As filed with the Securities and Exchange Commission on June 18, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under The Securities Act of 1933
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KOMAG, INCORPORATED
(Exact name of registrant as specified in charter)
Delaware 94-2914864
(State of incorporation) (I.R.S. employer identification number)
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1704 Automation Parkway
San Jose, CA 95141
(408) 576-2000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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Stephen C. Johnson
President and Chief Executive Officer
Komag, Incorporated
1704 Automation Parkway
San Jose, CA 95131
(408) 576-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Alan K. Austin
Brian C. Erb
James C. Creigh
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
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Approximate Date of Commencement of proposed sale to public: From time
to time after the effective date of this Registration Statement as determined by
market conditions.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
<TABLE>
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Amount to be Aggregate Price Aggregate Offering Registration
Title of Each Class of Securities to be Registered Registered Per Unit(1) Price(1) Fee
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<S> <C> <C> <C> <C>
Debt securities and warrants ......................... --
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Preferred stock, par value $0.01 per share ........... --
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Depositary shares representing preferred stock(2) .... --
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Common stock, par value $0.01 per share (3) .......... --
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Totals ............................................... $150,000,000 -- $150,000,000 $ 41,700
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<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457. The proposed maximum offering price per unit will be
determined from time to time by the Registrant in connection with the
issuance of securities registered hereunder. No separate consideration will
be received for common stock, preferred stock, debt securities or warrants
that are issued upon conversion or exchange of debt securities, preferred
stock, depositary shares or warrants.
(2) To be represented by depositary receipts representing an interest in all or
a specified portion of a share of preferred stock.
(3) There is also registered hereunder such indeterminate number of shares of
common stock as may from time to time be issued upon conversion or exchange
of debt securities, preferred stock or warrants registered hereunder.
</FN>
</TABLE>
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED _______________, 1999
PROSPECTUS
[LOGO]
KOMAG, INCORPORATED
Debt Securities, Warrants, Preferred Stock, Depositary Shares and
Common Stock
We may offer from time to time up to $150,000,000 of our debt
securities, warrants, preferred stock, depositary shares, or common stock.
When we offer securities, we will provide you with a prospectus
supplement or term sheet relating to such securities. You should read this
prospectus and the prospectus supplement or term sheet carefully before you
invest. The prospectus supplement or term sheet for each offering of securities
will describe in more detail the plan of distribution for that offering. For
general information about the distribution of the securities offered, please see
"Plan of Distribution" in this prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is ________, 1999.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference room at 450 Fifth Street, N.W., Washington, DC 20549.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference room. Our SEC filings are also available from the SEC's Website at
"http://www.sec.gov."
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the following documents:
* Our quarterly report on Form 10-Q for our fiscal quarter ended
April 4, 1999;
* Our current report on Form 8-K dated April 16, 1999;
* Our annual report on Form 10-K for our fiscal year ended
January 3, 1999;
* The description of our common stock contained in our
registration statement on Form 8-A filed with the SEC on April
29, 1988; and
* Any future filings we will make with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act.
We will provide you with a copy of these filings, at no cost, if you
write or telephone our Corporate Secretary at the following address:
Komag, Incorporated
1704 Automation Parkway
San Jose, CA 95131
(408) 576-2000
You should rely only on the information or representations provided in
this prospectus. We have authorized no one to provide you with different
information. We are not making an offer of these securities in any jurisdiction
where the offer is not permitted. You should not assume that the information in
this prospectus is accurate as of any date other than the date on the front of
the document.
<PAGE>
FORWARD-LOOKING STATEMENTS
This prospectus contains or incorporates by reference forward-looking
statements that involve risks and uncertainties. Forward-looking statements can
typically be identified by the use of words such as "may," "will," "could,"
"project," "believe," "anticipate," "expect," "estimate," "continue,"
"potential," "plan," "forecasts," and the like. These statements appear in a
number of places in this prospectus and include statements regarding our
intentions, plans, strategies, beliefs or current expectations with respect to,
among other things:
* our financial prospects;
* our financing plans;
* trends affecting our financial condition or operating results;
* our strategies for growth, operations, and product development
and commercialization; and
* conditions or trends in or factors affecting the computer or
hard disk drive industry.
