<PAGE> 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)
<TABLE>
<S> <C>
DELAWARE 04-2564110
- ------------------------ ------------------------------------
(State of incorporation) (I.R.S. Employer Identification No.)
</TABLE>
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
<TABLE>
<CAPTION>
================================================================================================================
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
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
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
</TABLE>
- ------------
(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.
<PAGE> 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
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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.
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<PAGE> 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.
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<PAGE> 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/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
</TABLE>
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KLA-TENCOR CORPORATION
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
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)
</TABLE>
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* 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).
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<PAGE> 1
EXHIBIT 3.2
KLA-TENCOR CORPORATION,
A DELAWARE CORPORATION
BY-LAWS
ORIGINALLY ADOPTED: JUNE 12, 1989
AS AMENDED: NOVEMBER 17, 1998
ARTICLE I
STOCKHOLDERS
Section 1. Annual Meeting. An annual meeting of the stockholders, for
the election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, on such date, and at such time as the Board of
Directors shall each year fix, which date shall be within thirteen months
subsequent to the last annual meeting of stockholders.
Section 2. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes prescribed in the notice of the meeting, may be called
only by the Board of Directors and shall be held at such place, on such date,
and at such time as they shall fix. Business transacted at special meetings
shall be confined to the purpose or purposes stated in the notice.
Section 3. Notice of Meetings. Written notice of the place, date, and
time of all meetings of the stockholders shall be given, not less than ten (10)
nor more than sixty to each stockholder entitled to vote at such meeting, except
as otherwise provided herein or required by law (meaning, here and hereinafter,
as required from time to time by the Delaware General Corporation Law or the
Certificate of Incorporation of the Corporation). When a meeting is adjourned to
another place, date or time, written notice need not be given of the adjourned
meeting if the place, date and time thereof are announced at the meeting at
which the adjournment is taken; provided, however, that if the date of any
adjourned meeting is more than thirty (30) days after the date for which the
meeting was originally noticed, or if a new record date is fixed for the
adjourned meeting, written notice of the place, date, and time of the adjourned
meeting shall be given in conformity herewith. At any adjourned meeting, any
business may be transacted which might have been transacted at the original
meeting.
Section 4. Quorum. At any meeting of the stockholders, the holders of a
majority of all of the shares of the stock entitled to vote at the meeting,
present in person or by proxy, shall constitute a quorum for all purposes,
unless or except to the extent that the presence of a larger number may be
required by law.
If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of a majority of the shares of stock entitled to vote who
are present, in person or by proxy, may adjourn the meeting to another place,
date or time.
<PAGE> 2
If a notice of any adjourned special meeting of stockholders is sent to
all stockholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, then, provided that those present hold more
than 33-1/3% of the shares entitled to vote, those present at such adjourned
meeting shall constitute a quorum, and all matters shall be determined by a
majority of the votes cast at such meeting.
* Section 5. Conduct of the Stockholders' Meeting. At every meeting
of the stockholders, the Chairman of the Board of the Corporation, or in his
absence the Chief Executive Officer of the Corporation, or in his absence the
President of the Corporation, or in his absence the Vice President designated by
the Chairman of the Board or the Chief Executive Officer, or in the absence of
such designation any Vice President, or in the absence of the Chairman of the
Board, Chief Executive Officer, President or any Vice President a chairman
chosen by the majority of the voting shares represented in person or by proxy,
shall act as chairman of the meeting. The Secretary of the Corporation or a
person designated by the chairman shall act as Secretary of the meeting. Unless
otherwise approved by the chairman, attendance at the Stockholders' Meeting
shall be restricted to stockholders of record, persons authorized in accordance
with Section 8 of these By-Laws to act by proxy, and officers of the
Corporation.
Section 6. Conduct of Business. The Chairman shall call the meeting to
order, establish the agenda, and conduct the business of the meeting in
accordance herewith or, at the Chairman's discretion, in accordance with the
wishes of the stockholders in attendance.
