As filed with the Securities and Exchange Commission on February 15, 2002
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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KULICKE AND SOFFA INDUSTRIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
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PENNSYLVANIA 23-1498399
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
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2101 Blair Mill Road
Willow Grove, Pennsylvania 19090
(215) 784-6000
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant's Principal Executive Offices)
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Clifford G. Sprague
Senior Vice President and Chief Financial Officer
2101 Blair Mill Road
Willow Grove, Pennsylvania 19090
(215) 784-6000
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
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Copies to:
Jeffrey C. Moore, Esquire H. John Michel, Jr., Esquire
Kulicke and Soffa Industries, Inc. Drinker Biddle & Reath LLP
2101 Blair Mill Road One Logan Square
Willow Grove, Pennsylvania 19090 18th & Cherry Streets
(215) 784-6000 Philadelphia, PA 19103-6996
(215) 988-2700
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement as determined by
the Registrant, depending on market conditions and other factors.
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. [_]
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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. [_]
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be To be Offering Price Aggregate Registration
Registered Registered/(1)/ Per Unit/(1)(2)/ Offering Price/(1)(2)/ Fee
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Common Stock, no par value/(3)/
Preferred Stock
Debt Securities/(4)/
Warrants
Units
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Total $250,000,000 100% $250,000,000 $23,000
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(1) An indeterminate number of or aggregate principal amount of the securities
is being registered as may at various times be issued at indeterminate
prices, with an aggregate public offering price not to exceed $250,000,000
or, if any debt securities are issued at any original issuance discount,
such greater amount as shall result in net proceeds of $250,000,000 to the
registrant.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933. The aggregate
public offering price of all securities registered hereby will not exceed
$250,000,000.
(3) Includes such indeterminate number of shares of common stock that may be
issued (a) upon conversion of or exchange for any preferred stock or debt
securities that provide for conversion into common stock or (b) upon
exercise of warrants to purchase shares of common stock.
(4) Includes senior debt securities, senior subordinated debt securities and
subordinated debt securities.
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 FEBRUARY 15, 2002
PROSPECTUS
____________, 2002
$250,000,000
[LOGO]
KULICKE AND SOFFA INDUSTRIES, INC.
Common Stock
Preferred Stock
Senior Debt Securities
Senior Subordinated Debt Securities
Subordinated Debt Securities
Warrants
Units
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Kulicke & Soffa, directly or through underwriters designated from time to
time, may offer, issue and sell, together or separately, (i) shares of common
stock, (ii) shares of preferred stock, (iii) debt securities, which may be
senior debt securities, senior subordinated debt securities or subordinated debt
securities, (iv) warrants to purchase common stock, preferred stock, debt
securities or other securities or rights and (v) units consisting of two or more
classes of our securities.
The form in which we are to issue the securities, their specific
designation, aggregate principal amount or aggregate initial offering price,
maturity, if any, rate and times of payment of interest or dividends, if any,
redemption, conversion, and sinking fund terms, if any, voting or other rights,
if any, exercise price and detachability, if any, and other specific terms will
be described in a supplement to this prospectus, together with the terms, of the
offering of such securities.
Our common stock is traded on the Nasdaq National Market under the symbol
"KLIC." Any prospectus supplement will also contain information, where
applicable, as to any other listing on a securities exchange of the securities
covered by such prospectus supplement.
The securities we offer may involve a high degree of risk. The risks
associated with an investment in our company and the particular securities, will
be described in the prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus or the accompanying prospectus supplement is truthful or complete.
Any representation to the contrary is a criminal offense.
This prospectus may not be used to sell securities unless it is accompanied
by a prospectus supplement.
The date of this prospectus is ____________, 2002.
TABLE OF CONTENTS
About This Prospectus ..................................................... 1
Where You Can Find More Information ....................................... 1
Forward-Looking Statements ................................................ 2
Kulicke & Soffa ........................................................... 3
Risk Factors .............................................................. 4
Use of Proceeds ........................................................... 4
Ratio of Earnings to Fixed Charges ........................................ 4
General Description of Securities ......................................... 4
Description of Capital Stock .............................................. 5
Description of Debt Securities ............................................ 7
Description of Warrants ................................................... 22
Description of Units ...................................................... 22
Plan of Distribution ...................................................... 23
Legal Matters ............................................................. 24
Experts ................................................................... 24
About This Prospectus
This prospectus is part of a registration statement that we have filed with
the Securities and Exchange Commission (the "SEC") using a "shelf" registration.
Under this shelf registration, we may sell any combination of the securities
described in this prospectus in one or more offerings up to an aggregate initial
offering price of $250,000,000. 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. You should read both this
prospectus and any prospectus supplement together with additional information
described in Where You Can Find More Information.
You should rely only on the information we include or incorporate by
reference in this prospectus and any applicable prospectus supplement. We have
not authorized anyone to provide you with different or additional information.
The information contained in this prospectus or the applicable prospectus
supplement is accurate only as of the date on the front of those documents,
regardless of the time of delivery of this prospectus or the applicable
prospectus supplement or of any sale of our securities, and you should not
assume that the information in this prospectus or the applicable prospectus
supplement is accurate as of any other date.
Where You Can Find More Information
We are a public company and file annual, quarterly and special reports, as
well as proxy statements and other information with the SEC. You may read and
copy any of the documents we file with the SEC at the SEC's Public Reference
Room at 450 Fifth Street, NW, Washington DC 20549 or at its Regional Offices
located at Citicorp Center, 500 West Madison Street, Chicago, Illinois
60661-2511. You may obtain further information about the operation of the Public
Reference Room by calling the SEC at 1-800-SEC-0330. These SEC filings are also
available to the public over the Internet at the SEC's web site at
http://www.sec.gov, which contains reports, proxy statements and other
information regarding registrants like us that file electronically with the SEC.
Our common stock is quoted on the Nasdaq National
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Market and reports and other information about us may also be inspected at the
Nasdaq National Market at 1735 K Street, NW, Washington, DC 20007-1500.
This prospectus is only part of a registration statement on Form S-3 that
we have filed with the SEC under the Securities Act of 1933 and therefore omits
certain information contained in the registration statement. We have also filed
exhibits and schedules with the registration statement that are not included in
this prospectus. Statements contained in this prospectus as to the contents of
any contract or other document are not necessarily complete, and in such
instance we refer you to the copy of the contract or document filed as an
exhibit to the registration statement, each such statement being qualified in
all respects by such reference. You may inspect a copy of the registration
statement, including the exhibits and schedules, without charge, at the public
reference room or obtain a copy from the SEC upon payment of the fees prescribed
by the SEC.
The SEC allows us to "incorporate by reference" certain information into
this prospectus, which means that we can disclose important information to you
by referring you to another document that we have filed with the SEC. The
information incorporated by reference is considered to be part of this
prospectus and information we file later with the SEC will automatically update
and supersede this information. We are incorporating by reference the documents
listed below and any future filings made by us with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we
terminate this offering.
We are incorporating by reference the following documents:
. Our Annual Report on Form 10-K for our fiscal year ended September 30,
2001;
. Our Quarterly Report on Form 10-Q for our fiscal quarter ended
December 31, 2001;
. Our Current Report on Form 8-K filed on October 5, 2001; and
. The description of our common stock and our preferred stock contained
in our registration statement on Form 8-A12G/A filed on September 11,
1995, SEC file number 000-0121.
You may request a copy of these filings, at no cost, by writing or telephoning
us at the following address:
Investor Relations Department
Kulicke and Soffa Industries, Inc.
2101 Blair Mill Road
Willow Grove, PA 19090
Telephone: (215) 784-6000
Forward-Looking Statements
This prospectus contains or incorporates by reference certain statements
and information that are "forward-looking statements" within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. Such forward-looking statements include, but are not
limited to, statements that relate to our future revenue, product development,
demand forecasts, competitiveness, gross margins, operating expense and benefits
expected as a result of:
. The projected growth rates in the overall semiconductor industry, the
semiconductor assembly equipment market and the market for
semiconductor packaging materials and test interconnect solutions;
. The anticipated development, production and licensing of our advanced
packaging technology;
. The projected continuing demand for wire borders; and
. The anticipated growing importance of the flip chip assembly process
in high-end market segments.
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Generally words such as "may," "will," "should," "could," "anticipate,"
"expect," "intend," "estimate," "plan," "continue," and "believe," or the
negative of or other variation on these and other similar expressions identify
forward-looking statements. Forward-looking statements are based on current
expectations and involve risks and uncertainties and our future results could
differ significantly from those expressed or implied by our forward-looking
statements. The uncertainties in this regard include, but are not limited to,
those identified or referred to under the caption "Risk Factors" below and in
the applicable prospectus supplement. In light of these and other uncertainties,
you should not conclude that we will necessarily achieve any plans and
objectives or projected financial results referred to in any of the
forward-looking statements. We do not undertake to update or revise the
forward-looking statements, whether as a result of new information, future
events or otherwise.
Kulicke & Soffa
The following summary highlights selected information regarding Kulicke &
Soffa. It does not contain all of the information that is important to you. You
should carefully read this entire prospectus and any prospectus supplement,
together with the other documents to which this prospectus and any prospectus
supplement refers you. In addition, you should carefully consider the risks and
uncertainties of an investment in us described under the caption "Risk Factors,"
in documents incorporated by reference herein on in the applicable prospectus
supplement. When used in this prospectus, the terms "Kulicke & Soffa,"
"Company," "we," "our," "ours" and "us" refer to Kulicke and Soffa Industries,
Inc. and, unless the context otherwise indicates, its subsidiaries.
