Each series of preferred stock, depositary shares or depositary
receipts, if issued, will be more fully described in the particular prospectus supplement that will accompany this prospectus,
including redemption provisions, rights in the event of our liquidation, dissolution or winding up, voting rights and rights to
convert into common stock. We do not have any shares of our preferred stock, depositary shares or depositary receipts
presently outstanding.
We may issue warrants for the purchase of common stock, preferred stock or debt securities.
We may issue warrants independently or together with other securities.
We may offer secured or unsecured obligations in the form of one or more series of senior or
subordinated debt. The senior debt securities and the subordinated debt securities are together referred to in this
prospectus as the "debt securities." The subordinated debt securities generally will be entitled to payment only
after payment of our senior debt. Senior debt generally includes all debt for money borrowed by us, except debt that is
stated in the instrument governing the terms of that debt to be not senior to, or to have the same rank in right of payment as,
or to be expressly junior to, the subordinated debt securities. We may issue debt securities that are convertible into shares
of our common stock.
The senior and subordinated debt securities will be issued under separate indentures between us
and a trustee. We have summarized the general features of the debt securities to be governed by the indentures. These
indentures have been filed as exhibits to the registration statement of which this prospectus forms a part. We encourage
you to read these indentures. Instructions on how you can get copies of these documents are provided under the heading
"Where You Can Find More Information."
We may issue units comprised of one or more of the other classes of securities issued by us as
described in this prospectus in any combination. Each unit will be issued so that the holder of the unit is also the holder of
each security included in the unit.
An investment in our securities involves a high degree of risk. The prospectus supplement applicable to each
offering of our securities will contain a discussion of the risks applicable to an investment in our securities. Prior to making a
decision about investing in our securities, you should carefully consider the specific factors discussed under the heading
"Risk Factors" in the applicable prospectus supplement, together with all of the other information contained or
incorporated by reference in the prospectus supplement or appearing or incorporated by reference in this prospectus. You
should also consider the risks, uncertainties and assumptions discussed under "Risk Factors" in our Annual
Report on Form 10-K for the fiscal year ended December 31, 2009 and any updates described in our Quarterly Reports on
Form 10-Q, all of which are incorporated herein by reference, and may be amended, supplemented or superseded from time
to time by other reports we file with the SEC in the future and any prospectus supplement related to a particular offering.
The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not
presently known to us or that we currently deem immaterial may also affect our operations.
This prospectus, each prospectus supplement and the information incorporated by reference in
this prospectus and each prospectus supplement contain certain statements that constitute "forward-looking
statements" within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934. Forward-looking statements typically are identified by use of terms such as
"anticipates," "expects," "intends," "plans," "seeks,"
"estimates," "believes," and similar expressions, although some forward-looking statements are
expressed differently. Those statements appear in this prospectus, any accompanying prospectus supplement and the
documents incorporated herein and therein by reference, particularly in the sections entitled "Prospectus
Summary," "Risk Factors," "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and "Business," and include statements regarding the intent, belief or current
expectations of the Company and management that are subject to known and unknown risks, uncertainties and
assumptions.
This prospectus, any prospectus supplement and the information incorporated by reference in this
prospectus and any prospectus supplement also contain statements that are based on management's current expectations
and beliefs, including estimates and projections about our industry. Our forward-looking statements may include statements
that relate to our future revenue, gross margin, earnings, cash flow and cash position, customer demand, market share,
competitiveness, margins, product development plans and levels of research and development (R&D) activity, customer
acceptance of our new product lines, market demand for semiconductor devices, outsourcing plans and operating expenses,
tax expenses, the expected effects, cost and timing of restructurings, excess inventory reserves, the level of our vendor
commitments as compared to our requirements, cost-saving initiatives, and consolidation of operations and facilities,
economic conditions in general and in our industry, and the sufficiency of our financial resources to support future operations
and capital expenditures. These statements are not guarantees of future performance and are subject to numerous risks,
uncertainties, and assumptions that are difficult to predict.
Our actual results could differ materially from those anticipated by these forward-looking statements.
Except as required by applicable law, including the securities laws of the United States and the rules and regulations of the
SEC, we do not plan to publicly update or revise any forward-looking statements contained herein after we distribute this
prospectus, whether as a result of any new information, future events or otherwise.
The following table sets forth our ratio of earnings to fixed charges on a historical basis for each
of the periods indicated. You should read these ratios in connection with our consolidated financial statements, including the
notes to those statements, incorporated by reference in this prospectus.
acquiring company having a market value at the time of such transaction equal to the
Purchase Price divided by one-half the Current Market Price of such common stock.
No fractional shares of Common Stock will be issued upon exercise of the Rights and, in lieu thereof, a payment in cash
will be made to the holder of such Rights equal to the same fraction of the current market value of a share of Common
Stock.
-11-
At any time until the occurrence of a Flip-In Event, the Board may redeem the Rights in whole, but not in part, at a price
of $0.001 per Right. Immediately upon the action of the board of directors of the Company authorizing redemption of
the Rights, the right to exercise the Rights will terminate, and the only right of the holders of Rights will be to receive the
Redemption Price without any interest thereon.
At any time after the occurrence of a Flip-In Event and prior to the earlier of a Flip-Over Event or such time as any
Person (other than an Exempt Person), together with all affiliates and associates, becomes the Beneficial Owner of more
than 50% of the Common Stock outstanding, the board of directors of the Company may, at its option, exchange all or any
portion of the outstanding Rights (other than Rights held by any Acquiring Person which have become void) for shares of
Common Stock on a pro rata basis, at an exchange ratio of one share of Common Stock or one one-thousandth of a share
of Preferred Stock (or of a share of a class or series of the Company's Preferred Stock having equivalent rights, preferences
and privileges) per Right. Immediately upon the ordering of such exchange and without any notice, the right to
exercise such Rights shall terminate and the only right thereafter of a holder of such Rights shall be to receive shares of
Common Stock or Common Stock Equivalents pursuant to the exchange. In the event there are insufficient shares of
Common Stock issued but not outstanding or authorized but unissued to permit any exchange of Rights, the Company shall
take all actions necessary to authorize additional shares.
Until the Rights become nonredeemable the Company may, except with respect to the redemption price of the Rights,
amend the Rights Agreement in any manner. After the Rights become nonredeemable, the Company may amend the
Rights Agreement to cure any ambiguity, to correct or supplement any provision which may be defective or inconsistent with
any other provisions, to shorten or lengthen any time period under the Rights Agreement, or to arrange or supplement the
provisions hereunder in any manner which the Company may deem necessary or desirable, provided that no such
amendment may adversely affect the interests of the holders of the Rights (other than the Acquiring Person or its affiliates or
associates) or cause the Rights to again be redeemable or the Agreement to again be freely amendable.
Until a Right is exercised, the holder, as such, will have no rights as a stockholder of the Company, including, without
limitation, the right to vote or to receive dividends.
