As
filed with the Securities and Exchange Commission on July 2, 2009
Registration No.
333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
KULICKE
AND SOFFA INDUSTRIES, INC.
(Exact
name of registrant as specified in its charter)
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Pennsylvania
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23-1498399
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification
Number)
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1005
Virginia Drive
Fort
Washington, Pennsylvania 19034
(215)
784-6000
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
David
J. Anderson
Vice
President and General Counsel
1005
Virginia Drive
Fort
Washington, Pennsylvania 19034
(215)
784-6000
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copy
to:
F.
Douglas Raymond, III
Drinker
Biddle & Reath LLP
One
Logan Square
18th
and Cherry Streets
Philadelphia,
PA 19103-6996
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 or 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.
o
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. o
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. o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non−accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b−2 of the Exchange Act. (Check one):
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Large
Accelerated filer o
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Accelerated
filer x
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Non−accelerated
filer o
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Smaller
reporting company o
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(Do
not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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Title of Each Class of Securities to
be Registered
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Amount to be
Registered (1)(2)
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Proposed Maximum
Offering Price Per
Security (2)
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Proposed Maximum
Aggregate Offering
Price (1)(2)
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Amount of
Registration Fee
(2)(3)
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Common
Stock
Preferred
Stock
Senior
Debt Securities
Senior
Subordinated Debt Securities
Subordinated
Debt Securities
Warrants
Units
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| $ | 100,000,000 | $ | 100,000,000 | $ | 5,580 | |||||||||||
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(1)
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There are being registered under
this registration statement such indeterminate number of shares of common
stock and preferred stock, such indeterminate principal amount of debt
securities, which may be senior, senior subordinated or subordinated, of
the registrant and such indeterminate number of warrants and units of the
registrant, all at indeterminate prices, as shall have an aggregate
initial offering price not to exceed $100,000,000 or the equivalent amount
denominated in one or more foreign currencies. Any securities registered
under this registration statement may be sold separately or as units with
other securities registered under this registration statement. If
any debt securities are issued at an original issue discount, then the
principal amount of such debt securities may be in such greater amount as
shall result in an aggregate initial offering price not to exceed
$100,000,000, less the aggregate dollar amount of all securities
previously issued hereunder. The securities registered also include such
indeterminate amounts and numbers of common stock, preferred stock and
debt securities as may be issued upon conversion of or exchange for
preferred stock or debt securities that provide for conversion or
exchange, upon exercise of warrants or pursuant to the anti-dilution
provisions of any such
securities.
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(2)
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Estimated for the sole purpose of
computing the registration fee pursuant to Rule 457(o) under the
Securities Act of 1933, as amended (the “Securities Act”). Pursuant to
General Instruction II.D. of Form S−3, the table lists each of the classes
of securities being registered and the aggregate proceeds to be raised,
but does not specify by each class information as to the amount to be
registered, proposed maximum offering price per security, or the proposed
maximum aggregate offering price. The proposed maximum offering
price per security will be determined, from time to time, by the
registrant in connection with the sale by the registrant of the securities
registered under this registration
statement.
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(3)
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Calculated pursuant to
Rule 457(o) under the Securities Act of
1933.
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The
registrant hereby amends this registration statement on such date or dates as
may be necessary to delay its effective date until the registrant shall file a
further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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 declared effective. This prospectus
is not an offer to sell these securities and it is not soliciting an offer to
buy these securities in any jurisdiction where the offer or sale is not
permitted.
SUBJECT
TO COMPLETION DATED JULY 2, 2009
$100,000,000
Common
Stock
Preferred
Stock
Senior
Debt Securities
Senior
Subordinated Debt Securities
Subordinated
Debt Securities
Warrants
Units
Kulicke
& Soffa, 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, and shares of common stock or
preferred stock issuable upon conversion of such debt securities, (iv) warrants
to purchase common stock, preferred stock, or other securities and (v) units
consisting of two or more classes of the securities registered hereunder.
The aggregate public offering price of the securities we may sell under this
prospectus will not exceed $100,000,000.
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 Global 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.
Investing
in the securities offered hereby involves risks. Purchasers of securities
should read and consider the information set forth under “Risk Factors” on page
4 of this prospectus, in any accompanying prospectus supplement, and in the
reports we file with the Securities and Exchange Commission that are
incorporated by reference into this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus or
the accompanying prospectus supplement is truthful or complete. Any
representation to the contrary is a criminal offense.
We may
sell the securities directly or to or through underwriters or dealers, and also
to other purchasers or through agents or a combination of these methods.
The names of any underwriters or agents participating in a sale of securities to
you, and any applicable commissions or discounts, will be stated in an
accompanying prospectus supplement. For general information about the
distribution of securities offered, please see “Plan of Distribution” on page 32
of this prospectus.
This
prospectus may not be used to offer and sell securities unless it is accompanied
by a prospectus supplement.
This
prospectus is dated _______, 2009.
TABLE
OF CONTENTS
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(i)
About
this Prospectus
All
references in this prospectus to “Kulicke & Soffa,” “K&S,” the
“Company,” “our,” “us” and “we” refer to Kulicke and Soffa Industries, Inc. and
its consolidated subsidiaries, except where the context otherwise requires or as
otherwise indicated.
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 $100,000,000. 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.
For
general information about the distribution of securities offered, please see
“Plan of Distribution” on page 32 of this prospectus. You should read both
this prospectus and any prospectus supplement together with the additional
information described in “Where You Can Find More Information” and
“Incorporation of Certain Information by Reference” before you decide whether to
invest in the securities.
You
should rely only on the information contained in, or incorporated by reference
into, this prospectus and any applicable prospectus supplement. You may
obtain the information incorporated by reference into this prospectus without
charge by following the instructions under “Where You Can Find More Information”
and “Incorporation of Certain Information by Reference” below. We have not
authorized any other person to provide you with different information. If
anyone provides you with different or inconsistent information, you should not
rely on it. We are not making an offer to sell these securities or
soliciting an offer to buy the securities in any jurisdiction where the offer or
sale is not permitted. You should assume that the information appearing in
this prospectus is accurate only as of the date of this prospectus. Our
business, financial condition, results of operations and prospects may have
changed since that date.