The Chairman shall also conduct the meeting in an orderly manner, rule
on the precedence of, and procedure on, motions and other procedural matters,
and exercise discretion with respect to such procedural matters with fairness
and good faith toward all those entitled to take part. The Chairman may impose
reasonable limits on the amount of time taken up at the meeting on discussion in
general or on remarks by any one stockholder. Should any person in attendance
become unruly or obstruct the meeting proceedings, the Chairman shall have the
power to have such person removed from participation. Notwithstanding anything
in these By-Laws to the contrary, no business shall be conducted at any meeting
except in accordance with the procedures set forth in this Section 6, Section 7
below and Section 11 of Article II below. The Chairman of any meeting shall, if
the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
this Section 6, Section 7 below and Section 11 of Article II below, and if he
should so determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
Section 7. Notice of Stockholder Business. At an annual or special
meeting of the stockholders, only such business shall be conducted as shall have
been properly
- --------
* As amended April 30, 1997.
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brought before the meeting. To be properly brought before a meeting, business
must be (a) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors, (b) properly brought before
the meeting by or at the direction of the Board of Directors, (c) if at an
annual meeting, properly brought before the meeting by a stockholder, or (d) if
at a special meeting, if, and only if, the notice of a special meeting provides
for business to be brought before the meeting by stockholders, properly brought
before the meeting by a stockholder.
For business to be properly brought before a meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation no later than the date upon which stockholder proposals to be
included in the Corporation's Proxy Statement must be received by the
Corporation under the requirements of the Securities Exchange Act of 1934, as
amended, and the rules promulgated thereunder.
A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual or special meeting
(a) a brief description of the business desired to be brought before the annual
or special meeting and the reasons for conducting such business at the annual or
special meeting, (b) the name and address, as they appear on the Corporation's
books, of the stockholder proposing such business, (c) the class and number of
shares of the Corporation which are beneficially owned by the stockholder, (d)
any material interest of the stockholder in such business and (e) such other
information relating to the stockholder or the proposal as is required to be
disclosed under the rules of the Securities and Exchange Commission governing
the solicitation of proxies with respect to such proposal, whether or not such
proxies are in fact solicited by the stockholder.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at an annual or special meeting except in accordance with the
procedures set forth in this Section 7. The chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
this Section 7, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
Section 8. Proxies and Voting. At any meeting of the stockholders, every
stockholder entitled to vote may vote in person or by proxy authorized by an
instrument in writing filed in accordance with the procedure established for
meeting. No stockholder may authorize more than one proxy for his shares.
Each stockholder shall have one vote for every share of stock entitled
to vote which is registered in his or her name on the record date for the
meeting, except as otherwise provided herein or required by law.
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<PAGE> 4
All voting, including on the election of directors but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or his or her proxy, a stock
vote shall be taken. Every stock vote shall be taken by ballots, each of which
shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
Every vote taken by ballots shall be counted by an inspector or inspectors
appointed by the chairman of the meeting.
All elections shall be determined by a plurality of the votes cast, and
except as otherwise required by law or By-Laws, all other matters shall be
determined by a majority of the votes cast.
Section 9. Stock List. A complete list of stockholders entitled to vote
at any meeting of stockholders, arranged in alphabetical order for each class of
stock and showing address of each such stockholder and the number of shares
registered in his or her name, shall be open to the examination of any such
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten (10) days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or if not so specified, at the place
where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during the
whole time thereof and shall be open to the examination of any such stockholder
who is present. This list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
Section 10. Elimination of Written Consent. Any action required or
permitted to be taken by the stockholders of the corporation must be effected at
a duly called annual or special meeting of stockholders of the corporation and
may not be effected by any consent in writing by such stockholders.