The Rights have certain anti-takeover effects. Under certain circumstances the Rights could cause substantial dilution to
a person or group who attempts to acquire the Company on terms not approved by the Company's board of directors. The
Rights Agreement may make an unsolicited takeover more difficult or less likely to occur or may prevent a takeover, even
though such takeover could offer our stockholders the opportunity to sell their stock at a price above the prevailing market
rate and could be favored by a majority of our stockholders.
-12-
DESCRIPTION OF THE DEPOSITARY SHARES
General
At our option, we may elect to offer fractional shares of preferred stock, rather than full shares of
preferred stock. If we do elect to offer fractional shares of preferred stock, we will issue receipts for depositary shares and
each of these depositary shares will represent a fraction of a share of a particular series of preferred stock, as specified in
the applicable prospectus supplement. Each owner of a depositary share will be entitled, in proportion to the applicable
fractional interest in shares of preferred stock underlying that depositary share, to all rights and preferences of the preferred
stock underlying that depositary share. These rights may include dividend, voting, redemption and liquidation rights.
The shares of preferred stock underlying the depositary shares will be deposited with a bank or trust
company selected by us to act as depositary, under a deposit agreement by and among us, the depositary and the holders
of the depositary receipts. The depositary will be the transfer agent, registrar and dividend disbursing agent for the
depositary shares.
The depositary shares will be evidenced by depositary receipts issued pursuant to the depositary
agreement. Holders of depositary receipts agree to be bound by the deposit agreement, which requires holders to take
certain actions such as filing proof of residence and paying certain charges.
The summary of terms of the depositary shares contained in this prospectus is not complete, and is
subject to modification in any prospectus supplement for any issuance of depositary shares. You should refer to the forms of
the deposit agreement, our certificate of incorporation and the certificate of designation that are, or will be, filed with the SEC
for the applicable series of preferred stock.
Dividends
The depositary will distribute cash dividends or other cash distributions, if any, received in
respect of the series of preferred stock underlying the depositary shares to the record holders of depositary receipts in
proportion to the number of depositary shares owned by those holders on the relevant record date. The relevant record date
for depositary shares will be the same date as the record date for the preferred stock.
In the event of a distribution other than in cash, the depositary will distribute property received by it to
the record holders of depositary receipts that are entitled to receive the distribution, unless the depositary determines that it
is not feasible to make the distribution. If this occurs, the depositary, with our approval, may adopt another method for the
distribution, including selling the property and distributing the net proceeds to the holders.
Liquidation preference
If a series of preferred stock underlying the depositary shares has a liquidation preference, in
the event of our voluntary or involuntary liquidation, dissolution or winding up, holders of depositary shares will be entitled to
receive the fraction of the liquidation preference accorded each share of the applicable series of preferred stock, as set forth
in the applicable prospectus supplement.
Redemption
If a series of preferred stock underlying the depositary shares is subject to redemption, the
depositary shares will be redeemed from the proceeds received by the depositary resulting from the redemption, in whole or
in part, of the preferred stock held by the depositary. Whenever we redeem any preferred stock held by the depositary, the
depositary will redeem, as of the same redemption date, the number of depositary shares representing the preferred stock so
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redeemed. The depositary will mail the notice of redemption to the record holders of the depositary receipts promptly
upon receiving the notice from us and not fewer than 20 or more than 60 days, unless otherwise provided in the applicable
prospectus supplement, prior to the date fixed for redemption of the preferred stock.
Voting
Upon receipt of notice of any meeting at which the holders of preferred stock are entitled to vote, the depositary will
mail the information contained in the notice of meeting to the record holders of the depositary receipts underlying the
preferred stock. Each record holder of those depositary receipts on the record date will be entitled to instruct the depositary
as to the exercise of the voting rights pertaining to the amount of preferred stock underlying that holder's depositary shares.
The record date for the depositary will be the same date as the record date for the preferred stock. The depositary will, to
the extent practicable, vote the preferred stock underlying the depositary shares in accordance with these instructions. We
will agree to take all action that may be deemed necessary by the depositary in order to enable the depositary to vote the
preferred stock in accordance with these instructions. The depositary will not vote the preferred stock to the extent that it
does not receive specific instructions from the holders of depositary receipts.
Withdrawal of preferred stock
Owners of depositary shares will be entitled to receive upon surrender of depositary receipts at the principal office
of the depositary and payment of any unpaid amount due to the depositary, the number of whole shares of preferred stock
underlying their depositary shares.
Partial shares of preferred stock will not be issued. Holders of preferred stock will not be entitled to deposit the shares
under the deposit agreement or to receive depositary receipts evidencing depositary shares for the preferred stock.
Amendment and termination of the deposit agreement
The form of depositary receipt evidencing the depositary shares and any provision of the deposit agreement may be
amended by agreement between the depositary and us. However, any amendment which materially and adversely alters
the rights of the holders of depositary shares, other than fee changes, will not be effective unless the amendment has been
approved by at least a majority of the outstanding depositary shares. The deposit agreement may be terminated by the
depositary or us only if:
-
all outstanding depositary shares have been redeemed; or
-
there has been a final distribution of the preferred stock in connection with our dissolution and such distribution has
been made to all the holders of depositary shares.
Charges of depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the
depositary arrangement. We will also pay charges of the depositary in connection with:
-
the initial deposit of the preferred stock;
-
the initial issuance of the depositary shares;
-
any redemption of the preferred stock; and
-
all withdrawals of preferred stock by owners of depositary shares.
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Holders of depositary receipts will pay transfer, income and other taxes and governmental charges and other specified
charges as provided in the deposit agreement for their accounts. If these charges have not been paid, the depositary
may:
-
refuse to transfer depositary shares;
-
withhold dividends and distributions; and
-
sell the depositary shares evidenced by the depositary receipt.
Miscellaneous
The depositary will forward to the holders of depositary receipts all reports and communications we deliver to the
depositary that we are required to furnish to the holders of the preferred stock. In addition, the depositary will make available
for inspection by holders of depositary receipts at the principal office of the depositary, and at such other places as it may
from time to time deem advisable, any reports and communications we deliver to the depositary as the holder of preferred
stock.
Neither the depositary nor we will be liable if either the depositary or we are prevented or delayed by law or any
circumstance beyond the control of either the depositary or us in performing our respective obligations under the deposit
agreement. Our obligations and the depositary's obligations will be limited to the performance in good faith of our or the
depositary's respective duties under the deposit agreement. Neither the depositary nor we will be obligated to prosecute or
defend any legal proceeding in respect of any depositary shares or preferred stock unless satisfactory indemnity is
furnished. The depositary and we may rely on:
-
written advice of counsel or accountants;
-
information provided by holders of depositary receipts or other persons believed in good faith to be competent to give
such information; and
-
documents believed to be genuine and to have been signed or presented by the proper party or parties.
Resignation and removal of depositary
The depositary may resign at any time by delivering a notice to us. We may remove the depositary at any time.
Any such resignation or removal will take effect upon the appointment of a successor depositary and its acceptance of such
appointment. The successor depositary must be appointed within 60 days after delivery of the notice for resignation or
removal. The successor depositary must be a bank and trust company having its principal office in the United States of
America and having a combined capital and surplus of at least $50,000,000.