We design, manufacture and market capital equipment, packaging materials
and test interconnect solutions and provide semiconductor wafer solder-bumping
interconnect (flip chip bumping) services for sale to companies that manufacture
and assemble semiconductor devices. We also service, maintain, repair and
upgrade assembly equipment, license our flip chip bumping process technology and
market high density interconnect substrates. Our business is currently divided
into four segments: equipment, packaging materials, test interconnect solutions
and advanced packaging technology.
Historically, the demand for semiconductors and our semiconductor assembly
equipment has been volatile, with sharp periodic downturns and slowdowns. For
instance, a strong upturn in the semiconductor industry for the majority of
fiscal 2000 resulted in record revenues and earnings in that year. This industry
upturn was followed by a severe industry downturn in fiscal 2001, which is
continuing in fiscal 2002.
To keep pace with the constant advance of technology in the semiconductor
industry, we have continuously added to our product and technology portfolio
through acquisitions and internal development so as to offer a broad range of
packaging solutions to our customers. We believe this strategy has positioned us
to enhance our leading position in traditional wire bonding methodologies while
also establishing leadership in advanced packaging technologies such as flip
chip and wafer level packaging. These newer technologies offer the superior
performance characteristics required to support the latest, most sophisticated
semiconductor designs.
We believe our expanding portfolio of packaging and test interconnect
solutions enables us to better balance our revenues between products that are
capacity driven, and thus more cyclically purchased primarily during industry
expansions, and those that are run-rate or technology driven and are thus more
likely to be purchased throughout the semiconductor cycle. We believe we are the
only major supplier to the semiconductor assembly industry that can provide
customers with semiconductor assembly equipment along with a broad range of
complimentary packaging materials and test interconnect solutions that are
optimized for use with our assembly equipment.
Kulicke & Soffa was incorporated in Pennsylvania in 1956. Our principal
offices are located at 2101 Blair Mill Road, Willow Grove, Pennsylvania 19090,
our telephone number is (215) 784-6000 and our website can be accessed at
www.kns.com. Information contained on our website does not constitute part of
this prospectus.
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Risk Factors
Investing in our securities involves risk, which include, but are not
limited to those described in documents incorporated by reference herein. The
prospectus supplement applicable to each type or series of securities we offer
will contain a discussion of risks applicable to an investment in the particular
types of securities that we are offering under that prospectus supplement. Prior
to making a decision about investing in our securities, you should carefully
consider the specific factors discussed under the caption "Risk Factors" in the
applicable prospectus supplement together with all of the other information
contained in the prospectus supplement or appearing or incorporated by reference
in this prospectus.
Use of Proceeds
Unless the applicable prospectus supplement for a particular issuance of
securities states otherwise, the net proceeds we receive from the sale of the
securities offered by this prospectus will be used for general corporate
purposes, which may include:
. funding the development and growth of our product offerings and
business;
. repaying indebtedness that we may incur from time to time;
. financing potential business acquisitions that we may consider from
time to time; and
. general working capital.
Pending these uses, we may use the net proceeds to make short-term investments
or reduce short-term borrowings.
Ratio of Earnings to Fixed Charges
Our ratio of earnings to fixed charges for each of the periods indicated is
as follows:
Three Months
Fiscal Years Ended September 30, Ended Dec. 31,
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1997 1998 1999 2000 2001 2000 2001
Ratio of earnings to
fixed charges 18x 2x * 16x * * *
These computations include us and our consolidated subsidiaries. These
ratios are computed by dividing (a) income (loss) before taxes plus fixed
charges and equity in loss of joint ventures by (b) fixed charges, which
includes interest expense plus the portion of rent expense under operating
leases we deem to be representative of the interest factor and amortization of
debt issue costs.
* We would have had to generate additional earnings of $16.2 million in
fiscal 1999, $78.8 million in Fiscal 2001, $12.2 million in the three months
ended December 31, 2000 and $25.0 million in the three months ended December 31,
2001 to achieve a ratio of 1:1.
General Description of Securities
This prospectus, together with the additional information included in
any applicable prospectus supplements, contains a summary of the material terms
and provisions of our common stock, preferred stock, debt
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securities, including senior debt securities, senior subordinated debt
securities and subordinated debt securities consisting of notes, debentures or
other evidence of indebtedness, warrants, and units consisting of two or more
classes of our securities.
The securities offered by this prospectus may be offered in amounts, at
prices and on terms to be determined at the time of the offering. The aggregate
offering price of securities offered by us under this prospectus will not exceed
$250,000,000. These summaries are not meant to be a complete description of each
security.
Description of Capital Stock
The following is a general description of our capital stock. The terms of
our articles of incorporation and bylaws are more detailed than the general
information provided below. Therefore, you should carefully consider the actual
provisions of those documents.
Authorized Capital Stock
We are authorized to issue a total of 205,000,000 shares of our capital
stock, each of which is without par value. Of the authorized amount, 200,000,000
of the shares are common stock and 5,000,000 of the shares are preferred stock.
Our Board of Directors may, without further action by our stockholders,
issue a series of preferred stock and fix the rights and preferences of those
shares, including the dividend rights, dividend rates, conversion rights,
exchange rights, voting rights, terms of redemption, redemption price or prices,
liquidation and other preferences and priorities and the number of shares
constituting any series or the designation of such series. The rights of the
holders of common stock will be subject to, and may be adversely affected by,
the rights of the holders of any preferred stock issued by us. All of the
5,000,000 authorized shares of preferred stock are currently undesignated.
As of January 31, 2002, there were 49,147,197 shares of common stock issued
and outstanding. As of such date, no shares of preferred stock were issued or
outstanding.
Common Stock
General. Each share of our common stock has the same rights and privileges.
Holders of our common stock do not have any preferences or any preemptive,
conversion or exchange rights. All of our outstanding shares of common stock are
fully paid and nonassessable. Our common stock is listed on the Nasdaq National
Market under the symbol "KLIC."
Voting Rights. The holders of our common stock are entitled to vote upon
all matters submitted to a vote of our stockholders and are entitled to one vote
for each share of common stock held. In the election of directors, the holders
of the common stock may multiply the number of votes the shareholder is entitled
to cast by the total number of directors to be elected at a meeting of
shareholders and cast the whole number of votes for one candidate or distribute
them among some or all candidates.
Dividends. Subject to the prior rights and preferences, if any, applicable
to shares of preferred stock or any series of preferred stock, or the
restrictions set forth in any applicable indentures, the holders of common stock
are entitled to participate ratably in dividends, payable in cash, stock or
otherwise, as may be declared by our Board of Directors out of any funds legally
available for the payment of dividends. Each such distribution shall be payable
to holders of record as they appear on our stock transfer books on such record
dates as shall be fixed by our Board of Directors.
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Liquidation and Distribution. If we voluntarily or involuntarily liquidate,
dissolve or wind-up, or upon any distribution of our assets, the holders of our
common stock will be entitled to receive after distribution in full of the
preferential amounts, if any, to be distributed to the holders of preferred
stock or any series of preferred stock, all of the remaining assets available
for distribution equally and ratably in proportion to the number of shares of
common stock held by them.
Preferred Stock
General. The rights, preferences, privileges and restrictions of the
preferred stock of each series will be fixed by the certificate of designation
relating to each particular series. A prospectus supplement relating to each
such series will specify the terms of the preferred stock as determined by our
board of directors, including the following:
. the title and stated value of the preferred stock being offered;
. the number of shares of preferred stock being offered, their
liquidation preference per share, if any, and their purchase price;
. the dividend rate(s), period(s) and payment date(s) or method(s) of
calculating the payment date(s) applicable to the preferred stock being
offered;
. whether dividends shall be cumulative or non-cumulative;
. the provisions for redemption, if applicable, of the preferred stock
being offered;
. any listing of the preferred stock being offered on any securities
exchange or market;
. voting rights, if any, of the preferred stock being offered;
. the relative ranking and preference of the series as to dividend rights
and rights upon our dissolution or upon any distribution of our assets;
. any limitations on issuance of any series of our preferred stock
ranking senior to or on parity with that particular series of our
preferred stock as to dividend rights and rights upon our dissolution
or upon any distribution of our assets; and
. any other specific terms, preferences, priorities, rights, limitations
or restrictions of the preferred stock being offered.
The description of the preferred stock set forth above and in any
description of the terms of a particular series of preferred stock in the
related prospectus supplement will not be complete. You should refer to the
applicable certificate of designation for such series of preferred stock for
complete information with respect to such preferred stock. The prospectus
supplement will also contain a description of certain United States federal
income tax consequences relating to the preferred stock.
Although it has no present intention to do so, our Board of Directors,
without stockholder approval, may issue preferred stock with voting and
conversion rights that could adversely affect the voting power of the holders of
common stock. If we issue preferred stock, it may have the effect of delaying,
deferring or preventing a change in control.
Voting Rights. Holders of preferred stock will have voting rights as
indicated in the applicable prospectus supplement.
Dividends. Holders of the preferred stock of each series will be entitled
to receive, when, as and if declared by our Board of Directors, out of our funds
legally available for payment to stockholders, dividends at such rates and on
such dates as will be set forth in the applicable prospectus supplement. Each
such distribution shall be payable to holders of record as they appear on our
stock transfer books on such record dates as shall be fixed by our Board of
Directors.
Liquidation and Distribution. If we voluntarily or involuntarily liquidate,
dissolve or wind-up, or upon any distribution of our assets, the holders of our
preferred stock will have the rights as stated in the applicable prospectus
supplement.
Redemption. The terms and conditions, if any, upon which the preferred
stock will be subject to mandatory redemption or redemption at our option,
either in whole or in part, will be described in the applicable prospectus
supplement.
