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As filed with the Securities and Exchange Commission on August 22, 2000
Registration No. 333-38086
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TEGAL CORPORATION
DELAWARE 68-0370244
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
2201 S. McDowell Blvd.
Petaluma, California 94954
(707) 763-5600
(Address, including zip code, and telephone number of Registrant's
principal executive offices)
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Michael L. Parodi
Chairman of the Board,
President and Chief Executive Officer
Tegal Corporation
2201 S. McDowell Blvd.
Petaluma, California 94954
(707) 763-5600
(Name, address, including ZIP code, and
telephone number, including area
code, of agent for service)
Copies to:
Christoper L. Kaufman, Esq.
Latham & Watkins
135 Commonwealth Dr.
Menlo Park, California 94025
(650) 328-4600
Fax: (650) 463-2600
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this registration statement.
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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, 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 of 1933, 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 of 1933, 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(d)
under the Securities Act of 1933, 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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CALCULATION OF REGISTRATION FEE
=============================================================================================================
PROPOSED MAXIMUM
AGGREGATE AMOUNT OF
TITLE OF SHARES TO BE REGISTERED OFFERING PRICE(1)(2) REGISTRATION FEE
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<S> <C> <C>
Common Stock, $0.01 par value(3)........................ N/A N/A
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Warrants................................................ N/A N/A
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Total................................................. $30,000,000 $7,920.00(4)
=============================================================================================================
</TABLE>
(1) Estimated solely for purposes of determining the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933.
(2) Not specified as to each class of securities to be registered hereunder
pursuant to General Instruction II(D) to Form S-3 under the Securities
Act of 1933.
(3) Each share of Common Stock includes one common share purchase right
under the Rights Agreement dated as of June 11, 1996 between us and
Chasemellon Shareholder Services, L.L.C., as Rights Agent.
(4) Previously paid.
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 OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
================================================================================
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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, DATED AUGUST 22, 2000
TEGAL CORPORATION
COMMON STOCK
WARRANTS TO PURCHASE COMMON STOCK
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We may from time to time sell up to $30,000,000 in the aggregate
of:
- shares of our common stock, par value $0.01 per share; and
- warrants to purchase common stock.
We will provide the specific terms of these securities in
supplements to this prospectus. You should read this prospectus and any
prospectus supplement carefully before you invest.
Our common stock is traded on the Nasdaq National Market under
the symbol "TGAL."
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INVESTING IN OUR COMMON STOCK INVOLVES CERTAIN RISKS. SEE "RISK
FACTORS" ON PAGE 6.
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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.
We will sell these securities directly to our shareholders or to
purchasers or through agents on our behalf or through underwriters or dealers as
designated from time to time. If any agents or underwriters are involved in the
sale of any of these securities, the applicable prospectus supplement will set
forth the names of the agents or underwriters and any applicable fees,
commissions or discounts.
This prospectus may not be used to consummate sales of securities
unless accompanied by the applicable prospectus supplement.
The date of this prospectus is August 22, 2000.
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TABLE OF CONTENTS
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Page
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ABOUT THIS PROSPECTUS........................................................................3
WHERE YOU CAN FIND MORE INFORMATION..........................................................4
THE COMPANY..................................................................................5
USE OF PROCEEDS..............................................................................6
RISK FACTORS.................................................................................6
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS............................................6
DILUTION.....................................................................................6
GENERAL DESCRIPTION OF SECURITIES............................................................7
DESCRIPTION OF WARRANTS......................................................................7
PLAN OF DISTRIBUTION.........................................................................8
LEGAL MATTERS................................................................................9
EXPERTS......................................................................................9
</TABLE>
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ABOUT THIS PROSPECTUS
This prospectus is a part of registration statement that we filed
with the Securities and Exchange Commission utilizing a "shelf" registration
process. Under this shelf registration process, we may sell any combination of
the securities described in this prospectus in one or more offerings up to a
total dollar amount of $30,000,000. This prospectus provides you with a general
description of the securities we may offer. Each time we sell securities, we
will provide a prospectus supplement that will contain specific information
about the terms of that offering. The prospectus supplement may also add, update
or change information contained in this prospectus supplement together with
additional information described under the next heading "Where You Can Find More
Information."
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WHERE YOU CAN FIND MORE INFORMATION
We file annual and quarterly and special reports, proxy
statements and other information with the Securities and Exchange Commission.