Federal income tax consequences
Owners of the depositary shares will be treated for U.S. federal income tax purposes as if they were owners of the
preferred stock underlying the depositary shares. As a result, owners will be entitled to take into account for U.S. federal
income tax purposes and deductions to which they would be entitled if they were holders of such preferred stock. No gain or
loss will be recognized for U.S. federal income tax purposes upon the withdrawal of preferred stock in exchange for
depositary shares. The tax basis of each share of preferred stock to an exchanging owner of depositary shares will, upon
such exchange, be the same as the aggregate tax basis of the depositary shares exchanged. The holding period for
preferred stock in the hands of an exchanging owner of depositary shares will include the period during which such person
owned such depositary shares.
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DESCRIPTION OF THE WARRANTS
General
We may issue warrants for the purchase of our debt securities, preferred stock or common
stock, or any combination thereof. Warrants may be issued independently or together with our debt securities, preferred
stock or common stock and may be attached to or separate from any offered securities. Each series of warrants will be
issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent.
The warrant agent will act solely as our agent in connection with the warrants. The warrant agent will not have any
obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. This summary of certain
provisions of the warrants is not complete. For the terms of a particular series of warrants, you should refer to the
prospectus supplement for that series of warrants and the warrant agreement for that particular series.
Debt warrants
The prospectus supplement relating to a particular issue of warrants to purchase debt securities will describe the
terms of the debt warrants, including the following:
-
the title of the debt warrants;
-
the offering price for the debt warrants, if any;
-
the aggregate number of the debt warrants;
-
the designation and terms of the debt securities, including any conversion rights, purchasable upon exercise of the debt
warrants;
-
if applicable, the date from and after which the debt warrants and any debt securities issued with them will be separately
transferable;
-
the principal amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for
the warrants, which may be payable in cash, securities or other property;
-
the dates on which the right to exercise the debt warrants will commence and expire;
-
if applicable, the minimum or maximum amount of the debt warrants that may be exercised at any one time;
-
whether the debt warrants represented by the debt warrant certificates or debt securities that may be issued upon
exercise of the debt warrants will be issued in registered or bearer form;
-
information with respect to book-entry procedures, if any;
-
the currency or currency units in which the offering price, if any, and the exercise price are payable;
-
if applicable, a discussion of material U.S. federal income tax considerations;
-
the antidilution provisions of the debt warrants, if any;
-
the redemption or call provisions, if any, applicable to the debt warrants;
-16-
-
any provisions with respect to the holder's right to require us to repurchase the debt warrants upon a change in control
or similar event; and
-
any additional terms of the debt warrants, including procedures, and limitations relating to the exchange, exercise and
settlement of the debt warrants.
Debt warrant certificates will be exchangeable for new debt warrant certificates of different denominations. Debt
warrants may be exercised at the corporate trust office of the warrant agent or any other office indicated in the prospectus
supplement. Prior to the exercise of their debt warrants, holders of debt warrants will not have any of the rights of holders of
the debt securities purchasable upon exercise and will not be entitled to payment of principal or any premium, if any, or
interest on the debt securities purchasable upon exercise.
Equity warrants
The prospectus supplement relating to a particular series of warrants to purchase our common stock or preferred
stock will describe the terms of the warrants, including the following:
-
the title of the warrants;
-
the offering price for the warrants, if any;
-
the aggregate number of warrants;
-
the designation and terms of the common stock or preferred stock that may be purchased upon exercise of the
warrants;
-
if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants
issued with each security;
-
if applicable, the date from and after which the warrants and any securities issued with the warrants will be separately
transferable;
-
the number of shares of common stock or preferred stock that may be purchased upon exercise of a warrant and the
exercise price for the warrants;
-
the dates on which the right to exercise the warrants shall commence and expire;
-
if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
-
the currency or currency units in which the offering price, if any, and the exercise price are payable;
-
if applicable, a discussion of material U.S. federal income tax considerations;
-
the antidilution provisions of the warrants, if any;
-
the redemption or call provisions, if any, applicable to the warrants;
-
any provisions with respect to the holder's right to require us to repurchase the warrants upon a change in control or
similar event; and
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-
any additional terms of the warrants, including procedures, and limitations relating to the exchange, exercise and
settlement of the warrants.
Holders of equity warrants will not be entitled:
-
to vote, consent or receive dividends;
-
receive notice as stockholders with respect to any meeting of stockholders for the election of our directors or any other
matter; or
-
exercise any rights as stockholders of us.
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DESCRIPTION OF THE DEBT SECURITIES
The debt securities may be either secured or unsecured and will either be our senior debt securities or our
subordinated debt securities. The debt securities will be issued under one or more separate indentures between us and a
trustee to be specified in an accompanying prospectus supplement. Senior debt securities will be issued under a senior
indenture and subordinated debt securities will be issued under a subordinated indenture. Together, the senior indenture
and the subordinated indenture are called indentures in this description. This prospectus, together with the applicable
prospectus supplement, will describe the terms of a particular series of debt securities.
The following is a summary of selected provisions and definitions of the indentures and debt securities to which any
prospectus supplement may relate. The summary of selected provisions of the indentures and the debt securities appearing
below is not complete and is subject to, and qualified entirely by reference to, all of the provisions of the applicable indenture
and certificates evidencing the applicable debt securities. For additional information, you should look at the applicable
indenture and the certificate evidencing the applicable debt security that is filed as an exhibit to the registration statement
that includes the prospectus. In this description of the debt securities, the words "we," "us,"
"our" or "the Company" refer only to Mattson Technology, Inc. and not to any of our subsidiaries,
unless we expressly state or the context otherwise requires.
The following description sets forth selected general terms and provisions of the applicable indenture and debt securities
to which any prospectus supplement may relate. Other specific terms of the applicable indenture and debt securities will be
described in the applicable prospectus supplement. If any particular terms of the indenture or debt securities described in a
prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have
been superseded by that prospectus supplement.
General
Debt securities may be issued in separate series without limitation as to aggregate principal amount. We may
specify a maximum aggregate principal amount for the debt securities of any series.
We are not limited as to the amount of debt securities we may issue under the indentures. Unless otherwise provided in
a prospectus supplement, a series of debt securities may be reopened to issue additional debt securities of such series.
