereby amended and restated to read in its entirety as follows: (b) Each of SES (directly) and RAG (indirectly) has the sole power to vote and dispose of 8,861,144 shares of Mattson Stock. In addition, each of SES (directly) and RAG (indirectly) may be deemed to share with WSP the power to direct the vote and disposition of the 271,147 shares of Mattson Stock received by WSP in the Vortek Transaction. WSP is organized under the laws of Germany. The business address of WSP is Ruettenscheider Strasse 1-3, 45128 Essen, Germany. Its principal business is the making of venture capital investments. The name, citizenship, business address, principal occupation or employment and certain other information relating to the executive officers and directors of WSP are set forth on Schedule B attached hereto and incorporated by reference herein. During the last five years, to the best knowledge of each of SES and RAG, neither WSP nor any of the individuals referred to in Schedule B, 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. Dr. Melchior has informed SES that he has the sole power to vote and dispose of 39,775 shares of Mattson Stock, 39,500 of which he has the right to acquire pursuant to options that are currently exercisable or will be exercisable within 60 days. Item 5(c) of the Amended Statement is hereby amended and restated to read in its entirety as follows: (c) On October 27, 2004, Dr. Melchior received 275 shares of Mattson Stock pursuant to the Vortek Transaction in exchange for his investment in Vortek. Dr. Melchior had invested in the stock and debt of Vortek pursuant to a co-investment agreement with WSP. Dr. Melchior is also Chairman of the Board of Directors of Mattson and Chairman of the Supervisory Board of WSP. Item 5(e) of the Amended Statement is hereby amended and restated to read in its entirety as follows: (e) As of September 10, 2004, STEAG ceased to be the beneficial owner of more than 5% of Mattson Stock. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Item 6 of the Amended Statement is hereby amended and supplemented by incorporating by reference herein the information set forth or incorporated by reference in Items 4 and 5 of this Amendment and by adding the following language at the end thereof: In connection with the Vortek Transaction, WSP and certain other former investors in Vortek, including Dr. Melchior, entered into a Stock Registration and Restriction Agreement with Mattson, dated as of October 27, 2004, pursuant to which Mattson agreed to register the shares of Mattson Stock issued in the Vortek Transaction under the Securities Act, and the recipients of such shares of Mattson Stock agreed to certain restrictions on the transfer of such shares. In addition, 104,584 of the shares of Mattson Stock received by WSP in the Vortek Transaction are subject to an Escrow Agreement, dated as of October 27, 2004, by and among Mattson, WSP, certain other investors in Vortek, and U.S. Bank, National Association, as escrow agent, pursuant to which such shares are subject to indemnification claims by Mattson for a period of 12 months from the date of the Escrow Agreement and, accordingly, may be forfeited by WSP in the event that Mattson is entitled to indemnification with respect to the Vortek Transaction. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Item 7 of the Amended Statement is hereby amended and supplemented by adding the following exhibits. Exhibit No. Exhibit Name ----------- ------------ 12 Joint Filing Agreement, dated October 27, 2004, by and between STEAG Electronic Systems AG and RAG Aktiengesellschaft 13 Stock Registration and Restriction Agreement, dated as of October 27, 2004, by and among Mattson Technology Inc., West STEAG Partners GmbH and certain other former investors in Vortek Industries, Ltd. 14 Escrow Agreement, dated as of October 27, 2004, by and among Mattson Technology Inc., West STEAG Partners GmbH, certain other former investors in Vortek Industries, Ltd., and U.S. Bank, National Association, as escrow agent 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: October 28, 2004 STEAG ELECTRONIC SYSTEMS AG By: /s/ Michael Willems ------------------------------------- Name: Michael Willems Title: Chairman of the Board of Directors By: /s/ Arnold Gehlen ------------------------------------- Name: Arnold Gehlen Title: Member of the Board of Directors RAG AKTIENGESELLSCHAFT By: /s/ Christoph Mueller ------------------------------------- Name: Christoph Mueller Title: Senior Vice President By: /s/ Dr. Norbert Schellen ------------------------------------- Name: Dr. Norbert Schellen Title: Legal Counsel STEAG AKTIENGESELLSCHAFT By: /s/ Michael Willems ------------------------------------- Name: Michael Willems Title: Member of the Board of Directors By: /s/ Arnold Gehlen ------------------------------------- Name: Arnold Gehlen Title: Head of Account Department Schedule A to the Amended Statement is hereby amended and restated to read in its entirety as follows: SCHEDULE A A. DIRECTORS AND EXECUTIVE OFFICERS OF RAG. The following table sets forth the name, current business or home address and present principal occupation of each of the executive officers and directors of RAG. Unless otherwise indicated, each of these individuals is a 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. WERNER MUELLER Chairman of the Management Board of RAG RAG AG Chairman of the Supervisory Board of STEAG Rellinghauser Strasse 1-11 45128 Essen Germany PROF. DR. DR. UTZ-HELLMUTH FELCHT Member of the Management Board of RAG RAG AG Member of the Supervisory Board of STEAG Rellinghauser Strasse 1-11 45128 Essen Germany BERND TOENJES Member of the Management Board of RAG RAG AG Rellinghauser Strasse 1-3 45128 Essen Germany DR. PETER SCHOERNER Member of the Management Board of RAG RAG AG Member of the Supervisory Board of STEAG Rellinghauser Strasse 1-11 45128 Essen Germany ULRICH WEBER Member of the Management Board of RAG RAG AG Rellinghauser Strasse 1-11 45128 Essen Germany DR. WULF H. BERNOTAT Chairman of the Supervisory Board of RAG E. ON AG Chairman of the Board of Management and E. ON-Platz Chief Executive Officer of E. ON AG 40479 Dusseldorf Germany HUBERTUS SCHMOLDT First Deputy Chairman of the Supervisory Board of RAG Konigsworther Platz 6 Chief Executive Officer of the IG BCE 30167 Hanover Germany FRITZ KOLLORZ Deputy Chairman of the Supervisory Board of RAG Industriegewerkschaft Bergban, Chemie, Energie Deputy Chairman of the Supervisory Board of STEAG Konigsworther Platz 6 Member of the Executive Main Board of the IG BCE 30167 Hannover Germany DR. GERT MAICHEL Deputy Chairman of the Supervisory Board of RAG RWE AG Member of the Management Board of RWE AG Huyssenallee 2 45128 Essen Germany HANS-JUERGEN SCHNEIDER Deputy Chairman of the Supervisory Board of RAG RAG AG Chairman of the Working Group of Works Rellinghauser Strasse 1-11 Councils in the RAG Group 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 August-Thyssen-Strasse 1 40211 Dusseldorf Germany RALF BLAUTH Member of the Supervisory Board of RAG Degussa AG Chairman of the Worker's Council of Degussa AG Paul-Baumann-Strasse 1 Building 1425 45775 Marl Germany MR. KLAUS BRANDNER Economic and Labor Market- political speaker of the German Parliament Social Democratic Party (SPD) of the Lower House of Platz der Republik German Parliament 11011 Berlin Member of the Supervisory Board of RAG 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 AG 40479 Dusseldorf Germany WOLFGANG JUNGE Member of the Supervisory Board of RAG Schulstrasse 94 Chairman of the Worker's Council of Mining 59192 Bergkamen East (Bergwerk Ost) Germany DR. MANFRED KRUEPER Member of the Supervisory Board of RAG E.ON AG Member of the Management Board of E.ON AG E.ON-Platz 1 40479 Dusseldorf 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 DR. NORBERT LAMMERT Member of the Supervisory Board of RAG German Parliament Vice President of German Parliament Platz der Republik 11011 Berlin Germany HARRY LAUFER Member of the Supervisory Board of RAG Bergwerk Saar Chairman of the General Works Council of the Saar Mine Kaarlsbrunn 66352 Grossrosseln Germany PROF. H.C. DR. ULRICH MIDDELMANN Member of the Supervisory Board of RAG Thyssen Krupp AG Deputy Chairman of the Management Board of ThyssenKrupp AG August-Thyssen-Strasse1 40211 Dusseldorf Germany HEINZ PUTZHAMMER Member of the Supervisory Board of RAG Bundesvorstand des Deutschen Member of the Federal Executive Board of the DGB Gewerkschaftsbundes Henriette-Herz-Platz 2 10178 Berlin Germany HANS W. REICH Member of the Supervisory Board of RAG Kreditanstalt fur Wiederaufbau Management Board Spokesman of the Kreditanstalt fur Palmengartenstrasse 5-9 Wiederaufbau 60325 Frankfurt 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 PROF. DR. FRANZ-JOSEF WODOPIA Member of the Supervisory Board of RAG Grosse Egge 11 Member of the Supervisory Board of STEAG 30826 Garbsen Head of the Mining and Energy Industry Germany Section of the IG BCE MICHEL WURTH Member of the Supervisory Board of RAG Arcelor Chief Financial Officer, Senior Executive Vice 19, Avenue de la Liberte President of Arcelor L-2930 Luxembourg
B. DIRECTORS AND EXECUTIVE OFFICERS OF SES The following table sets forth the name, current business or home address and present principal occupation of each of the executive officers and directors of SES. Each of these individuals is a citizen of the Federal Republic of Germany.
POSITION WITH SES AND PRESENT NAME AND BUSINESS OR HOME ADDRESS PRINCIPAL OCCUPATION OR EMPLOYMENT 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 ARNOLD GEHLEN Member of the Management Board of SES STEAG AG Ruettenscheider Strasse 1-3 45128 Essen Germany DR. JOCHEN MELCHIOR Chairman of the Management Board of STEAG STEAG AG Chairman of the Supervisory Board of SES Ruettenscheider Strasse 1-3 45128 Essen Germany WERNER BRUST-HAAS Vice Chairman of the Supervisory Board of SES Kelterstrasse 7 74321 Bietigheim-Bissingen Germany HANS-PETER KNAPP Member of the Supervisory Board of SES See-Strasse 16 76703 Kraichtal Germany CARMEN-SYLVIA KOESTER Member of the Supervisory Board of SES RAG Aktiengesellschaft Senior Vice President Head of Corporate Rellinghauser Strasse 1-11 Development/M&A 45128 Essen Germany DR. JUERGEN-JOHANN RUPP Member of the Supervisory Board of SES STEAG AG Ruettenscheider Strasse 1-3 45128 Essen Germany DR. HEINZ SCHOLTHOLT Member of the Supervisory Board of SES STEAG AG Member of the Management Board of STEAG Ruettenscheider Strasse 1-3 45128 Essen Germany PETER SCHWARZ Member of the Supervisory Board of SES STEAG AG Member of the Supervisory Board of STEAG Ruettenscheider Strasse 1-3 45128 Essen Germany DR. JOERG TERRAHE Member of the Supervisory Board of SES STEAG AG Member of the Management Board of STEAG Ruettenscheider Strasse 1-3 45128 Essen Germany ERNST WUNDERLICH Member of the Supervisory Board of SES Gabriel-von-Seidl-Strasse 35a 82031 Gruenwald Germany
SCHEDULE B DIRECTORS AND EXECUTIVE OFFICERS OF WEST STEAG PARTNERS. The following table sets forth the name, current business or home address and present principal occupation of each of the executive officers and directors of West STEAG Partners. Each of these individuals is a citizen of the Federal Republic of Germany.