You can inspect and copy these reports, proxy statements and other information
at:
- the public reference facilities maintained by the SEC at Room
1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington,
D.C. 20549, and
- the regional offices of the SEC:
Midwest Regional Office, Citicorp Center, Suite 1400, 14th
Floor, 500 West Madison Street, Chicago, Illinois 60661-2511
Northeast Regional Office, Suite 1300, 13th Floor, 7 World Trade
Center, New York, New York 10048.
You can also obtain copies of these materials from the public
reference section of the SEC at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549, at prescribed rates. You can obtain information on the
operation of the public reference room by calling the SEC at 1-800-SEC-0330. The
SEC also maintains a web site (http://www.sec.gov) that makes available reports,
proxy statements and other information regarding registrants that file
electronically with it.
The SEC allows us to "incorporate by reference" the information
we file with it, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference
is an important part of this prospectus. Any statement contained in a document
incorporated by reference in this prospectus is automatically updated and
superseded if information contained in this prospectus, or information that we
later file with the SEC, modifies or replaces this information. We incorporate
by reference the following documents filed by us with the SEC:
- Annual Report on Form 10-K for the year ended March 31, 2000;
- Proxy Statement for the 2000 Annual Meeting of Shareholders;
- Quarterly Report on Form 10-Q for the period ended June 30,
2000;
- the description of the common stock contained in our
Registration Statement on Form 8-A (File No. 01-26824), which
was declared effective by the Commission on October 18, 1995,
including any subsequently filed amendments and reports
updating this description; and
- all other documents subsequently filed by us pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this prospectus and before the termination of the
offering, which shall be deemed to be a part hereof from the
date of filing of these documents.
To receive a free copy of any of the documents incorporated by
reference in this prospectus (other than exhibits, unless they are specifically
incorporated by reference in the documents), call or write to the Corporate
Secretary, Tegal Corporation, 2201 S. McDowell Blvd., Petaluma, California 94954
(telephone (707) 763-5600).
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THE COMPANY
We design, manufacture, market and service plasma etch systems
used in the fabrication of integrated circuits (or, ICs) and other related
devices such as gallium arsenide devices for wireless communications, thin film
heads for disk drives, small flat panels and printer heads. Etching constitutes
one of the principal IC and related device production process steps and must be
performed numerous times in the production of these devices. We were formed in
December 1989 to acquire the operations of the former Tegal Corporation, a
division of Motorola, Inc. Our predecessor company was founded in 1972 and
acquired by Motorola in 1978. We completed our initial public offering in
October 1995.
Our principal executive offices are located at 2201 South
McDowell Road, Petaluma, California 94954 (telephone number (707) 763-5600).
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USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus
supplement, we anticipate that any net proceeds will be used for general
corporate purposes, which may include but are not limited to working capital,
capital expenditures, acquisitions and the repayment or refinancing of our
indebtedness. When a particular series of securities is offered, the prospectus
supplement relating thereto will set forth our intended use for the net proceeds
we receive from the sale of the securities. Pending the application of the net
proceeds, we expect to invest the proceeds in short-term, interest-bearing
instruments or other investment-grade securities.
RISK FACTORS
Investing in our securities involves risk. Please see the Risk
Factors set forth in the supplement which accompanies this prospectus as well as
our periodic reports on Form 10-K and Form 10-Q which have been filed with the
SEC, incorporated by reference into this prospectus and available on EDGAR at
http://www.sec.gov. Before making an investment decision, you should carefully
consider these risks as well as the other information contained or incorporated
by reference into this prospectus.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes or incorporates by reference forward-
looking statements within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act. Forward-looking statements, which are based on
assumptions and describe our future plans, strategies and expectations, are
generally identifiable by the use of the words "anticipate," "believe,"
"estimate," "expect," "intend," "project," or similar expressions. These
forward-looking statements are subject to risks, uncertainties and assumptions
about us. Important factors that could cause actual results to differ materially
from the forward-looking statements we make in this prospectus are set forth
under the caption "Risk Factors" and elsewhere in this prospectus and the
documents incorporated by reference in this prospectus. If one or more of these
risks or uncertainties materialize, or if any underlying assumptions prove
incorrect, our actual results, performance or achievements may vary materially
from any future results, performance or achievements expressed or implied by
these forward-looking statements. All forward-looking statements attributable to
us or persons acting on our behalf are expressly qualified in their entirety by
the cautionary statements in this paragraph. We may update the prospectus and
other material information by providing prospectus supplements in connection
with the sale of securities pursuant to this prospectus.
DILUTION
If you invest in our common stock, your interest would be diluted
to the extent of the difference between the public offering price per share of
our common stock and the adjusted net tangible book value per share of our
common stock after this offering. We calculate tangible net book value per share
by dividing the net tangible book value, which equals total assets less
intangible assets and total liabilities, by the number of outstanding shares of
our common stock.