The prospectus supplement relating to a particular series of debt securities will set forth:
-
whether the debt securities are senior or subordinated;
-
the offering price;
-
the title;
-
any limit on the aggregate principal amount;
-
the person who shall be entitled to receive interest, if other than the record holder on the record date;
-
the date or dates the principal will be payable;
-
the interest rate or rates, which may be fixed or variable, if any, the date from which interest will accrue, the interest
payment dates and the regular record dates, or the method for calculating the dates and rates;
-
the place where payments may be made;
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-
any mandatory or optional redemption provisions or sinking fund provisions and any applicable redemption or purchase
prices associated with these provisions;
-
if issued other than in denominations of U.S. $1,000 or any multiple of U.S. $1,000, the denominations in which the debt
securities shall be issuable;
-
if applicable, the method for determining how the principal, premium, if any, or interest will be calculated by reference to
an index or formula;
-
if other than U.S. currency, the currency or currency units in which principal, premium, if any, or interest will be payable
and whether we or a holder may elect payment to be made in a different currency;
-
the portion of the principal amount that will be payable upon acceleration of maturity, if other than the entire principal
amount;
-
if the principal amount payable at stated maturity will not be determinable as of any date prior to stated maturity, the
amount or method for determining the amount which will be deemed to be the principal amount;
-
if applicable, whether the debt securities shall be subject to the defeasance provisions described below under
"Satisfaction and discharge; defeasance" or such other defeasance provisions specified in the applicable
prospectus supplement for the debt securities;
-
any conversion or exchange provisions;
-
whether the debt securities will be issuable in the form of a global security;
-
any subordination provisions applicable to the subordinated debt securities if different from those described below under
"Subordinated debt securities;"
-
any paying agents, authenticating agents, security registrars or other agents for the debt securities, if other than the
trustee;
-
any provisions relating to any security provided for the debt securities, including any provisions regarding the
circumstances under which collateral may be released or substituted;
-
any deletions of, or changes or additions to, the events of default, acceleration provisions or covenants;
-
any provisions relating to guaranties for the securities and any circumstances under which there may be additional
obligors; and
-
any other specific terms of such debt securities.
Unless otherwise specified in the prospectus supplement, the debt securities will be registered debt securities. Debt
securities may be sold at a substantial discount below their stated principal amount, bearing no interest or interest at a rate
which at time of issuance is below market rates. The U.S. federal income tax considerations applicable to debt securities
sold at a discount will be described in the applicable prospectus supplement.
Exchange and transfer
Debt securities may be transferred or exchanged at the office of the security registrar or at the office of any transfer
agent designated by us.
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We will not impose a service charge for any transfer or exchange, but we may require holders to pay any tax or other
governmental charges associated with any transfer or exchange.
In the event of any partial redemption of debt securities of any series, we will not be required to:
-
issue, register the transfer of, or exchange, any debt security of that series during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption and ending at the close of business on the day of the
mailing; or
-
register the transfer of or exchange any debt security of that series selected for redemption, in whole or in part, except
the unredeemed portion being redeemed in part.
We will appoint the trustee as the initial security registrar. Any transfer agent, in addition to the security registrar initially
designated by us, will be named in the prospectus supplement. We may designate additional transfer agents or change
transfer agents or change the office of the transfer agent. However, we will be required to maintain a transfer agent in each
place of payment for the debt securities of each series.
Global securities
The debt securities of any series may be represented, in whole or in part, by one or more global securities. Each
global security will:
-
be registered in the name of a depositary, or its nominee, that we will identify in a prospectus supplement;
-
be deposited with the depositary or nominee or custodian; and
-
bear any required legends.
No global security may be exchanged in whole or in part for debt securities registered in the name of any person other
than the depositary or any nominee unless:
-
the depositary has notified us that it is unwilling or unable to continue as depositary or has ceased to be qualified to act
as depositary;
-
an event of default is continuing with respect to the debt securities of the applicable series; or
-
any other circumstance described in a prospectus supplement has occurred permitting or requiring the issuance of any
such security.
As long as the depositary, or its nominee, is the registered owner of a global security, the depositary or nominee will be
considered the sole owner and holder of the debt securities represented by the global security for all purposes under the
indentures. Except in the above limited circumstances, owners of beneficial interests in a global security will not be:
-
entitled to have the debt securities registered in their names;
-
entitled to physical delivery of certificated debt securities; or
-
considered to be holders of those debt securities under the indenture.
-21-
Payments on a global security will be made to the depositary or its nominee as the holder of the global security. Some
jurisdictions have laws that require that certain purchasers of securities take physical delivery of such securities in definitive
form. These laws may impair the ability to transfer beneficial interests in a global security.
Institutions that have accounts with the depositary or its nominee are referred to as "participants."
Ownership of beneficial interests in a global security will be limited to participants and to persons that may hold beneficial
interests through participants. The depositary will credit, on its book-entry registration and transfer system, the respective
principal amounts of debt securities represented by the global security to the accounts of its participants.
Ownership of beneficial interests in a global security will be shown on and effected through records maintained by the
depositary, with respect to participants' interests, or any participant, with respect to interests of persons held by participants
on their behalf.
Payments, transfers and exchanges relating to beneficial interests in a global security will be subject to policies and
procedures of the depositary. The depositary policies and procedures may change from time to time. Neither any trustee
nor we will have any responsibility or liability for the depositary's or any participant's records with respect to beneficial
interests in a global security.
Payment and paying agents
Unless otherwise indicated in a prospectus supplement, the provisions described in this paragraph will apply to the
debt securities. Payment of interest on a debt security on any interest payment date will be made to the person in whose
name the debt security is registered at the close of business on the regular record date. Payment on debt securities of a
particular series will be payable at the office of a paying agent or paying agents designated by us. However, at our option,
we may pay interest by mailing a check to the record holder. The trustee will be designated as our initial paying agent.
We may also name any other paying agents in a prospectus supplement. We may designate additional paying agents,
change paying agents or change the office of any paying agent. However, we will be required to maintain a paying agent in
each place of payment for the debt securities of a particular series.
All moneys paid by us to a paying agent for payment on any debt security that remain unclaimed for a period ending the
earlier of:
-
10 business days prior to the date the money would be turned over to the applicable state; or
-
at the end of two years after such payment was due,
will be repaid to us thereafter. The holder may look only to us for such payment.
No protection in the event of a change of control
Unless otherwise indicated in a prospectus supplement with respect to a particular series of debt securities, the
debt securities will not contain any provisions that may afford holders of the debt securities protection in the event we have a
change in control or in the event of a highly leveraged transaction, whether or not such transaction results in a change in
control.
Covenants
Unless otherwise indicated in a prospectus supplement with respect to a particular series of debt securities, the
debt securities will not contain any financial or restrictive covenants.
-22-
Consolidation, merger and sale of assets
Unless we indicate otherwise in a prospectus supplement with respect to a particular series of debt securities, we
may not consolidate with or merge into any other person (other than a subsidiary of us), in a transaction in which we are not
the surviving entity, or convey, transfer or lease our properties and assets substantially as an entirety to, any person (other
than a subsidiary of us), unless:
-
the successor entity, if any, is a U.S. corporation, limited liability company, partnership, trust or other business entity;
-
the successor entity assumes our obligations on the debt securities and under the indentures;
-
immediately after giving effect to the transaction, no default or event of default shall have occurred and be continuing; and
-
certain other conditions specified in the indenture are met.