NAME AND BUSINESS OR HOME ADDRESS POSITION WITH WEST STEAG PARTNERS AND AND CITIZENSHIP PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT DR. HANS-GEORG BETZ Chief Executive Office of West STEAG Partners West STEAG Partners GmbH Mission College Blvd., Suite 1170 Santa Clara, CA 95054 USA DR. BERTHOLD LUETKE-DALDRUP Managing Director of West STEAG Partners West STEAG Partners GmbH Ruettenscheider Strasse 1-3 45128 Essen Germany DR. ROLF THALER Managing Director of West STEAG Partners West STEAG Partners GmbH Ruettenscheider Strasse 1-3 45128 Essen Germany DR. JOCHEN MELCHIOR Chairman of the Supervisory Board of West STEAG Partners STEAG AG Chairman of the Management Board of STEAG Ruettenscheider Strasse 1-3 Chairman of the Supervisory Board of SES 45128 Essen Germany MICHAEL WILLEMS Member of the Supervisory Board of West STEAG Partners STEAG AG Member of the Management Board of STEAG Ruettenscheider Strasse 1-3 Chairman of the Management Board of SES 45128 Essen Germany MR. JOACHIM VOSS Member of the Supervisory Board of West STEAG Partners West LB AG Head of Equity Investments, West LB AG Herzogstrasse 15 40217 Dusseldorf Germany PROFESSOR MICHAEL SCHEFCZYK Member of the Supervisory Board of West STEAG Partners Technical University of Dresden Professor, Technical University of Dresden Selliner Strasse 10 01109 Dresden Germany
EXHIBIT INDEX Exhibit No. Exhibit Name ----------- ------------ 12 Joint Filing Agreement, dated October 27, 2004, by and between STEAG Electronic Systems AG and RAG Aktiengesellschaft 13 Stock Registration and Restriction Agreement, dated as of October 27, 2004, by and among Mattson Technology Inc., West STEAG Partners GmbH and certain other former investors in Vortek Industries, Ltd. 14 Escrow Agreement, dated as of October 27, 2004, by and among Mattson Technology Inc., West STEAG Partners GmbH, certain other former investors in Vortek Industries, Ltd., and U.S. Bank, National Association, as escrow agent EX-99 2 pal150965.txt EXHIBIT 12 - JOINT FILING AGREEMENT Exhibit 12 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. 4 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 October 27, 2004. STEAG ELECTRONIC SYSTEMS AG By: /s/ Michael Willems ------------------------------ Name: Michael Willems Title: Chairman of the Board of Directors By: /s/ Arnold Gehlen ----------------------------- Name: Arnold Gehlen Title: Member of the Board of Directors RAG AKTIENGESELLSCHAFT By: /s/ Christoph Mueller ----------------------------- Name: Christoph Mueller Title: Senior Vice President By: /s/ Dr. Norbert Schellen ------------------------------ Name: Dr. Norbert Schellen Title: Legal Counsel EX-99 3 pal158511.txt EXHIBIT 13 - STOCK REGISTRATION AGREEMENT Exhibit 13 STOCK REGISTRATION AND RESTRICTION AGREEMENT This Stock Registration and Restriction Agreement ("Stock Agreement") is made and entered into as of October 27, 2004, by and between Mattson Technology, Inc. ("Mattson") on the one hand and each holder of securities of Vortek Industries Ltd. listed on the signature page to this Stock Agreement (the "Vortek Securityholders") on the other hand. Capitalized terms used but not specifically defined in this Stock Agreement have the meanings given to them in the Arrangement Agreement by and between Mattson and Vortek Industries Ltd. ("Vortek") (as the same may be amended from time to time, the "Arrangement Agreement"). WHEREAS, subject to the terms and conditions of the Arrangement Agreement, Mattson will acquire all of the outstanding capital stock and certain indebtedness of Vortek in exchange for the issuance and delivery (the "Stock Issuance") of up to an aggregate of one million five hundred thousand (1,500,000) shares of common stock, $0.001 par value, of Mattson (the "Mattson Common Shares") allocated among the Vortek Securityholders as specified in the Arrangement Agreement; and WHEREAS, among other rights and obligations of the parties set forth in this Agreement, Mattson desires to impose certain restrictions, and the Vortek Securityholders desire to obtain certain rights, relating to the sale and transfer of Mattson Common Shares issued in the Stock Issuance. NOW, THEREFORE, in consideration of the terms, covenants and conditions herein, given or made by each party hereto, and other good and valuable consideration, the receipt and sufficiency of which are is hereby acknowledged by each party receiving the same, the parties hereto hereby mutually agree as follows: 1. Exemptions from Securities Law Registration. (a) Generally. The Stock Issuance will be exempt from registration under the Securities Act of 1933, as amended (the "Securities Act"), under any of Regulation S promulgated by the United States Securities and Exchange Commission ("SEC") under the Securities Act (the "Regulation S Exemption"), or Rule 506 under Regulation D promulgated under the Securities Act (the "Regulation D Exemption"). The Stock Issuance will be exempt from or comply with applicable securities registration, prospectus delivery or qualification requirements of Canada and Germany. (b) Restricted Shares. Mattson Common Shares issued under the Regulation S Exemption or the Regulation D Exemption shall be considered "restricted securities" as defined in Rule 144(a)(3) promulgated under the Securities Act (the "Restricted Securities"), and the holders thereof will not re-offer or resell those restricted securities other than in conformity with the registration requirements of the Securities Act, or pursuant to Rule 144 promulgated thereunder, or pursuant to another available exemption from those requirements. Mattson agrees that, prior to the Stock Issuance, it will deliver written notice to each Vortek Securityholder identifying the relevant exemption under the Securities Act applicable to the Mattson Common Shares allocated to such Vortek Securityholder. (c) Legends on Stock Certificates. The certificates evidencing Mattson Common Shares shall bear legends imprinted on the certificates in accordance with the following provisions to the extent applicable: (1) Subject to Section l(c)(3), certificates representing Mattson Common Shares issued to each Vortek Securityholder under the Regulation S Exemption or the Regulation D Exemption shall bear the following restrictive legend: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED SECURITIES WITHIN THE MEANING OF, AND HAVE NOT BEEN REGISTERED UNDER, THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF (i) AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OR (ii) A WRITTEN OPINION OF THE LEGAL COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER AND FURNISHED AT THE EXPENSE OF THE HOLDER OF THIS CERTIFICATE THAT SUCH REGISTRATION IS NOT REQUIRED." (2) Notwithstanding any other provision set forth above and subject to Section l(c)(3) all certificates representing Mattson Common Shares also shall bear the following restrictive legend: "IN ADDITION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO ADDITIONAL CONTRACTUAL LIMITATIONS ON ANY SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION AS SET FORTH IN THAT CERTAIN STOCK REGISTRATION AND RESTRICTION AGREEMENT BY AND AMONG THE ISSUER AND CERTAIN HOLDERS OF SECURITIES OF VORTEK INDUSTRIES LTD., A COPY OF WHICH IS AVAILABLE WITHOUT CHARGE FROM THE SECRETARY OF THE ISSUER AT THE PRINCIPAL EXECUTIVE OFFICE OF THE ISSUER." (3) Mattson is permitted to issue stop transfer orders to its transfer agent to assure compliance with the legends set forth above. Certificates representing Mattson Common Shares that are reissued for sales in accordance with an effective registration statement filed pursuant to the Securities Act or for sales to the public in compliance with Rule 144 promulgated under the Securities Act will not bear the restrictive legends set forth in Sections in Section l(c)(l), and no certificates representing Mattson Common Shares that are reissued after the expiration of one hundred twenty (120) days after the Effective Time will bear the legend set forth in Section 1 (c)(2). (4) Upon the written request of a holder of any Mattson Common Share certificate, Mattson shall remove the restrictive legend (i) set forth Section 1 (c)(2) after the expiration of one hundred twenty (120) days after the Effective Time and/or (ii) set forth in Section l(c)(l) if such Mattson Common Shares are freely tradable under Rule 144 promulgated under the Securities Act. (d) Investment Representations. Each of the Vortek Securityholders, individually and not as to others, represents and warrants to Mattson, that it: (1) is receiving the Mattson Common Shares for its own account for investment, and not with a view to any public distribution thereof within the meaning of the Securities Act; (2) has sufficient experience in business, financial and investment matters to be able to evaluate the risks involved in the Mattson Common Shares and to make an informed investment decision with respect to Mattson Common Shares; and (3) either (A) is not a "U.S. Person" within the meaning of Rule 902(g) of Regulation S promulgated under the Securities Act, or (B) is an "accredited investor" within the meaning of Rule 501 (a) of Regulation D promulgated under the Securities Act. 2. Additional Resale Restrictions. In addition to any restrictions imposed by applicable laws (including without limitation Rule 144 promulgated under the Securities Act): (a) Percentage Resale Limitations. Each Vortek Securityholder agrees on behalf of itself (and not on behalf of any other Vortek Securityholder) that, during the period beginning from the date of the Stock Issuance and continuing to and including the date that is one hundred and twenty (120) calendar days after the Effective Time, it will not offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any Mattson Common Shares except as follows: (1) Each Vortek Securityholder may sell a number of Mattson Common Shares during the first sixty (60) days following the Effective Time equal to up to 25% of the total Mattson Common Shares allocable to that Vortek Securityholder (including in such total those Mattson Common Shares subject to the Escrow Fund) as provided in the Arrangement Agreement (such Vortek Securityholder's "Allocated Shares"), provided, that the number of such Allocated Shares sold in any seven (7) calendar day period will not exceed one-third (1/3) of the 25% amount; and (2) Each Vortek Securityholder may sell up to an additional 25% of its Allocated Shares after the first sixty (60) days following the Effective Time and before the date that is one hundred twenty (120) days after the Effective Time. (b) No Hedging or Other Indirect Transfers. Each Vortek Securityholder agrees that the restriction in Section 2(a) prohibits it from engaging in any hedging or other transaction which is designed to or reasonably expected to lead to or result in a sale or disposition of the Mattson Common Shares even if such shares would be disposed of by someone other than the Vortek Securityholder. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Mattson Common Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such shares. (c) Exceptions for Permitted Transfers. Notwithstanding anything in this Stock Agreement to the contrary, during the period that Mattson Common Shares are restricted under Section 2(a), each Vortek Securityholder may nevertheless transfer its Allocated Shares issued outside of the Escrow Fund and any interest in Mattson Common Shares held in the Escrow Fund or any right to receive such Allocated Shares and such interest in the Escrow Fund (i) as a bona fide gift or gifts, provided that the donee or donees thereof agree in writing reasonably satisfactory to Mattson to be bound by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of the holder or the immediate family of the holder, provided that the trustee of the trust agrees in writing reasonably satisfactory to Mattson to be bound by the restrictions set forth herein, and provided, further, that any such transfer will not involve a disposition for value, or (iii) if the Vortek Securityholder is a corporation, partnership or similar business or investment entity, to any affiliate of the holder (not to exceed two such affiliates per initial Vortek Security holder without Mattson's prior written consent not to be unreasonably withheld or delayed), provided that the affiliate agrees in writing reasonably satisfactory to Mattson to be bound by the restrictions set forth herein and provided, further, that any such transfer will not involve a disposition for value (each transferee pursuant to (i), (ii) and (iii) above a "Permitted Transferee"), If Mattson Common Shares so transferred have previously been included in the Registration Statement (as defined below), the Permitted Transferee will not be eligible to sell the Mattson Common Shares pursuant to the Registration Statement unless the Permitted Transferee is already named in the prospectus that is part of the Registration Statement, is not required to be so named under certain SEC policies or Mattson amends the Registration Statement to add that Permitted Transferee to the Prospectus. (d) When Restrictions End. The restrictions of Sections 2(a), 2(b) and 2(c) automatically cease upon the close of the Nasdaq National Stock Market (or such other national securities exchange or automated quotation system upon which shares of Mattson common stock are listed) on the 120th day following the Effective Time. However, for the avoidance of doubt, the Vortek Securityholders acknowledge that they cannot sell Mattson Common Shares held in the Escrow Fund except to the extent those shares are released from escrow pursuant to the Escrow Agreement. (e) No Premature Short Sales of Registered Shares. Each Vortek Securityholder further agrees that, if any of its Mattson Common Shares are registered for resale pursuant to Section 4 hereof, it will not make any short sale of Mattson Common Shares "against the box" or otherwise before the Registration Statement becomes effective. Each Vortek Securityholder acknowledges that any such short sale made prior to an effective registration statement is a violation of Section 5 of the Securities Act. This restriction applies notwithstanding any other provision of this Stock Agreement or any securities law exemptions otherwise referred to herein. (f) Material Nonpublic Information. Nothing in this Stock Agreement relieves any Vortek Securityholder or other person from liability under United States securities laws for engaging in any sales or purchases of Mattson securities while that person is aware of any material nonpublic information about Mattson. Any persons deemed to be affiliates of Mattson agree not to sell any shares of Mattson Common Shares in violation of the foregoing laws or in violation of the trading windows that Mattson establishes from time to time (and nothing in this Stock Agreement relieves any such affiliate from such restrictions). 3. Rule 144 Reporting. With a view to making available the benefits of certain rules and regulations of the SEC which may permit the sale of the Restricted Securities to the public without registration, Mattson agrees separately with each Vortek Securityholder to: (a) Make and keep adequate current public information available as those terms are defined in Rule 144(c) under the Securities Act, at all times after the Effective Time and until all Mattson Common Shares have been resold by the Vortek Securityholder or are eligible to be resold by that Vortek Securityholder pursuant to Rule 144(k); (b) So long as a Vortek Securityholder owns any Restricted Securities, furnish to the Vortek Securityholder forthwith upon request a written statement by Mattson as to its compliance with the public information requirements of Rule 144(c). 4. Registration Rights. (a) Filing and Effectiveness. Mattson shall use its commercially reasonable efforts to prepare and file, on the first business day following the Effective Time, a registration statement on Form S-3 (including any preliminary or final prospectus, exhibit, supplement or amendment, the "Registration Statement") for an offering to be made on a continuous basis pursuant to Rule 415 promulgated under the Securities Act by the Vortek Securityholders and any Permitted Transferee that a Vortek Securityholder has identified in a written notice delivered to Mattson at least two (2) days prior to the filing of such Registration Statement, covering all of the Mattson Common Shares other than those Mattson Common Shares deposited in the Escrow Fund (the "Registrable Shares"). After the filing of the Registration Statement, Mattson will use its commercially reasonable efforts to cause the SEC to declare the Registration Statement effective under the Securities Act as promptly as possible within the rules, regulations and policies of the SEC and applicable United States securities laws, and otherwise use all commercially reasonable efforts to make a request for acceleration of effectiveness after filing a Form 8-K with required financial statement information so that the Registration Statement becomes effective as promptly as possible after the Effective Time. Mattson agrees to notify each Vortek Securityholder promptly upon the Registration Statement, and any post-effective amendment thereto, being declared effective by the SEC. The parties acknowledge that one of the factors impacting Mattson's ability to file the Form 8-K is Vortek's delivery of audited financials prepared in accordance with United States generally accepted accounting principles and the rules and regulations of the United States Securities and Exchange Commission. (b) Period of Effectiveness. Mattson agrees to use its commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus incorporated therein (the "Prospectus") and take such other action, if any, as may be necessary to keep the Registration Statement effective and notify each Vortek Securityholder and each Permitted Transferee named in the Registration Statement of the happening of any event as a result of which the Prospectus, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances then existing, not misleading until the earlier to occur of (i) the date on which all of the Registrable Shares thereunder have been sold, (ii) the date on which all of the Mattson Common Shares then held by the Vortek Securityholders could be sold pursuant to Rule 144 (or any comparable or successor provision) in any ninety (90) day period, or (iii) the date that is one (1) year after the date on which the Registration Statement was declared effective by the SEC or such later date as shall result from any extension of the one year period pursuant to Section 4(c) (the date in this clause (iii) is referred to as the "Final Availability Date"). The right of each Vortek Securityholder to effect sales of Registrable Shares pursuant to the Registration Statement will automatically terminate on or after the Final Availability Date upon the receipt by each Vortek Securityholder and each Permitted Transferee named in the Registration Statement of a written notice that the Registration Statement is no longer effective, and thereafter Mattson will not be obligated to instruct its transfer agent to process any orders for sales that purport to be made pursuant to the Registration Statement. Each Vortek Securityholder agrees not to effect any sales of Registrable Shares under the Registration Statement after its receipt of the notice referred to in the preceding sentence. (c) Permitted Suspension. During the period the Registration Statement is effective and available for resales of the Registrable Shares by Vortek Securityholders, Mattson will have the right to require (effective upon giving written notice to each Vortek Securityholder) that all Vortek Securityholders suspend public offers and sales of their Registrable Shares whenever and for so long as (i) Mattson would be required to disclose any material actions taken or proposed to be taken by Mattson, which disclosure would, in Mattson's good faith judgment after consultation with its legal counsel, have a material adverse effect on Mattson or on such actions, provided that in the event Mattson exercises its suspension right under this Section 4(c)(i), such suspension shall continue only for the period of time necessary for disclosure to occur that is not detrimental to Mattson and its stockholders or until such time as the information or event is no longer material, each as determined in good faith by Mattson after consultation with counsel and in any event for no more than ninety (90) days, (ii) Mattson is for any reason whatsoever instructed, directed, ordered or otherwise requested by any governmental agency or self-regulatory organization to stop or suspend such trading or sales under the Registration Statement, or (iii) Mattson is for any reason unable to comply with the SEC's published requirements for continued use or effectiveness of the Registration Statement. Mattson will use all commercially reasonable efforts to minimize the length of any suspension under this Section 4(c). No such suspension will be considered to be a breach of this Stock Agreement. The one (1) year period described in Section 4(b) will be extended by the number of days that sales under the Registration are suspended under this Section 4(c). If there is a suspension, Mattson agrees to use its commercially reasonable efforts, if necessary, to have the SEC declare the Registration Statement or any required post effective amendment thereto effective or withdraw any stop order, and shall give written notice to each Vortek Securityholder that such suspension is terminated as soon as reasonably practicable after the conditions that gave rise to the suspension no longer exist. (d) Mattson shall promptly furnish to each Vortek Securityholder with respect to the Registrable Shares such reasonable number of copies of the Prospectus, including any preliminary Prospectus and supplements to or amendments of the Prospectus, as any Vortek Securityholder may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Vortek Securityholders. (e) During the period when copies of the Prospectus are required to be delivered under the Securities Act or the Exchange Act, Mattson shall file all documents required to be filed with the SEC pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the rules and regulations promulgated thereunder. (f) Mattson shall file documents required of it for customary Blue Sky clearance in all states requiring the Blue Sky clearance, upon request by any Vortek Securityholder; provided. however, that Mattson shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented. (g) Certain Procedures. The Vortek Securityholders are individually and solely responsible for assuring their own compliance with the requirements applicable to selling any Mattson Common Shares included on their behalf in the Registration Statement, including without limitation the requirement on the part of the Vortek Securityholder deliver timely a copy of the final Prospectus to all buyers of such shares, compliance with the plan of distribution and related alternatives and limitations for selling shares described in the Prospectus, and not permitting transferees to purport to sell under the Registration Statement unless the transferees have been named (or are not required to be named) as selling stockholders in accordance with the SEC's rules and policies. Mattson will not be obligated to file more than one Registration Statement under this Section 4 and will not be obligated to file more than one amendment for the primary purpose of listing Permitted Transferees as additional selling stockholders but shall otherwise include as a selling party those Permitted Transferees indicated by a Vortek Securityholder in a written notice received by Mattson at least two (2) days prior to the filing of any amendment to the Registration Statement filed for any other purpose. Mattson is not obligated without its prior discretionary consent to participate in any way in any engagement of underwriters by the Vortek Securityholders in connection with the registration of the Registrable Shares under this Section 4. Each Vortek Securityholder agrees to provide timely to Mattson in writing all information required by Mattson in order to name each selling security holder and disclose related information in the prospectus included in the Registration Statement in compliance with applicable requirements of Form S-3 and published SEC rules and policies (and such information so furnished in writing to Mattson shall specifically state, if requested by Mattson, that the information is for use in preparation of the Registration Statement for purposes of Sections 6(a) and (b)). Mattson shall distribute a draft of the initial Form S-3 to the Vortek Securityholders in order that they may review and comment on the registration statement prior to its filing. (h) Expenses. Mattson will pay all reasonable and customary expenses incurred in connection with the filing and effectiveness of the Registration Statement pursuant to Section 4(a) and the listing of the Mattson Shares pursuant to Section 5 and including Sections 4(d), 4(e), and 4(f), except for the following that will be borne by the Vortek Securityholders: brokers' commissions and/or underwriting discounts payable by the Vortek Securityholders on any sales of Registrable Shares by them and any fees and expenses of any legal counsel or other professional advisors that may be retained by the Vortek Securityholders. 