This
prospectus summarizes certain documents and other information, and we refer you
to them for a more complete understanding of what we discuss in this
prospectus. In making an investment decision, you must rely on your own
examination of our company and the terms of this offering and the securities,
including the merits and risks involved.
We are
not making any representation to any purchaser of the securities regarding the
legality of an investment in the securities by such purchaser. You should
not consider any information in this prospectus to be legal, business or tax
advice. You should consult your own attorney, business advisor or tax
advisor for legal, business and tax advice regarding an investment in the
securities.
In
addition to historical information, this prospectus, including the information
incorporated by reference into this prospectus, contains statements relating to
future events or our future results. These statements are forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933, as
amended (the “Securities Act”) and Section 21E of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and are subject to the safe harbor
provisions created by statute. Such forward-looking statements include,
but are not limited to, statements that relate to our future revenue, product
development, demand forecasts, competitiveness, operating expenses, cash flows
and liquidity, profitability, gross margins, product prices, and benefits
expected as a result of (among other factors):
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projected
growth rates in the overall semiconductor industry, the semiconductor
assembly equipment market, and the market for semiconductor expendable
tools; and
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projected
demand for ball, wedge and die bonder
equipment.
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Generally,
words such as “may,” “will,” “should,” “could,” “anticipate,” “expect,”
“intend,” “estimate,” “plan,” “continue,” “goal” and “believe,” or the negative
of or other variations on these and other similar expressions identify
forward-looking statements. These forward-looking statements are made only
as of the date of this prospectus. We do not undertake to update or revise
the forward-looking statements, whether as a result of new information, future
events or otherwise.
Forward-looking
statements are based on current expectations and involve risks and
uncertainties. Our future results could differ significantly from those
expressed or implied by our forward-looking statements. These risks and
uncertainties include, without limitation, those described in this prospectus
and in the applicable prospectus supplement and those incorporated by reference
into this prospectus and under the heading “Risk Factors” within our reports and
registration statements filed from time to time with the Securities and Exchange
Commission, which are incorporated by reference into this prospectus. This
discussion should be read in conjunction with the Consolidated Financial
Statements and Notes incorporated by reference into this
prospectus.
We
operate in a rapidly changing and competitive environment. New risks
emerge from time to time and it is not possible for us to predict all risks that
may affect us. Future events and actual results, performance and
achievements could differ materially from those set forth in, contemplated by or
underlying the forward-looking statements, which speak only as of the date on
which they were made. Except as required by law, we assume no obligation to
update or revise any forward-looking statement to reflect actual results or
changes in, or additions to, the factors affecting such forward-looking
statements. Given those risks and uncertainties, investors should not place
undue reliance on forward-looking statements as prediction of actual
results.
2
The
following summary highlights certain information contained in or incorporated by
reference in this prospectus. It does not contain all of the information that
may be important to you and to your investment decision. The following summary
is qualified in its entirety by the more detailed information and the financial
statements and the notes included or incorporated by reference in this
prospectus. You should carefully read this entire prospectus and the applicable
prospectus supplement and should consider, among other things, the risks
incorporated by reference into the sections of this prospectus and the
applicable prospectus supplement entitled “Risk Factors” before deciding to
invest in any of our securities.
Kulicke and Soffa Industries,
Inc.
We
design, manufacture and market capital equipment and expendable tools, as well
as service, maintain, repair and upgrade equipment, all used to assemble
semiconductor devices. Our customers primarily
consist of integrated device manufacturers and subcontractor assembly
facilities. Beginning in fiscal 2009, our Packaging Materials segment was
renamed Expendable Tools.
Our goal
is to be the technology leader and the lowest cost supplier in our main business
segments which are:
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equipment,
and
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expendable
tools.
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Accordingly,
we invest in research and engineering projects intended to enhance our position
at the leading edge of semiconductor assembly technology. We also remain
focused on our cost structure, consolidating operations, moving certain
manufacturing to Asia, moving a portion of our supply chain to lower cost
suppliers and designing higher performing, lower cost equipment. Cost
reduction efforts are an important part of our normal ongoing operations, and
are expected to generate efficiencies while maintaining overall product
quality.
During
our first fiscal quarter of 2009, we completed the acquisition of substantially
all of the assets and assumption of certain liabilities of Orthodyne Electronics
Corporation (“Orthodyne”). Orthodyne is the leading supplier of both wedge
bonders and wedges (the consumable product used in wedge bonding) for the power
management and hybrid module markets. In addition, during our first fiscal
quarter of 2009, we completed the sale of our Wire business to W.C. Heraeus GmbH
(“Heraeus”).
K&S
was incorporated in Pennsylvania in 1956. Our principal offices are located at
1005 Virginia Drive, Fort Washington, Pennsylvania 19034 and our telephone
number is (215) 784-6000. We maintain a website with the address www.kns.com. We
are not including the information contained on our website as a part of, or
incorporating it by reference into, this prospectus. We make available free of
charge (other than an investor’s own Internet access charges) on or through our
website our annual reports on Form 10-K, quarterly reports on Form 10-Q, current
reports on Form 8-K, and any amendments to these reports, as soon as reasonably
practicable after the material is electronically filed with or otherwise
furnished to the SEC. Our annual reports on Form 10-K, quarterly reports on Form
10-Q, current reports on Form 8-K, and amendments to those reports are also
available on the SEC website at www.sec.gov.
3
Investing
in our securities involves risk. You should carefully consider the risk
factors contained in our most recent Annual Report on Form 10–K and our
subsequent Quarterly Reports on Form 10–Q, which are incorporated by reference
herein, and the other information contained in this prospectus, as updated by
our subsequent filings under the Exchange Act, and the risk factors and other
information contained in the applicable prospectus supplement before you make an
investment decision regarding the securities.