Events of default
Unless we indicate otherwise in a prospectus supplement, the following will be events of default for any series of
debt securities under the indentures:
(1)
|
we fail to pay principal of or any premium on any debt security of that series when due;
|
(2)
|
we fail to pay any interest on any debt security of that series for 30 days after it becomes due;
|
(3)
|
we fail to deposit any sinking fund payment when due;
|
(4)
|
we fail to perform any other covenant in the indenture and such failure continues for 90 days after we are given the notice required in the indentures; and
|
(5)
|
certain events involving our bankruptcy, insolvency or reorganization.
|
Additional or different events of default applicable to a series of debt securities may be described in a prospectus
supplement. An event of default of one series of debt securities is not necessarily an event of default for any other series of
debt securities.
The trustee may withhold notice to the holders of any default, except defaults in the payment of principal, premium, if
any, interest, any sinking fund installment on, or with respect to any conversion right of, the debt securities of such series.
However, the trustee must consider it to be in the interest of the holders of the debt securities of such series to withhold this
notice.
Unless we indicate otherwise in a prospectus supplement, if an event of default, other than an event of default described
in clause (5) above, shall occur and be continuing with respect to any series of debt securities, either the trustee or the
holders of at least 25 percent in aggregate principal amount of the outstanding securities of that series may declare the
principal amount and premium, if any, of the debt securities of that series, or if any debt securities of that series are original
issue discount securities, such other amount as may be specified in the applicable prospectus supplement, in each case
together with accrued and unpaid interest, if any, thereon, to be due and payable immediately.
Unless we indicate otherwise in a prospectus supplement, if an event of default described in clause (5) above shall
occur, the principal amount and premium, if any, of all the debt securities of that series, or if any debt securities of that series
are original issue discount securities, such other amount as may be specified in the applicable prospectus
-23-
supplement, in each case together with accrued and unpaid interest, if any, thereon, will automatically become immediately due and
payable. Any payment by us on the subordinated debt securities following any such acceleration will be subject to the
subordination provisions described below under "Subordinated debt securities."
Notwithstanding the foregoing, each indenture will provide that we may, at our option, elect that the sole remedy for an
event of default relating to our failure to comply with our obligations described under the section entitled
"Reports" below or our failure to comply with the requirements of Section 314(a)(1) of the Trust Indenture Act will
for the first 180 days after the occurrence of such an event of default consist exclusively of the right to receive additional
interest on the relevant series of debt securities at an annual rate equal to (i) 0.25% of the principal amount of such series of
debt securities for the first 90 days after the occurrence of such event of default and (ii) 0.50% of the principal amount of
such series of debt securities from the 91
st
day to, and including, the 180
th
day after the
occurrence of such event of default, which we call "additional interest." If we so elect, the additional interest will
accrue on all outstanding debt securities from and including the date on which such event of default first occurs until such
violation is cured or waived and shall be payable on each relevant interest payment date to holders of record on the regular
record date immediately preceding the interest payment date. On the 181
st
day after such event of default (if
such violation is not cured or waived prior to such 181
st
day), the debt securities will be subject to
acceleration as provided above. In the event we do not elect to pay additional interest upon any such event of default in
accordance with this paragraph, the debt securities will be subject to acceleration as provided above.
In order to elect to pay the additional interest as the sole remedy during the first 180 days after the occurrence of any
event of default relating to the failure to comply with the reporting obligations in accordance with the preceding paragraph,
we must notify all holders of debt securities and the trustee and paying agent of such election prior to the close of business
on the first business day following the date on which such event of default occurs. Upon our failure to timely give such
notice or pay the additional interest, the debt securities will be immediately subject to acceleration as provided above.
After acceleration, the holders of a majority in aggregate principal amount of the outstanding securities of that series
may, under certain circumstances, rescind and annul such acceleration if all events of default, other than the non-payment of
accelerated principal, or other specified amounts or interest, have been cured or waived.
Other than the duty to act with the required care during an event of default, the trustee will not be obligated to exercise
any of its rights or powers at the request of the holders unless the holders shall have offered to the trustee reasonable
indemnity. Generally, the holders of a majority in aggregate principal amount of the outstanding debt securities of any series
will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee
or exercising any trust or power conferred on the trustee.
A holder of debt securities of any series will not have any right to institute any proceeding under the indentures, or for
the appointment of a receiver or a trustee, or for any other remedy under the indentures, unless:
(1)
|
the holder has previously given to the trustee written notice of a continuing event of default with
respect to the debt securities of that series;
|
(2)
|
the holders of at least 25 percent in aggregate principal amount of the outstanding debt securities of that series have
made a written request and have offered reasonable indemnity to the trustee to institute the proceeding; and
|
(3)
|
the trustee has failed to institute the proceeding and has not received direction inconsistent with the original request
from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series within 60 days
after the original request.
|
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Holders may, however, sue to enforce the payment of principal, premium or interest on any debt security on or after the
due date or to enforce the right, if any, to convert any debt security (if the debt security is convertible) without following the
procedures listed in (1) through (3) above.
We will furnish the trustee an annual statement from our officers as to whether or not we are in default in the
performance of the conditions and covenants under the indenture and, if so, specifying all known defaults.
Modification and waiver
Unless we indicate otherwise in a prospectus supplement, the applicable trustee and we may make modifications
and amendments to an indenture with the consent of the holders of a majority in aggregate principal amount of the
outstanding securities of each series affected by the modification or amendment.
We may also make modifications and amendments to the indentures for the benefit of holders without their consent, for
certain purposes including, but not limited to:
-
providing for our successor to assume the covenants under the indenture;
-
adding covenants or events of default;
-
making certain changes to facilitate the issuance of the securities;
-
securing the securities;
-
providing for a successor trustee or additional trustees;
-
conforming the indenture to the description of the debt securities set forth in this prospectus or the accompanying
prospectus;
-
curing any ambiguities or inconsistencies;
-
providing for guaranties of, or additional obligors on, the securities;
-
permitting or facilitating the defeasance and discharge of the securities; and
-
other changes specified in the indenture.
However, neither the trustee nor we may make any modification or amendment without the consent of the holder of each
outstanding security of that series affected by the modification or amendment if such modification or amendment would:
-
change the stated maturity of any debt security;
-
reduce the principal, premium, if any, or interest on any debt security or any amount payable upon redemption or
repurchase, whether at our option or the option of any holder, or reduce the amount of any sinking fund payments;
-
reduce the principal of an original issue discount security or any other debt security payable on acceleration of
maturity;
-
change the place of payment or the currency in which any debt security is payable;
-25-
-
impair the right to enforce any payment after the stated maturity or redemption date;
-
if subordinated debt securities, modify the subordination provisions in a materially adverse manner to the holders;
-
adversely affect the right to convert any debt security if the debt security is a convertible debt security; or
-
change the provisions in the indenture that relate to modifying or amending the indenture.
Satisfaction and discharge; defeasance
We may be discharged from our obligations on the debt securities, subject to limited exceptions, of any series that
have matured or will mature or be redeemed within one year if we deposit enough money with the trustee to pay all the
principal, interest and any premium due to the stated maturity date or redemption date of the debt securities.
