1
As filed with the Securities and Exchange Commission on December 4, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
KLA-TENCOR CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 04-2564110
- ------------------------ ------------------------------------
(State of incorporation) (I.R.S. Employer Identification No.)
160 Rio Robles
San Jose, California 95134
(Address, including zip code, of principal executive offices)
----------------------
1997 EMPLOYEE STOCK PURCHASE PLAN
(Full Titles of the Plans)
----------------------
LISA C. BERRY
VICE PRESIDENT, GENERAL COUNSEL
KLA-TENCOR CORPORATION
160 Rio Robles
San Jose, California 95134
(Name and address of agent for service)
(408) 875-4200
(Telephone number, including area code, of agent for service)
----------------------
Copy to:
JUDITH M. O'BRIEN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
================================================================================================================
CALCULATION OF REGISTRATION FEE
================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered Per Share(1) Offering Price(1) Registration Fee
- ----------------------------------------------------------------------------------------------------------------
Common Stock,
$.001 par value
Newly reserved under 1997
Employee Stock Purchase Plan 1,000,000 $35.50 $35,500,000.00 $10,757.58
- ------------
(1) The Proposed Maximum Offering Price Per Share was estimated in accordance
with Rule 457(c) and Rule 457(h) under the Securities Act of 1933, as
amended (the "SECURITIES ACT") solely for the purpose of calculating the
registration fee, based on the average between the high and low price of
the Registrant's stock as reported in the Nasdaq National Market System on
November 30, 1998.
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
KLA-Tencor Corporation (the "REGISTRANT" or the "COMPANY") hereby
incorporates by reference in this registration statement the following
documents:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended June
30, 1998 and Amendment No. 1 to Form 10-K (File No. 000-09992),
pursuant to Section 13(a) of the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT");
(b) Registrant's definitive proxy statement dated September 30, 1998 (File
No. 000-09992), filed in connection with the November 17, 1998 Annual
Meeting of Stockholders of the Company;
(c) Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1998 (File No. 000-09992), filed pursuant to
Section 13(a) of the Exchange Act;
(d) Registration Statement on Form S-8 filed with the Securities and
Exchange Commission on January 30, 1998 registering shares under the
1997 Employee Stock Purchase Plan (File No. 333-45271).
(e) The description of the Registrant's Common Stock as set forth in the
Registration Statement filed by the Registrant on Form 8-A on March
29, 1989 (File No. 000-09992) pursuant to Section 12(g) of the
Exchange Act and any amendments or reports thereto filed with the
Securities and Exchange Commission for the purpose of updating such
description, including Amendment No. 1 to Form 8-A filed September 25,
1995 and Amendment No. 2 to Form 8-A filed September 24, 1996.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered is registered under Section 12 of the
Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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 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
II-1
3
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 Company's Amended and Restated Certificate of Incorporation provides
that to the fullest extent permitted by the DGCL, no director of the Company
shall be personally liable to the Company 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 Company's Bylaws provide that the Company shall indemnify to the full
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 Company.
The Company 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
See Exhibit Index.
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 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
II-2
4
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 of 1933 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 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 Act and will
be governed by the final adjudication of such issue.
II-3
5
SIGNATURES
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 December 4, 1998.
KLA-TENCOR CORPORATION
By: /s/ Kenneth Levy
-------------------------------------
Kenneth Levy, Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kenneth Levy and Lisa C. Berry, and each
of them, their true and lawful attorneys and agents, with full power of
substitution, each with power to act alone, to sign and execute on behalf of the
undersigned any amendment or amendments to this Registration Statement on Form
S-8 and to perform any acts necessary in order to file such amendments, and each
of the undersigned does hereby ratify and confirm all that said attorneys and
agents, or their or his or her substitutes, shall do or cause to be done by
virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Kenneth Levy Chief Executive Officer and Director December 4, 1998
- ------------------------------- (Principal-Executive-Officer)
Kenneth Levy
/s/ Jon D. Tompkins Chairman of the Board and Director December 4, 1998
- -------------------------------
Jon D. Tompkins
/s/ Kenneth L. Schroeder President, Chief Operating Officer December 4, 1998
- ------------------------------- and Director
Kenneth L. Schroeder
/s/ Robert J. Boehlke Executive Vice President and Chief December 4, 1998
- ------------------------------- Financial Officer (Principal
Robert J. Boehlke Financial and Accounting Officer)
/s/ James W. Bagley Director December 4, 1998
- -------------------------------
James W. Bagley
/s/ Edward W. Barnholt Director December 4, 1998
- -------------------------------
Edward W. Barnholt
/s/ Leo J. Chamberlain Director December 4, 1998
- -------------------------------
Leo J. Chamberlain
/s/ Richard J. Elkus, Jr. Director December 4, 1998
- -------------------------------
Richard J. Elkus, Jr.
/s/ Dean O. Morton Director December 4, 1998
- -------------------------------
Dean O. Morton
/s/ Samuel Rubinovitz Director December 4, 1998
- -------------------------------
Samuel Rubinovitz
/s/ Dag Tellefsen Director December 4, 1998
- -------------------------------
Dag Tellefsen
/s/ Lida Urbanek Director December 4, 1998
- -------------------------------
Lida Urbanek
II-4
6
KLA-TENCOR CORPORATION
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Exhibit
Number Description
- ------- -----------
3.2 Bylaws, as amended November 17, 1998
5.1 Opinion re: legality
10.2* 1997 Employee Stock Purchase Plan
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of Independent Accountants
24.1 Power of Attorney (see Page II-4)
- ----------
* Incorporated by reference to Exhibit 10.2 to the Registrant's Registration
Statement on Form S-8, dated January 30, 1998 (Commission File No. 333-45271).
II-5