4
<PAGE> 5
ARTICLE II
BOARD OF DIRECTORS
** Section 1. Number and Term of Office. The number of directors shall be
eleven (11)*** and, thereafter, shall be fixed from time to time exclusively by
the Board of Directors pursuant to a resolution adopted by a majority of the
total number of authorized directors (whether or not there exists any vacancies
in previously authorized directorships at the time any such resolution is
presented to the Board for adoption). The directors shall be divided into three
classes, as nearly equal in number as reasonably possible, with the term of
office of the first class to expire at the 1990 annual meeting of stockholders,
the term of office of the second class to expire at the 1991 annual meeting of
stockholders and the term of office of the third class to expire at the 1992
annual meeting of stockholders. At each annual meeting of stockholders following
such initial classification and election, directors shall be elected to succeed
those directors whose term expire for a term of office to expire at the third
succeeding annual meeting of stockholders after their election. All directors
shall hold office until the expiration of the term for which elected and until
their successors are elected, except in the case of the death, resignation or
removal of any director.
Section 2. Vacancies and Newly Created Directorships. Subject to the
rights of the holders of any series of Preferred Stock then outstanding, newly
created directorships resulting from any increase in the authorized number of
directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification or other cause (other than removal
from office by a vote of stockholders) may be filled only by a majority vote of
the directors then in office, though less than a quorum, and directors so chosen
shall hold office for a term expiring at the annual meeting of stockholders at
which the term of office of the class to which they have been elected expires.
No decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
Section 3. Removal. Subject to the rights of the holders of any series
of Preferred Stock then outstanding, any directors, or the entire Board of
Directors, may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least a majority of the voting
power of all of the then-outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class. Vacancies in the Board of Directors resulting from such removal
may be filled by (i) a majority of the directors then in office, though less
than a quorum, or (ii) the stockholders at a special meeting of the stockholders
properly called for that purpose, by the vote of the holders of a majority of
the shares entitled to vote at
- --------
** As amended April 30, 1997.
*** As amended November 17, 1998
5
<PAGE> 6
such special meeting. Directors so chosen shall hold office for a term expiring
at the annual meeting of stockholders at which the term of office of the class
to which they have been elected expires.
Section 4. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such place or places, on such date or dates, and at such time
or times as shall have been established by the Board of Directors and publicized
among all directors. A notice of each regular meeting shall not be required.
Section 5. Special Meetings. Special meetings of the Board of Directors
may be called by one-third of the directors then in office (rounded up to the
nearest whole number), the Chairman of the Board or by the chief executive
officer and shall be held at such place, on such date, and at such time as they
or he shall fix. Notice of the place, date, and time of each such special
meeting shall be given each director by whom it is not waived by mailing written
notice not fewer than five (5) days before the meeting or by telecopying or
delivering by overnight courier service the same not fewer than twenty-four (24)
hours before the meeting. Unless otherwise indicated in the notice thereof, any
and all business may be transacted at a special meeting.
Section 6. Quorum. At any meeting of the Board of Directors, a majority
of the total number of authorized Directors shall constitute a quorum for all
purposes. If a quorum shall fail to attend any meeting, a majority of those
present may adjourn the meeting to another place, date, or time, without further
notice or waiver thereof.
Section 7. Participation in Meetings by Conference Telephone. Members of
the Board of Directors, or of any committee thereof, may participate in a
meeting of such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and such participation shall constitute presence in
person at such meeting.
Section 8. Conduct of Business. At any meeting of the Board of
Directors, business shall be transacted in such order and manner as the Board
may from time to time determine, and all matters shall be determined by the vote
of a majority of the directors present, except as otherwise provided herein or
required by law. Action may be taken by the Board of Directors without a meeting
if all members thereof consent thereto in writing, and the writing or writings
are filed with the minutes of proceedings of the Board of Directors.