Forward-looking statements are not guarantees of future performance.
Forward-looking statements involve risks and uncertainties that could cause
actual results to differ materially from those anticipated. The information
contained or incorporated by reference in this prospectus identifies important
factors that could cause such differences. Among the factors that could cause
actual results to differ are the following: We sell a single product into a
market characterized by rapid technological change and sudden shifts in the
balance between supply and demand. Further, we are dependent on a limited number
of customers, some of whom also manufacture some or most of their own disks
internally. Competition in the market, defined by both technology offerings and
pricing, can be intense, especially during times of excess available capacity
such as has been prevalent since 1998. We have a high fixed-cost structure that
can cause operating results to vary dramatically with changes in product yields
and utilization of our equipment and factories. In addition, our business
requires substantial investments for research and development activities and for
physical assets such as equipment and facilities that are dependent on our
access to financial resources. These and other risks are discussed more fully in
this prospectus and the documents incorporated by reference in this prospectus.
We undertake no obligation to publicly release the result of any revisions to
these forward-looking statements that may be made to reflect events or
circumstances after the date hereof or to reflect the occurrence of
unanticipated events.
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THE COMPANY
Komag, Incorporated designs, manufactures and markets thin-film media
(disks), the primary storage medium for digital data used in computer hard disk
drives. We believe we are the world's largest independent manufacturer of
thin-film media and are well positioned as a broad-based strategic supplier of
choice for the industry's leading disk drive manufacturers. Our business
strategy relies on the combination of advanced technology and high-volume
manufacturing. Our products serve the desktop and enterprise segments of the
disk drive market and are used in products such as personal computers, disk
arrays, network file servers and engineering workstations. We manufacture
leading-edge disk products primarily for 3 1/2-inch form factor hard disk
drives.
Komag was organized in 1983 and is incorporated in the State of
Delaware. Our principal executive offices are located at 1704 Automation
Parkway, San Jose, California 95131 and our telephone number is (408) 576-2000.
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USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities to
repay indebtedness and for general corporate purposes, unless otherwise
specified in the prospectus supplement relating to such securities. Pending such
applications, we will invest the net proceeds in interest-bearing investment
grade securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratios of earnings to fixed charges
for the periods indicated:
Fiscal
Quarter
Fiscal Year Ended
------------------------------- April 4,
1994 1995 1996 1997 1998 1999
---- ---- ---- ---- ---- ----
Ratio of earnings to fixed charges 15.0 31.8 35.3 N/A N/A N/A
For the purpose of calculating the ratio of earnings to fixed charges,
"earnings" consist of income before income taxes, minority interest and equity
in joint venture income (loss) plus fixed charges. "Fixed charges" consist of
interest expense incurred and the portion of rental expense under operating
leases deemed by us to represent interest. Our earnings were inadequate to cover
fixed charges for fiscal 1997 and 1998 and our fiscal quarter ended April 4,
1999 by approximately $37.8 million, $338.8 million and $19.5 million,
respectively.
THE SECURITIES
We intend to sell from time to time:
* senior or subordinated debt securities, either of which may be
convertible into common stock;
* preferred stock;
* depositary shares representing preferred stock;
* common stock; or
* warrants to purchase common stock.
All of the foregoing are collectively called the "Securities." The
Securities may be offered independently or together with other Securities and
may be attached to, or separate from, such other Securities. The Securities will
be offered to the public on terms determined by market conditions at the time of
sale and set forth in a prospectus supplement. The Securities offered pursuant
to this prospectus may be offered in one or more series of up to $150,000,000
aggregate public offering price, as we will designate at the time of offering.
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DESCRIPTION OF DEBT SECURITIES
Debt securities will be issued pursuant to an Indenture to be entered
into between Komag and a qualified trustee to be specified in an applicable
prospectus supplement (the "Trustee").