Each indenture contains a provision that permits us to elect either or both of the following:
-
we may elect to be discharged from all of our obligations, subject to limited exceptions, with respect to any series of
debt securities then outstanding. If we make this election, the holders of the debt securities of the series will not be entitled
to the benefits of the indenture, except for the rights of holders to receive payments on debt securities or the registration of
transfer and exchange of debt securities and replacement of lost, stolen or mutilated debt securities.
-
we may elect to be released from our obligations under some or all of any financial or restrictive covenants applicable to
the series of debt securities to which the election relates and from the consequences of an event of default resulting from a
breach of those covenants.
To make either of the above elections, we must irrevocably deposit in trust with the trustee enough money to pay in full
the principal, interest and premium on the debt securities. This amount may be made in cash and/or U.S. government
obligations or, in the case of debt securities denominated in a currency other than U.S. dollars, cash in the currency in which
such series of securities is denominated and/or foreign government obligations. As a condition to either of the above
elections, for debt securities denominated in U.S. dollars we must deliver to the trustee an opinion of counsel that the
holders of the debt securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the
action.
With respect to debt securities of any series that are denominated in a currency other than United States dollars,
"foreign government obligations" means:
-
direct obligations of the government that issued or caused to be issued the currency in which such securities are
denominated and for the payment of which obligations its full faith and credit is pledged, or, with respect to debt securities of
any series which are denominated in Euros, direct obligations of certain members of the European Union for the payment of
which obligations the full faith and credit of such members is pledged, which in each case are not callable or redeemable at
the option of the issuer thereof; or
-
obligations of a person controlled or supervised by or acting as an agency or instrumentality of a government described
in the bullet above the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such
government, which are not callable or redeemable at the option of the issuer thereof.
Reports
The indentures provide that any reports or documents that we file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act will be filed with the trustee within 15 days after the same is filed with the SEC. Documents filed by
-26-
us with the SEC via the EDGAR system will be deemed filed with the trustee as of the time such documents are filed with the
SEC.
Notices
Notices to holders will be given by mail to the addresses of the holders in the security
register.
Governing law
The indentures and the debt securities will be governed by, and construed under, the laws of the
State of New York.
No personal liability of directors, officers, employees and stockholders
No incorporator, stockholder, employee, agent, officer, director or subsidiary of ours will have any liability for any
obligations of ours, or because of the creation of any indebtedness under the debt securities, the indentures or supplemental
indentures. The indentures provide that all such liability is expressly waived and released as a condition of, and as a
consideration for, the execution of such indentures and the issuance of the debt securities.
Regarding the trustee
The indentures limit the right of the trustee, should it become our creditor, to obtain payment of claims or secure its
claims.
The trustee will be permitted to engage in certain other transactions with us. However, if the trustee acquires any
conflicting interest, and there is a default under the debt securities of any series for which it is trustee, the trustee must
eliminate the conflict or resign.
Subordinated debt securities
The following provisions will be applicable with respect to each series of subordinated debt securities, unless
otherwise stated in the prospectus supplement relating to that series of subordinated debt securities.
The indebtedness evidenced by the subordinated debt securities of any series is subordinated, to the extent provided in
the subordinated indenture and the applicable prospectus supplement, to the prior payment in full, in cash or other payment
satisfactory to the holders of senior debt, of all senior debt, including any senior debt securities.
Upon any distribution of our assets upon any dissolution, winding up, liquidation or reorganization, whether voluntary or
involuntary, marshalling of assets, assignment for the benefit of creditors, or in bankruptcy, insolvency, receivership or other
similar proceedings, payments on the subordinated debt securities will be subordinated in right of payment to the prior
payment in full in cash or other payment satisfactory to holders of senior debt of all senior debt.
In the event of any acceleration of the subordinated debt securities of any series because of an event of default with
respect to the subordinated debt securities of that series, holders of any senior debt would be entitled to payment in full in
cash or other payment satisfactory to holders of senior debt of all senior debt before the holders of subordinated debt
securities are entitled to receive any payment or distribution.
In addition, the subordinated debt securities will be structurally subordinated to all indebtedness and other liabilities of
our subsidiaries, including trade payables and lease obligations. This occurs because our right to receive any assets of our
subsidiaries upon their liquidation or reorganization, and your right to participate in those assets, will be effectively
subordinated to the claims of that subsidiary's creditors, including trade creditors, except to the extent that we are
recognized as a creditor of such subsidiary. If we are recognized as a creditor of that subsidiary, our claims would still be
subordinate to any security interest in the assets of the subsidiary and any indebtedness of the subsidiary senior to us.
-27-
We are required to promptly notify holders of senior debt or their representatives under the subordinated indenture if
payment of the subordinated debt securities is accelerated because of an event of default.
Under the subordinated indenture, we may also not make payment on the subordinated debt securities if:
-
a default in our obligations to pay principal, premium, if any, interest or other amounts on our senior debt occurs and the
default continues beyond any applicable grace period, which we refer to as a payment default; or
-
any other default occurs and is continuing with respect to designated senior debt that permits holders of designated
senior debt to accelerate its maturity, which we refer to as a non-payment default, and the trustee receives a payment
blockage notice from us or some other person permitted to give the notice under the subordinated indenture.
We will resume payments on the subordinated debt securities:
-
in case of a payment default, when the default is cured or waived or ceases to exist, and
-
in case of a nonpayment default, the earlier of when the default is cured or waived or ceases to exist or 179 days after
the receipt of the payment blockage notice.
No new payment blockage period may commence on the basis of a nonpayment default unless 365 days have elapsed
from the effectiveness of the immediately prior payment blockage notice. No nonpayment default that existed or was
continuing on the date of delivery of any payment blockage notice to the trustee shall be the basis for a subsequent payment
blockage notice.
As a result of these subordination provisions, in the event of our bankruptcy, dissolution or reorganization, holders of
senior debt may receive more, ratably, and holders of the subordinated debt securities may receive less, ratably, than our
other creditors. The subordination provisions will not prevent the occurrence of any event of default under the subordinated
indenture.
The subordination provisions will not apply to payments from money or government obligations held in trust by the
trustee for the payment of principal, interest and premium, if any, on subordinated debt securities pursuant to the provisions
described under the section entitled "Satisfaction and discharge; defeasance," if the subordination provisions
were not violated at the time the money or government obligations were deposited into trust.
If the trustee or any holder receives any payment that should not have been made to them in contravention of
subordination provisions before all senior debt is paid in full in cash or other payment satisfactory to holders of senior debt,
then such payment will be held in trust for the holders of senior debt.
Senior debt securities will constitute senior debt under the subordinated indenture.
Additional or different subordination provisions may be described in a prospectus supplement relating to a particular
series of debt securities.
Definitions
"Designated senior debt" means our obligations under any particular senior debt in which the instrument
creating or evidencing the same or the assumption or guarantee thereof, or related agreements or documents to which we
are a party, expressly provides that such indebtedness shall be designated senior debt for purposes of the subordinated
indenture. The instrument, agreement or other document evidencing any designated senior debt may place limitations and
conditions on the right of such senior debt to exercise the rights of designated senior debt.