Section 9. Powers. The Board of Directors may, except as otherwise
required by, law, exercise all such powers and do all such acts and things as
may be exercised or done by the Corporation, including, without limiting the
generality of the foregoing, the unqualified power:
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<PAGE> 7
(1) To declare dividends from time to time in accordance with
law;
(2) To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
(3) To authorize the creation, making and issuance, in such form
as it may determine, of written obligations of every kind, negotiable or
non-negotiable, secured or unsecured, and to do all things necessary in
connection therewith;
(4) To remove any officer of the Corporation with or without
cause, and from time to time to devolve the powers and duties of any officer
upon any other person for the time being;
(5) To confer upon any officer of the Corporation the power to
appoint, remove and suspend subordinate officers, employees and agents;
(6) To adopt from time to time such stock, option, stock
purchase, bonus or other compensation plans for directors, officers, employees
and agents of the Corporation and its subsidiaries as it may determine;
(7) To adopt from time to time such insurance, retirement, and
other benefit plans for directors, officers, employees and agents of the
Corporation and its subsidiaries as it may determine; and
(8) To adopt from time to time regulations, not inconsistent with
these By-Laws, for the management of the Corporation's business and affairs.
Section 10. Compensation of Directors. Directors, as such, may receive,
pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as directors, including, without limitation,
their services as members of committees of the Board of Directors.
Section 11. Nomination of Director Candidates. Subject to the rights of
holders of any class or series of Preferred Stock then outstanding, nominations
for the election of directors may be made by the Board of Directors or any
nominating or proxy committee appointed by the Board of Directors or by any
stockholder entitled to vote in the election of Directors generally who complies
with the notice and procedural requirements of this Section 11. All nominees for
election to the Board shall satisfy the qualification requirements for
membership on the Board of Directors of the Corporation established by any
nominating committee designated by the Board, which requirements shall be
designed to evaluate, without limitation, the following:
(a) The applicability of the Candidate's business experience and
knowledge to the Corporation's business, including any technical skills,
industry contacts
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or other special qualifications which would make the Candidate a valuable member
of the Board.
(b) The resulting balance of knowledge and experience which would
exist on the Board if the Candidate were elected in light of the business
experience and knowledge of the other persons likely to be elected to the Board.
(c) The Candidate's other business interests and commitments and
the extent to which such interests and commitments are inconsistent or
incompatible with such Candidate's effective board membership, including the
extent to which the Nominating Committee believes that such Candidate's
membership on the Board may be detrimental to the long-term interests of the
Corporation and to the maximization of the value of the Corporation's
stockholders' investment in the Corporation.
In addition to any other applicable requirements, any such stockholder
nomination shall be made only pursuant to timely notice in writing to the
Secretary of the Corporation setting forth such stockholder's intent to make a
nomination or nominations. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal offices of the Corporation
not later than the date on which stockholder proposals to be included in the
proxy statement with respect to any annual or special meeting must be received
by the Corporation under the requirements of the Securities Exchange Act of
1934, as amended, and the rules promulgated thereunder.
Each such notice by a stockholder shall set forth: (a) the name and
address, as they appear on the Corporation's stock register, of the stockholder
who intends to make the nomination; (b) a representation that the stockholder is
a holder of record of stock of the Corporation entitled to vote for the election
of Directors on the date of such notice and intends to appear in person or by
proxy at the meeting to nominate the person or persons specified in the notice;
(c) a description of all arrangements or understandings between the stockholder
and each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder; (d) the name, age, business and residence address and principal
occupation of each person the stockholder proposes to nominate for election as a
director; (e) such other information regarding the stockholder and each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission, whether or not proxies are in fact solicited for the election of
such person; and (f) the signed consent of each nominee to serve as a director
of the Corporation if so elected. The Corporation or any nominating committee
designated by the Board of Directors may require any proposed nominee to furnish
such other information as may reasonably be required by the Corporation or such
committee to determine the qualification of such nominee for election as a
director of the Corporation.