The Indenture will fix the terms of such debt securities, including:
(1) the aggregate principal amount of such debt securities and
whether there is any limit upon the aggregate principal amount
of such debt securities that may be subsequently issued;
(2) the date on which such debt securities will mature;
(3) the principal amount payable with respect to such debt
securities whether at maturity or upon earlier acceleration,
and whether such principal amount will be determined with
reference to an index, formula or other method;
(4) the rate or rates per annum (which may be fixed or variable)
at which such debt securities will bear interest, if any;
(5) the dates on which such interest, if any, will be payable;
(6) the provisions for redemption of such debt securities, if any,
the redemption price and any remarketing arrangements relating
thereto;
(7) the sinking fund requirements, if any, with respect to such
debt securities;
(8) whether such debt securities are denominated or provide for
payment in United States dollars or a foreign currency or
units of two or more of such foreign currencies;
(9) the form (registered or bearer or both) in which such debt
securities may be issued and any restrictions applicable to
the exchange of one form for another and to the offer, sale
and delivery of such debt securities in either form;
(10) whether and under what circumstances we must pay additional
amounts in respect of such debt securities held by a person
who is not a U.S. person (as defined in the prospectus
supplement, as applicable) in respect of specified taxes,
assessments or other governmental charges and whether we have
the option to redeem the affected debt securities rather than
pay such additional amounts;
(11) whether such debt securities are to be issued in global form;
(12) the title of the debt securities and the series of which such
debt securities shall be a part;
(13) the denominations of such debt securities;
(14) whether, and the terms and conditions relating to when, we may
satisfy certain of our obligations with respect to such debt
securities with regard to payment upon maturity, or any
redemption or required repurchase or in connection with any
exchange provisions by delivering to the holders thereof
securities or a combination of cash, other securities and/or
property;
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(15) the terms of the debt securities with respect to the Events of
Default set forth in the Indenture;
(16) the terms, if any, upon which the debt securities may be
convertible into our common stock and the terms and conditions
upon which such conversion will be effected, including the
initial conversion price or rate, and the conversion period;
(17) whether, and the terms and conditions relating to when, the
debt securities may be transferred separately from warrants
when such debt securities and warrants are issued together;
and
(18) any other terms of the debt securities.
Reference is made to the prospectus supplement for the terms of the
debt securities being offered thereby, including whether such debt securities
are senior debt securities or subordinated debt securities. We may deliver to
purchasers of Securities a term sheet instead of a prospectus supplement. This
prospectus may be delivered prior to or concurrently with a term sheet.
Prospective purchasers of debt securities should be aware that special
U.S. Federal income tax, accounting and other considerations may be applicable
to instruments such as debt securities. The prospectus supplement or term sheet
relating to any issue of debt securities will describe any such considerations.
The debt securities will be issued, to the extent provided in the
prospectus supplement or term sheet, in fully registered form without coupons,
and/or in bearer form with or without coupons, and in denominations set forth in
the prospectus supplement. No service charge will be made for any registration
of transfer of registered debt securities or exchange of debt securities, but we
may require payment of a sum sufficient to cover any tax or other governmental
charges that may be imposed in connection therewith. The Indenture will provide
that debt securities issued thereunder may be issued in global form. If any
series of debt securities is issuable in global form, the applicable prospectus
supplement will describe the circumstances, if any, under which beneficial
owners of any such global debt securities may exchange such interests for debt
securities of such series and of like tenor and principal amount in any
authorized form and denomination. Principal and any premium, additional amounts,
and interest on, a global Debt Security will be payable or deliverable in the
manner described in the applicable prospectus supplement.
DESCRIPTION OF PREFERRED STOCK
The following description sets forth general terms of preferred stock
that we may issue. The terms of any series of the preferred stock will be
described in the prospectus supplement relating to the preferred stock being
offered thereby. The description set forth below and in any prospectus
supplement does not purport to be complete and is subject to, and qualified in
its entirety by reference to, our Restated Certificate of Incorporation (the
"Certificate of Incorporation"), which is filed as an exhibit to the
Registration Statement and the Certificate of Designations (the "Certificate of
Designations") relating to each particular series of the preferred stock, which
will be filed with the SEC at or prior to the time of sale of such preferred
stock.