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Certain Charter and Bylaws Provisions
Some sections of our articles of incorporation and bylaws and provisions of
Pennsylvania law may discourage certain transactions involving a change in
control of the Company. For example, our articles of incorporation and bylaws
contain provisions that (i) classify the board of directors into four classes,
with one class being elected each year, (ii) permit the board to issue "blank
check" preferred stock without shareholder approval, and (iii) prohibit us from
engaging in certain business combinations with a holder of 20% or more of our
voting securities without super-majority board or shareholder approval. Further,
under the Pennsylvania Business Corporation Law, because our bylaws provide for
a classified board of directors, shareholders may only remove directors for
cause. These provision and other provisions of the Pennsylvania Business
Corporation Law could have the effect of delaying, deferring or preventing a
change in control of Kulicke & Soffa and may adversely affect the voting and
other rights of holders of common stock.
Transfer Agent and Registar
American Stock Transfer and Trust Company currently is the transfer agent
and registrar for our common stock, with offices in New York, New York. The
transfer agent and registrar for any shares of preferred stock we issue will be
set forth in the applicable prospectus supplement.
Description of Debt Securities
The following is a general description of the debt securities which we may
issue from time to time. The particular terms relating to each debt security
will be set forth in a prospectus supplement.
The debt securities will be our direct obligations. The senior debt
securities will rank equally with all of our other senior and unsubordinated
debt. The senior subordinated debt securities will have a junior position to all
of our senior debt. The subordinated debt securities will have a junior position
to all of our senior debt and all of our senior subordinated debt. The senior
debt securities will be issued under a senior debt indenture, the senior
subordinated debt securities will be issued under a senior subordinated debt
indenture, and the subordinated debt securities will be issued under a
subordinated debt indenture. The indentures will be qualified under the Trust
Indenture Act of 1939. The indentures will be qualified under the Trust
Indenture Act of 1939.
Each series of the debt securities will be issued under one of three
indentures between K&S and LaSalle Bank National Association, as trustee.
We have summarized below the material provisions of the indentures. The
summary is not complete and is subject in all respects to the provisions of, and
is qualified in its entirety by reference to, the forms of indentures, which are
filed as exhibits to the registration statement. You should read the indentures
for provisions that may be important to you.
Terms Applicable to All Debt Securities
No Limit on Debt Amounts. The indentures do not limit the amount of debt
which can be issued under the indentures. These amounts are set from time to
time by our board of directors.
Prospectus Supplements. The applicable prospectus supplement will summarize
the specific terms for the debt securities and the related offering including,
with respect to each series of debt securities, some or all of the following:
. title and form of the securities;
. offering price;
. any limit on the amount that may be issued;
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. maturity date(s);
. interest rate or the method of computing the interest rate;
. dates on which interest will accrue, or how the dates will be
determined, the interest payment dates and any related record
dates;
. the place or places where debt securities may be surrendered for
registration of transfer or for exchange, where notices and
demands to or upon K&S in respect of the debt securities and the
indentures may be served and where notices to holders will be
published;
. terms and conditions on which the debt securities may be redeemed,
in whole or in part, at our option;
. date(s), if any, on which, and the price(s) at which we are
obligated to redeem, or at the holder's option to purchase, in
whole or in part, the debt securities and related terms and
provisions;
. details of any required sinking fund payments;
. the currency or currencies in which the debt securities will be
denominated or payable, if other than U.S. dollars;
. any index, formula or other method by which payments on the debt
securities will be determined, and any special voting or
defeasance provisions in connection with a determination, if the
amount of payments are to be determined with reference to an
index, formula or other method;
. the persons to whom payments of interest will be made;
. any provisions granting special rights to holders when a specified
event occurs;
. any changes to or additional events of default or covenants;
. any special tax implications of the debt securities; including
under what circumstances, if any, and with what procedures and
documentation K&S will pay additional amounts on the debt
securities held by a non-U.S. person in respect of taxes,
assessments or similar charges withheld or deducted and, if
so, the terms related to any option K&S will have to redeem
those debt securities rather than pay those additional
amounts;
. whether or not the debt securities will be issued in global form
and who the depository will be;
. any restrictions on the registration, transfer or exchange of the
debt securities;
. terms, if any, on which a series of debt securities may be
convertible into or exchangeable for our common stock, preferred
stock or other debt securities, including provisions as to whether
conversion or exchange is mandatory, at the option of the holder
or at our option;
. if the debt securities are convertible or exchangeable, the events
or circumstances which will result in adjustments to the
conversion or exchange price and the formulae for determining the
adjusted price;
. whether the debt securities are secured or unsecured, and if
secured, the amount and form of the security and related terms;
. subordination terms of any senior subordinated debt securities and
subordinated debt securities; and
. any other terms that are not inconsistent with the indenture
applicable to a series of debt securities, including any terms
which may be required by or advisable under United States laws
or regulations or advisable (as determined by us) in connection
with the marketing of that series of debt securities.
Unless otherwise provided in an applicable indenture relating to debt
securities, the debt securities will be issued only in fully registered form,
without coupons, in denominations of $1,000 or any integral multiple thereof. No
service charge will be made for any transfer or exchange of the debt securities,
but we may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with a transfer or exchange, other
than exchanges not involving any transfer, like the issuance of definitive
securities in replacement of temporary securities or the issuance of new
securities upon surrender of a security that is redeemed or purchased in part.
A series of debt securities may be issued under the relevant indenture
as original issue discount securities, which are securities that are offered and
sold at a substantial discount from their stated principal amount. In addition,
debt securities offered and sold at their stated principal amount may under some
circumstances, pursuant to
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applicable Treasury Regulations, be treated as issued at an original issue
discount for federal income tax purposes. Federal income tax consequences and
other special considerations applicable to any such original issue discount
securities (or other debt securities treated as issued at an original issue
discount) will be described in the prospectus supplement relating to those
securities.
Covenants. We will agree in the indentures to:
. pay the principal, interest and any premium on the debt securities when
due;
. maintain an office or agency in New York City, where debt securities may
be surrendered for registration of transfer or for exchange and where
notices and demands to or upon us in respect of the debt securities and
the relevant indenture(s) may be served;
. prepare and file or deliver certain reports, as more fully specified in
the relevant indenture, with the trustee under the relevant indenture,
the SEC, and/or registered holders of debt securities, as the case may
be;
. deliver to the trustee under the relevant indenture, as more fully
specified in that indenture, officers' certificates relating to our
compliance under the relevant indenture and the occurrence of any
default or event of default under that indenture;
. file with the trustee under the relevant indenture and the SEC, in
accordance with, and as may be required by, the rules and regulations
prescribed from time to time by the SEC, the additional information,
documents and reports with respect to compliance by the Company with
the conditions and covenants provided for in the relevant indenture;
. unless our board of directors determines that it is no longer desirable
in the conduct of our business and our significant subsidiaries, taken
as a whole, and that there will be no adverse impact in any material
respect to the holders of debt securities, subject to those exceptions
as more fully specified in the relevant indenture, do or cause to be
done all things necessary to preserve and keep in full force and
effect:
. our corporate existence, and the corporate, partnership or other
existence of each of our significant subsidiaries, in accordance with
their respective organizational documents;
. the rights, licenses and franchises of us and certain of our
subsidiaries; and
. not at any time seek application of any applicable stay, extension or
usury law that may affect the covenants or the performance under the
indentures.
Consolidation, Merger and Sale of Assets. We will not consolidate with or
merge into any other corporation or transfer all or substantially all of our
assets unless:
. we are the surviving corporation or the successor or surviving entity is
organized or existing under the laws of the United States of America,
any state thereof or the District of Columbia;
. the successor or surviving entity assumes all of our obligations under
the debt securities and the indentures pursuant to supplemental
indentures in forms reasonably satisfactory to the trustee(s) under the
relevant indentures; and
. immediately after we consolidate or merge, no event of default and no
event which, after notice or lapse of time, or both, would become an
event of default, will have happened and be continuing.
Upon any consolidation, merger or transfer, the successor will be
substituted for us under the indenture and we will be relieved of all
obligations and covenants under the indenture and the debt securities, but we
will not be relieved of the obligation to pay the principal of and interest on
the debt securities, except in the case of a sale of all of our assets that
meets the requirements stated in the immediately preceding paragraph.
Satisfaction and Discharge. Upon our request, the relevant indenture will
no longer be effective with respect to any series for almost all purposes if
either:
. all outstanding securities of that series have been delivered to the
trustee for cancellation and we have paid all sums payable in respect of
that series; or
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. the only securities which are still outstanding have, or within one year
will, become due and payable or are to be called for redemption, we have
deposited with the trustee funds which are sufficient to make all
future payments, no default or event of default will have occurred and
be continuing on the date of that deposit and that deposit will not
result in a breach of any other instrument by which we are bound, we
have paid all other sums payable in respect of that series, and we
have delivered to the trustee a certificate and opinion of counsel
that all conditions precedent to satisfaction and discharge have been
fulfilled.
Legal Defeasance and Covenant Defeasance. Under each indenture, we may
elect with respect to a series of debt securities at our option and subject to
the satisfaction of the conditions described below, either:
. to be deemed to have paid and discharged the entire indebtedness
represented by the outstanding debt securities of the applicable
series and to have satisfied all of our other obligations under the
debt securities of the applicable series and under the provisions of
the relevant indenture, which we refer to as legal defeasance; or
. to be released from some of our obligations under the relevant
indenture, which we refer to as covenant defeasance.