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In the event that a person is validly designated as a nominee in
accordance with this Section 11 and shall thereafter become unable or unwilling
to stand for election to the Board of Directors, the Board of Directors or the
stockholder who proposed such nominee as the case may be, may designate a
substitute nominee; provided, however, that (i) in the case of the persons
nominated by a stockholder, such a substitution may only be made if a written
notice to the Secretary setting forth such information regarding such substitute
nominee as would have been required to be delivered to the Secretary pursuant to
this Section 11 had such substitute nominee been initially proposed as a nominee
is received by the Corporation at its principal executive offices not less than
thirty (30) days before the date of the election at which the initial nominee
was nominated to stand or (ii) in the case of persons nominated by the Board of
Directors the substitute nominee must be designated not less than thirty (30)
days before the date of the election at which the initial nominee was nominated
to stand.
If the chairman of the meeting for the election of Directors determines
that a nomination of any candidate for election as a Director at such meeting
was not made in accordance with the applicable provisions of this Section 11,
such nomination shall be void; provided, however, that nothing in this Section
11 shall be deemed to limit any voting rights upon the occurrence of dividend
arrearages, provided to holders of Preferred Stock pursuant to the Preferred
Stock designation for any series of Preferred Stock.
ARTICLE III
COMMITTEES
Section 1. Committees of the Board of Directors. The Board of Directors,
by a resolution passed by a vote of a majority of the whole Board, may from time
to time designate committees of the Board, with such lawfully delegable powers
and duties as it thereby confers, to serve at the pleasure of the Board and
shall, for those committees and any others provided for herein, elect a director
or directors to serve as the member or members, designating, if it desires,
other directors as alternate members who may replace any absent or disqualified
member at any meeting of the committee. Any committee so designated may exercise
the power and authority of the Board of Directors to declare a dividend, to
authorize the issuance of stock or to adopt a certificate of ownership and
merger pursuant to Section 253 of the Delaware General Corporation Law if the
resolution which designates the committee or a supplemental resolution of the
Board of Directors shall so provide. In the absence or disqualification of any
member of any committee and any alternate member in his place, the member or
members of the committee present at the meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may by unanimous vote
appoint another member of the Board of Directors to act at the meeting in the
place of the absent or disqualified member.
Section 2. Conduct of Business. Each committee may determine the
procedural rules for meeting and conducting its business and shall act in
accordance therewith,
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except as otherwise provided herein or required by law. Adequate provision shall
be made for notice to members of all meetings; one-third of the authorized
members shall constitute a quorum unless the committee shall consist of one or
two members, in which event one member shall constitute a quorum; and all
matters shall be determined by a majority vote of the members present. Action
may be taken by any committee without a meeting if all members thereof consent
thereto in writing, and the writing or writings are filed with the minutes of
the proceedings of such committee.
ARTICLE IV
OFFICERS
* Section 1. Generally. The officers of the Corporation shall consist of a
Chairman of the Board, a Chief Executive Officer, a President, one or more Vice
Presidents, a Secretary, a Chief Financial Officer and such other officers as
may from time to time be appointed by the Board of Directors. Officers shall be
elected by the Board of Directors, which shall consider that subject at its
first meeting after every annual meeting of stockholders. Each officer shall
hold office until his successor is elected and qualified or until his earlier
resignation or removal. The Chairman of the Board, the Chief Executive Officer
and the President shall each be members of the Board of Directors. Any number of
offices may be held by the same person.
**** Section 2. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, shall, if present, preside at meetings of the Board of
Directors and exercise and perform such other powers and duties as may from time
to time be assigned to him by the Board of Directors or as may be prescribed by
these By-Laws. If there is no Chief Executive Officer, then the Chairman of the
Board shall also be the Chief Executive Officer of the Corporation and shall
have the powers and duties prescribed in Article IV, Section 3 of these By-Laws.
* Section 3. Chief Executive Officer. Subject to such supervisory powers,
if any, as may be given by the Board of Directors to the Chairman of the Board,
if there be such an officer, the Chief Executive Officer of the Corporation
shall, subject to the control of the Board of Directors, have general
supervision, direction, and control of the business and the officers of the
Corporation. He shall preside at all meetings of the stockholders and, in the
absence or nonexistence of a Chairman of the Board, at all meetings of the Board
of Directors. He shall have the general powers and duties of management usually
vested in the Chief Executive Officer of a Corporation and shall have such other
powers and duties as may be prescribed by the Board of Directors or these
By-Laws.