Pursuant to the Certificate of Incorporation, we are authorized to
issue up to 1,000,000 shares of undesignated preferred stock, par value $0.01
per share. Our Board of Directors has the authority, without approval of the
stockholders, to issue all of the shares of preferred stock which are currently
authorized in one or more series and to fix the number of shares and the rights,
preferences, privileges, qualifications, restrictions and limitations of each
series. As of June 17, 1999, we had no shares of preferred stock outstanding.
In addition, as described under "Description of Depositary Shares," we
may offer depositary shares evidenced by depositary receipts, each representing
a fraction (to be specified in the prospectus supplement relating
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to the depositary shares offered thereby) of a share of the particular series of
preferred stock issued and deposited with a depositary, in lieu of offering full
shares of such series of preferred stock.
The preferred stock will have the dividend, liquidation, redemption,
voting and conversion or exchange rights specified in the prospectus supplement
relating to the particular series of preferred stock offered thereby. In
addition, the applicable prospectus supplement will describe the other terms of
the preferred stock, including, where applicable, the following:
(1) the designation, stated value and liquidation preference of
such preferred stock and the number of shares offered;
(2) the offering price;
(3) the dividend rate (or method of calculation), the dividend
periods, the date on which dividends shall be payable and
whether such dividends shall be cumulative or noncumulative
and, if cumulative, the dates from which dividends shall
commence to cumulate;
(4) any redemption or sinking fund provisions;
(5) any conversion or exchange provisions;
(6) voting rights, if any;
(7) to the extent permitted by applicable law, whether such
preferred stock will be issued in certificated or book-entry
form;
(8) whether such preferred stock will be listed on a national
securities exchange or the Nasdaq Stock Market;
(9) information with respect to book-entry procedures, if any; and
(10) any additional rights, preferences, privileges, limitations
and restrictions of such preferred stock (which may not be
inconsistent with the provisions of the Certificate of
Incorporation or the Certificate of Designations establishing
such series of preferred stock).
The preferred stock will be, when issued against payment therefor,
fully paid and nonassessable. Holders thereof will have no preemptive rights to
subscribe for any additional securities that we may issue. Unless otherwise
specified in the applicable prospectus supplement, the shares of each series of
preferred stock will rank on a parity with all other outstanding series of
preferred stock issued by us as to payment of dividends (except with respect to
cumulation thereof) and as to the distribution of assets upon our liquidation,
dissolution, or winding up. Each series of preferred stock will rank prior to
the common stock, and any other capital stock of ours that is expressly made
junior to such series of preferred stock.
Unless otherwise specified in the applicable prospectus supplement,
ChaseMellon Shareholder Services LLC, will be the transfer agent, dividend
disbursing agent and registrar for the shares of the preferred stock.
DESCRIPTION OF DEPOSITARY SHARES
We may issue receipts for depositary shares, each of which will
represent a fraction of a share of preferred stock. Shares of preferred stock of
each class or series represented by depositary shares will be deposited under
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deposit agreements to be entered into among Komag, a bank or trust company, as
depository, and the holders from time to time of the depositary receipts. A copy
of the form of deposit agreement, including the form of certificates
representing the depositary receipts, will be filed as an exhibit to the
Registration Statement prior to the issuance of any depositary shares.
The depositary shares are to be evidenced by depositary receipts issued
pursuant to the applicable deposit agreement. Immediately following our issuance
and delivery of the preferred stock to the depositary, we will cause the
depositary to issue the depositary receipts on our behalf. Subject to the terms
of the applicable deposit agreement, each holder of a depositary receipt will be
entitled, in proportion to the fraction of a share of preferred stock
represented by such depositary share, to all the rights and preferences of the
preferred stock represented thereby (including dividend, voting, conversion,
redemption and liquidation rights), all as will be set forth in the prospectus
supplement relating to the depositary receipts offered thereby.