Assuming an offering price of $8.00 per share, our tangible net
book value at March 31, 2000 would have been $2.20 per share. This represents an
immediate increase in the tangible net book value per share of $3.40 per share
to existing shareholders and an immediate dilution of $5.60 per share to new
investors.
The following table illustrates this per share dilution:
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Assumed offering price per share..................................... $8.00
Tangible net book value per share as of March 31, 2000..........$2.20
Increase per share attributable to new shareholders............. 1.20
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Adjusted net tangible net book value per share after offering........ 3.40
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Dilution per share to new stockholders............................... $5.60
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</TABLE>
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GENERAL DESCRIPTION OF SECURITIES
We directly or through agents, dealers, or underwriters
designated from time to time, may offer, issue and sell, together or separately,
up to $30,000,000 in the aggregate of:
- shares of common stock;
- warrants to purchase common stock; or
- any combination of common stock and warrants, either
individually or as units consisting of one or both common
stock and warrants, each on terms to be determined at the time
of sale.
The common stock and the warrants are collectively referred to
herein as the "securities." A general description of our common stock can be
found on our Form 8-A filed with the Commission in October 1995. Our common
stock is also subject to the Rights Agreement dated as of June 11, 1996 between
us and Chasemellon Shareholder Services, L.L.C., as rights agent, in which each
share of our common stock includes one common share purchase right. Additional
details regarding our rights plan can be found on our Form 10-K/A, which is
incorporated by reference.
DESCRIPTION OF WARRANTS
Warrants may be issued independently or together with any common
stock and may be attached to or separate from these securities. The warrants are
to be issued under warrant agreements to be entered into between us and a bank
or trust company, as warrant agent, all as shall be set forth in the prospectus
supplement relating to warrants being offered pursuant thereto. As of the date
hereof, we have warrants to purchase 125,000 shares of our common stock
outstanding.
TERMS OF WARRANTS
The applicable prospectus supplement will describe the terms of
warrants offered thereby, the warrant agreement relating to these warrants and
the warrant certificates representing these warrants, including the following:
- the title of the warrants;
- the common stock for which the warrants are exercisable;
- the price or prices at which the warrants will be issued;
- if applicable, the number of the warrants issued with each
share of common stock;
- if applicable, the date on and after which the warrants and
the related common stock will be separately transferable;
- if applicable, a discussion of any material federal income tax
considerations; and
- any other terms of the warrants, including terms, procedures
and limitations relating to the exchange and exercise of the
warrants.
Warrant certificates will be exchangeable for new warrant
certificates of different denominations, and warrants may be exercised at the
corporate trust office of the warrant agent or any other office indicated in the
prospectus supplement. Holders of warrants will not be entitled, by virtue of
being a holder of warrants, to vote, to
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consent, to receive dividends, to receive notice as stockholders with respect to
any meeting of our stockholders for the election of our directors or any other
matter, or to exercise any rights whatsoever as our stockholders.
EXERCISE OF WARRANTS
Each warrant will entitle the holder to purchase for cash that
number of shares of common stock at an exercise price as shall in each case be
set forth in, or be determinable as set forth in, the prospectus supplement
relating to the warrants. Warrants may be exercised at any time up to the close
of business on the expiration date set forth in the prospectus supplement
relating to the warrants. After the close of business on the expiration date,
unexercised warrants will become void.
Warrants may be exercised as set forth in the prospectus
supplement relating to the warrants. Upon receipt of payment and the warrant
certificate properly completed and duly executed at the corporate trust office
of the warrant agent or any other office indicated in the prospectus supplement,
we will, as soon as practicable, forward the securities purchasable upon
exercise. If less than all of the warrants represented by any warrant
certificate are exercised, a new warrant certificate will be issued for the
remaining warrants.
PLAN OF DISTRIBUTION
We may sell the securities to one or more underwriters for public
offering and sale by them or may sell the securities to investors directly or
through agents. Any underwriter or agent involved in the offer and sale of these
securities will be named in the applicable prospectus supplement. We have
reserved the right to sell securities directly to investors on our own behalf in
those jurisdictions where and in a manner as we are authorized to do so.
Underwriters may offer and sell securities:
- at a fixed price or prices, which may be changed;
- at market prices prevailing at the time of sale;
- at prices related to prevailing market prices; or
- at negotiated prices.