* Section 4. President. The President shall be the chief operating officer
of the Corporation with such duties and powers as may be prescribed by the Chief
Executive Officer or the Board of Directors.
- --------
**** As amended April 30, 1997.
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* Section 5. Vice President. Each Vice President shall have such powers
and duties as may be delegated to him by the Board of Directors.
Section 6. Chief Financial Officer. The Chief Financial Officer shall
have the responsibility for maintaining the financial records of the Corporation
and shall have custody of all monies and securities of the Corporation. He shall
make or cause to be made such disbursements of the funds of the Corporation as
are authorized and shall render from time to time an account of all such
transactions and of the financial condition of the Corporation. The Chief
Financial Officer shall also perform such other duties as the Board of Directors
may from time to time prescribe.
Section 7. Secretary. The Secretary shall issue all authorized notices
for, and shall keep, or cause to be kept, minutes of all meetings of the
stockholders, the Board of Directors, and all committees of the Board of
Directors. The Secretary shall keep, or cause to be kept at the principal
executive office or at the office of the Corporation's transfer agent or
registrar, a record of the Corporation's stockholders, giving the names and
addresses of all stockholders and the number and class of shares held by each.
The Secretary shall have charge of the seal and the corporate books of the
Corporation and shall perform such other duties as the Board of Directors may
from time to time prescribe.
Section 8. Delegation of Authority. The Board of Directors may from time
to time delegate the powers or duties of any officer to any other officers or
agents, notwithstanding any provision hereof.
Section 9. Removal. Any officer of the Corporation may be removed at any
time, with or without cause, by the Board of Directors.
***** Section 10. Action With Respect to Securities of Other Corporations.
Unless otherwise directed by the Board of Directors, the Chairman of the Board,
the Chief Executive Officer or any officer of the Corporation authorized by the
Chairman of the Board or the Chief Executive Officer shall have power to vote
and otherwise act on behalf of the Corporation, in person or by proxy, at any
meeting of stockholders of or with respect to any action of stockholders of any
other corporation in which this Corporation may hold securities and otherwise to
exercise any and all rights and powers which this Corporation may possess by
reason of its ownership of securities in such other corporation.
- --------
***** As amended April 30, 1997.
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ARTICLE V
STOCK
****** Section 1. Certificates of Stock. Each stockholder shall be entitled to
a certificate signed by, or in the name of the Corporation by, the Chairman of
the Board, the Chief Executive Officer, the President or a Vice President, and
by the Secretary or an Assistant Secretary, or the Chief Financial Officer or
Treasurer (if there be such an officer), certifying the number of shares owned
by him or her. Any of or all the signatures on the certificate may be facsimile.
Section 2. Transfers of Stock. Transfers of stock shall be made only
upon the transfer books of the Corporation kept at an office of the Corporation
or by transfer agents designated to transfer shares of the stock of the
Corporation. Except where a certificate is issued in accordance with Section 4
of Article V of these By-Laws, an outstanding certificate for the number of
shares involved shall be surrendered for cancellation before a new certificate
is issued therefor.
Section 3. Record Date. The Board of Directors may fix a record date,
which shall not be more than sixty (60) days nor fewer than ten (10) days before
the date of any meeting of stockholders, no more than sixty (60) days prior to
the time for other action hereinafter described, as of which there shall be
determined the stockholders who are entitled: to notice of or to vote at any
meeting of stockholders or any adjournment thereof; to express consent to
corporate action in writing without a meeting (if the Corporation's charter
allows such action without a meeting); to receive payment of any dividend or
other distribution or allotment of any rights; or to exercise any rights with
respect to any change, conversion or exchange of stock or with respect to any
other lawful action.