The depositary shares will have the dividend, liquidation, redemption,
voting and conversion or exchange rights specified in the applicable prospectus
supplement. The applicable prospectus supplement will also describe the other
terms of depositary shares offered thereby, the deposit agreement relating to
such depositary shares and the depositary receipt certificates representing such
depositary shares, including the following:
(1) the designation, stated value and liquidation preference of
such depositary shares and the number of shares offered;
(2) the offering price or prices;
(3) the dividend rate or rates (or method of calculation), the
dividend periods, the dates on which dividends shall be
payable and whether such dividends shall be cumulative or
noncumulative and, if cumulative, the dates from which
dividends shall commence to cumulate;
(4) any redemption or sinking fund provisions;
(5) any conversion or exchange provisions;
(6) any material risk factors relating to such depositary shares;
(7) the identity of the depositary; and
(8) any other terms of such depositary shares.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of common stock. Each series of
warrants will be issued under a warrant agreement to be entered into between us
and a bank or trust company, as warrant agent, all as set forth in the
prospectus supplement relating to the warrants offered thereby. A copy of the
form of warrant agreement, including the form of warrant certificates
representing the warrants reflecting the provisions to be included in the
warrant agreements that will be entered into with respect to particular
offerings of warrants, will be filed as an exhibit to the Registration Statement
prior to the issuance of any warrants.
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The applicable prospectus supplement will describe the terms of the
warrants offered thereby, the warrant agreement relating to such warrants and
the warrant certificates, including the following:
(1) the offering price or prices;
(2) the aggregate number of shares of common stock that may be
purchased upon exercise of such warrants and minimum number of
warrants that are exercisable;
(3) the number of Securities, if any, with which such warrants are
being offered and the number of such warrants being offered
with each such Security;
(4) the date on and after which such warrants and the related
Securities, if any, will be transferable separately;
(5) the number of shares of common stock purchasable upon exercise
of each such warrant and the price at which such number of
shares of common stock may be purchased upon such exercise,
and events or conditions under which such number of shares may
be subject to adjustment;
(6) the date on which the right to exercise such warrants shall
commence and the date on which such right shall expire;
(7) the circumstances, if any, which will cause the warrants to be
deemed to be automatically exercised;
(8) any material risk factors relating to such warrants;
(9) the identity of the warrant agent; and
(10) any other terms of such warrants (which shall not be
inconsistent with the provisions of the warrant agreement).
Warrant certificates may be exchanged for new warrant certificates of
different denominations, may (if in registered form) be presented for
registration of transfer, and may be exercised at the corporate trust office of
the warrant agent or any other office indicated in the applicable prospectus
supplement. Prior to the exercise of any warrants, holders of such warrants will
not have any rights of holders of shares of the common stock purchasable upon
such exercise, including the right to receive payments of dividends, if any, on
the common stock purchasable upon such exercise or the right to vote such
underlying common stock.
Prospective purchasers of warrants should be aware that special U.S.
federal income tax, accounting and other considerations may be applicable to
instruments such as warrants. The prospectus supplement relating to any issue of
warrants will describe such considerations.
PLAN OF DISTRIBUTION
We may sell the Securities to or through underwriters, through or to
dealers, directly to one or more purchasers, or through agents. The prospectus
supplement with respect to the Securities offered thereby will set forth the
terms of the offering of the Securities, including the name or names of any
underwriters, dealers or agents, the purchase price of the Securities and the
proceeds to us from such sale, any delayed delivery arrangements, any
underwriting discounts and other items constituting underwriters' compensation,
the initial public offering price,
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any discounts or concessions allowed or re-allowed or paid to dealers, and any
securities exchanges on which the Securities may be listed.