Our
business, financial condition, or results of operations could be materially
adversely affected by any of these risks and cause the value of our securities
to decline. The trading price of the securities could decline due to any
of these risks, and you may lose all or part of your
investment.
4
We do not
currently know either the number or types of securities that will be ultimately
sold pursuant to this prospectus or the prices at which such securities will be
sold. 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:
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funding
the development and growth of our product offerings and
business;
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repaying
indebtedness that we may incur from time to
time;
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financing
potential business acquisitions that we may consider from time to time;
and
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general
working capital.
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Pending
these uses, we may use the net proceeds to make short-term investments or reduce
short-term borrowings.
5
The ratio
of earnings to fixed charges for each of the periods indicated is as
follows:
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Fiscal
Years Ended,
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Six
Months
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September
30,
2004
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September
30,
2005
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September
30,
2006
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September
29, 2007 |
September
27, 2008 |
Ended
March
28, 2009
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Ratio
of earnings to fixed charges
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6.34x
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4.94x
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14.31x
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5.54x
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—
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—
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These
computations include us and our consolidated subsidiaries. These ratios
are computed by dividing (a) income (loss) before taxes from continuing
operations 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 issuance costs.
We would
have had to generate additional earnings of $23.2 million and $63.5 million in
fiscal 2008 and for the six months ended March 28, 2009, respectively, to
achieve a ratio of 1:1. We had no preferred stock outstanding for any
period presented.
6
This
prospectus, including any information incorporated by reference into 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 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 these securities. We will
describe in the applicable prospectus supplement relating to any securities the
particular terms of the securities offered by that prospectus supplement.
We will also include in the prospectus supplement information, when applicable,
about material U.S. federal income tax considerations relating to the
securities, and the securities exchange, if any, on which the securities will be
listed.
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
initial offering price of securities offered by us under this prospectus will
not exceed $100,000,000. These summaries are not meant to be a complete
description of each security.
The
following is a general description of our capital stock. The terms of our
amended and restated articles of incorporation and bylaws are more detailed than
the general information provided below. Therefore, you should carefully
read and consider the actual provisions of those documents, which are
incorporated by reference as exhibits to the registration statement of which
this prospectus forms a part.
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 designated as common stock and 5,000,000 of the shares are designated
as preferred stock.
Our board
of directors may, without further action by our shareholders, issue a series of
preferred stock and fix the rights and preference 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
June 29, 2009 there were 61,251,334 shares of common stock issued and
outstanding, and no shares of preferred stock 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 Global Market
under the symbol “KLIC”.
7
Voting Rights. The
holders of our common stock are entitled to vote upon all matters submitted to a
vote of our shareholders and are entitled to one vote for each share of common
stock held. Our board of directors is classified into four classes, with
one class being elected each year. In the election of directors, the
holders of our common stock have cumulative rights, meaning that they may
multiply the number of votes they are 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, 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 may
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
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:
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the
title and stated value of the preferred stock being
offered;
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the
number of shares of preferred stock being offered, their liquidation
preference per share, if any, and their purchase
price;
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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;
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whether
dividends shall be cumulative or
non-cumulative;
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the
provisions for redemption, if applicable, of the preferred stock being
offered;
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any
listing of the preferred stock being offered on any securities exchange or
market;
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voting
rights, if any, of the preferred stock being
offered;
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the
relative ranking and preference of the series as to dividend rights and
rights upon our dissolution or upon any distribution of our
assets;
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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;
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the
provision for a sinking fund, if any, for such preferred
stock;
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any
listing on any securities exchange of such preferred
stock;
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8
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conversion
features, including the conversion price of such stock;
and
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any
other specific terms, preferences, priorities, rights, limitations or
restrictions of the preferred stock being
offered.
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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 material 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
shareholder 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 shareholders, 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.
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.
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 shares 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.
Kulicke
and Soffa has opted out of several provisions of the Pennsylvania Business
Corporation Law that could have the effect of delaying or interfering with a
proposed change of control, but is also subject to other provisions of that law
which could have those effects. Our directors are subject to a provision
of the Pennsylvania Business Corporation Law that permits them to consider the
interests of constituencies other than the shareholders when deciding what will
be in the best interests of the Company. In addition, we are subject to
two statutory provisions that are similar to the last provision of our articles
of incorporation described above. These statutory provisions impose certain
price and other requirements, and special approvals before a holder of 20% or
more of our shares may engage in certain transactions.
9
Transfer
Agent and Registrar
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.
10
The
following is a general description of the debt securities that we may issue from
time to time. The particular terms relating to each debt security, which
may be different from or in addition to the terms described below, will be set
forth in the prospectus supplement relating to such securities.
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, which is generally defined in both the subordinated indenture and
senior subordinated indenture to include all debt other than debt that is
expressly subordinated to or pari passu with the subordinated debt securities or
senior subordinated debt securities, as the case may be. 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.
We have
summarized below the material provisions of these 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 and incorporated by reference into the registration statement
of which this prospectus forms a part. The prospectus supplement relating
to the applicable issuance of debt securities will describe any significant
differences between the indentures and the summary below. The senior
indenture, the senior subordinated indenture and the subordinated indenture are
substantially the same, except for certain covenants of ours and provisions
relating to subordination. You should read the indentures for provisions that
may be important to you. The indentures may be supplemented or revised in
connection with the filing of a prospectus supplement and such later version
will govern any debt securities issued in conjunction with that prospectus
supplement.