5. Listing of Mattson Common Shares. On or prior to the Effective Time, Mattson agrees to secure the listing of the Mattson Common Shares upon each national securities exchange or automated quotation system upon which shares of Mattson common stock are listed and, so long as any Vortek Securityholder owns any of the Mattson Common Shares, shall maintain such listing of all Mattson Common Shares. Mattson has taken no action designed to delist, or which is likely to have the effect of delisting the shares of Mattson common stock. 6. Indemnification. (a) Mattson Duty to Indemnify. In connection with the registration effected pursuant to Section 4, to the extent permitted by law, Mattson shall indemnify and hold harmless each Vortek Securityholder and each of their respective officers, directors, and each other person, if any, who controls such Vortek Securityholder within the meaning of the Securities Act or the Exchange Act (each a "Securityholder Indemnified Party") against any losses, claims, damages, liabilities or expenses to which such Securityholder Indemnified Party may become subject under the Securities Act or otherwise (including in settlement of any litigation, if such settlement is effective with the written consent of Mattson, which consent shall not be unreasonably withheld), insofar as such losses, claims, damages, liabilities or expenses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such securities are registered under the Securities Act, and preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading or arise out of or are based on any failure of Mattson to perform its obligations under this Stock Agreement or under applicable law relating to the subject matter of this Agreement, and Mattson will reimburse each Securityholder Indemnified Party for any legal or any other expenses reasonably incurred by it in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense, action or proceeding; provided, however, that Mattson will not be liable to any Securityholder Indemnified Party in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement or any other document filed as a part thereof in reliance upon and in conformity with written information furnished to Mattson through an instrument duly executed by or on behalf of the applicable Securityholder Indemnified Party specifically stating that it is for use in the preparation thereof; and provided, further, that Mattson will not be liable to any Securityholder Indemnified Party, in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of the applicable Securityholder Indemnified Party's failure to send or give a copy of the final Prospectus, as the same may be then supplemented or amended, to the person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registrable Shares to such person if such statement or omission was corrected in such final prospectus and copies of such final prospectus were delivered to the Vortek Securityholders prior to the written confirmation of the sale of Mattson Common Shares to such person asserting an untrue statement or alleged untrue statement or omission or alleged omission. Such indemnity will remain in full force and effect regardless of any investigation made by or on behalf of the Vortek Securityholders and will survive the transfer of such securities by the Vortek Securityholders. (b) Vortek Securityholders' Duty to Indemnify. Subject to Section 6(e), each Vortek Securityholder will severally and not jointly indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 6(a)) Mattson, each director of Mattson, each officer of Mattson and each other person, if any, who controls Mattson within the meaning of the Securities Act or the Exchange Act (each a "Mattson Indemnified Party"), with respect to any untrue statement of material fact or alleged untrue statement of material fact in or omission or alleged omission from the Registration Statement, if such statement or alleged statement or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, was made in reliance upon and in conformity with written information furnished to Mattson through an instrument respectively executed by the applicable indemnifying Vortek Securityholder specifically stating that it was for use in the preparation of the Registration Statement. Such indemnity will remain in full force and effect, regardless of any investigation made by or on behalf of any Mattson Indemnified Party and will survive the transfer of such securities by the Vortek Securityholder. (c) Procedure. Promptly after receipt by an indemnified party under Sections 6(a) or 6(b) above of notice of the threat or commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under such section, promptly notify each indemnifying party in writing of the commencement thereof, but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party for contribution or otherwise under this Section 6 to the extent it is not prejudiced as a result of such failure. In case any such action will be brought against any indemnified party, the indemnifying party will be entitled to participate therein and, to the extent that it will wish, jointly with any other indemnifying party, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who will not, except with the consent of the indemnified party, be counsel to the indemnifying party); provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be a conflict between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it or other indemnified parties that are inconsistent with those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval of the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party for contribution or otherwise under this Section 6 for any legal expenses or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation unless: (i) the indemnified party shall have employed such counsel in connection with the assumption of legal defenses in accordance with the proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel, approved by such indemnifying party representing all of the indemnified parties who are parties to such action) or (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of action, in each of which cases the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party, subject to the limitations on Mattson's liabilities contained in Sections 6(a) and 6(d) and on the Vortek Securityholders' liabilities contained in Sections 6(b), 6(d) and 6(e). No indemnifying party will, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. (d) Contribution. If for any reason the indemnification provided for in this Section 6 is required by its terms but is for any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified party under this Section 6 in respect to any losses, claims, damages, liabilities or expenses referred to in this Stock Agreement, then subject to Section 6(e) each applicable indemnifying party will contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other, or (ii) if the allocation provided by subdivision (i) above is not permitted by applicable law or provides a lesser sum to the indemnified party than is appropriate to reflect not only the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other but also the relative fault of the indemnifying party and the indemnified party as well as any other relevant equitable considerations, then in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party as well as any other equitable considerations. The relative fault of Mattson and each applicable Vortek Securityholder shall be determined by reference to, among other things, whether the untrue or alleged statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by Mattson or by such Vortek Securityholder and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission and/or its distribution. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Sections 6(c) and 6(e), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The provisions set forth in Section 6(c) with respect to the notice of the threat or commencement of any action shall apply if a claim for contribution is to be made under Section 6(a); provided, however, that no additional notice shall be required with respect to any threat or action for which notice has been given under Section 6(c) for purposes of indemnification. Mattson and each Vortek Securityholder agree that it would not be just and equitable if contribution pursuant to this Section 6(d) were determined solely by pro rata allocation (even if the Vortek Securityholders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this paragraph. Notwithstanding the provisions of this Section 6(d), neither party will be required to contribute any amount in excess of the amount the indemnifying party would have been required to pay to an indemnified party if the indemnity under this Section 6 was available. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Vortek Securityholders' obligations to contribute pursuant to this Section 6(d) are several and not joint. (e) Notwithstanding the provisions of this Section 6, no Vortek Securityholder shall be required to indemnify any Mattson Indemnified Party for or contribute to a Mattson Indemnified Party any amount that exceeds the amount by which (i) the proceeds received by such Vortek Securityholder for the Mattson Common Shares sold pursuant to a registration statement that contains an untrue or alleged untrue statement or omission or alleged omission exceeds (ii) the amount of any damages that such Vortek Securityholder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. 