If underwriters are used in the sale, the Securities will be acquired
by the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices, at negotiated prices or at varying
prices determined at the time of sale. The Securities may be offered to the
public either through underwriting syndicates represented by one or more
managing underwriters or directly by one or more firms acting as underwriters or
agents. The underwriter or underwriters with respect to a particular
underwritten offering of Securities will be named in the prospectus supplement
relating to such offering, and if an underwriting syndicate is used, the
managing underwriter or underwriters will be set forth on the cover of such
prospectus supplement. Unless otherwise set forth in the prospectus supplement
relating thereto, the obligations of the underwriters or agents to purchase the
Securities will be subject to conditions precedent and the underwriters will be
obligated to purchase all the Securities if any are purchased. The initial
public offering price and any discounts or concessions allowed or re-allowed or
paid to dealers may be changed from time to time.
If dealers are used in the sale of Securities with respect to which
this prospectus is delivered, we will sell such Securities to the dealers as
principals. The dealers may then resell such Securities to the public at varying
prices to be determined by such dealers at the time of resale. The names of the
dealers and the terms of the transaction will be set forth in the prospectus
supplement relating thereto.
We may sell Securities directly or through agents from time to time at
fixed prices, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices, at negotiated prices or at varying prices
determined at the time of sale. Any agent involved in the offer or sale of the
Securities with respect to which this prospectus is delivered will be named, and
any commissions payable by us to such agent will be set forth, in the prospectus
supplement relating thereto. Unless otherwise indicated in the prospectus
supplement, any such agent will be acting on a best efforts basis for the period
of its appointment.
In connection with the sale of the Securities, underwriters or agents
may receive compensation from us or from purchasers of Securities for whom they
may act as agents in the form of discounts, concessions, or commissions.
Underwriters, agents, and dealers participating in the distribution of the debt
securities may be deemed to be underwriters, and any discounts or commissions
received by them from us and any profit on the resale of the Securities by them
may be deemed to be underwriting discounts or commissions under the Securities
Act.
If so indicated in the prospectus supplement, we will authorize agents,
underwriters, or dealers to solicit offers from certain types of institutions to
purchase Securities from us at the public offering price set forth in the
prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such contracts will be
subject only to those conditions set forth in the prospectus supplement, and the
prospectus supplement will set forth the commission payable for solicitation of
such contracts.
Agents, dealers, and underwriters may be entitled under agreements
entered into with us to indemnification by us against certain civil liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments that such agents, dealers, or underwriters may be required to make
with respect thereto. Agents, dealers, and underwriters may be customers of,
engage in transactions with, or perform services for us in the ordinary course
of business.
Some of our stockholders may sell shares of our common stock pursuant
to this prospectus. If these stockholders elect to sell shares of common stock,
we will provide the selling stockholder information required by Item 507 of SEC
Regulation S-K in the prospectus supplement.
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The Securities may or may not be listed on a national securities
exchange or the Nasdaq Stock Market.
LEGAL MATTERS
The validity of the Securities will be passed upon by Wilson Sonsini
Goodrich & Rosati, P.C., Palo Alto, California.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K for
the year ended January 3, 1999, as set forth in their report, which as to the
three years ended January 3, 1999 is based in part on the reports of Chuo
Corporation, independent auditors, and which is incorporated by reference in
this prospectus and elsewhere in the registration statement. The report of Ernst
& Young LLP contains an explanatory paragraph describing conditions that raise
substantial doubt about our ability to continue as a going concern as described
in Note 1 to the consolidated financial statements. Our financial statements are
incorporated by reference in reliance on Ernst & Young LLP's report, given on
their authority as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the expenses (other than underwriting
discounts and commissions), which, other than the SEC registration fee, are
estimates, payable by the Company in connection with the sale and distribution
of the securities registered hereby:
SEC registration fee ................ $41,700
Printing expenses ................... $
Blue Sky fees and expenses .......... $
Trustee's fees and expenses ......... $
Accountants' fees and expenses ...... $
Legal fees and expenses ............. $
Miscellaneous ....................... $
Total ....................... $
Item 15. Indemnification of Directors and Officers
The Registrant's Restated Certificate of Incorporation provides that no
director of the Registrant will be personally liable to the Registrant or any of
its stockholders for monetary damages arising from the director's breach of
fiduciary duty. However, this provision does not apply with respect to any
action in which the director would be liable under Section 174 of Title 8 of the
General Corporation Law of Delaware, nor does it apply with respect to any
liability resulting from any transaction in which the director (i) breached his
duty of loyalty to the Registrant or its stockholders; (ii) did not act in good
faith or, in failing to act, did not act in good faith; (iii) acted in a manner
involving intentional misconduct or a knowing violation of law or, in failing to
act, acted in a manner involving intentional misconduct or a knowing violation
of law; or (iv) derived an improper personal benefit.