We can exercise legal or covenant defeasance if we put in place the
following arrangements:
. we must irrevocably deposit with the applicable indenture trustee (or
another trustee meeting certain eligibility requirements and agreeing
to be bound by the applicable provisions of the relevant indenture),
in trust, for the benefit of the holders of the applicable series of
debt securities:
. cash in United States dollars,
. non-callable and non-redeemable direct obligations of the United
States of America or of an agency or instrumentality controlled or
supervised by the United States of America, in each instance, the
payment of which is unconditionally guaranteed as a full faith and
credit obligation of the United States of America; or
. a combination of the foregoing,
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, interest and premium, if any, on the
outstanding debt securities of the applicable series on their stated maturity or
applicable redemption date, as the case may be, and any mandatory sinking fund
payments applicable to that particular series of the debt securities on the day
on which the payments are due;
. we must deliver to the trustee an opinion of counsel confirming that the
holders of the outstanding securities of the applicable series will not
recognize income, gain or loss for federal income tax purposes as a
result of the defeasance;
. no default or event of default shall have occurred and be continuing on
the date of the deposit of the amounts to be held in trust for the
benefit of the holders (other than a default or event of default
resulting from the borrowing of funds to be applied to the deposit) or
in the case of any insolvency-related defaults, at any time in the
period ending on the 91st day after the date of the deposit (or
greater period of time in which any such deposit of trust funds may
remain subject to bankruptcy or insolvency laws which apply to the
deposit by us); and
. we must deliver to the trustee an officers' certificate and an opinion
of counsel, each stating that all conditions precedent provided for or
relating to legal defeasance or covenant defeasance, as the case may
be, have been complied with.
After satisfying the conditions for legal defeasance, the applicable debt
securities will be deemed outstanding only for limited purposes as more fully
set forth in the relevant indenture. After legal defeasance, the holders of
outstanding debt securities will have to rely solely on the deposits we make to
the trust for repayment on the debt securities.
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After satisfying the conditions for covenant defeasance, the debt
securities of the applicable series will be deemed not outstanding for the
purposes of the covenants from which we have been released, but will continue to
be deemed outstanding for all other purposes under the relevant indenture.
The applicable prospectus supplement may further describe additional
provisions, if any, permitting legal defeasance or covenant defeasance,
including any modifications to the provisions described above, with respect to
the debt securities of or within a particular series.
Information Concerning the Trustee. The prospectus supplement with respect
to particular debt securities will describe any relationship that we may have
with the trustee for the debt securities offered. We may also maintain bank
accounts, borrow money and have other customary banking or investment banking
relationships with the trustee, or its affiliates, in the ordinary course of
business.
Form, Exchange, Transfer. Unless otherwise specified in the prospectus
supplement, debt securities will be issued in registered form without coupons.
They may also be issued in global form with accompanying book-entry procedures
as outlined below.
A holder of debt securities of any series can exchange the debt securities
for other debt securities of the same series, in any authorized denomination and
with the same terms and aggregate principal amount. They are transferable at the
corporate trust office of the trustee or at any transfer agent designated by us
for that purpose. No charge will be made for any such exchange or transfer
except for any tax or governmental charge related to such exchange or transfer,
other than exchanges not involving any transfer such as the issuance of
definitive securities in replacement of temporary securities or the issuance of
new securities upon surrender of a security that is redeemed or purchased in
part.
Global Securities. The registered debt securities may be issued in the form
of one or more fully registered global securities that will be deposited with
and registered in the name of a depositary or with a nominee for a depositary
identified in the prospectus supplement.
The specific terms of the depositary arrangement with respect to any debt
securities to be represented by a registered global security will be described
in the prospectus supplement.
Ownership of beneficial interests in a registered global security will be
limited to persons that have accounts with the depositary for such registered
global security ("participants") or persons that may hold interests through
participants. Upon the issuance of a registered global security, the depositary
will credit, on its book-entry registration and transfer system, the
participants' accounts with the principal amounts of the debt securities
represented by the registered global security beneficially owned by such
participants. Ownership of beneficial interests in such registered global
security will be shown on, and the transfer of such ownership interests will be
effected, only through records maintained by the depositary for such registered
global security or on the records of participants for interests of persons
holding through participants.
So long as the depositary for a registered global security, or its nominee,
is the registered owner of a registered global security, the depositary or the
nominee will be considered the sole owner or holder of the debt securities
represented by the registered global security for all purposes. Except as set
forth below, owners of beneficial interests in a registered global security will
not:
. be entitled to have the debt securities represented by such registered
global security registered in their names;
. receive or be entitled to receive physical delivery of such debt
securities in definitive forms; and
. be considered the owners or holders of the debt securities.
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Accordingly, each person owning a beneficial interest in a registered
global security must rely on the procedures of the depositary for such
registered global security and, if such person is not a participant, on the
procedures of the participant through which such person owns its interest, to
exercise any rights of a holder under the applicable indenture. We understand
that under existing industry practices, if we request any action of holders, or
if an owner of a beneficial interest in a registered global security desires to
take any action which a holder is entitled to take under the applicable
indenture, the depositary would authorize the participants holding the relevant
beneficial interests to take such action, and such participants would authorize
beneficial owners owning through such participants to take such action.
Principal, premium, if any, and interest payments on debt securities
represented by a registered global security registered in the name of a
depositary or its nominee will be made to such depositary or its nominee, as the
case may be, as the registered owner of such registered global security. Neither
K&S nor the trustee will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in such registered global security.
We expect that the depositary for any debt securities represented by a
registered global security, upon receipt of any payment of principal, premium or
interest will immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in such registered global
security as shown on the records of such depositary. We also expect that
payments by participants to owners of beneficial interests in such a registered
global security held by the participants will be governed by standing customer
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name."
We may at any time determine not to have any of the debt securities of a
series represented by one or more registered global securities and, in such
event, will issue debt securities of such series in definitive form in exchange
for all of the registered global security or securities representing such debt
securities. Any debt securities issued in definitive form in exchange for a
registered global security will be registered in such name or names as the
depositary shall instruct the relevant trustee. We expect that such instructions
will be based upon directions received by the depositary from participants with
respect to ownership of beneficial interests in such registered global security.
If provided in a prospectus supplement relating to a series of debt
securities, the debt securities of that series may also be issued in the form of
one or more global securities that will be deposited with a common depositary
identified in the prospectus supplement. The specific terms and procedures,
including the specific terms of the depositary arrangement, with respect to any
portion of a series of debt securities to be represented by a global security
will be described in the prospectus supplement.
Particular Terms of the Senior Debt Securities
Ranking of Senior Debt Securities. The senior debt securities will
constitute part of our senior debt and rank equally with all our other senior
and unsecured debt, except that it will be senior to our senior subordinated
debt and subordinated debt.
Events of Default. The following are events of default under a series of
senior debt securities:
. we fail to pay the principal, any premium, if any, or any sinking fund
payment, on any senior debt securities of that series when due;
. we fail to pay interest on any senior debt securities of that series
within 30 days following the due date;
. we fail to observe or perform any other covenant, representation,
warranty or other agreement in the senior indenture applicable to that
series and that failure continues for 60 days after we receive notice to
comply from the trustee or holders of at least 25% in aggregate
principal amount of the
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outstanding senior debt securities of all series affected by that
failure, treating all those series as a single class;
. certain events of bankruptcy or insolvency occur, whether voluntary or
not.
The prospectus supplement for a particular series may describe additional
or different events of default that apply to that series. An event of default
with respect to one series of senior debt securities does not necessarily
constitute an event of default with respect to any other series of senior debt
securities.
If a default or an event of default occurs and is continuing, and if a
responsible officer of the trustee under the indenture has actual knowledge
thereof, the trustee will mail to the holders of senior debt securities of the
affected series a notice to that effect within 90 days after it occurs. Except
in the case of a default in the payment of principal or interest, the trustee
under the senior indenture may withhold notice if and so long as a committee of
the trustee's responsible officers in good faith determines that withholding the
notice is in the interests of the holders.
If an event of default with respect to one or more series of senior debt
securities occurs and is continuing, the trustee or the holders of at least 25%
in aggregate principal amount of the then outstanding senior debt securities of
all series with respect to which the event of default occurs and is continuing,
treating all those series as a single class, may declare the principal of,
premium, if any, and accrued and unpaid interest of all the senior debt
securities of those series to be immediately due and payable. The holders of a
majority in aggregate principal amount of the then outstanding senior debt
securities of all series covered by such declaration may annul or rescind the
declaration.
The senior indenture entitles the trustee to be indemnified by the holders
before proceeding to exercise any right or power at the request of any of the
holders.
The holders of a majority in principal amount of the outstanding senior
debt securities of all series with respect to which an event of default occurs
and is continuing, treating all those series as a single class, may direct the
time, method and place of conducting any proceeding for any remedy available to
the trustee or exercising any trust power conferred on it, except that:
. the direction cannot conflict with any rule or the indenture;
. the trustee may take any other action deemed proper by the trustee which
is not inconsistent with the direction; and
. the trustee need not take any action which might involve it in personal
liability or be unduly prejudicial to the holders of the senior debt
securities not joining in the action.
A holder may pursue a remedy directly under the indenture or the series of
senior debt securities, but before doing so, the following must occur:
. the holder must give to the trustee written notice that an event of
default has occurred and is continuing;
. the holders of at least 25% in principal amount of the then outstanding
senior debt securities of all affected series, treating all those series
as a single class, must make a written request to the trustee to pursue
the remedy;
. the holder, or holders, must offer and, if requested, provide to the
trustee an indemnity satisfactory to the trustee against any loss,
liability or expense from the taking of the action;
. the trustee does not comply with the request within 60 days after
receipt of the request and offer of indemnity; and
. during the 60 day period, the holders of a majority in principal amount
of the then outstanding senior debt securities of all those series,
treating all those series as a single class, do not give the trustee a
direction inconsistent with the written request.
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However, holders have an absolute right to receipt of principal, premium,
if any, and interest on or after the respective due dates and to institute suit
for the enforcement of those payments. The right of a holder of senior debt
securities to bring suit for the enforcement of any payments of principal,
premium, if any, and interest on senior debt securities on or after the
respective due dates may not be impaired or affected without the consent of that
holder.