7. General Provisions. (a) Termination. This Stock Agreement will automatically and without notice terminate and cease to be effective for any purpose upon termination of the Arrangement Agreement in accordance with its terms. (b) Governing Laws and Forum. Notwithstanding any other provision of the Arrangement Agreement described in the recitals to this Stock Agreement or other agreements referred to in the Arrangement Agreement, the internal laws of the State of California (without reference to its principles of conflicts of law) govern the construction, interpretation and other matters arising out of or in connection with this Stock Agreement (whether arising in contract, tort, equity or otherwise). With respect to any action or other legal proceeding arising out of or in connection with this Stock Agreement (whether arising in contract, tort, equity or otherwise), the parties irrevocably (i) consent and submit to the non-exclusive jurisdiction of federal and state courts located in Santa Clara County of California, (ii) waive any objection to that choice of forum based on venue or to the effect that the forum is not convenient, and (iii) WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO TRIAL OR ADJUDICATION BY JURY. (c) Binding Effect and Assignment. This Stock Agreement binds and benefits the parties and their respective successors and assignees, except that each Vortek Securityholder agrees not to enter into, cause or permit any assignment any of its registration rights under Section 4 hereof other than to a Permitted Transferee without the prior written consent of Mattson (not to be unreasonably withheld). (d) Severability. If any provision of this Stock Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Stock Agreement remain in full force, if the essential terms and conditions of this Stock Agreement for each party remain valid, binding and enforceable. (e) Entire Agreement. This Stock Agreement constitutes the final agreement between the parties, and is the complete and exclusive statement of the parties' agreement on the matters contained in this Stock Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Stock Agreement are superseded by this Stock Agreement. (f) Counterparts. The parties may execute this Stock Agreement in multiple counterparts, each of which constitutes an original as against the party that signed it, and all of which together constitute one agreement. This Stock Agreement is effective upon delivery of one executed counterpart from each party to the other parties. The signatures of all parties need not appear on the same counterpart. The delivery of signed counterparts by facsimile or email transmission which includes a copy of the sending party's signature(s) is as effective as signing and delivering the counterpart in person. (g) Expenses. Except as specified otherwise in this Stock Agreement or the Arrangement Agreement, each party will pay its own professional fees and other expenses incurred by it in connection with this Stock Agreement and the transactions contemplated by this Stock Agreement. (h) Amendment. The parties may amend this Stock Agreement only by a written agreement signed by each party to be bound by the amendment and that identifies itself as an amendment to this Stock Agreement; provided, that any amendment of this Stock Agreement may be entered into and shall be effective if signed by Mattson and Vortek Securityholders or their Permitted Transferees beneficially owning more than fifty percent (50%) of the Mattson Common Shares then held by the initial Vortek Securityholders or their Permitted Transferees. (i) Waiver. The parties may waive a provision of this Stock Agreement only by a writing signed by the party intended to be bound by the waiver. A party is not prevented from enforcing any right, remedy or condition in the party's favor because of any failure or delay in exercising any right or remedy or in requiring satisfaction of any condition, except to the extent that the party specifically waives the same in writing. A written waiver given for one matter or occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver for any other matter or occasion. Any enumeration of a party's rights and remedies in this Stock Agreement is not intended to be exclusive, and a party's rights and remedies are intended to be cumulative to the extent permitted by law and include any rights and remedies authorized in law or in equity. (j) Notices. Each party giving any notice required or permitted under this Stock Agreement will give the notice in writing, and use one of the following methods of delivery to the party to be notified, at the address set forth below or another address of which the sending party has been notified in accordance with this Section 7(j): (i) personal delivery, (ii) facsimile or telecopy transmission with a reasonable method of confirming transmission, (iii) commercial overnight courier with a reasonable method of confirming delivery, or (iv) pre-paid, United States of America certified or registered mail, return receipt requested. Notice to a party is effective for purposes of this Stock Agreement only if given as provided in this Section 7(j) and if the intended addressee has actually received the notice. If to the Vortek Securityholders: To the respective addresses or facsimile numbers set forth opposite their signatures to this Stock Agreement; With a copy to: Skadden, Arps, Slate, Meagher & Flom LLP 525 University Avenue Suite 1100 Palo Alto, California 94301 Attention: Marc R. Packer If to Mattson: Mattson Technology, Inc. 47131 Bayside Parkway Fremont, California 94538 Attention: General Counsel (k) Construction of Agreement. (1) Where this Stock Agreement states that a party "will" or "shall" perform in some manner or otherwise act or omit to act, it means that the party is legally obligated to do so in accordance with this Stock Agreement. (2) In the negotiation of this Stock Agreement, each party has received advice from its own attorney. This Stock Agreement is not to be construed for or against any party based on which party drafted any of the provisions of this Stock Agreement. (3) The captions, titles and headings, and table of contents, included in this Stock Agreement are for convenience only, and do not affect this Stock Agreement's construction or interpretation. (4) This Stock Agreement does not, and is not intended to, confer any rights or remedies in favor of any person other than the parties signing this Stock Agreement and Permitted Transferees, except as may be specifically set forth in other provisions of this Stock Agreement. (5) Each reference to "law" in this Stock Agreement includes any foreign, federal, state or local statute, ordinance, regulation, rule, code, treaty, common law or other form of law. The words "including," "includes," or "include" are to be read as listing non-exclusive examples of the matters referred to, whether or not words such as "without limitation" or "but not limited to" are used in each instance. (1) No Joint Venture. Nothing in this Stock creates a joint venture or partnership between the parties. This Stock Agreement does not authorize any party (i) to bind or commit, or to act as an agent, employee or legal representative of, another party, except as may be specifically set forth in other provisions of this Stock Agreement, or (ii) to have the power to control the activities and operations of another party. The parties are independent contractors with respect to each other under this Stock Agreement. Each party agrees not to hold itself out as having any authority or relationship contrary to this Section 6(1). (m) Number and Gender. Any reference in this Stock Agreement to the singular includes the plural where appropriate. Any reference in this Stock Agreement to the masculine, feminine or neuter gender includes the other genders where appropriate. In witness of the above, the parties below have caused this Stock Agreement to be duly executed as of the date first written above. MATTSON TECHNOLOGY, INC. By: /s/ Robert B. MacKnight ---------------------------- Name: Robert B. MacKnight Title: Chief Operating Officer Vortek Security Holders Addresses and Facsimile Numbers of Vortek Securityholders BCI VENTURES INC. 137 South Oxley West Vancouver, British Columbia By: /s/ Barclay Isherwood Canada V7V 1G8 -------------------------- Facsimile: Print Name: Barclay Isherwood Title: Director TRIAN EQUITIES LTD. By: /s/ R. A. McLean Suite 210, 4240 Manor Street -------------------------- Burnaby, British Columbia Print Name: R. A. McLean Canada V5G 1B2 Title: C.E.O. Facsimile: WEST STEAG PARTNERS GMBH By: /s/ Berthold Liertke-Daldrup Ruettenscheider Str. 1-3 ----------------------------- 45128 Essen Print Name: Berthold Liertke-Daldrup, Dr. Germany Title: Managing Director Facsimile: By: /s/ Rolf Thaler --------------- Print Name: Rolf Thaler, Dr. Title: Managing Director LAKE STREET CAPITAL FUND I, L.P. By: /s/ Zachary Abrams 16th Floor, 601 Montgomery Street ------------------------ San Francisco, California Print Name: Zachary Abrams USA 94111 Title: Managing Member of the Facsimile: Lake Street Capital, LLC the General Partner of Lake Street Capital Fund I, L.P. VENTRUM GMBH& Co. By: /s/ Berthold Liertke-Daldrup Selliner Strasse 10 ----------------------------- D-01109 Dresden By: /s/ Rolf Thaler Germany ----------------------------- Facsimile: Print Name: Berthold Liertke-Daldrup Print Name: Rolf Thaler ----------- Title: By Proxy: West Steag Partners GmbH, Ruttenscheider Str. 1-3, D - 45128 /s/ Berthold Liertke-Daldrup Weingartsweg 37 40668 Meerbusch Germany Facsimile: By: /s/ Berthold Liertke-Daldrup 47957 Avalon Heights Terrace ---------------------------- Fremont, California By: /s/ Rolf Thaler USA 94539 --------------- Facsimile: Title: By Proxy: West Steag Partners GmbH, Ruttenscheider Str. 1-3, D - 45128 - ---------------------------------------- Hanz Betz, Dr. By: /s/ Berthold Liertke-Daldrup Leipziger Strasse 101 ---------------------------- 47918 Toenisvorst By: /s/ Rolf Thaler Germany -------------- Facsimile: Title: By Proxy: West Steag Partners GmbH, Ruttenscheider Str. 1-3, D - 45128 - ---------------------------------------- Holger Siegwarth By: /s/ Berthold Liertke-Daldrup Westerwaldstrasse 71 ---------------------------- 45133 Essen By: /s/ Rolf Thaler Germany --------------- Facsimile: Title: By Proxy: West Steag Partners GmbH, Ruttenscheider Str. 1-3, D - 45128 - ---------------------------------------- Jochen Melchior, Dr. By: /s/ Berthold Liertke-Daldrup Angerweise 24 --------------------------- 85567 Grafing By: /s/ Rolf Thaler Germany -------------- Facsimile: Title: By Proxy: West Steag Partners GmbH, Ruttenscheider Str. 1-3, D - 45128 - ---------------------------------------- Peter Augustin By: /s/ Berthold Liertke-Daldrup Gilsingstrasse 52 ---------------------------- 44789 Bochum By: /s/ Rolf Thaler Germany --------------- Facsimile: Title: By Proxy: West Steag Partners GmbH, Ruttenscheider Str. 1-3, D - 45128 - ---------------------------------------- Peter Lockowandt, Dr. /s/ Rolf Thaler, Dr. Erich-Greffin-Weg 46 48167 Muenster Germany Facsimile: EX-99 4 steag_14.txt EXHIBIT 14 - ESCROW AGREEMENT Exhibit 14 ESCROW AGREEMENT This Escrow Agreement is entered into as of October 27, 2004, by and among BCI Ventures, Inc., a British Columbia corporation, Trian Equities Ltd., a British Columbia corporation, West Steag Partners GmbH, a German limited liability company, Lake Street Capital Fund I, L.P., a Delaware limited partnership (collectively, the "Supporting Parties"), Mattson Technology, Inc., a Delaware corporation ("Mattson"), and U.S. Bank, National Association, a national banking association, as escrow agent (the "Escrow Agent"). Mattson, the Supporting Parties and the Escrow Agent are referred to individually herein as a "Party" and are referred to collectively herein as the "Parties". WHEREAS, Mattson and the Supporting Parties are parties to a Support Agreement dated as of June 28, 2004 (the "Support Agreement"), in connection with the transactions contemplated by the Arrangement Agreement, dated as of the same date, between Mattson and Vortek Industries Ltd.; and WHEREAS, the Support Agreement provides that an escrow account will be established to secure the indemnification obligations of the Supporting Parties pursuant to the terms of the Support Agreement; and WHEREAS, the Parties desire to establish the terms and conditions pursuant to which such escrow account will be established and maintained. NOW, THEREFORE, the Parties hereby agree as follows: 1. Appointment. Mattson and each of the Supporting Parties hereby appoint the Escrow Agent as the escrow agent for the purposes set forth herein, and the Escrow Agent hereby accepts such appointment under the terms and conditions set forth herein. 