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As filed with the Securities and Exchange Commission on May 14, 2001
Registration No. 333-_____
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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KLA-TENCOR CORPORATION
(Exact name of Registrant as specified in its charter)
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DELAWARE 04-2564110
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(State of Incorporation) (I.R.S. Employer Identification Number)
160 RIO ROBLES
SAN JOSE, CA 95134
(Address of Principal Executive Offices)
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KLA-TENCOR 401(k) PLAN
(Full title of the plan)
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STUART J. NICHOLS
VICE PRESIDENT AND GENERAL COUNSEL
KLA-TENCOR CORPORATION
160 RIO ROBLES
SAN JOSE, CA 95134
(Name and address of agent for service)
(408) 875-4200
(Telephone number, including area code, of agent for service)
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Copy to:
Larry W. Sonsini, Esq.
Bret M. DiMarco, Esq.
WILSON SONSINI GOODRICH & ROSATI, P.C.
650 Page Mill Road
Palo Alto, CA 94304-1050
(650) 493-9300
CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE REGISTRATION FEE
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Common Stock, $.001 par value(3) 1,500,000 $49.60 $74,400,000.00 $18,600.00
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement shall also cover any
additional shares of the Registrant's Common Stock that become issuable
under the KLA-Tencor 401(k) Plan described herein (the "Plan") by reason of
any stock dividend, stock split, recapitalization or other similar
transaction effected without the Registrant's receipt of consideration that
results in an increase in the number of the Registrant's outstanding shares
of Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) in accordance with Rule 457(h) under the Securities
Act, on the basis of $49.60 per share, the average of the high and low
prices per share of the Common Stock on the NASDAQ National Market on May
9, 2001.
(3) Associated with the Common Stock are Common Stock Purchase Rights that will
not be exercisable until the occurrence of certain prescribed events, none
of which has occurred. In addition, pursuant to Rule 416(c) under the
Securities Act, this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the Plan.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
KLA-Tencor Corporation (the "Company" or the "Registrant") hereby
incorporates the following documents by reference in this registration
statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 2000, filed on September 28, 2000;
(b) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 2000, filed on November 14, 2000;
(c) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended December 31, 2000, filed on February 14, 2001;
(d) The Company's Current Report on Form 8-K, filed on December 20,
2000;
(e) The Company's Current Report on Form 8-K, filed on March 21, 2001;
(f) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") since the end of the fiscal year covered by the
Annual Report on Form 10-K referred to in (a) above;
(g) Item 1 of the Company's Registration Statement on Form 8-A, filed
on March 29, 1989;
(h) Item 1 of the Company's Amendment No. 2 to its Registration
Statement on Form 8-A/A, filed on September 24, 1996; and
(i) All other descriptions of the Company's Common Stock contained in
a registration statement filed under the Exchange Act, including
any amendment or report filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act, on or after the date of this registration
statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "[a] corporation may indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was
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a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful." With respect to
derivative actions, Section 145(b) of the DGCL provides in relevant part that
"[a] corporation may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the corporation to procure a judgment in its favor... [by reason
of his service in one of the capacities specified in the preceding sentence]
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper."
The Registrant's Amended and Restated Certificate of Incorporation
provides that to the fullest extent permitted by the DGCL, no director of the
Registrant shall be personally liable to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director. The Amended and
Restated Certificate of Incorporation also provides that no amendment or repeal
of such provision shall apply to or have any effect on the right to
indemnification permitted thereunder with respect to claims arising from acts or
omissions occurring in whole or in part before the effective date of such
amendment or repeal whether asserted before or after such amendment or repeal.
The Registrant's Bylaws provide that the Registrant shall indemnify to
the fullest extent permitted by the DGCL each of its directors, officers,
employees and other agents against expenses actually and reasonably incurred in
connection with any proceeding arising by reason of the fact that such person is
or was an agent of the Registrant.
The Registrant has entered into indemnification agreements with its
directors and executive officers and intends to enter into indemnification
agreements with any new directors and executive officers in the future.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
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4.1* KLA-Tencor 401(k) Plan (July 1, 1997 Restatement), as amended by Amendments No. 1 through 5
thereto
5.1 Undertaking re: Status of Favorable Determination Letter Covering the Plan
The Registrant has received a favorable determination letter from the Internal Revenue Service
(the "IRS") concerning the qualification of the KLA-Tencor 401(k) Plan (the "Plan") under
Section 401(a) and related provisions of the Internal Revenue Code of 1986, as amended. The
Registrant will submit any future material amendments to the Plan to the IRS with a request for
a favorable determination that the Plan, as amended, continues to so qualify.
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EXHIBIT
NUMBER DESCRIPTION
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23.1 Consent of independent accountants
24.1 Power of attorney
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* Incorporated by reference to Exhibits 4.1 to KLA-Tencor Corporation's
Registration Statement on Form S-8 filed on September 26, 2000 (File No.
333-46598) and Registration Statement on Form S-8 filed on November 13,
2000 (File No. 333-49766).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the
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event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Jose, State of California on the 14th day of May,
2001.
KLA-TENCOR CORPORATION
By /s/ Stuart J. Nichols
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Stuart J. Nichols
Vice President and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
Principal Executive Officer:
/s/ Kenneth L. Schroeder President and Chief Executive May 14, 2001
- ------------------------------------ Officer
Kenneth L. Schroeder
Principal Financial and
Accounting Officer:
/s/ John Kispert Executive Vice President and May 14, 2001
- ------------------------------------ Chief Financial Officer
John Kispert
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Signature Title Date
Directors:
/s/ Kenneth Levy Chairman of the Board and Director May 14, 2001
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Kenneth Levy
/s/ Edward W. Barnholt Director May 14, 2001
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Edward W. Barnholt
/s/ Richard J. Elkus, Jr. Director May 14, 2001
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Richard J. Elkus, Jr.
/s/ Dean O. Morton Director May 14, 2001
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Dean O. Morton
/s/ Jon D. Tompkins Director May 14, 2001
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Jon D. Tompkins
/s/ Lida Urbanek Director May 14, 2001
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Lida Urbanek
/s/ H. Raymond Bingham Director May 14, 2001
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H. Raymond Bingham
/s/ Kenneth L. Schroeder Director May 14, 2001
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Kenneth L. Schroeder
/s/ Robert T. Bond Director May 14, 2001
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Robert T. Bond
*By /s/ Stuart J. Nichols
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Stuart J. Nichols
Attorney-in-Fact
A majority of the members of the Board of Directors.
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THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the Registrant, as
the administrator of the KLA-Tencor 401(k) Plan, has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Jose, State of California on the 14th day of
May, 2001.
KLA-TENCOR 401(K) PLAN
(Plan)
By /s/ Kenneth L. Schroeder
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Kenneth L. Schroeder
President and Chief Executive Officer
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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4.1* KLA-Tencor 401(k) Plan (July 1, 1997 Restatement), as amended by Amendments No. 1 through 5
thereto
5.1 Undertaking re: Status of Favorable Determination Letter Covering the Plan. (See
Item 8 of this Registration Statement)
23.1 Consent of independent accountants
24.1 Power of attorney
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* Incorporated by reference to Exhibits 4.1 to KLA-Tencor Corporation's
Registration Statement on Form S-8 filed on September 26, 2000 (File No.
333-46598) and Registration Statement on Form S-8 filed on November 13,
2000 (File No. 333-49766).