Section 4. Lost, Stolen or Destroyed Certificates. In the event of the
loss, theft or destruction of any certificate of stock, another may be issued in
its place pursuant to such regulations as the Board of Directors may establish
concerning proof of such loss, theft or destruction and concerning the giving of
a satisfactory bond or bonds of indemnity.
Section 5. Regulations. The issue, transfer, conversion and registration
of certificates of stock shall be governed by such other regulations as the
Board of Directors may establish.
- --------
****** As amended April 30, 1997.
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ARTICLE VI
NOTICES
Section 1. Notices. Except as otherwise specifically provided herein or
required by law, all notices required to be given to any stockholder, director,
officer, employee or agent shall be in writing and may in every instance be
effectively given by hand delivery to the recipient thereof, by depositing such
notice in the mails, postage paid, or by sending such notice by prepaid
telegram, mailgram or commercial courier service. Any such notice shall be
addressed to such stockholder, director, officer, employee or agent at his or
her last known address as the same appears on the books of the Corporation. The
time when such notice shall be deemed to given shall be the time such notice is
received by such stockholder, director, officer, employee or agent, or by any
person accepting such notice on behalf of such person, if hand delivered, or the
time such notice is dispatched, if delivered through the mails or by telegram,
mailgram or courier.
Section 2. Waivers. A written waiver of any notice, signed by a
stockholder, director, officer, employee or agent, whether before or after the
time of the event for which notice is to be given, shall be deemed equivalent to
the notice required to be given to such stockholder, director, officer, employee
or agent. Neither the business nor the purpose of any meeting need be specified
in such a waiver. Attendance of a person at a meeting shall constitute a waiver
of notice for such meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE VII
MISCELLANEOUS
Section 1. Facsimile Signatures. In addition to the provisions for use
of facsimile signatures elsewhere specifically authorized in these By-Laws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors or a committee thereof.
Section 2. Corporate Seal. The Board of Directors may provide a suitable
seal, containing the name of the Corporation, which seal shall be in the charge
of the Secretary. If and when so directed by the Board of Directors or a
committee thereof, duplicates of the seal may be kept and used by the Chief
Financial Officer or by an Assistant Secretary.
Section 3. Reliance Upon Books, Reports and Records. Each director, each
member of any committee designated by the Board of Directors, and each officer
of the Corporation shall, in the performance of his duties, be fully protected
in relying in good faith upon the books of account or other records of the
Corporation, including reports made to the Corporation by any of its officers,
by an independent certified public accountant, or by an appraiser selected with
reasonable care.
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Section 4. Fiscal Year. The fiscal year of the Corporation shall be as
fixed by the Board of Directors.
Section 5. Time Periods. In applying any provision of these By-Laws
which require that an act be done or not done a specified number of days prior
to an event or that an act be done during a period of a specified number of days
prior to an event, calendar days shall be used, the day of the doing of the act
shall be excluded, and the day of the event shall be included.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
("proceeding"), by reason of the fact that he or a person of whom he is the
legal representative, is or was a director, officer or employee of the
Corporation or is or was serving at the request of the Corporation as a
director, officer or employee of another corporation, or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer or employee or in any other capacity
while serving as a director, officer or employee, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by Delaware Law, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said Law permitted the Corporation
to provide prior to such amendment) against all expenses, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties,
amounts paid or to be paid in settlement and amounts expended in seeking
indemnification granted to such person under applicable law, this by-law or any
agreement with the Corporation) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer or employee and shall inure to the
benefit of his or her heirs, executors and administrators; provided however,
that, except as provided in Section 2 of this Article VIII, the Corporation
shall indemnify any such person seeking indemnity in connection with an action,
suit or proceeding (or part thereof) initiated by such person only if such
action, suit or proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. Such right shall be a contract right and shall
include the right to be paid by the Corporation expenses incurred in defending
any such proceeding in advance of its final disposition; provided, however,
that, if the Delaware General Corporation Law then so requires, the payment of
such expenses incurred by a director or officer of the Corporation in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of such proceeding, shall be made only upon delivery
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to the Corporation of an undertaking, by or on behalf of such director or
officer, to repay all amounts so advanced if it should be determined ultimately
that such director or officer is not entitled to be indemnified under this
Section 1 or otherwise.