2. Designation of Supporting Parties Agent. Each of the Supporting Parties hereby appoints Trian Equities Ltd. to act as the Supporting Parties Agent for the purpose of this Agreement. Mattson and the Escrow Agent shall be entitled to rely upon any communication or writing given or executed by the Supporting Parties Agent. All communications or writings to be sent to the Supporting Parties by Mattson or the Escrow Agent pursuant to this Agreement shall be addressed to the Supporting Parties Agent and the other Supporting Parties. Notwithstanding the foregoing, all notices, instructions and other writings and communications relating to a Section 5.2 Claim (as defined in Section 4 below) may be addressed only to the individual Supporting Party to which such Section 5.2 Claim relates and Mattson and the Escrow Agent may not rely on writings or communications by the Supporting Parties Agent with respect to such Section 5.2 Claim (unless, and only to the extent, such Section 5.2 Claim applies to the Supporting Parties Agent in its capacity as a Supporting Party). 3. Establishment of Escrow Account and Interests Therein. (a) In accordance with the terms of the Arrangement Agreement and the Support Agreement, concurrently with the execution of this Agreement, Mattson is depositing with its transfer agent irrevocable instructions to deliver to the Escrow Agent a share certificate representing 290,561 shares of common stock, $0.001 par value, of Mattson (the "Escrow Shares") to be held by the Escrow Agent in a separate account to be established pursuant to this Agreement (the "Escrow Account"). The Escrow Agent will accept delivery of the Escrow Shares for deposit into the Escrow Account. The certificate (and any replacement certificates to be held in the Escrow Account) representing the Escrow Shares shall be registered in the name of U.S. Bank, National Association and shall bear a restrictive legend providing that the shares represented by such certificate(s) are subject to, and may not be offered, sold, exchanged, transferred or otherwise disposed of except pursuant to the terms of this Agreement. The Escrow Agent shall hold and safeguard the Escrow Shares (and, together with all property at any time received or otherwise distributed on, in respect of or in exchange for any of the Escrow Shares, including, without limitation, all securities hereafter issued in substitution for any of the Escrow Shares, all certificates and instruments representing or evidencing such securities, all cash and non-cash proceeds of all of the foregoing property (including stock dividends) and all rights, titles, interest, privileges and preferences appertaining or incident to the foregoing property, the "Escrow Fund") and shall disburse the Escrow Fund only in accordance with the terms of this Agreement. The Escrow Fund shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party. (b) The Escrow Agent will maintain a separate spreadsheet accounting for the interest of each Supporting Party in the Escrow Fund (the "Supporting Parties' Interests"), it being agreed that the Escrow Agent shall not be required to open separate trust accounts for each Supporting Party. The initial amounts of the Supporting Party's Interests are set forth on Schedule I hereto and are based on each Supporting Party's proportionate interest in the Escrow Fund (the "Applicable Percentage"). Promptly, and in any event within 30 days following any distribution of any portion of the Escrow Fund pursuant to Section 4 of this Agreement, the Escrow Agent will provide the Supporting Parties Agent with a copy of the spreadsheet accounting showing the remaining balance of each Supporting Party's Interest. 4. Administration of Escrow Account. The Escrow Agent shall administer the Escrow Account as follows: (a) In the event Mattson delivers a Claim Notice (as defined in the Support Agreement), it shall specify in such Claim Notice whether such claim for indemnification (a "Claim") is pursuant to Section 5.1 of the Support Agreement (a "Section 5.1 Claim") or pursuant to Section 5.2 of the Support Agreement (a "Section 5.2 Claim"). Concurrently with its delivery of such Claim Notice, Mattson shall deliver copies of such Claim Notice to the Escrow Agent and (x) to the Supporting Parties Agent and to the other Supporting Parties if the Claim Notice relates to a Section 5.1 Claim and (y) to the relevant Supporting Party if the Claim Notice relates to a Section 5.2 Claim. Under no circumstances may Mattson deliver a Claim Notice after the Release Date (as defined in Section 5 below). (b) The following provisions shall apply with respect to a Claim Notice relating to a Section 5.1 Claim: (i) Within 60 calendar days after a Claim Notice relating to a Section 5.1 Claim is received by the Supporting Parties Agent and the other Supporting Parties, the Supporting Parties Agent shall provide to Mattson, with a copy to the Escrow Agent, a written response (the "5.1 Response") which notice shall either: (x) state that an amount of the Escrow Fund equal in value to the full Section 5.1 Claim may be released from the Escrow Account to Mattson, (y) state that an amount of the Escrow Fund equal in value to part, but not all, of the Section 5.1 Claim (the "5.1 Agreed Amount") may be released from the Escrow Account to Mattson, in which case the 5.1 Response shall state the rationale for contesting part of the Section 5.1 Claim, or (z) state that no portion of the Escrow Fund may be released from the Escrow Account to Mattson, and the 5.1 Response shall state the rationale for contesting the entire Section 5.1 Claim. (ii) If the 5.1 Response states that all or a portion of the Escrow Fund in an amount equal to the full amount of the Section 5.1 Claim may be released from the Escrow Account to Mattson or the Supporting Parties Agent does not deliver a 5.1 Response within such 60 calendar days of receipt by the Supporting Parties Agent and the other Supporting Parties of the Claim Notice asserting the Section 5.1 Claim, the Escrow Agent shall, following the earlier of (x) the Escrow Agent's receipt of the 5.1 Response, or (y) the expiration of the 60 calendar day period without a 5.1 Response, disburse to Mattson an amount of the Escrow Fund equal to the Section 5.1 Claim (or such lesser amount of the Escrow Fund as is then held in the Escrow Account) in accordance with the provisions of Section 4(e). (iii) If the 5.1 Response states that all or a portion of the Escrow Fund in an amount equal to part, but not all, of the Section 5.1 Claim may be released from the Escrow Account to Mattson, the Escrow Agent shall disburse to Mattson an amount of the Escrow Fund equal to the 5.1 Agreed Amount (or such lesser amount of the Escrow Fund as is then held in the Escrow Account) in accordance with the provisions of Section 4(e). (iv) If the 5.1 Response contests the full amount of the Section 5.1 Claim (the "5.1 Contested Amount"), then the Escrow Agent shall continue to hold in the Escrow Account an amount of the Escrow Fund sufficient to cover the 5.1 Contested Amount (up to the amount of the Escrow Fund then available in the Escrow Account) until the Escrow Agent receives either (x) a settlement agreement or written instruction executed by Mattson and the Supporting Parties Agent setting forth instructions to the Escrow Agent as to the release to Mattson of all or a portion of the Escrow Fund, if any, with respect to the 5.1 Contested Amount or (y) a certified copy of a final, non-appealable order of a court of competent jurisdiction ordering the Escrow Agent to release to Mattson all or a portion of the Escrow Fund, if any, with respect to the 5.1 Contested Amount. The Escrow Agent shall disburse any such amount of the Escrow Fund to Mattson following the Escrow Agent's receipt of the document described in clause (x) or (y) of the immediately preceding sentence in accordance with the provisions of Section 4(e). (v) Any disbursement of all or any portion of the Escrow Fund pursuant to this Section 4(b) shall be allocated among each Supporting Party's Interest in the Escrow Fund pro rata based on such Supporting Party's Applicable Percentage (as defined above). (c) The following provisions shall apply with respect to a Claim Notice relating to a Section 5.2 Claim: (i) Within 60 calendar days after a Claim Notice relating to a Section 5.2 Claim is received by a Supporting Party, the Supporting Party shall provide to Mattson, with a copy to the Escrow Agent, a written response (the "5.2 Response") which notice shall either: (x) state that an amount of the Escrow Fund equal in value to the full Section 5.2 Claim may be released from the Supporting Party's Interest in the Escrow Fund to Mattson, (y) state that an amount of the Escrow Fund equal in value to part, but not all, of the Section 5.2 Claim (the "5.2 Agreed Amount") may be released from the Supporting Party's Interest in the Escrow Fund to Mattson, and the 5.2 Response shall state the rationale for contesting part of the Section 5.2 Claim, or (z) state that no portion of the Escrow Fund may be released from the Supporting Party's Interest in the Escrow Fund to Mattson and the 5.2 Response shall state the rationale for contesting the entire Section 5.2 Claim. (ii) If the 5.2 Response states that all or a portion of the Escrow Fund in an amount equal to the full amount of the Section 5.2 Claim may be released from the Supporting Party's Interest in the Escrow Fund to Mattson or the Supporting Party does not deliver a 5.2 Response within such 60 calendar days of receipt by the Supporting Party of the Claim Notice asserting the Section 5.2 Claim, the Escrow Agent shall, following the earlier of (x) Escrow Agent's receipt of the 5.2 Response, or (y) the expiration of the 60 calendar day period without a 5.2 Response, disburse to Mattson an amount of the Escrow Fund equal to the Section 5.2 Claim (or such lesser amount of the Escrow Fund as is then equal to the Supporting Party's Interest in the Escrow Fund) in accordance with the provisions of Section 4(e). (iii) If the 5.2 Response states that all or a portion of the Escrow Fund in an amount equal to part, but not all, of the Section 5.2 Claim may be released from the Supporting Party's Interest in the Escrow Fund to Mattson, the Escrow Agent shall disburse to Mattson an amount of the Escrow Fund equal to the 5.2 Agreed Amount (or such lesser amount of the Escrow Fund as is then equal to the Supporting Party's Interest in the Escrow Fund) in accordance with the provisions of Section 4(e). (iv) If the 5.2 Response contests the full amount of the Section 5.2 Claim (the "5.2 Contested Amount"), then the Escrow Agent shall continue to hold in the Supporting Party's Interest in the Escrow Fund an amount of the Escrow Fund sufficient to cover the 5.2 Contested Amount (up to the amount of the Escrow Fund then equal to the Supporting Party's Interest in the Escrow Fund) until the Escrow Agent receives either (x) a settlement agreement or written instruction executed by Mattson and the Supporting Party setting forth instructions to the Escrow Agent as to the release to Mattson of all or a portion of the Supporting Party's Interest in the Escrow Fund, if any, with respect to the 5.2 Contested Amount or (y) a certified copy of a final, non-appealable order of a court of competent jurisdiction ordering the Escrow Agent to release to Mattson all or a portion of the Supporting Party's Interest in the Escrow Fund, if any, with respect to the 5.2 Contested Amount. The Escrow Agent shall disburse any such amount of the Escrow Fund from the Supporting Party's Interest in the Escrow Fund to Mattson, following the Escrow Agent's receipt of the document described in clause (x) or (y) of the immediately preceding sentence, in accordance with the provisions