Pursuant to the provisions of Section 145 of the Delaware General
Corporation Law, every Delaware corporation has power to 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 (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 Registrant or of any corporation,
partnership, joint venture, trust or other enterprise for which he is or was
serving in such capacity at the request of the Registrant, against any and all
expenses, judgments, fines and amounts paid in settlement and reasonably
incurred by him in connection with such action, suit or proceeding. The power to
indemnify applies only if such person acted in good faith and in a manner he
reasonably believed to be in the best interests, 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.
The power to indemnify applies to actions brought by or in the right of
the corporation as well, but only to the extent of defense and settlement
expenses and not to any satisfaction of a judgment or settlement of the claim
itself, and with the further limitation that in such actions no indemnification
shall be made in the event of any adjudication of negligence or misconduct
unless the court, in its discretion, feels that in the light of all the
circumstances indemnification should apply.
II-1
<PAGE>
To the extent any of the persons referred to in the two immediately
preceding paragraphs is successful in the defense of the actions referred to
therein, such person is, pursuant to Section 145 of the Delaware General
Corporation Law, entitled to indemnification as described above. Section 145
also grants power to advance litigation expenses upon receipt of an undertaking
to repay such advances in the event no right to indemnification is subsequently
shown. A corporation may also obtain insurance at its expense to protect anyone
who might be indemnified, or has a right to insist on indemnification, under the
statue.
The Registrant has entered into indemnification agreements with its
directors and officers which provide for indemnification to the fullest extent
permitted by Delaware General Corporation Law, including Section 145 thereof.
Agents, dealers, and underwriters may be entitled under agreements
entered into with us to indemnification by us against certain civil liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments that such agents, dealers, or underwriters may be required to make
with respect thereto. Agents, dealers, and underwriters may be customers of,
engage in transactions with, or perform services for us in the ordinary course
of business.
Item 16. Exhibits
See Exhibit Index.
Item 17. Undertakings
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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration statement (or the most
recent post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this registration statement
or any material change to such information in this registration statement;
provided, however, that paragraphs (1)(i) and (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 with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
II-2
<PAGE>
(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.
(4) 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 this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) 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.
(6) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part
of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that contains a form
of prospectus 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.
(7) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
II-3
<PAGE>
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-3 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 June 18, 1999.
KOMAG, INCORPORATED
By: /s/ Stephen C. Johnson
-------------------------------------
Stephen C. Johnson
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned officers and
directors of Komag, Incorporated, a Delaware corporation, do hereby constitute
and appoint Stephen C. Johnson and William L. Potts, Jr., and each of them, the
lawful attorneys and agents, with full power and authority to do any and all
acts and things and to execute any and all instruments which said attorneys and
agents, and any one of them, determine may be necessary or advisable or required
to enable said corporation to comply with the Securities Act of 1933, as
amended, and any rules or regulations or requirements of the SEC in connection
with this Registration Statement. Without limiting the generality of the
foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
all that said attorneys and agents, or any of them, shall do or cause to be done
by virtue hereof. This Power of Attorney may be signed in several counterparts.