The holders of a majority in principal amount of the senior debt securities
then outstanding of all affected series, treating all such series as a single
class, may by notice to the trustee on behalf of all holders of the senior debt
securities of such series waive any past defaults, except:
. a continuing default in payment of the principal of, premium, if any, or
interest on, or any sinking fund payment on, senior debt securities of
the series; and
. a continuing default in respect of a covenant or provision of the
indenture which cannot be amended or modified without the consent of
each holder of senior debt securities affected.
We will periodically file statements with the trustees regarding our
compliance with covenants in the senior indenture.
Modifications and Amendments. Except as provided below, or more fully
specified in the senior indenture, the senior indenture may be amended or
supplemented by us and the trustee with the consent of holders of a majority in
principal amount of all series of senior debt securities affected by the
amendment or supplement, treating all such series as a single class. In
addition, the record holders of a majority in principal amount of the
outstanding senior debt securities of all series affected by the waiver,
treating all such series as a single class, may, with respect to those series,
waive defaults under, or compliance with, the provisions of the senior
indenture. However, some amendments or waivers require the consent of each
holder of any senior debt security affected. Without the consent of each holder,
an amendment or waiver may not:
. reduce the principal amount of the senior debt securities of any series
whose holders must consent to an amendment, supplement or waiver;
. reduce the principal or change the fixed maturity of the principal of,
premium, if any, or mandatory sinking fund obligation, if any, of any
senior debt securities of any series or alter the provisions with
respect to the redemption of the senior debt securities;
. reduce the rate, or change the time for payment, of interest, including
default interest, on any senior debt security of any series;
. waive a default or event of default in the payment of principal of, or
interest or premium on, the senior debt securities of any series,
except a rescission of acceleration of the senior debt securities by
the holders of a majority in aggregate principal amount of the senior
debt securities of any series and a waiver of the payment default that
resulted from that acceleration;
. make any senior debt security of any series payable in currency other
than that stated in the senior debt securities of that series;
. make any change in the provisions of the senior indenture relating to
waivers of past defaults or the rights of the holders of senior debt
securities to receive payments of principal of or interest or premium
on the senior debt securities;
. waive a redemption payment with respect to any senior debt security;
. make any change in the right of any holders of senior debt securities
regarding waivers of defaults or impair or affect the right of any
holder of a senior debt security of any series to receive payment of
principal, premium, if any, and interest on that security on or after
the due date expressed in that security or to bring suit for the
enforcement of any payment on or after the due date; or
. make any change in the above amendment and waiver provisions.
We and the trustee under the senior indenture may amend or supplement the
senior indenture or the senior debt securities issued thereunder without the
consent of any holder:
. to evidence the succession of another person to us, or successive
successions, and the assumption by the successors of our covenants,
agreements and obligations under the indenture;
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. to add other covenants, restrictions or conditions for the protection of
the holders of all or any series of senior debt securities;
. to add events of default;
. to provide for the issuance of senior debt securities in coupon form and
to provide for exchangeability of those senior debt securities under the
indenture in fully registered form;
. to provide for the issuance of and to establish the form, terms and
conditions of senior debt securities of any series;
. to evidence and provide for the acceptance of appointment by a successor
trustee and to add or change any of the provisions of the indenture
necessary to provide for or facilitate the administration of the trusts
under the indenture by more than one trustee;
. to cure any ambiguity, or to correct or supplement any provision in the
indenture which may be defective or inconsistent with any other
provision contained in the indenture or in any supplemental indenture,
or to make any other provisions with respect to matters or questions
arising under that indenture, so long as the interests of holders of
senior debt securities of any series are not adversely affected in any
material respect under that indenture; or
. to make any change that does not adversely affect the rights of any
holder.
Particular Terms of the Senior Subordinated Debt Securities
Ranking of Senior Subordinated Debt Securities. The senior subordinated
debt securities will rank senior to any subordinated debt securities and will be
subordinated and junior in right of payment to any senior debt securities and
certain other indebtedness of Kulicke & Soffa to the extent set forth in the
applicable indenture. All series of the senior subordinated debt securities will
rank equally with each other.
Subordination. Unless the prospectus supplement indicates otherwise, the
following provisions will apply to the senior subordinated debt securities. Our
obligations under the senior subordinated debt securities will be subordinated
in right of payment to our obligations under our senior debt. For this purpose,
"senior debt" generally includes any indebtedness that does not expressly
provide that it is on a parity with or subordinated in right of payment to the
senior subordinated debt securities. Specifically, senior debt includes
obligations under any credit facility with banks or other institutional lenders
and obligations under the senior debt securities described in this prospectus.
Senior debt will not include:
. any liability for federal, state, local or other taxes;
. any indebtedness to any of our subsidiaries or other affiliates;
. any trade payables;
. any indebtedness that we may is incur in violation of the senior
subordinated indenture; or
. obligations under the subordinated debt securities.
If we distribute our assets to creditors upon any dissolution, winding-up,
liquidation or reorganization or in bankruptcy, insolvency, receivership or
similar proceedings, we must first pay all amounts due or to become due on all
senior debt before we pay the principal of, or any premium or interest on, the
senior subordinated debt securities.
We may not make any payment on the senior subordinated debt securities if a
default in the payment of the principal, premium, if any, interest or other
obligations, including a default under any repurchase or redemption obligation
in respect of designated senior debt, occurs and continues beyond any applicable
grace period. We may not make any payment on the senior subordinated debt
securities if any other default occurs and continues with respect to designated
senior debt that permits holders of the designated senior debt to accelerate its
maturity and the trustee receives a notice of default from us, a holder of
designated senior debt or other person permitted to give notice. We may not
resume payments on the senior subordinated debt securities until the defaults
are cured or specified time periods pass, unless the maturity of the senior debt
is actually accelerated.
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The term "designated senior debt" means our obligations under any
particular senior debt if the amount of that senior debt is at least the amount
specified in the applicable prospectus supplement and the debt instrument
expressly provides that the senior debt will be designated senior debt with
respect to the senior subordinated debt securities.
We expect that the terms of some of our senior debt will provide that an
event of default under the senior subordinated debt securities or an
acceleration of their maturity will constitute an event of default under the
senior debt. In that case, if the maturity of the senior subordinated debt
securities is accelerated because of an event of default, we may not make any
payment on the senior subordinated debt securities until we have paid all senior
debt or the acceleration has been rescinded. If the payment of the senior
subordinated debt securities is accelerated because of an event of default, we
must promptly notify the holders of senior debt of the acceleration.
If we experience a bankruptcy, dissolution or reorganization, holders of
senior debt may receive more, ratably, and holders of the senior subordinated
debt securities may receive less, ratably, than our other creditors.
The indenture for senior subordinated debt securities may not limit our
ability to incur additional senior debt.
The subordination provisions may not be amended in a manner adverse to the
holders of the senior subordinated debt securities without the consent of the
holders of at least 75% of the aggregate principal amount of senior subordinated
debt securities then outstanding affected by the amendment, voting as a single
class.
Events of Default. The following are events of default under a series of
senior subordinated debt securities:
. we fail to pay the principal, any premium, if any, or any sinking fund
payment, on any senior subordinated debt securities of that series when
due;
. we fail to pay interest on any senior subordinated debt securities of
that series within 30 days following the due date;
. we fail to observe or perform any other covenant, representation,
warranty or other agreement in the senior subordinated indenture
applicable to that series and that failure continues for 60 days after
we receive notice to comply from the trustee or holders of at least 25%
in aggregate principal amount of the outstanding senior subordinated
debt securities of all series affected by that failure, treating all
those series as a single class;
. certain events of bankruptcy or insolvency occur, whether voluntary or
not.
The prospectus supplement for a particular series may describe additional
or different events of default that apply to that series. An event of default
with respect to one series of senior subordinated debt securities does not
necessarily constitute an event of default with respect to any other series of
senior subordinated debt securities.
If a default or an event of default occurs and is continuing, and if a
responsible officer of the trustee under the indenture has actual knowledge
thereof, the trustee will mail to the holders of senior subordinated debt
securities of the affected series a notice to that effect within 90 days after
it occurs. Except in the case of a default in the payment of principal or
interest, the trustee under the senior subordinated indenture may withhold
notice if and so long as a committee of the trustee's responsible officers in
good faith determines that withholding the notice is in the interests of the
holders.
If an event of default with respect to one or more series of senior
subordinated debt securities occurs and is continuing, the trustee or the
holders of at least 25% in aggregate principal amount of the then outstanding
senior subordinated debt securities of all series with respect to which the
event of default occurs and is continuing, treating all those series as a single
class, may declare the principal of, premium, if any, and accrued and unpaid
interest
- 16 -
(subject to applicable subordination provisions in the senior subordinated
indenture) of all the senior subordinated debt securities of those series to be
immediately due and payable. The holders of a majority in aggregate principal
amount of the then outstanding senior subordinated debt securities of all series
covered by such declaration may annul and rescind the declaration.
The senior subordinated indenture entitles the trustee to be indemnified by
the holders before proceeding to exercise any right or power at the request of
any of the holders.
The holders of a majority in principal amount of the outstanding senior
subordinated debt securities of all series with respect to which an event of
default occurs and is continuing, treating all those series as a single class,
may direct the time, method and place of conducting any proceeding for any
remedy available to the trustee or exercising any trust power conferred on it,
except that:
. the direction cannot conflict with any rule or the indenture;
. the trustee may take any other action deemed proper by the trustee which
is not inconsistent with the direction; and
. the trustee need not take any action which might involve it in personal
liability or be unduly prejudicial to the holders of the senior
subordinated debt securities not joining in the action.