Terms
Applicable to All Debt Securities
No Limit on Debt
Amounts. The indentures do not limit the amount of debt that can be
issued under the indentures. These amounts will be 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, as well as any other material
terms of the securities:
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title
and form of the securities;
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offering
price;
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any
limit on the amount that may be
issued;
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maturity
date(s);
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interest
rate or the method of computing the interest
rate;
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dates
on which interest will accrue, or how the dates will be determined, the
interest payment dates and any related record
dates;
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the
place or places where debt securities may be surrendered for registration
of transfer or for exchange, where notices and demands to or upon us in
respect of the debt securities and the indentures may be served and where
notices to holders will be
published;
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terms
and conditions on which the debt securities may be redeemed, in whole or
in part, at our option;
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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;
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details
of any required sinking fund
payments;
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the
currency or currencies in which the debt securities will be denominated or
payable, if other than U.S.
dollars;
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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;
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the
persons to whom payments of interest will be
made;
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any
provisions granting special rights to holders when a specified event
occurs;
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any
changes to or additional events of defaults or covenants beyond or
modifying those contained in the applicable
indenture;
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any
special tax implications of the debt securities; including under what
circumstances, if any, and with what procedures and documentation we 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 we will have to redeem those debt
securities rather than pay those additional
amounts;
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whether
or not the debt securities will be issued in global form and who the
depositary will be;
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any
restrictions on the registration, transfer or exchange of the debt
securities;
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terms,
if any, on which a series of debt securities may be convertible into or
exercisable or exchangeable for our common stock, preferred stock or other
securities, including provisions as to whether conversion, exercise or
exchange is mandatory, at the option of the holder or at our
option;
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if
the debt securities are convertible, exercisable or exchangeable, the
events or circumstances that will result in adjustments to the conversion,
exercise or exchange price and the formulae for determining the adjusted
price;
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whether
the debt securities are secured or unsecured, and if secured, the amount
and form of the security and related
terms;
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subordination
terms of any senior subordinated debt securities and subordinated debt
securities; and
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any
other terms that are not inconsistent with the indenture applicable to a
series of debt securities, including any terms that 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.
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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 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:
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pay
the principal, interest and any premium on the debt securities when
due;
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maintain
an office or agency where debt securities may be surrendered for
registration of transfer, exchange, payment or conversion (if the debt
securities are convertible) and where notices and demands to or upon us in
respect of the debt securities and the relevant indenture(s) may be
served;
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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;
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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;
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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;
and
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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:
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our
corporate existence; and
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the
rights, licenses and franchises of us and certain of our subsidiaries;
and
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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.
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13
Consolidation, Merger and Sale of
Assets. We will not consolidate with or merge into any other
entity or transfer all or substantially all of our assets unless:
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we
are the surviving entity; or
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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 either (A) is organized or existing under the laws of the
United States of America, any state thereof or the District of Columbia or
(B) if not organized in any such jurisdiction, then (1) the successor or
surviving entity agrees to be subject to the service of process laws of
the State of New York, and (2) under the laws of its jurisdiction or
organization, payments on the securities would not be subject to
withholding tax; and, in any case
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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.
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Upon any
such consolidation, merger or transfer or all or substantially all of our
assets, 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.
Satisfaction and
Discharge. Upon our request, the relevant indenture will no
longer be effective with respect to any series for all but certain specified
purposes if either:
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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 and we have delivered to the trustee a certificate and opinion of
legal counsel that all conditions precedent to satisfaction and discharge
have been fulfilled; or
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the
only securities that 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 that 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, 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.
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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:
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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
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to
be released from some of our obligations under the relevant indenture,
which we refer to as covenant
defeasance.
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We can
exercise legal or covenant defeasance if the following conditions are
met:
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we
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:
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cash
in United States dollars;
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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
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a
combination of the foregoing, that in each case is 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;
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we
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;
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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 that apply to the deposit by us);
and
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we
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.
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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.
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 include information concerning the trustee and 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.
15
Form, Exchange,
Transfer. Unless otherwise specified in the prospectus
supplement, debt securities will be issued in registered form without coupons,
in denominations of $1,000 or any integral multiple thereof. 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. The securities 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 and any expenses payable in connection with any registration of
transfer or exchange of debt securities, 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 applicable 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
applicable prospectus supplement. We anticipate the following will
apply to all depositary arrangements.
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:
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be
entitled to have the debt securities represented by such registered global
security registered in their names;
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receive
or be entitled to receive physical delivery of such debt securities in
definitive forms; or
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be
considered the owners of record 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
that 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.
16
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 we nor
the trustee will have any responsibility or liability for any aspect of the
records relating to or payment 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 interest 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.”
If the
depositary notifies us that it is unwilling or unable to continue as depositary
for the global security or if at any time the depositary ceases to be a clearing
agency registered under the Exchange Act, if so required by applicable law or
regulation, and, in either case, we do not appoint a successor depositary within
90 days, we will issue debt securities in certificated form in exchange for the
global security.
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 certificated form in exchange for all of
the global security or securities representing such debt
securities. Any debt securities issued in certificated form in
exchange for a 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
(and will effectively rank junior to any secured debt). The senior
debt securities 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:
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we
fail to pay the principal, premium, if any, or any sinking fund payment,
on any senior debt securities of that series when
due;
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we
fail to pay interest on any senior debt securities of that series when due
and that failure continues for a period of 30
days;
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we
fail to observe or perform any other covenant, representation, warranty or
other agreement in the senior indenture for the benefit of that series
other than a covenant, representation or warranty with respect to which a
failure to observe or perform is dealt with otherwise in the senior
indenture or is expressly included in the senior indenture solely for the
benefit of a series of debt securities other than such series of senior
debt securities and that failure continues for 90 days after we receive
notice to comply from the trustee or holders of at least 25% in aggregate
principal amount of the outstanding senior debt securities of all series
affected by that failure, treating all those series as a single class;
and
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certain
events of bankruptcy or insolvency occur, whether voluntary or
not.
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No event
of default will have occurred under a series of senior debt securities if we
fail to file timely any annual report or information, document or other report
that we are required to file with the SEC.
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. In the case of any default
specified in the third bullet above, no notice of default will be given to
holders of the senior debt securities of the affected series until at least 90
days after we receive notice of the occurrence thereof.
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 (or a lesser amount as may be provided for in the
senior debt securities of the 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 and any related payment default
that resulted from the declaration but not any other payment
default. Certain events of bankruptcy and insolvency will result in
all outstanding series of senior debt securities becoming due and payable
immediately without any further action on the part of the trustee or the
holders.