-28-
"Indebtedness" means the following, whether absolute or contingent, secured or unsecured, due or to
become due, outstanding on the date of the indenture for such series of securities or thereafter created, incurred or
assumed:
-
our indebtedness evidenced by a credit or loan agreement, note, bond, debenture or other written obligation;
-
all of our obligations for money borrowed;
-
all of our obligations evidenced by a note or similar instrument given in connection with the acquisition of any
businesses, properties or assets of any kind,
-
our obligations:
•
|
as lessee under leases required to be capitalized on the balance sheet of the lessee under generally accepted
accounting principles, or
|
•
|
as lessee under leases for facilities, capital equipment or related assets, whether or not capitalized, entered into or
leased for financing purposes;
|
-
all of our obligations under interest rate and currency swaps, caps, floors, collars, hedge agreements, forward contracts
or similar agreements or arrangements;
-
all of our obligations with respect to letters of credit, bankers' acceptances and similar facilities, including reimbursement
obligations with respect to the foregoing;
-
all of our obligations issued or assumed as the deferred purchase price of property or services, but excluding trade
accounts payable and accrued liabilities arising in the ordinary course of business;
-
all obligations of the type referred to in the above clauses of another person, the payment of which, in either case, we
have assumed or guaranteed, for which we are responsible or liable, directly or indirectly, jointly or severally, as obligor,
guarantor or otherwise, or which are secured by a lien on our property; and
-
renewals, extensions, modifications, replacements, restatements and refundings of, or any indebtedness or obligation
issued in exchange for, any such indebtedness or obligation described in the above clauses of this definition.
"Senior debt" means the principal of, premium, if any, and interest, including all interest accruing subsequent
to the commencement of any bankruptcy or similar proceeding, whether or not a claim for post-petition interest is allowable
as a claim in any such proceeding, and rent payable on or in connection with, and all fees and other amounts payable in
connection with, our indebtedness. However, senior debt shall not include:
-
any debt or obligation if its terms or the terms of the instrument under which or pursuant to which it is issued expressly
provide that it shall not be senior in right of payment to the subordinated debt securities or expressly provide that such
indebtedness is on the same basis or "junior" to the subordinated debt securities; or
-
debt to any of our subsidiaries, a majority of the voting stock of which is owned, directly or indirectly, by us.
"Subsidiary" means a corporation more than 50% of the outstanding voting stock of which is owned, directly
or indirectly, by us or by one or more or our other subsidiaries or by a combination of us and our other subsidiaries. For
purposes of this definition, "voting stock" means stock or other similar interests which ordinarily has or have
voting power for the election of directors, or persons performing similar functions, whether at all times or only so long as no
senior class of stock or other interests has or have such voting power by reason of any contingency.
-29-
DESCRIPTION OF THE UNITS
We may issue units comprised of one or more of the other classes of securities described in this prospectus in any
combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit.
Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The units may be issued
under unit agreements to be entered into between us and a unit agent, as detailed in the prospectus supplement relating to
the units being offered. The prospectus supplement will describe:
-
the designation and terms of the units and of the securities comprising the units, including
whether and under what circumstances the securities comprising the units may be held or transferred separately;
-
a description of the terms of any unit agreement governing the units;
-
a description of the provisions for the payment, settlement, transfer or exchange of the units;
-
a discussion of material federal income tax considerations, if applicable; and
-
whether the units if issued as a separate security will be issued in fully registered or global form.
The descriptions of the units in this prospectus and in any prospectus supplement are summaries of the material
provisions of the applicable agreements. These descriptions do not restate those agreements in their entirety and may not
contain all the information that you may find useful. We urge you to read the applicable agreements because they, and not
the summaries, define your rights as holders of the units. For more information, please review the forms of the relevant
agreements, which will be filed with the SEC promptly after the offering of units and will be available as described under the
heading "Where You Can Find More Information."
-30-
PLAN OF DISTRIBUTION
We may sell the securities offered through this prospectus (1) to or through underwriters
or dealers, (2) directly to purchasers, including our affiliates, (3) through agents, or (4) through a
combination of any of these methods. The securities may be distributed at a fixed price or prices, which may be changed,
market prices prevailing at the time of sale, prices related to the prevailing market prices, or negotiated prices. The
prospectus supplement will include the following information:
-
the terms of the offering;
-
the names of any underwriters or agents;
-
the name or names of any managing underwriter or underwriters;
-
the purchase price of the securities;
-
the net proceeds from the sale of the securities;
-
any delayed delivery arrangements;
-
any underwriting discounts, commissions and other items constituting underwriters' compensation;
-
any initial public offering price;
-
any discounts or concessions allowed or reallowed or paid to dealers; and
-
any commissions paid to agents.
Sale through underwriters or dealers
If underwriters are used in the sale, the underwriters will acquire the securities for their own
account, including through underwriting, purchase, security lending or repurchase agreements with us. The underwriters
may resell the securities from time to time in one or more transactions, including negotiated transactions. Underwriters may
sell the securities in order to facilitate transactions in any of our other securities (described in this prospectus or otherwise),
including other public or private transactions and short sales. Underwriters may offer securities to the public either through
underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as
underwriters. Unless otherwise indicated in the prospectus supplement, the obligations of the underwriters to purchase the
securities will be subject to certain conditions, and the underwriters will be obligated to purchase all the offered securities if
they purchase any of them. The underwriters may change from time to time any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers. The prospectus supplement will include the names of the
principal underwriters the respective amount of securities underwritten, the nature of the obligation of the underwriters to
take the securities and the nature of any material relationship between an underwriter and us.
If dealers are used in the sale of securities offered through this prospectus, we will sell the securities
to them as principals. They may then resell those securities to the public at varying prices determined by the dealers at the
time of resale. The prospectus supplement will include the names of the dealers and the terms of the transaction.
-31-
Direct sales and sales through agents
We may sell the securities offered through this prospectus directly. In this case, no underwriters
or agents would be involved. Such securities may also be sold through agents designated from time to time. The
prospectus supplement will name any agent involved in the offer or sale of the offered securities and will describe any
commissions payable to the agent by us. Unless otherwise indicated in the prospectus supplement, any agent will agree to
use its reasonable best efforts to solicit purchases for the period of its appointment.
We may sell the securities directly to institutional investors or others who may be deemed to be
underwriters within the meaning of the Securities Act with respect to any sale of those securities. The terms of any such
sales will be described in the prospectus supplement.
Delayed delivery contracts
If the prospectus supplement indicates, we may authorize agents, underwriters or dealers to
solicit offers from certain types of institutions to purchase securities at the public offering price under delayed delivery
contracts. These contracts would provide for payment and delivery on a specified date in the future. The contracts would be
subject only to those conditions described in the prospectus supplement. The applicable prospectus supplement will
describe the commission payable for solicitation of those contracts.
Market making, stabilization and other transactions
Unless the applicable prospectus supplement states otherwise, each series of offered securities
will be a new issue and will have no established trading market. We may elect to list any series of offered securities on an
exchange. Any underwriters that we use in the sale of offered securities may make a market in such securities, but may
discontinue such market making at any time without notice. Therefore, we cannot assure you that the securities will have a
liquid trading market.