A holder may pursue a remedy directly under the senior subordinated
indenture or the series of senior subordinated debt securities, but before doing
so, the following must occur:
. the holder must give to the trustee written notice that an event of
default has occurred and is continuing;
. the holders of at least 25% in principal amount of the then outstanding
senior subordinated debt securities of all affected series, treating all
those series as a single class, must make a written request to the
trustee to pursue the remedy;
. the holder, or holders, must offer and, if requested, provide to the
trustee an indemnity satisfactory to the trustee against any loss,
liability or expense from the taking of the action;
. the trustee does not comply with the request within 60 days after
receipt of the request and offer of indemnity; and
. during the 60 day period, the holders of a majority in principal amount
of the then outstanding senior subordinated debt securities of all those
series, treating all those series as a single class, do not give the
trustee a direction inconsistent with the written request.
However, holders have an absolute right to receipt of principal, premium,
if any, and interest on or after the respective due dates and to institute suit
for the enforcement of those payments. The right of a holder of senior
subordinated debt securities to bring suit for the enforcement of any payments
of principal, premium, if any, and interest on senior subordinated debt
securities on or after the respective due dates may not be impaired or affected
without the consent of that holder.
The holders of a majority in principal amount of the senior subordinated
debt securities then outstanding of all affected series, treating all such
series as a single class, may by notice to the trustee on behalf of all holders
of the senior subordinated debt securities of such series waive any past
defaults, except:
. a continuing default in payment of the principal of, premium, if any, or
interest on, or any sinking fund payment on, senior subordinated debt
securities of the series; and
. a continuing default in respect of a covenant or provision of the
indenture which cannot be amended or modified without the consent of
each holder of senior subordinated debt securities affected.
We will periodically file statements with the trustees regarding our
compliance with covenants in the senior subordinated indenture.
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Modifications and Amendments. Except as provided below, or more fully
specified in the senior subordinated indenture, the senior subordinated
indenture may be amended or supplemented by us and the trustee with the consent
of holders of a majority in principal amount of all series of senior
subordinated debt securities affected by the amendment or supplement, treating
all such series as a single class. In addition, the record holders of a majority
in principal amount of the outstanding senior subordinated debt securities of
all series affected by the waiver, treating all such series as a single class,
may, with respect to those series, waive defaults under, or compliance with, the
provisions of the senior subordinated indenture. However, some amendments or
waivers require the consent of each holder of any senior subordinated debt
security affected. Without the consent of each holder, an amendment or waiver
may not:
. reduce the principal amount of the senior subordinated debt securities
of any series whose holders must consent to an amendment, supplement or
waiver;
. reduce the principal or change the fixed maturity of the principal of,
premium, if any, or mandatory sinking fund obligation, if any, of any
senior subordinated debt securities of any series or alter the
provisions with respect to the redemption of the senior subordinated
debt securities;
. reduce the rate, or change the time for payment, of interest, including
default interest, on any senior subordinated debt security of any
series;
. waive a default or event of default in the payment of principal of, or
interest or premium on, the senior subordinated debt securities of any
series, except a rescission of acceleration of the senior subordinated
debt securities by the holders of a majority in aggregate principal
amount of the senior subordinated debt securities of any series and a
waiver of the payment default that resulted from that acceleration;
. make any senior subordinated debt security of any series payable in
currency other than that stated in the senior subordinated debt
securities of that series;
. make any change in the provisions of the senior subordinated indenture
relating to waivers of past defaults or the rights of the holders of
senior subordinated debt securities to receive payments of principal of
or interest or premium on the senior subordinated debt securities;
. waive a redemption payment with respect to any senior subordinated debt
security;
. make any change in the right of any holders of senior subordinated
debt securities regarding waivers of defaults or impair or affect the
right of any holder of a senior subordinated debt security of any
series to receive payment of principal, premium, if any, and interest
on that security on or after the due date expressed in that security
or to bring suit for the enforcement of any payment on or after the
due date; or
. make any change in the above amendment and waiver provisions.
We and the trustee under the senior subordinated indenture may amend or
supplement the senior subordinated indenture or the senior subordinated debt
securities issued thereunder without the consent of any holder:
. to evidence the succession of another person to us, or successive
successions, and the assumption by the successors of our covenants,
agreements and obligations under the senior subordinated indenture;
. to add other covenants, restrictions or conditions for the protection of
the holders of all or any series of senior subordinated debt securities;
. to add events of default;
. to provide for the issuance of senior subordinated debt securities in
coupon form and to provide for exchangeability of those senior
subordinated debt securities under the indenture in fully registered
form;
. to provide for the issuance of and to establish the form, terms and
conditions of senior subordinated debt securities of any series;
. to evidence and provide for the acceptance of appointment by a
successor trustee and to add or change any of the provisions of the
indenture necessary to provide for or facilitate the administration of
the trusts under the indenture by more than one trustee;
- 18 -
. to cure any ambiguity, or to correct or supplement any provision in
the indenture which may be defective or inconsistent with any other
provision contained in the indenture or in any supplemental indenture,
or to make any other provisions with respect to matters or questions
arising under that indenture, so long as the interests of holders of
senior subordinated debt securities of any series are not adversely
affected in any material respect under that indenture; or
. to make any change that does not adversely affect the rights of any
holder.
Particular Terms of the Subordinated Debt Securities
Ranking of Subordinated Debt Securities. The subordinated debt securities
will be subordinated and junior in right of payment to any senior debt
securities and senior subordinated debt securities and certain other
indebtedness of Kulicke & Soffa to the extent set forth in the prospectus
supplement.
Subordination. Unless the prospectus supplement indicates otherwise, the
subordination provisions of the subordinated debt securities will be the same as
those of the senior subordinated debt securities just described, with the
following exceptions:
. "Senior debt" will include our obligations under the senior
subordinated debt securities, as well as under the other debt
specified above; and
. Different series of subordinated debt securities may rank senior to
other series. In that case, our obligations under the higher-ranking
series will be "senior debt" in relation to the lower-ranking series.
Events of Default. The following are events of default under a series of
subordinated debt securities:
. we fail to pay the principal, any premium, if any, or any sinking fund
payment, on any subordinated debt securities of that series when due;
. we fail to pay interest on any debt securities of that series within
30 days following the due date;
. we fail to observe or perform any other covenant, representation,
warranty or other agreement in the subordinated indenture applicable
to that series and that failure continues for 60 days after we receive
notice to comply from the trustee or holders of at least 25% in
aggregate principal amount of the outstanding subordinated debt
securities of that series and all other series that rank equal with
that series and with respect to which that default has occurred,
treating all those series as a single class;
. certain events of bankruptcy or insolvency occur, whether voluntary or
not.
The prospectus supplement for a particular series may describe additional
or different events of default that apply to that series. An event of default
with respect to one series of subordinated debt securities does not necessarily
constitute an event of default with respect to any other series of subordinated
debt securities.
If a default or an event of default occurs and is continuing, and if a
responsible officer of the trustee under the indenture has actual knowledge
thereof, the trustee will mail to the holders of subordinated debt securities of
the affected series a notice to that effect within 90 days after it occurs.
Except in the case of a default in the payment of principal or interest, the
trustee under the subordinated indenture may withhold notice if and so long as a
committee of the trustee's responsible officers in good faith determines that
withholding the notice is in the interests of the holders.
If an event of default with respect to any series of subordinated debt
securities occurs and is continuing, the trustee or the holders of at least 25%
in aggregate principal amount of the then outstanding subordinated debt
securities of that series and all other series that rank equal with that series
and with respect to which the event of default occurs and is continuing,
treating all those series as a single class, may declare the principal of,
premium, if any, and accrued and unpaid interest (subject to applicable
subordination provisions in the relevant indenture) of all
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the subordinated debt securities of those series to be immediately due and
payable. The holders of a majority in aggregate principal amount of the then
outstanding subordinated debt securities of all series covered by such
declaration may annul and rescind the declaration.
The subordinated indenture entitles the trustee to be indemnified by the
holders before proceeding to exercise any right or power at the request of any
of the holders.
The holders of a majority in principal amount of the outstanding
subordinated debt securities of all series with respect to which an event of
default occurs and is continuing and that rank equal with each other, treating
all those series as a single class, may direct the time, method and place of
conducting any proceeding for any remedy available to the trustee or exercising
any trust power conferred on it with respect to those series, except that:
. the direction cannot conflict with any rule or the subordinated
indenture;
. the trustee may take any other action deemed proper by the trustee
which is not inconsistent with the direction; and
. the trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the holders of the
subordinated debt securities not joining in the action.
A holder may pursue a remedy directly under the indenture or the series of
subordinated debt securities, but before doing so, the following must occur:
. the holder must give to the trustee written notice that an event of
default has occurred and is continuing;
. the holders of at least 25% in principal amount of the then
outstanding subordinated debt securities of all affected series that
rank equal with each other, treating all those securities as a single
class, must make a written request to the trustee to pursue the
remedy;
. the holder, or holders, must offer and, if requested, provide to the
trustee an indemnity satisfactory to the trustee against any loss,
liability or expense from the taking of the action;
. the trustee does not comply with the request within 60 days after
receipt of the request and offer of indemnity; and
. during the 60 day period, the holders of a majority in principal
amount of the then outstanding subordinated debt securities of all
those series, treating all those securities as a single class, do not
give the trustee a direction inconsistent with the written request.
However, holders have an absolute right to receipt of principal, premium,
if any, and interest on or after the respective due dates and to institute suit
for the enforcement of those payments. The right of a holder of subordinated
debt securities to bring suit for the enforcement of any payments of principal,
premium, if any, and interest on subordinated debt securities on or after the
respective due dates may not be impaired or affected without the consent of that
holder.