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:
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the
direction cannot conflict with any law or regulation or the
indenture;
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the
trustee may take any other action deemed proper by the trustee that is not
inconsistent with the direction;
and
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the
trustee need not take any action that might involve it in personal
liability or be unduly prejudicial to the holders of the senior debt
securities not joining in the
action.
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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:
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the
holder must give to the trustee written notice that an event of default
has occurred and is continuing;
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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;
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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;
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the
trustee does not comply with the request within 60 days after receipt of
the request and offer of indemnity;
and
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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:
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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
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a
continuing default in respect of a covenant or provision of the indenture
that cannot be amended or modified without the consent of each holder of
senior debt securities affected.
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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 and described in the prospectus supplement relating to a
series of senior debt securities, 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. Some amendments or waivers, however, require the consent
of each holder of any senior debt security affected. Without the
consent of each holder, an amendment or waiver may not:
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reduce
the principal amount of the senior debt securities of any series whose
holders must consent to an amendment, supplement or
waiver;
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|
|
·
|
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;
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|
·
|
reduce
the rate, or change the time for payment, of interest, including default
interest, on any senior debt security of any
series;
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|
·
|
impair
the right, if any, to convert the senior debt securities into common
stock;
|
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·
|
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;
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·
|
make
any senior debt security of any series payable in currency other than that
stated in the senior debt securities of that
series;
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·
|
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;
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|
·
|
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 as permitted by the
indenture;
|
|
|
·
|
to
add other covenants, restrictions or conditions for the protection of the
holders of all or any series of senior debt
securities;
|
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|
·
|
to
add events of default;
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20
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|
·
|
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;
|
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|
·
|
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;
|
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·
|
to
cure any ambiguity, or to correct or supplement any provision in the
indenture that 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
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|
·
|
to
comply with the requirements of the Securities and Exchange Commission or
to effect or maintain the qualification of the indenture under the Trust
Indenture Act of 1939.
|
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 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:
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|
·
|
any
liability for federal, state, local or other
taxes;
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·
|
any
indebtedness to any of our subsidiaries or other
affiliates;
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·
|
any
trade payables;
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|
·
|
any
indebtedness that we may incur in violation of the senior subordinated
indenture; or
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|
·
|
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 make any other payment on, the senior
subordinated debt securities. The provisions of the senior
subordinated indenture providing these payment restrictions will not limit the
right, if any, of a holder of senior subordinated debt securities to convert the
debt securities into equity securities.
21
We may
not make any payment on the senior subordinated debt securities if a default in
the payment of the principal, premium, if any, or interest, 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. The provisions of the senior subordinated indenture
providing these payment restrictions will not limit the right, if any, of a
holder of senior subordinated debt securities to convert the debt securities
into equity securities.
The term
“designated senior debt” means our obligations under our principal bank or other
institutional credit facility and any other debt expressly designated as senior
debt with respect to the applicable 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:
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·
|
we
fail to pay the principal, premium, if any, or any sinking fund payment,
on any senior subordinated debt securities of that series when
due;
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|
·
|
we
fail to pay interest on any senior subordinated debt securities of that
series when due and that failure continues for a period of 30
days;
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|
·
|
we
fail to observe or perform any other covenant, representation, warranty or
other agreement in the senior subordinated debt indenture for the benefit
of that series other than a covenant, representation or warranty with
respect to which a failure to observe or perform is dealt with otherwise
in the senior subordinated debt indenture or is expressly included in the
senior subordinated debt indenture solely for the benefit of a series of
debt securities other than such series of senior subordinated debt
securities and that failure continues for 90 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; and
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22
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|
·
|
certain
events of bankruptcy or insolvency occur, whether voluntary or
not.
|
No event
of default will have occurred under a series of senior subordinated debt
securities if we fail to file timely any annual report or information, document
or other report that we are required to file with the SEC.
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. In the case of any default specified in the third bullet
above, no notice of default will be given to holders of the senior subordinated
debt securities of the affected series until at least 90 days after we receive
notice of the occurrence thereof.
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 (subject to
applicable subordination provisions in the senior subordinated indenture) of all
the senior subordinated debt securities of those series (or a lesser amount as
may be provided for in the senior subordinated debt securities of the 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 and any related payment default that resulted from the declaration
but not any other payment default. Certain events of bankruptcy and
insolvency will result in all outstanding series of senior subordinated debt
securities becoming due and payable immediately without any further action on
the part of the trustee or the holders.
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:
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·
|
the
direction cannot conflict with any law or regulation or the
indenture;
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·
|
the
trustee may take any other action deemed proper by the trustee that is not
inconsistent with the direction;
and
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23
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|
·
|
the
trustee need not take any action that 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:
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·
|
the
holder must give to the trustee written notice that an event of default
has occurred and is continuing;
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|
·
|
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;
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|
|
·
|
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;
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|
·
|
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.
|
Holders
have an absolute right, however, 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, without regard to acceleration
or default, 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:
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·
|
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
|
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|
·
|
a
continuing default in respect of a covenant or provision of the indenture
that 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.