We also may, from time to time, authorize dealers, acting as our
agents, to offer and sell securities upon the terms and conditions as are set
forth in the applicable prospectus supplement. In connection with the sale of
securities, underwriters may receive compensation from us in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of the securities for whom they may act as agent. Underwriters may
sell securities to or through dealers, and these dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they may act as
agent.
Any underwriting compensation paid by us to underwriters or
agents in connection with the offering of securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable prospectus supplement. Dealers and agents
participating in the distribution of securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the securities may be deemed to be underwriting
discounts and commissions. Underwriters, dealers and agents may be entitled,
under agreements entered into with us, to indemnification against and
contribution toward certain civil liabilities, including liabilities under the
Securities Act of 1933.
If so indicated in the prospectus supplement, we will authorize
dealers acting as our agents to solicit offers by certain institutions to
purchase the securities from us at the public offering price set forth in the
applicable prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on the date or dates stated in that
prospectus supplement. Each contract will be for an amount not less than the
amounts stated in the applicable prospectus supplement. Institutions with whom
contracts, when authorized, may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable
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institutions, and other institutions but will in all cases be subject to our
approval. Contracts will not be subject to any conditions except:
- the purchase by the institution of the securities covered by
its contract shall not at the time of delivery be prohibited
under the laws of any jurisdiction in the United States to
which that institution is subject; and
- if the securities are being sold to underwriters, we shall
have sold to these underwriters the total amount specified in
the applicable prospectus supplement.
A commission indicated in the applicable prospectus supplement
will be paid to underwriters and agents soliciting purchases of securities
pursuant to contracts accepted by us.
LEGAL MATTERS
Certain legal matters with respect to the securities offered by
this prospectus will be passed upon for us by Latham & Watkins, San Francisco,
California.
EXPERTS
The financial statements incorporated by reference to the Annual
Report on Form 10-K for the year ended March 31, 2000 have been so incorporated
in reliance on the report of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses to be paid by us in connection with the distribution
of the securities being registered are as set forth in the following table:
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*Securities and Exchange Commission Fee................................... $ 7,920
**Legal Fees and Expenses................................................. 10,000
**Accounting Fees and Expenses............................................ 10,000
**Miscellaneous........................................................... 2,080
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**Total........................................................... 30,000
=======
</TABLE>
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*Previously filed
**Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides that to the
fullest extent permitted by the Delaware General Corporation Law ("DGCL"), a
director of the Company shall not be liable to the Company or its stockholders
for monetary damages for breach of fiduciary duty as a director. Subsection
(b)(7) of Section 102 of the DGCL enables a corporation in its original
certificate of incorporation or an amendment thereto to eliminate or limit the
personal liability of a director to the corporation or its stockholders for
monetary damages for violations of the director's fiduciary duty, except (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the DGCL (providing for liability of directors for unlawful payment of
dividends or unlawful stock purchases or redemptions) or (iv) for any
transaction from which a director derived an improper personal benefit. The
effect of the provision of the Company's Certificate of Incorporation is to
eliminate the rights of the Company and its stockholders (through stockholders'
derivative suits on behalf of the Company) to recover monetary damages against a
director for breach of the fiduciary duty of care as a director (including
breaches resulting from negligent or grossly negligent behavior) except in the
situations described in clauses (i) through (iv) above. This provision does not
limit or eliminate the rights of the Company or any stockholder to seek
nonmonetary relief such as an injunction or rescission in the event of a breach
of a director's duty of care.
Subsection (a) of Section 145 of the DGCL empowers a corporation
to indemnify any present or former director, officer, employee or agent of the
corporation, or any individual serving at the Company's request as a director,
officer or employee of another organization, 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), against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or
proceeding provided that such director, officer, employee or agent acted in good
faith and in a manner reasonably believed to be in, or not opposed to, the best
interests of the corporation, and, with respect to any criminal action or
proceeding, provided further that such director, officer, employee or agent had
no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify
any present or former director, officer, employee or agent 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 the fact that such person acted in any of the capacities
set forth above, against expenses (including attorneys' fees) actually and
reasonably incurred in connection with the defense or settlement of such action
or suit provided that such director, officer, employee or agent acted in good
faith and in a manner reasonably believed to be in, or not opposed to, the best
interests of the corporation, except that no indemnification may be made in
respect to any claim, issue or matter as to which such director, officer,
employee or agent shall have been adjudged to be liable to the corporation
unless and only
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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 of the circumstances of the case, such director,
officer, employer or agent is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director,
officer, employee or agent has been successful in the defense of any action,
suit or proceeding referred to in subsections (a) and (b) or in the defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys fees) actually and reasonably incurred by him in connection
therewith; that indemnification and advancement of expenses provided for, by, or
granted pursuant to Section 145 shall not be deemed exclusive of any other
rights to which the indemnified party may be entitled; and empowers the
corporation to purchase and maintain insurance on behalf of a present or former
director, officer, employee or agent of the corporation, or any individual
serving at the Company's request as a director, officer or employee of another
organization, against any liability asserted against him or incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liabilities under
Section 145.