The holders of a majority in principal amount of the subordinated debt
securities then outstanding of all affected series that rank equal with each
other, treating all such series as a single class, may by notice to the trustee
on behalf of all holders of the subordinated debt securities of such series
waive any past defaults, except:
. a continuing default in payment of the principal of, premium, if any,
or interest on, or any sinking fund payment on, subordinated debt
securities of the series; and
. a continuing default in respect of a covenant or provision of the
indenture which cannot be amended or modified without the consent of
each holder of each debt securities affected.
We will periodically file statements with the trustee regarding our
compliance with covenants in the subordinated indenture.
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Modifications and Amendments. Except as provided below, or more fully
specified in the subordinated indenture, the subordinated indenture may be
amended or supplemented by us and the trustee with the consent of holders of a
majority in principal amount of each series of debt securities affected by the
amendment or supplement, that rank equal with each other, treating all such
series as a single class. In addition, the record holders of a majority in
principal amount of the outstanding subordinated debt securities of all series
affected by the waiver that rank equal with each other, treating all such series
as a single class, may, with respect to those series, waive defaults under, or
compliance with, the provisions of the subordinated indenture. However, some
amendments or waivers require the consent of each holder of any debt security
affected. Without the consent of each holder, an amendment or waiver may not:
. reduce the principal amount of the subordinated debt securities of any
series whose holders must consent to an amendment, supplement or
waiver;
. reduce the principal or change the fixed maturity of the principal of,
premium, if any, or mandatory sinking fund obligation if any, of any
subordinated debt securities of any series or alter the provisions
with respect to the redemption of the subordinated debt securities;
. reduce the rate, or change the time for payment, of interest,
including default interest, on any subordinated debt security of any
series;
. waive a default or event of default in the payment of principal of, or
interest or premium on, the subordinated debt securities of any
series, except a rescission of acceleration of the subordinated debt
securities by the holders of a majority in aggregate principal amount
of the subordinated debt securities of any series and a waiver of the
payment default that resulted from that acceleration;
. make any subordinated debt security of any series payable in currency
other than that stated in the debt securities of that series;
. make any change in the provisions of the subordinated indenture
relating to waivers of past defaults or the rights of the holders of
subordinated debt securities to receive payments of principal of or
interest or premium on the subordinated debt securities;
. waive a redemption payment with respect to any subordinated debt
security;
. make any change in the right of any holders of subordinated debt
securities regarding waivers of defaults or impair or affect the right
of any holder of a subordinated debt security of any series to receive
payment of principal, premium, if any, and interest on that security
on or after the due date expressed in that security or to bring suit
for the enforcement of any payment on or after the due date; or
. make any change in the above amendment and waiver provisions.
We and the trustee under the subordinated indenture may amend or supplement
the indenture or the debt securities issued thereunder without the consent of
any holder:
. to evidence the succession of another person to us, or successive
successions, and the assumption by the successors of our covenants,
agreements and obligations under the subordinated indenture;
. to add other covenants, restrictions or conditions for the protection
of the holders of all or any series of subordinated debt securities;
. to add events of default;
. to provide for the issuance of subordinated debt securities in coupon
form and to provide for exchangeability of those debt securities under
the indenture in fully registered form;
. to provide for the issuance of and to establish the form, terms and
conditions of subordinated debt securities of any series;
. to evidence and provide for the acceptance of appointment by a
successor trustee and to add or change any of the provisions of the
indenture necessary to provide for or facilitate the administration of
the trusts under the indenture by more than one trustee;
. to cure any ambiguity, or to correct or supplement any provision in
the indenture which may be defective or inconsistent with any other
provision contained in the indenture or in any supplemental indenture,
or to make any other provisions with respect to matters or questions
arising under that indenture, so long as the interests of holders of
debt securities of any series are not adversely affected in any
material respect under that indenture; or
- 21 -
. to make any change that does not adversely affect the rights of any
holder.
In determining whether series of subordinated debt securities rank equal
with each other for purposes of the default, waiver and amendment provisions
described above, a series that is convertible into equity securities of K&S is
not equal with a series that is not so convertible.
Description of Warrants
The following description describes the general terms and provisions of the
warrants to which any prospectus supplement may relate. The prospectus
supplement relating to the warrants will describe the particular term of the
warrants and the extent, if any, to which these general provisions may apply to
the warrants offered.
We may issue warrants to purchase senior debt securities, senior
subordinated debt securities, subordinated convertible debt securities,
preferred stock, depositary shares, common stock or any combination thereof. The
warrants may be issued independently or together with any other securities and
may be attached or separate from the other securities. Each series of warrants
will be issued under a separate warrant agreement to be entered into between a
warrant agent and us. The warrant agent will act solely as our agent in
connection with the warrants of any series and will not assume any obligation or
relationship of agency for or with holders or beneficial owners of warrants.
The applicable prospectus supplement will describe the terms of any
warrants and the related offering in respect of which this prospectus is being
delivered, including the following:
. the title of the warrants;
. the aggregate number of the warrants;
. the price or prices at which the warrants will be issued;
. the designation and terms of the underlying securities purchasable
upon exercise of the warrants and the number of such underlying
securities issuable upon exercise of the warrants;
. the price or prices at which the warrants may be exercised to purchase
the securities underlying them;
. the date on which the right to exercise the warrants shall commence
and the date on which the right shall expire;
. whether the warrants will be issued in registered form or bearer form;
. if applicable, the minimum or maximum amount of the warrants which may
be exercised at any one time;
. if applicable, the designation and terms of the other securities with
which the warrants are issued and the number of such warrants issued
with each such underlying warrant security;
. if applicable, the date on and after which the warrants and other
securities will be separately transferable;
. information with respect to book-entry procedures, if any;
. if applicable, a discussion of certain United States federal income
tax considerations;
. the procedures and conditions relating to the exercise of the
warrants; and
. any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants.
Description of Units
We may issue units consisting of common stock, warrants, debt securities,
preferred stock or any combination of those securities. The applicable
prospectus supplement will describe the terms of any units including the
following:
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. the terms of the units and each of the securities included in the
units, including whether and under what circumstances the securities
included in the units may or may not be traded separately;
. the terms of any unit agreement governing the units; and
. the provisions for the payment, settlement, transfer or exchange of
the units.
Plan of Distribution
We may sell the securities being offered hereby in any of, or any
combination of, the following ways: directly to purchasers; through agents;
through underwriters; and/or through dealers.
Offers to purchase the securities may be solicited by agents designated by
us from time to time. Any agent involved in the offer or sale of the securities
under this prospectus will be named, and any commissions payable by us to these
agents will be set forth, in a related prospectus supplement. Unless otherwise
indicated in a prospectus supplement, any agent will be acting on a reasonable
best efforts basis for the period of its appointment. Any agent may be deemed to
be an underwriter, as that term is defined in the Securities Act, of the
securities so offered and sold.
If the securities are sold by means of an underwritten offering, we will
execute an underwriting agreement with an underwriter or underwriters at the
time an agreement for such sale is reached, and the names of the specific
managing underwriter or underwriters, as well as any other underwriters, the
respective amounts underwritten and the terms of the transaction, including
commissions, discounts and any other compensation of the underwriters and
dealers, if any, will be set forth in the related prospectus supplement. That
prospectus supplement and this prospectus will be used by the underwriters to
make resales of the securities. If underwriters are used in the sale of any
securities in connection with this prospectus, those 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 fixed public
offering prices, at market prices prevailing at the time of sale, or at prices
related to such prevailing market prices.
Securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one or more
underwriters. If any underwriter or underwriters are used in the sale of
securities, unless otherwise indicated in a related prospectus supplement, the
underwriting agreement will provide that the obligations of the underwriters are
subject to some conditions precedent and that the underwriters with respect to a
sale of these securities will be obligated to purchase all such securities if
any are purchased.
We may grant to the underwriters options to purchase additional securities,
to cover over-allotments, if any, at the public offering price, with additional
underwriting commissions or discounts, as may be set forth in a related
prospectus supplement. If we grant any over-allotment option, the terms of that
over-allotment option will be set forth in the related prospectus supplement.
If we use a dealer in the sale of the securities in respect of which this
prospectus is delivered, we will sell the securities to the dealer as principal.
The dealer may then resell such securities to the public at varying prices to be
determined by such dealer at the time of resale. Any such dealer may be deemed
to be an underwriter, as such term is defined in the Securities Act, of the
securities so offered and sold. The name of the dealer and the terms of the
transaction will be set forth in the prospectus supplement relating to those
offers and sales.
We may also directly solicit offers to purchase securities and those sales
may be made by us directly to institutional investors or others, who may be
deemed to be underwriters within the meaning of the Securities Act with respect
to any resale of those securities. The terms of any sales of this type will be
described in the prospectus supplement.
If so indicated in a related prospectus supplement, we may authorize agents
or underwriters to solicit offers by some types of institutions to purchase
securities from us at the public offering price set forth in a related
prospectus supplement as part of delayed delivery contracts providing for
payment and delivery on the specified date
- 23 -
or dates stated in a related prospectus supplement. Such delayed delivery
contracts will be subject to only those conditions set forth in a related
prospectus supplement. A commission indicated in a related prospectus supplement
will be paid to underwriters and agents soliciting purchases of securities
pursuant to delayed delivery contracts accepted by us.
Agents, underwriters and dealers may be entitled under relevant agreements
with us to indemnification by us against some liabilities, including liabilities
under the Securities Act, or to contributions with respect to payments which
such agents, underwriters and dealers may be required to make in respect
thereof.
Agents, underwriters and dealers may engage in transactions that stabilize,
maintain or otherwise affect the price of the securities being offered,
including over-allotment, stabilizing and short-covering transactions in such
securities, and the imposition of a penalty bid, in connection with the
offering.