Modifications and
Amendments. Except as provided below, or more fully specified
in the senior subordinated indenture and described in the prospectus supplement
relating to a series of senior subordinated debt securities, 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. Some amendments or waivers, however, 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:
24
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|
·
|
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;
|
|
|
·
|
impair
any right, if any, to convert the senior subordinated debt securities into
common stock;
|
|
|
·
|
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;
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|
|
·
|
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 as
permitted by the indenture;
|
|
|
·
|
to
add other covenants, restrictions or conditions for the protection of the
holders of all or any series of senior subordinated debt
securities;
|
25
|
|
·
|
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;
|
|
|
·
|
to
cure any ambiguity, or to correct or supplement any provision in the
indenture that 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
comply with the requirements of the Securities and Exchange Commission or
to effect or maintain the qualification of the indenture under the Trust
Indenture Act of 1939.
|
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:
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|
·
|
“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, 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 when due and
that failure continues for a period of 30
days;
|
26
|
|
·
|
we
fail to observe or perform any other covenant, representation, warranty or
other agreement in the subordinated debt indenture for the benefit of that
series other than a covenant, representation or warranty with respect to
which a failure to observe or perform is dealt with otherwise in the
subordinated debt indenture or is expressly included in the subordinated
debt indenture solely for the benefit of a series of debt securities other
than such series of subordinated debt securities and that failure
continues for 90 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 all series affected by that
failure, treating all those series as a single class;
and
|
|
|
·
|
certain
events of bankruptcy or insolvency occur, whether voluntary or
not.
|
No event
of default will have occurred under a series of subordinated debt securities if
we fail to file timely any annual report or information, document or other
report that we are required to file with the SEC.
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. In the
case of any default specified in the third bullet above, no notice of default
will be given to holders of the subordinated debt securities of the affected
series until at least 90 days after we receive notice of the occurrence
thereof.
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 the subordinated debt securities of those
series (or a lesser amount as may be provided for in the subordinated debt
securities of the 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 and any related payment default that resulted from
the declaration but not any other payment default. Certain events of
bankruptcy and insolvency will result in all outstanding series of subordinated
debt securities becoming due and payable immediately without any further action
on the part of the trustee or the holders.
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:
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|
·
|
the
direction cannot conflict with any law or regulation or the subordinated
indenture;
|
27
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|
·
|
the
trustee may take any other action deemed proper by the trustee that is not
inconsistent with the direction;
and
|
|
|
·
|
the
trustee need not take any action that 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.
|
Holders
have an absolute right, however, 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:
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|
·
|
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
that cannot be amended or modified without the consent of each holder of
debt securities affected.
|
We will
periodically file statements with the trustee regarding our compliance with
covenants in the subordinated indenture.
Modifications and
Amendments. Except as provided below, or more fully specified
in the subordinated indenture and described in the prospectus supplement
relating to a series of subordinated debt securities, 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 subordinated 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. Some amendments or waivers, however, require the consent
of each holder of any subordinated debt security affected. Without
the consent of each holder, an amendment or waiver may not:
28
|
|
·
|
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;
|
|
|
·
|
impair
the right, if any, to convert the subordinated debt securities into common
stock;
|
|
|
·
|
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
subordinated indenture or the 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 subordinated indenture as permitted
by the indenture;
|
|
|
·
|
to
add other covenants, restrictions or conditions for the protection of the
holders of all or any series of subordinated debt
securities;
|
29
|
|
·
|
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 that 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
|
|
|
·
|
to
comply with the requirements of the Securities and Exchange Commission or
to effect or maintain the qualification of the indenture under the Trust
Indenture Act of 1939.
|
For the
purpose of amending or supplementing our subordinated indenture, or waiving a
default under or compliance with the provisions of the subordinated indenture,
debt securities that are convertible into equity securities and debt securities
that are not so convertible shall not be treated as part of the same class
notwithstanding that such debt securities may otherwise rank equal with each
other.
The
following is a description of 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 terms 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 debt securities, preferred stock, 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;
|
30
|
|
·
|
the
designation and terms of the underlying securities purchasable upon
exercise of the warrants and the number of such underlying securities
initially 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 will commence and the
date on which the right shall
expire;
|
|
|
·
|
if
applicable, the minimum or maximum amount of the warrants that 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 material 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.
|
We may
issue units consisting of common stock, preferred stock, warrants, debt
securities or any combination of those securities. The applicable prospectus
supplement will describe the terms of any units including the
following:
|
|
·
|
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.
|
31
We may
sell the securities in any one or more of the following ways:
|
|
·
|
directly
to investors, including through a specific bidding, auction or other
process;
|
|
|
·
|
to
investors through agents;
|
|
|
·
|
directly
to agents;
|
|
|
·
|
to
or through brokers or dealers;
|
|
|
·
|
to
the public through underwriting syndicates led by one or more managing
underwriters;
|
|
|
·
|
in
“at the market” offerings, within the meaning of Rule 415(a)(4) of the
Securities Act, to or through a market maker or into an existing trading
market on an exchange or otherwise;
|
|
|
·
|
to
one or more underwriters acting alone for resale to investors or to the
public; and
|
|
|
·
|
through
a combination of any such methods of
sale.
|
If we
sell securities to a dealer acting as principal, the dealer may resell such
securities at varying prices to be determined by such dealer in its discretion
at the time of resale without consulting with us and such resale prices may not
be disclosed in the applicable prospectus supplement.
Any
underwritten offering may be on a best efforts or a firm commitment basis. We
may also offer securities through subscription rights distributed to our
stockholders on a pro rata basis, which may or may not be transferable. In any
distribution of subscription rights to stockholders, if all of the underlying
securities are not subscribed for, we may then sell the unsubscribed securities
directly to third parties or may engage the services of one or more
underwriters, dealers or agents, including standby underwriters, to sell the
unsubscribed securities to third parties.
Sales of
the securities may be effected from time to time in one or more transactions,
including negotiated transactions:
|
|
·
|
at
a fixed price or prices, which may be
changed;
|
|
|
·
|
at
market prices prevailing at the time of
sale;
|
|
|
·
|
at
prices related to prevailing market prices;
or
|
|
|
·
|
at
negotiated prices.
|
Any of
the prices may represent a discount from the then prevailing market
prices.
In
connection with the sale of any of the securities, underwriters or agents may
receive compensation from us in the form of underwriting discounts or
commissions and may also receive compensation from purchasers of the securities,
for whom they may act as agents, in the form of discounts, concessions or
commissions. Underwriters may sell the securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Discounts, concessions and commissions may be
changed from time to time. Dealers and agents that participate in the
distribution of the securities may be deemed to be underwriters under the
Securities Act, and any discounts, concessions or commissions they receive from
us and any profit on the resale of securities they realize may be deemed to be
underwriting compensation under applicable federal and state securities
laws.