of Section 4(e). (v) Any disbursement of all or any portion of the Escrow Fund pursuant to this Section 4(c) shall reduce the amount of the Escrow Fund representing the relevant Supporting Party's Interest in the Escrow Fund and shall not affect any other Supporting Party's Interest in the Escrow Fund. (d) At any time during the term of this Agreement, the Escrow Agent shall disburse some or all of the Escrow Fund as directed by a written instruction signed by Mattson and all of the Supporting Parties. (e) For purposes of determining the number of the Escrow Shares to be delivered to Mattson in satisfaction or partial satisfaction of any Claim in accordance with this Agreement, such number of the Escrow Shares shall be determined by dividing the dollar amount of such claim (in U.S. dollars) by the average closing price of a share of Mattson common stock on the Nasdaq National Market during the thirty (30) trading days preceding the date on which the amount to be distributed becomes fixed pursuant to Section 4 hereof (the Determination Date"). Following the Determination Date, Mattson shall provide notice (the "Calculation Notice") of the calculation of (x) the Mattson common stock price determined in accordance with the preceding sentence and (y) the number of Escrow Shares to be released by the Escrow Agent, to the Supporting Parties Agent, the other Supporting Parties and the Escrow Agent in the case of a Section 5.1 Claim, or to the Supporting Party identified in the Claim Notice and the Escrow Agent in the case of a Section 5.2 Claim, and the failure by either the Supporting Parties Agent (in the case of a Section 5.1 Claim) or the relevant Supporting Party (in the case of a Section 5.2 Claim) to object in writing to such calculation to Mattson and to the Escrow Agent within 2 business days after receipt of the Calculation Notice shall be deemed acceptance of the calculation. If the Escrow Agent does not receive such written objection within such 2 business day period, the Escrow Agent shall within 2 business days disburse the Escrow Shares from the Escrow Fund. In the event the Escrow Agent receives such written objection within such 2 business day period, the Escrow Agent shall disburse the Escrow Shares within 2 business days after such dispute is resolved in accordance with this Agreement. (f) For so long as the Escrow Shares are held by the Escrow Agent, the Escrow Agent shall (x) within 2 business days after receipt thereof forward to the Supporting Parties Agent all proxy solicitation materials, annual reports and other information distributed by Mattson to its shareholders, (y) vote or cause to be voted the Escrow Shares at any meeting of Mattson shareholders in the manner set forth in a written instruction delivered by the Supporting Parties Agent, provided such written instruction is unambiguous and is received by the Escrow Agent at least five (5) business days prior to the date of such shareholder meeting, and (z) within 2 business days after receipt thereof, distribute to the Supporting Parties, pro rata in accordance with their respective Applicable Percentages, any cash dividends or distributions paid by Mattson with respect to the Escrow Shares. 5. Release of the Escrow Fund. On the next business day following the 12 month anniversary of the date of this Agreement (the "Release Date"), the Escrow Agent shall distribute all Escrow Funds held in the Escrow Account on such date to each of the Supporting Parties, based on the balances of each Supporting Party's Interest in the Escrow Fund. Notwithstanding the foregoing, if Mattson has previously given any Claim Notices that have not then been resolved in accordance with Section 4, the Escrow Agent shall retain in the Escrow Account an amount of the Escrow Fund or a Supporting Party's Interest in the Escrow Fund, as the case may be, equal to the aggregate Claims covered by all such Claim Notices that have not then been resolved. Any portion of the Escrow Fund a Supporting Party's Interest in the Escrow Fund, as the case may be, retained in the Escrow Account shall be disbursed in accordance with the terms of the resolution of such Claims and in the manner set forth in Section 4, with any balance to be distributed promptly thereafter in accordance with this Section 5. 6. Fees and Expenses of the Escrow Agent. Mattson, on the one hand, and the Supporting Parties, on the other hand, hereby agree that Mattson shall pay to the Escrow Agent all of the Escrow Agent's fees and expenses in accepting and performing its appointment as escrow agent hereunder in accordance with the Fee Schedule attached hereto as Attachment A and made a part hereof. 7. Limitation of Escrow Agent's Liability. (a) The Escrow Agent shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Escrow Agent. The Escrow Agent shall not be liable to anyone for any action taken, suffered or omitted to be taken by it hereunder in good faith except in the case of the Escrow Agent's negligence or willful misconduct (each as finally determined by a court of competent jurisdiction). The Escrow Agent shall incur no liability with respect to any action taken, suffered or omitted to be taken by it in reliance upon any notice, direction, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or in a separate written instruction), consent, statement or other documents believed by it in good faith to be genuine and duly authorized, nor for other action or inaction except its own willful misconduct or negligence (each as finally determined by a court of competent jurisdiction). The Escrow Agent shall not be responsible for the validity or sufficiency of this Agreement or for any of the agreements referred to or described herein (including, without limitation, the Support Agreement and the Arrangement Agreement), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby. The Escrow may consult with and obtain advice from counsel (who may be counsel to a party hereto or an employee of the Escrow Agent) and shall be fully protected in taking, suffering or omitting to take any action in reliance on said advice. In the event the Escrow Agent believes in good faith that any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Escrow Agent hereunder, Escrow Agent, may refrain from taking any action, and shall be fully protected and shall not be liable in any way to Mattson, the Supporting Parties Agent or any Supporting Party or other person or entity for refraining from taking such action, unless the Escrow Agent receives written instructions signed by Mattson and the Supporting Parties Agent with respect to a Section 5.1 Claim, or by Mattson and the Supporting Party identified in the Claim Notice with respect to a Section 5.2 Claim, which eliminates such ambiguity or uncertainty to the satisfaction of Escrow Agent. (b) Mattson and the Supporting Parties hereby, jointly and severally, agree to indemnify the Escrow Agent (and its officers, directors and employees) for, and hold it (and its officers, directors and employees) harmless against, any loss, cost, expense (including, without limitation, reasonable attorney's fees and expenses), damage, liability, penalty, judgment, settlement, proceeding or claim ("Losses") incurred in good faith without negligence or willful misconduct on the part of the Escrow Agent (each as finally determined by a court of competent jurisdiction), arising out of or in any way connected with its execution and delivery of this Escrow Agreements and the administration and carrying out of its duties hereunder including, without limitation, outside counsel fees. Mattson, on the one hand, and the Supporting Parties, on the other hand, as among themselves, shall each be liable for one-half of such Losses; provided, however, that if a court of competent jurisdiction determines that any such Losses are due to the bad faith or willful misconduct of Mattson, on the one hand, or the Supporting Parties, on the other hand, then all of such Losses shall be borne by Mattson or the Supporting Parties, respectively. In no event shall the Escrow Agent be liable for indirect, punitive, incidental, special or consequential damages or loss (including, but not limited to, lost profits) whatsoever to any person or entity, even if the Escrow Agent has been informed of the likelihood of such loss or damage and regardless of the form of action. (c) If any dispute between or conflicting claims by or among Mattson, Supporting Parties Agent and/or any Supporting Party or other person or entity with respect to this Escrow Agreement, the Escrow Fund or the Escrow Account arises, the Escrow Agent may, in its sole discretion, at its option (A) initiate an action in interpleader or another appropriate action, suit or proceeding in a court of competent jurisdiction seeking to resolve such dispute or claims and/or (B) refrain from complying with any claim, notice, instruction, direction, request or other communication, paper or document, so long as such dispute or conflict shall continue, and (in either case) shall be fully protected and shall not be liable in any way to Mattson, Supporting Parties Agent or any Supporting Party or other person or entity for failure or refusal to comply with such conflicting claims, notices, instructions, directions, requests, communications, papers or documents until the Escrow Agent is satisfied, in good faith, that such conflicting claims, notices, instructions, directions, requests, communications, papers or documents have been definitively determined by a final, non-appealable order, judgment, decree or ruling of a court of competent jurisdiction or settled by agreement between the conflicting parties as evidenced in a writing reasonably satisfactory to the Escrow Agent. 8. Termination. The Agreement shall terminate upon the release and distribution by the Escrow Agent of the total amount of the Escrow Fund from the Escrow Account; provided, however, that the provisions of Sections 6 and 7 shall survive such termination or any removal or resignation of the Escrow Agent. 9. Notices. All notices, instructions and other communications given hereunder or in connection herewith shall be in writing. Any such notice, instruction or communication shall be sent either (i) United States First Class mail, postage prepaid, or (ii) via a reputable nationwide overnight courier service, in each case to the address set forth below. Any such notice, instruction or communication shall be deemed to have been delivered four business days after it is sent by United States First class mail, return receipt requested, postage prepaid, or one business day after it is sent via a reputable nationwide overnight courier service. If to Mattson: Mattson Technology, Inc. 47131 Bayside Drive Fremont, CA 94538 If to the Supporting Parties or the Supporting Parties Agent: To the address listed on the signature page hereto. If to the Escrow Agent: U.S. Bank, National Association One California Street, Suite 2550 San Francisco, CA 94111 ATTN: Michael P. Susnow, Vice President (415) 273-4563 Telephone (415) 273.4591 Facsimile Any Party may give any notice, instruction or communication in connection with this Agreement using any other means (including personal delivery, telecopy or ordinary mail), but no such notice, instruction or communication shall be deemed to have been delivered unless and until it is actually received by the Party to whom it was sent. Any Party may change the address to which notices, instructions or communications are to be delivered by giving the other Parties to this Agreement notice thereof in the manner set forth in this Section 10. 