II-4
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<CAPTION>
Signature Title Date
- ---------------------- -------------------------------------- -------------
<S> <C> <C>
/s/ Stephen C. Johnson President, Chief Executive Officer and June 18, 1999
- ------------------------- Director (Principal Executive Officer)
Stephen C. Johnson
/s/ Tu Chen Chairman of the Board June 18, 1999
- -------------------------
Tu Chen
/s/ William L. Potts, Jr. Senior Vice President of Finance, Chief June 18, 1999
- ------------------------- Financial Officer and Secretary
William L. Potts Jr. Principal Financial and Accounting
Officer)
/s/ Chris A. Eyre Director June 18, 1999
- -------------------------
Chris A. Eyre
/s/ Irwin Federman Director June 18, 1999
- -------------------------
Irwin Federman
/s/ George A. Neil Director June 18, 1999
- -------------------------
George A. Neil
Director
- -------------------------
Max Palevsky
/s/ Michael R. Splinter Director June 18, 1999
- -------------------------
Michael R. Splinter
/s/ Anthony Sun Director June 18, 1999
- -------------------------
Anthony Sun
/s/ Masayoshi Takebayashi Director June 18, 1999
- -------------------------
Masayoshi Takebayashi
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- --------------------------------------------------------------
1.1* Form of Underwriting Agreement
4.1* Indenture
4.2* Form of Note
4.3* Certificate of Designations for Preferred Stock
4.4* Specimen Certificate Representing shares of Preferred Stock
4.5* Depositary Agreement
4.6* Specimen Depository Receipt Representing Depositary Shares
4.7* Warrant Agreement
4.8* Form of Warrant
5.1* Opinion of Wilson Sonsini Goodrich & Rosati
12.1 Statement Regarding Computation of Ratio of Earnings to Fixed
Charges
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Chuo Audit Corporation
23.3* Consent of Wilson Sonsini Goodrich & Rosati (see Exhibit 5.1)
24.1 Powers of Attorney (see signature page)
25.1* Statement of Eligibility of Trustee
- ----------------------------
* To be filed by amendment.
Exhibit 12.1
<TABLE>
Computation of Earnings to Fixed Charges
<CAPTION>
Fiscal Year Ended Quarter Ended
---------------------------------------------------------- -------------
1994 1995 1996 1997 1998 April 4, 1999
---------- ---------- --------- ---------- ---------- -------------
<S> <C> <C> <C> <C> <C> <C>
Income (loss) before income $ 77,366 $ 135,219 $ 121,148 $ (37,820) $(338,789) $ (19,473)
taxes, minority interest
and equity in joint venture
income (loss)
Fixed Charges (1) 5,524 4,383 3,528 13,944 23,156 6,017
Total earnings and fixed charges $ 82,890 $ 139,602 $ 124,676 $ (23,876) $(314,318) $ (13,456)
Fixed Charges (1) 5,524 4,383 3,528 13,944 23,156 6,017
Ratio of earnings to fixed charges(2) 15.0 31.8 35.3 N/A N/A N/A
<FN>
- -------------------
(1) Fixed charges consist of interest expense incurred and the portion of rental expense under operating leases
deemed by the Company to be representative of the interest factor.
(2) Earnings were inadequate to cover fixed charges for fiscal 1997 and 1998 and the quarter ended April 4, 1999
by approximately $37.8 million, $338.8 million and $19.5 million, respectively.
</FN>
</TABLE>
II-2
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Komag, Incorporated
for the registration of its securities and to the incorporation by reference
therein of our report dated January 22, 1999, with respect to the consolidated
financial statements and schedule of Komag, Incorporated included in its Annual
Report (Form 10-K) for the year ended January 3, 1999.
Ernst & Young LLP
San Jose, California
June 18, 1999
CONSENT OF INDENPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Komag, Incorporated on Form S-3 of our report dated January 22, 1999 on our
audits of the consolidated financial statements of Asahi Komag Co., Ltd. and its
subsidiary as of December 31, 1998 and 1997, and for the years ended December
31, 1998, 1997 and 1996, which report is included in the Annual Report on Form
10-K of Komag, Incorporated for the year ended December 31, 1998.
CHUO AUDIT CORPORATION
Tokyo, Japan
June 18, 1999