32
The
applicable prospectus supplement will, where applicable:
|
|
·
|
identify
any such underwriter, dealer or
agent;
|
|
|
·
|
describe
any compensation in the form of discounts, concessions, commissions or
otherwise received from us by each such underwriter or agent and in the
aggregate by all underwriters and
agents;
|
|
|
·
|
describe
any discounts, concessions or commissions allowed by underwriters to
participating dealers;
|
|
|
·
|
identify
the amounts underwritten; and
|
|
|
·
|
identify
the nature of the underwriter’s or underwriters’ obligation to take the
securities.
|
Unless
otherwise specified in the related prospectus supplement, each series of
securities will be a new issue with no established trading market, other than
our common stock, which is listed on the NASDAQ Global Market. Any common stock
sold pursuant to a prospectus supplement will be listed on the NASDAQ Global
Market, subject to official notice of issuance. We may elect to list any series
of debt securities or preferred stock on an exchange, but we are not obligated
to do so. It is possible that one or more underwriters may make a market in the
securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of, or the trading market for, any offered
securities.
We may
enter into derivative transactions with third parties, or sell securities not
covered by this prospectus to third parties in privately negotiated
transactions. If disclosed in the applicable prospectus supplement, in
connection with those derivative transactions third parties may sell securities
covered by this prospectus and such prospectus supplement, including in short
sale transactions. If so, the third party may use securities pledged by us or
borrowed from us or from others to settle those short sales or to close out any
related open borrowings of securities, and may use securities received from us
in settlement of those derivative transactions to close out any related open
borrowings of securities. If the third party is or may be deemed to be an
underwriter under the Securities Act, it will be identified in the applicable
prospectus supplements.
Until the
distribution of the securities is completed, rules of the SEC may limit the
ability of any underwriters and selling group members to bid for and purchase
the securities. As an exception to these rules, underwriters are permitted to
engage in some transactions that stabilize the price of the securities. Such
transactions consist of bids or purchases for the purpose of pegging, fixing or
maintaining the price of the securities.
Underwriters
may engage in overallotment. If any underwriters create a short position in the
securities in an offering in which they sell more securities than are set forth
on the cover page of the applicable prospectus supplement, the underwriters may
reduce that short position by purchasing the securities in the open
market.
The lead
underwriters may also impose a penalty bid on other underwriters and selling
group members participating in an offering. This means that if the lead
underwriters purchase securities in the open market to reduce the underwriters’
short position or to stabilize the price of the securities, they may reclaim the
amount of any selling concession from the underwriters and selling group members
who sold those securities as part of the offering.
33
In
general, purchases of a security for the purpose of stabilization or to reduce a
short position could cause the price of the security to be higher than it might
be in the absence of such purchases. The imposition of a penalty bid might also
have an effect on the price of a security to the extent that it were to
discourage resales of the security before the distribution is
completed.
We do not
make any representation or prediction as to the direction or magnitude of any
effect that the transactions described above might have on the price of the
securities. In addition, we do not make any representation that underwriters
will engage in such transactions or that such transactions, once commenced, will
not be discontinued without notice.
Under
agreements into which we may enter, underwriters, dealers and agents who
participate in the distribution of the securities may be entitled to
indemnification by us against or contribution towards certain civil liabilities,
including liabilities under the applicable securities laws.
Underwriters,
dealers and agents may engage in transactions with us, perform services for us
or be our tenants in the ordinary course of business.
If
indicated in the applicable prospectus supplement, we will authorize
underwriters or other persons acting as our agents to solicit offers by
particular institutions to purchase securities from us at the public offering
price set forth in such prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on the date or dates stated in such
prospectus supplement. Each delayed delivery contract will be for an amount no
less than, and the aggregate amounts of securities sold under delayed delivery
contracts shall be not less nor more than, the respective amounts stated in the
applicable prospectus supplement. Institutions with which such contracts, when
authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but will in all cases be subject to our approval. The
obligations of any purchaser under any such contract will be subject to the
conditions that (a) the purchase of the securities shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United States
to which the purchaser is subject, and (b) if the securities are being sold to
underwriters, we shall have sold to the underwriters the total amount of the
securities less the amount thereof covered by the contracts. The underwriters
and such other agents will not have any responsibility in respect of the
validity or performance of such contracts.
To comply
with applicable state securities laws, the securities offered by this prospectus
will be sold, if necessary, in such jurisdictions only through registered or
licensed brokers or dealers. In addition, securities may not be sold in some
states unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement is
available and is complied with.
Certain
legal matters in connection with the legality of any common stock, preferred
stock, debt securities, warrants and units offered hereby will be passed upon
for us by Drinker Biddle & Reath LLP, Philadelphia,
Pennsylvania.
34
The
financial statements and management’s assessment of the effectiveness of
internal control over financial reporting (which is included in Management’s
Report on Internal Control over Financial Reporting) 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 27, 2008 have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, an independent registered
public accounting firm, given on the authority of said firm as experts in
auditing and accounting.
The
financial statements of Orthodyne Electronics Corporation incorporated into this
prospectus by reference from our Current Reports on Form 8-K/A dated October 28,
2008 and Form 8-K dated July 2, 2009 have been audited by McGladrey &
Pullen, LLP, an independent registered public accounting firm, given on the
authority of said firm as experts in auditing and accounting.
We have
filed with the Securities and Exchange Commission a registration statement on
Form S−3, of which this prospectus is a part. This prospectus and any
accompanying prospectus supplement do not contain all of the information set
forth in the registration statement and exhibits and schedules to the
registration statement. For further information with respect to our Company and
the securities registered hereby, reference is made to the registration
statement, including the exhibits and schedules to the registration statement.
Statements contained in this prospectus and any accompanying prospectus
supplement as to the contents of any contract or other document referred to in,
or incorporated by reference in, this prospectus and any accompanying prospectus
supplement are not necessarily complete and, where that contract or other
document is an exhibit to the registration statement, each statement is
qualified in all respects by the exhibit to which the reference
relates.