10. Successor Escrow Agent. In the event the Escrow Agent becomes unavailable or unwilling to continue in its capacity herewith, the Escrow Agent may resign and be discharged from its duties or obligations hereunder by delivering a resignation to the Parties to this Escrow Agreement, not less than 60 days prior to the date when such resignation shall take effect. Mattson may appoint a successor Escrow Agent with the consent of the Supporting Parties Agent so long as such successor is a bank or trust company organized under the laws of the United Sates of America or any State of the United States having assets of at least $100 million, and may appoint any other successor Escrow Agent with the written consent of the Supporting Parties Agent, which consent shall not be unreasonably withheld, conditioned or delayed. If, within such notice period, Mattson provides to the Escrow Agent written instructions with respect to the appointment of a successor Escrow Agent and directions for the transfer of the Escrow Fund then held by the Escrow Agent to such successor, the Escrow Agent shall act in accordance with such instructions and promptly transfer the Escrow Fund to the designated successor. 11. Stock Certificates. Whenever under this Agreement the Escrow Agent shall be required to disburse all or any portion of the Escrow Fund, Mattson shall use its commercially reasonable efforts, including by providing instructions to the transfer agent for Mattson common stock, to provide the Escrow Agent, as promptly as practicable, with one or more replacement stock certificates registered in the names, and representing the numbers of shares, required to be so disbursed and, if applicable, retained in the Escrow Fund. 12. Representations and Warranties. Each of Mattson, the Supporting Parties and the Escrow Agent individually (and only with respect to itself) hereby represents and warrants as of the date hereof that: (a) Such party is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has all requisite power and authority to enter into this Agreement and perform its obligations hereunder. (b) The execution, delivery and performance by such party of this Agreement and the consummation by such party of the transactions contemplated hereby have been duly authorized by all necessary organizational action of the board of directors or similar governing body of such party, and no other action on the part of such party is necessary for the execution, delivery and performance by such party of this Agreement and the consummation by such party of the transactions contemplated hereby. This Agreement has been duly executed and delivered by such party and is a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting creditors' rights generally and by general equity principles. (c) Except for any consent, approval, filing or notice that would not, if not given or made, or any violation, conflict, breach, termination, default or acceleration which does not, materially impair the ability of such party to consummate the transactions contemplated hereby, the execution, delivery and performance by such party of this Agreement and the consummation by such party of the transactions contemplated hereby: (i) will not violate any material provision of law, rule or regulation, order, judgment or decree applicable to such party; (ii) will not require any consent or approval of, or material filing or notice to, any Governmental Authority under any provision of law applicable to such party; (iii) will not violate any provision of the organizational documents of such party, if other than a natural person; and (iv) will not require any consent or approval under, and will not conflict with, or result in the breach or termination of, or constitute a default under, or result in the acceleration of the performance by such party or any of its affiliates under, any material indenture, mortgage, deed of trust, lease, license, franchise, contract, agreement or other instrument to which such party is a party or by which such party or any of its assets is bound or encumbered. 13. General. (a) Governing Law. Notwithstanding any other provision of the Support Agreement, the internal laws of the State of California (without reference to its principles of conflicts of law) shall govern the construction, interpretation and other matters arising out of or in connection with this Agreement (whether arising in contract, tort, equity or otherwise). With respect to any action or other legal proceeding arising out of or in connection with this Agreement (whether arising in contract, tort, equity or otherwise), the parties irrevocably (i) consent and submit to the non-exclusive jurisdiction of federal and state courts located in Santa Clara County of California, (ii) waive any objection to that choice of forum based on venue or to the effect that the forum is not convenient, and (iii) WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO TRIAL OR ADJUDICATION BY JURY. (b) Binding Effect. Subject to, and unless otherwise provided in, this Agreement, each and all of the covenants, terms, provisions, and agreements contained herein shall be binding upon, and inure to the benefit of, the Parties and their respective permitted successors, executors, heirs, representatives, administrators and assigns. (c) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed by facsimile signature. (d) Entire Agreement. Except for those provisions of the Support Agreement referenced herein, this Agreement constitutes the entire understanding and agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior agreements or understandings, written or oral, between the Parties with respect to the subject matter hereof. (e) Waivers. No waiver by any Party hereto of any condition or of any breach of any provision of this Escrow Agreement shall be effective unless in writing. No waiver by any Party of any such condition or breach, in any one instance, shall be deemed to be a further or continuing waiver of any such condition or breach or a waiver of any other condition or breach of any other provision contained herein. (f) Amendment. This Agreement may be amended only with the written consent of Mattson, the Supporting Parties and the Escrow Agent. (g) Force Majeure. The Escrow Agent shall not be responsible for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, terrorist attacks, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. (h) Reproduction of Documents. This Agreement and all documents relating thereto, including, without limitation, (i) consents, waivers and modifications which may hereafter be executed, and (ii) certificates and other information previously or hereafter furnished, may be reproduced by any photographic, photostatic, microfilm, optical disk, micro-card, miniature photographic or other similar process. The Parties hereto agree that any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding, whether or not the original is in existence and whether or not such reproduction was made by a party in the regular course of business, and that any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. [Remainder of page intentionally left blank] IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the day and year first above written. MATTSON TECHNOLOGY, INC. By: /s/ Robert B. MacKnight ---------------------------- Name: Robert B. MacKnight Title: BCI VENTURES INC. By: /s/ Barclay Ishewood --------------------------- TRIAN EQUITIES LTD. By: /s/ R. A. McLean ---------------------------- WEST STEAG PARTNERS GMBH By: /s/ Berthold Liertke-Daldrup /s/ Rolf Thaler LAKE STREET CAPITAL FUND I, L.P. By: /s/ Zachary Abrams ---------------------------- U.S. BANK, NATIONAL ASSOCIATION By: /s/ Michael P. Susnow ---------------------------- Name: Michael P. Susnow Title: Vice President Schedule I Percentage Interest in the Supporting Party Escrow Fund Initial Amounts - ------------------------------------------------------------------------------- BCI Ventures Inc. 24.182% 70,263 shares Lake Street Capital Fund I, L.P. 4.547% 13,211 shares Trian Equities Ltd. 35.278% 102,503 shares West STEAG Partners GmbH 35.994% 104,584 shares - ------------------------------------------------------------------------------- 100% 290,561 shares Attachment A Schedule of Fees for Services as Escrow Agent For Mattson Technology, Inc. / Canadian Target Initial Fees 01010 Acceptance Fee $1,000 The acceptance fee includes the administrative review of documents, initial set-up of the account, and other reasonably required services up to and including the closing. This is a one-time fee, payable at closing. U.S. Bank Corporate Trust Services reserves the right to refer any or all escrow documents for legal review before execution. Legal fees (billed on an hourly basis) and expenses for this service will be billed to, and paid by, the customer. If appropriate and upon request by the customer, U.S. Bank Corporate Trust Services will provide advance estimates of these legal fees. Administration Fees Billed One Time 04480 Escrow Agent, One Time $1,000 Annual administration fee for performance of the routine duties of the escrow agent associated with the management of the account. Administration fees are payable in advance. Incidental Expenses SUCE0000 Charge for miscellaneous expenses such as; fax, 3.0% messenger service, overnight mail, telephone, stationery and postage. This charge is a percent of total Administration Fees, charged in advance. Transaction Fees 10880 Disbursements/Draws $20.00 Charge per item disbursed. Includes the wire or check fee. 10100 Trades $100.00 Charge per trade to buy or sell investments, excluding automated sweep transactions.* *Automatic sweeping of cash into money market funds is not considered a "trade" for the purposes of this fee. However, applicable fees are disclosed in the "Automatic Money Market Investments" authorization letter or the fund prospectus provided 10101 Receipts $20.00 Charge per receipt of funds via wire or check. Direct Out of Pocket Expenses Reimbursement of expenses associated with the At Cost performance of our duties, including but not limited to publications, legal counsel after the initial close, travel expenses and filing fees. Extraordinary Services Extraordinary services are duties or responsibilities of an unusual nature, including termination, but not provided for in the governing documents or otherwise set forth in this schedule. A reasonable charge will be assessed based on the nature of the service and the responsibility involved. At our option, these charges will be billed at a flat fee or at our hourly rate then in effect. Account approval is subject to review and qualification. Fees are subject to change at our discretion and upon written notice. Fees paid in advance will not be prorated. The fees set forth above and any subsequent modifications thereof are part of your agreement. Finalization of the transaction constitutes agreement to the above fee schedule, including agreement to any subsequent changes upon proper written notice. In the event your transaction is not finalized, any related out-of-pocket expenses will be billed to you directly. Absent your written instructions to sweep or otherwise invest, all sums in your account will remain uninvested and no accrued interest or other compensation will be credited to the account. Payment of fees constitutes acceptance of the terms and conditions set forth. "IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT" To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify and record information that identifies each person who opens an account. For a non-individual person such as a business entity, a charity, a Trust or other legal entity we will ask for documentation to verify its formation and existence as a legal entity. We may also ask to see financial statements, licenses, identification and authorization documents from individuals claiming authority to represent the entity or other relevant documentation." Dated: October 27, 2004 -----END PRIVACY-ENHANCED MESSAGE-----