Section 2. Right of Claimant to Bring Suit. If a claim under Section 1
of this Article VIII is not paid in full by the Corporation within twenty (20)
days after a written claim has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if such suit is not frivolous or brought in bad
faith, the claimant shall be entitled to be paid also the expense of prosecuting
such claim. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any proceeding in
advance of its final disposition where the required undertaking, if any, has
been tendered to this Corporation) that the claimant has not met the standards
of conduct which make it permissible under the Delaware General Corporation Law
for the Corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation. Neither the failure
of the Corporation (including its Board of Directors, independent legal counsel,
or its stockholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that claimant has not
met the applicable standard of conduct.
Section 3. Non-Exclusivity of Rights. The rights conferred on any person
in Sections 1 and 2 of this Article VIII shall not be exclusive of any other
right which such persons may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 4. Indemnification Contracts. The Board of Directors is
authorized to enter into a contract with any director, officer, employee or
agent of the Corporation, or any person serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including employee
benefit plans, providing for indemnification rights equivalent to or, if the
Board of Directors so determines, greater than, those provided for in this
Article VIII.
Section 5. Insurance. The Corporation shall maintain insurance to the
extent reasonably available, at its expense, to protect itself and any such
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
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Section 6. Effect of Amendment. Any amendment, repeal or modification of
any provision of this Article VIII by the stockholders and the Directors of the
Corporation shall not adversely affect any right or protection of a director or
officer of the Corporation existing at the time of such amendment, repeal or
modification.
Section 7. Savings Clause. If this Article VIII or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each director, officer, employee
and agent of the Corporation as to costs, charges and expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Corporation, to the
full extent permitted by an applicable portion of this Article VIII that shall
not have been invalidated and to the full extent permitted by applicable law.
ARTICLE IX
AMENDMENTS
The Board of Directors is expressly empowered to adopt, amend or repeal
By-Laws or the Corporation. Any adoption, amendment or repeal of By-Laws of the
Corporation by the Board of Directors shall require the approval of a majority
of the total number of authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is presented to the Board). The
stockholders shall also have power to adopt, amend or repeal the By-Laws of the
Corporation. In the event of any such adoption, amendment or repeal of these
By-Laws by Stockholders, in addition to any vote of the holders or any class or
series of stock of this Corporation required by law or by these By-Laws, the
affirmative vote of the holders of at least a majority of the voting power of
all of the then-outstanding shares of the capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required.
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EXHIBIT 5.1
[Wilson Sonsini Goodrich & Rosati Letterhead]
December 4, 1998
KLA-Tencor Corporation
160 Rio Robles
San Jose, CA 95134
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about December 4, 1998 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of an additional 1,000,000 shares of Common
Stock (the "Shares") reserved for issuance under the 1997 Employee Stock
Purchase Plan (the "Plan"). As your legal counsel, we have examined the
proceedings taken and proposed to be taken in connection with the issuance, sale
and payment of consideration for the Shares to be issued under the Plan.
It is our opinion that, when issued and sold in compliance with applicable
prospectus delivery requirements and in the manner referred to in the Plan and
pursuant to the agreements which accompany the Plan, the Shares will be legally
and validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Sincerely,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 28, 1998, which appears on page
34 of the 1998 Annual Report to Stockholders of KLA-Tencor Corporation, which is
incorporated by reference in KLA-Tencor Corporation's Annual Report on Form 10-K
for the year ended June 30, 1998.
PRICEWATERHOUSECOOPERS LLP
San Jose, California
December 3, 1998