Any underwriter may also engage in stabilizing transactions, syndicate covering transactions and
penalty bids in accordance with Rule 104 under the Securities Exchange Act of 1934, as amended. Stabilizing
transactions involve bids to purchase the underlying security in the open market for the purpose of pegging, fixing or
maintaining the price of the securities. Syndicate covering transactions involve purchases of the securities in the open
market after the distribution has been completed in order to cover syndicate short positions.
Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when
the securities originally sold by the syndicate member are purchased in a syndicate covering transaction to cover syndicate
short positions. Stabilizing transactions, syndicate covering transactions and penalty bids may cause the price of the
securities to be higher than it would be in the absence of the transactions. The underwriters may, if they commence these
transactions, discontinue them at any time.
Derivative transactions and hedging
We, the underwriters or other agents may engage in derivative transactions involving the
securities. These derivatives may consist of short sale transactions and other hedging activities. The underwriters or agents
may acquire a long or short position in the securities, hold or resell securities acquired and purchase options or futures on
the securities and other derivative instruments with returns linked to or related to changes in the price of the securities. In
order to facilitate these derivative transactions, we may enter into security lending or repurchase agreements with the
underwriters or agents. The underwriters or agents may effect the derivative transactions through sales of the securities to
the public, including short sales, or by lending the securities in order to facilitate short sale transactions by others. The
underwriters or agents may also use the securities purchased or borrowed from us or others (or, in the case of derivatives,
securities received from us in settlement of those derivatives) to directly or indirectly settle sales of the securities or close out
any related open borrowings of the securities.
-32-
Electronic auctions
We may also make sales through the Internet or through other electronic means. Since we may
from time to time elect to offer securities directly to the public, with or without the involvement of agents, underwriters or
dealers, utilizing the Internet or other forms of electronic bidding or ordering systems for the pricing and allocation of such
securities, you should pay particular attention to the description of that system we will provide in a prospectus
supplement.
Such electronic system may allow bidders to directly participate, through electronic access to an
auction site, by submitting conditional offers to buy that are subject to acceptance by us, and which may directly affect the
price or other terms and conditions at which such securities are sold. These bidding or ordering systems may present to
each bidder, on a so-called "real-time" basis, relevant information to assist in making a bid, such as the clearing
spread at which the offering would be sold, based on the bids submitted, and whether a bidder's individual bids would be
accepted, prorated or rejected. For example, in the case of a debt security, the clearing spread could be indicated as a
number of "basis points" above an index treasury note. Of course, many pricing methods can and may also be
used.
Upon completion of such an electronic auction process, securities will be allocated based on prices
bid, terms of bid or other factors. The final offering price at which securities would be sold and the allocation of securities
among bidders would be based in whole or in part on the results of the Internet or other electronic bidding process or
auction.
General information
Agents, underwriters, and dealers may be entitled, under agreements entered into with us, to indemnification by us
against certain liabilities, including liabilities under the Securities Act.
-33-
LEGAL MATTERS
The validity of the securities offered by this prospectus will be passed upon by Wilson Sonsini Goodrich &
Rosati, Professional Corporation, Palo Alto, California.
EXPERTS
The financial statements and management's assessment of the effectiveness of internal control
over financial reporting (which is included in Management's Report on Internal Control over Financial Reporting)
incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2009
have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public
accounting firm, given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and other reports, proxy statements and other information with the
SEC. Our SEC filings are available to the public over the Internet at the SEC's website at http://www.sec.gov. You may also
read and copy any document we file at the SEC's Public Reference Room at 100 F Street, NE, Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 for further information on the Public Reference Room. Our Annual Report on
Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K, including any amendments to those
reports, and other information that we file with or furnish to the SEC pursuant to Section 13(a) or 15(d) of the
Exchange Act can also be accessed free of charge through the Internet. These filings will be available as soon as
reasonably practicable after we electronically file such material with, or furnish it to, the SEC.
We have filed with the SEC a registration statement under the Securities Act of 1933 relating to the
offering of these securities. The registration statement, including the attached exhibits, contains additional relevant
information about us and the securities. This prospectus does not contain all of the information set forth in the registration
statement. You can obtain a copy of the registration statement, at prescribed rates, from the SEC at the address listed
above. The registration statement and the documents referred to below under "Incorporation by Reference" are
also available on our Website at http://www.mattson.com. We have not incorporated by reference into this prospectus the
information on our website, and you should not consider it to be a part of this prospectus.
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INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference into this prospectus certain information we file
with it, which means that we can disclose important information by referring you to those documents. The information
incorporated by reference is considered to be a part of this prospectus, and information that we file later with the SEC will
automatically update and supersede information contained in this prospectus and any accompanying prospectus
supplement. We incorporate by reference the documents listed below that we have previously filed with the SEC (excluding
any portions of any Form 8-K that are not deemed "filed" pursuant to the General Instructions of Form 8-K):
-
our Annual Report on Form 10-K for the fiscal year ended December 31, 2009, filed on
March 5, 2010, including the information specifically incorporated by reference into our Annual Report on Form 10-K for the
fiscal year ended December 31, 2009 from our Definitive Proxy Statement on Schedule 14A filed on April 9,
2010;
-
our Quarterly Report on Form 10-Q for the quarter ended March 28, 2010, filed on April 30,
2010;
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our Current Reports on Form 8-K filed on January 29, 2010, June 8, 2010 and June 10, 2010;
and
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the description of our common stock contained in our Registration Statement on Form 8-A as
filed with the SEC on September 22, 1994 pursuant to Section 12(b) of the Exchange Act.
We also incorporate by reference into this prospectus additional documents that we may file with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the completion or termination of the offering,
including all such documents we may file with the SEC after the date of the initial registration statement and prior to the
effectiveness of the registration statement, but excluding any information deemed furnished and not filed with the SEC. Any
statements contained in a previously filed document incorporated by reference into this prospectus is deemed to be modified
or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus, or in a
subsequently filed document also incorporated by reference herein, modifies or supersedes that statement.
This prospectus may contain information that updates, modifies or is contrary to information in one or
more of the documents incorporated by reference in this prospectus. You should rely only on the information incorporated by
reference or provided in this prospectus. We have not authorized anyone else to provide you with different information. You
should not assume that the information in this prospectus is accurate as of any date other than the date of this prospectus or
the date of the documents incorporated by reference in this prospectus.
We will provide to each person, including any beneficial owner, to whom this prospectus is delivered,
upon written or oral request, at no cost to the requester, a copy of any and all of the information that is incorporated by
reference in this prospectus.
Requests for such documents should be directed to:
Mattson Technology, Inc.
Attn: Corporate Secretary
47131 Bayside Parkway
Fremont, California 94538
(510) 657-5900
You may also access the documents incorporated by reference in this prospectus through our
Website at http://www.mattson.com. Except for the specific incorporated documents listed above, no information available on or
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through our website shall be deemed to be incorporated in this prospectus or the registration statement of which it forms a
part.
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