The Company's Certificate of Incorporation provides that the
Company shall indemnify its directors, officers, employees and agents against
losses incurred by any such person by reason of the fact that such person was
acting in such capacity. In addition, pursuant to an agreement with holders of
securities providing for registration rights, such holders are entitled to be
indemnified by the Company for certain liabilities under federal securities
laws.
The Company has in effect directors' and officers' liability
policies in the aggregate amount of $10 million covering all of its directors
and officers.
ITEM 16. EXHIBITS
1.1* Form of Underwriting Agreement.
4.1 Certificate of Incorporation of the Company (incorporated by reference
to Exhibits 3(i).1 and 3(i).2 included in the Company's Registration
Statement on Form S-1 (No. 33-84702)).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3(ii)
included in the Company's Registration Statement on Form S-1 (No.
33-84702)).
4.3 Rights Agreement dated as of June 11, 1996 between the Company and
Chasemellon Shareholder Services, L.L.C., as rights agent (incorporated
by reference to Exhibit 4.1 included in the Company's Form 8-K filed
June 28, 1996).
4.4 First Amendment to Rights Agreement dated as of January 15, 1999 between
the Company and Chasemellon Shareholder Services, L.L.C. (incorporated
by reference to Exhibit 99.1 included in the Company's Form 8-K filed
January 1, 1999).
4.5* Form of Warrant Agreement for Warrants.
5.1 Opinion of Latham & Watkins.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5).
24.1** Powers of Attorney.
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*To be filed by a report on Form 8-K pursuant to Regulation S-K, Item 601(b).
**Previously filed.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
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(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement. 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 SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20
percent 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 the
registration statement or any material change to such information in the
registration statement; provided, however, that the information required
to be included in a post-effective amendment by paragraphs (a)(1)(i) and
(a)(1)(ii) above may be contained in periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference 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.
(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 (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.
(e) The undersigned registrant hereby undertakes to
deliver or cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual report, to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule
14c-3 under the Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the prospectus, to deliver, or cause
to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial
information.
(h) 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 Securities Act of 1933 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 their counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act of 1933 and
will be governed by the final adjudication of such issue.
II-3
<PAGE> 14
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 Petaluma, California on August 22, 2000.
TEGAL CORPORATION
By /s/ Michael L. Parodi
----------------------------------------
Michael L. Parodi
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on August 22, 2000.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Michael L. Parodi Chairman of the Board, President and Chief
---------------------------------------- Executive Officer (Principal Executive Officer)
Michael L. Parodi
* Vice President, Finance and Administration,
---------------------------------------- Secretary, Treasurer and Chief Financial
David Curtis Officer (Principal Financial Officer)
* Director
----------------------------------------
Jeffrey M. Krauss
* Director
----------------------------------------
Thomas R. Mika
* Director
----------------------------------------
Edward A. Dohring
*By: /s/ Michael L. Parodi
----------------------------------
Attorney-in-fact
</TABLE>
<PAGE> 15
EXHIBIT INDEX
1.1* Form of Underwriting Agreement.
4.1 Certificate of Incorporation of the Company (incorporated by reference
to Exhibits 3(i).1 and 3(i).2 included in the Company's Registration
Statement on Form S-1 (No. 33-84702)).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3(ii)
included in the Company's Registration Statement on Form S-1 (No.
33-84702)).
4.3 Rights Agreement dated as of June 11, 1996 between the Company and
Chasemellon Shareholder Services, L.L.C., as rights agent (incorporated
by reference to Exhibit 4.1 included in the Company's Form 8-K filed
June 28, 1996).
4.4 First Amendment to Rights Agreement dated as of January 15, 1999 between
the Company and Chasemellon Shareholder Services, L.L.C. (incorporated
by reference to Exhibit 99.1 included in the Company's Form 8-K filed
January 1, 1999).
4.4* Form of Warrant Agreement for Warrants.
5.1 Opinion of Latham & Watkins.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5).
24.1** Powers of Attorney.
-----------
*To be filed by a report on Form 8-K pursuant to Regulation S-K, Item 601(b).
**Previously filed.