Agents, underwriters and dealers may be customers of, engage in
transactions with, or perform services for, us in the ordinary course of our
business.
Legal Matters
Certain legal matters in connection with the legality of any common
stock, preferred stock, debt securities and warrants offered hereby will be
passed upon for us by Drinker Biddle & Reath LLP, Philadelphia, Pennsylvania.
Experts
The financial statements of Kulicke and Soffa Industries, Inc. incorporated
in this Prospectus by reference to the Annual Report on Form 10-K for the year
ended September 30, 2001, 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.
- 24 -
PART II. Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses expected to be incurred by
Kulicke & Soffa in connection with the issuance and distribution of the
securities registered hereby, other than underwriting fees and discounts. All of
these expenses, except for the registration fee, are estimates:
Securities and Exchange Commission Registration Fee ............$23,000
Printing and Engraving Expenses ................................ *
Legal Fees and Expenses ........................................ *
Accounting Fees and Expenses ................................... *
Trustee's Fees and Expenses .................................... *
Miscellaneous Expenses ......................................... *
Total .......................................................... *
* To be provided by amendment or as an Exhibit to a filing with the
Securities Exchange Commission pursuant to the Securities Exchange Act of 1934,
as amended, and incorporated herein by reference.
Item 15. Indemnification of Directors and Officers.
Our By-laws require us to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed proceeding
by reason of the fact that he or she is or was our director or officer or is or
was serving at our request as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, our best interests, and, with
respect to any criminal proceeding, had no reasonable cause to believe his or
her conduct was unlawful. Such indemnification as to expenses is mandatory to
the extent the individual is successful on the merits or otherwise in defense of
the matter or in defense of any claim, issue or matter therein. In addition,
Pennsylvania law permits us to provide similar indemnification to employees and
agents who are not directors or officers. Our By-laws provide, however, that we
will not indemnify a director who has breached or failed to perform the duties
of his office in a manner that constituted self-dealing, willful misconduct or
recklessness. The determination of whether an individual meets the applicable
standard of conduct set forth in our By-laws may be made by disinterested
directors, independent legal counsel or the shareholders. Pennsylvania law also
permits indemnification in connection with a proceeding brought by or in our
right to procure a judgement in our favor.
We expect that any Underwriting Agreement that we enter into in connection
with any offering of the securities registered hereby will provide for
indemnification by the underwriters specified therein of us and our officers and
directors, and for indemnification by us of the underwriters specified therein,
in each case, for certain liabilities arising under the Securities Act or
otherwise.
II-1
Item 16. Exhibits and Financial Statement Schedules.
Exhibit
Number Description of Document
------ -----------------------
1.1* Form of underwriting agreement for offering of common stock
1.2* Form of underwriting agreement for offering of debt securities (senior debt
securities, senior subordinated debt securities and/or subordinated debt
securities)
1.3* Form of underwriting agreement for offering of preferred
securities
1.4* Form of underwriting agreement for warrants and/or units 3.1 The
Company's Form of Amended and Restated Articles of Incorporation as of March 3,
1998, as amended (incorporated by reference to Exhibit 3.1 to the Company's Form S-3 filed with the SEC
on October 2, 2001)
3.2 The Company's By-Laws, as amended through June 26, 1990, (incorporated by reference to Exhibit
2.2 to the Company's Form 8-A12G dated September 11, 1995, SEC file number 000-0012)
4.1 Form of senior debt securities indenture
4.2 Form of senior subordinated debt securities indenture
4.3 Form of subordinated debt securities indenture
4.4* Form of any senior debt security (included in Exhibit 4.1)
4.5* Form of any senior subordinated debt security (included in Exhibit 4.2)
4.6* Form of any subordinated debt security (included in Exhibit 4.3)
4.7* The form of any certificate of designation with respect to any preferred stock
4.8* Form of unit agreement
4.9* Form of debt warrant agreement for warrants sold alone, including form of warrant
4.10* Form of debt warrant agreement for warrants sold attached to debt securities, including form of
warrant
4.11* Form of equity warrant agreement for warrants sold alone, including form of warrant
5.1* Opinion of Drinker Biddle & Reath LLP
12.1 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.3* Consent of Drinker Biddle & Reath LLP (included in Exhibit 5.1)
24.1 Power of Attorney of certain directors and officers of Kulicke and Soffa Industries, Inc. (see page
II-4 of this Form S-3)
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of
LaSalle Bank National Association, as trustee under the indenture with respect
to the senior debt securities
25.2 Statement of Eligibility on Form T-1 under
the Trust Indenture Act of 1939, as amended, of LaSalle Bank National
Association, as trustee under the indenture with respect to the senior
subordinated debt securities
25.3 Statement of Eligibility on Form T-1 under
the Trust Indenture Act of 1939, as amended, of LaSalle Bank National
Association, as trustee under the indenture with respect to the subordinated
debt securities
* To be filed by amendment or as applicable to a particular offering of
securities, as an exhibit to a Current Report on Form 8-K, pursuant to
Regulation S-K, Item 601(b).
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
II-2
(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 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 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; and
(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 undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed 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.
(2) That, for the purpose of determining 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 the securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of 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, 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 disclosed under Item 15
above 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 against the Registrant by such director, officer
or controlling person in connection with the securities being registered hereby,
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.
(d) 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
II-3
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 is was declared effective.
II-4
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 Willow Grove, Commonwealth of Pennsylvania, on
February 15, 2002.
KULICKE AND SOFFA INDUSTRIES, INC.
By: /s/ C. Scott Kulicke
--------------------
C. Scott Kulicke
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
C. Scott Kulicke and Clifford G. Sprague, and each or either of them, as his or
her attorney-in-fact and agent, with full power of substitution for him or her
in any and all capacities, to sign any or all amendments (including
post-effective amendments) to the Registration Statement, or any Registration
Statement for the same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, as amended, and to file the same,
with exhibits thereto and other documents in connection therewith or in
connection with the registration of the securities under the Securities Exchange
Act of 1934, as amended, with the Securities and Exchange Commission, granting
unto each of such attorneys-in-fact and agents the full power and authority to
do and perform each and every act and thing requisite and necessary in
connection with such matters and hereby ratifying and confirming all that each
of such attorneys-in-fact and agents or his or her substitutes may do or cause
to be done by virtue hereof. This power of attorney may be signed in several
counterparts.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Name Capacity Date
/s/ C. Scott Kulicke Chairman of the Board and Chief Executive February 15, 2002
-------------------- Officer (Principal Executive Officer)
C. Scott Kulicke
/s/ Clifford G. Sprague Senior Vice President and Chief Financial February 15, 2002
----------------------- Officer (Principal Financial and Accounting
Clifford G. Sprague Officer)
/s/ Philip V. Gerdine Director February 15, 2002
---------------------
Philip V. Gerdine
/s/ John A. O'Steen Director February 15, 2002
-------------------
John A. O'Steen
/s/ Allison F. Page Director February 15, 2002
-------------------
Allison F. Page
/s/ MacDonnell Roehm, Jr. Director February 15, 2002
-------------------------
MacDonnell Roehm, Jr.
/s/ Larry D. Striplin, Jr. Director February 15, 2002
--------------------------
Larry D. Striplin, Jr.
/s/ C. William Zadel Director February 15, 2002
--------------------
C. William Zadel
II-5
EXHIBIT INDEX
-------------
Exhibit
Number Description of Document
------ -----------------------
1.1* Form of underwriting agreement for offering of common stock
1.2* Form of underwriting agreement for offering of debt securities (senior debt
securities, senior subordinated debt securities and/or subordinated debt
securities)
1.3* Form of underwriting agreement for offering of preferred
securities
1.4* Form of underwriting agreement for warrants and/or units
3.1 The Company's Form of Amended and Restated Articles of Incorporation as of March 3,
1998, as amended (incorporated by reference to Exhibit 3.1 to the Company's Form S-3 filed with the SEC
on October 2, 2001)
3.2 The Company's By-Laws, as amended through June 26, 1990, (incorporated by reference to Exhibit
2.2 to the Company's Form 8-A12G dated September 11, 1995, SEC file number 000-00121)
4.1 Form of senior debt securities indenture
4.2 Form of senior subordinated debt securities indenture
4.3 Form of subordinated debt securities indenture
4.4* Form of any senior debt security (included in Exhibit 4.1)
4.5* Form of any senior subordinated debt security (included in Exhibit 4.2)
4.6* Form of any subordinated debt security (included in Exhibit 4.3)
4.7* The form of any certificate of designation with respect to any preferred stock
4.8* Form of unit agreement
4.9* Form of debt warrant agreement for warrants sold alone, including form of warrant
4.10* Form of debt warrant agreement for warrants sold attached to debt securities, including form of
warrant
4.11* Form of equity warrant agreement for warrants sold alone, including form of warrant
5.1* Opinion of Drinker Biddle & Reath LLP
12.1 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.3* Consent of Drinker Biddle & Reath LLP (included in Exhibit 5.1)
24.1 Power of Attorney of certain directors and officers of Kulicke and Soffa Industries, Inc. (see page
II-4 of this Form S-3)
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of
LaSalle Bank National Association, as trustee under the indenture with respect
to the senior debt securities
25.2 Statement of Eligibility on Form T-1 under
the Trust Indenture Act of 1939, as amended, of LaSalle Bank National
Association, as trustee under the indenture with respect to the senior
subordinated debt securities
25.3 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939,
as amended, of LaSalle Bank National Association, as trustee under the indenture
with respect to the subordinated debt securities
* To be filed by amendment or as applicable to a particular offering of
securities, as an exhibit to a Current Report on Form 8-K, pursuant to
Regulation S-K, Item 601(b).
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