We file
annual, quarterly, special reports, proxy statements and other information with
the Securities and Exchange Commission. These documents contain specific
information regarding us. These documents, including exhibits and schedules
thereto, may be inspected without charge at the Securities and Exchange
Commission’s principal office in Washington, D.C., and copies of all or any part
thereof may be obtained from the Public Reference Section of the Securities and
Exchange Commission, 100 F Street, N.E., Washington, D.C. 20549. Information on
the operation of the Public Reference Section may be obtained by calling the
Securities and Exchange Commission at 1-800-SEC-0330. The Securities and
Exchange Commission also maintains a World Wide Web site which provides online
access to reports, proxy and information statements and other information
regarding registrants that file electronically with the Securities and Exchange
Commission at the address http://www.sec.gov.
We make
our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports
on Form 8-K and all amendments to these reports filed or furnished pursuant to
Section 13(a) or 15(d) of the Exchange Act available (free of charge) on or
through our Internet website located at http://www.kns.com.
We maintain a website with the address www.kns.com. We are not including the
information contained on our website as part of, or incorporating it by
reference into, this prospectus.
Our
common stock is listed on the NASDAQ Global Market under the symbol “KLIC”. Our
reports, proxy statements, and other information are also available at the
following NASDAQ address: NASDAQ Operations, 1735 K Street, N.W., Washington,
D.C. 20006.
35
The SEC
allows us to “incorporate by reference” the information we file with them, which
means that we can disclose important information to you by referring you to
those document. These documents contain important information about us and our
financial condition. The information incorporated by reference is considered to
be part of this prospectus.
Information
that we file later with the Securities and Exchange Commission will
automatically update and supersede this information. We incorporate by reference
the documents listed below, except for information furnished under Item 2.02 or
Item 7.01 of Form 8-K which is neither deemed filed nor incorporated by
reference herein:
|
|
·
|
Our
Annual Report on Form 10-K for the year ended September 27,
2008;
|
|
|
·
|
Our
Quarterly Reports on Form 10-Q for the quarters ended December 27, 2008
and March 28, 2009;
|
|
|
·
|
Our
Current Reports on Form 8-K filed on October 2, 2008, October 3, 2008,
October 8, 2008 and amended on October 28, 2008, October 15, 2008,
November 18, 2008, December 1, 2008, January 2, 2009, January 8, 2009,
January 15, 2009, February 25, 2009, March 31, 2009, April 2, 2009, May
19, 2009, June 26, 2009 and July 2,
2009;
|
|
|
·
|
The
description of our common stock contained in our registration statement on
Form 8-A12G/A filed on July 17, 2000, including any and all amendments and
reports filed for the purpose of updating that description;
and
|
|
|
·
|
Any
future filings we make under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, including any filings after the date of
this registration statement until we terminate this offering.
|
Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein may be modified or superseded in the future. Any such statement
so modified shall not be deemed to constitute a part of the Registration
Statement except as so modified and any statement so superseded shall not be
deemed to constitute a part of this Registration Statement.
We will
provide to you without charge, upon receipt of your written or oral request, a
copy of any or all of the documents that are incorporated by reference in this
prospectus, other than exhibits that are not specifically incorporated by
reference in such documents. You should direct written or telephone requests to
Investor Relations Department, Kulicke and Soffa Industries, Inc., 1005 Virginia
Drive, Fort Washington, PA 19034, telephone (215) 784-6000.
You
should rely only upon the information provided in this prospectus. We have not
authorized anyone to provide you with different information. You should not
assume that the information in this prospectus is accurate as of any date other
than the date of this prospectus.
Our logo
appearing on the front and back covers of this prospectus is a trademark of
Kulicke and Soffa Industries, Inc.
36
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 us 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
|
$ | 5,580 | ||
|
Printing
and Engraving Expenses
|
$ | 3,000 | ||
|
Legal
Fees and Expenses
|
$ | 75,000 | ||
|
Accounting
Fees and Expenses
|
$ | 25,000 | ||
|
Trustee’s
Fees and Expenses
|
$ | 10,000 | ||
|
Miscellaneous
Expenses
|
$ | 6,475 | ||
|
Total
|
$ | 125,055 |
ITEM
15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section
1741 of the Pennsylvania Business Corporation Law provides us the power to
indemnify any officer or director acting in his capacity as a representative of
us who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or proceeding against expenses, judgments,
penalties, fines and amounts paid in settlement in connection with such action
or proceeding whether the action was instituted by a third party or arose by or
in the right of us. Generally, the only limitation on the ability of us to
indemnify our officers and directors is if the act or failure to act is finally
determined by a court to have constituted willful misconduct or
recklessness.
Our
bylaws require us to indemnify any person who is or was a party or witness in
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, including without limitation one
bought by or in the right of the Company, by reason of the fact that he or she
is or was a director or officer of the Company or is or was serving while a
director or officer 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, except to the extent such indemnification is prohibited by
applicable law. Our bylaws provide that such persons are automatically entitled
to advances from us for the payment of certain expenses incurred by such persons
upon receipt of an undertaking by or on behalf of the person to repay such
advances if it is ultimately determined that the person is not entitled to
indemnification by us. Notwithstanding anything to the contrary, we are not
obligated to indemnify any person or advance expenses with respect to any
action, suit or proceeding commenced by the person, other than mandatory
counterclaims and affirmative defenses. We may indemnify employees and agents of
the Company, and advance expenses to them, on the same basis as provided in our
bylaws for directors and officers, as the board of directors of the Company may
from time to time determine or authorize.
II-1
In addition, we maintain directors and
officers insurance under which our directors and officers are insured against
certain liabilities that may be incurred by them in their capacities as
such.
ITEM
16. EXHIBITS
|
(a)
|
The
following exhibits are filed with this registration
statement.
|
|
EXHIBIT
|
||
|
NUMBER
|
ITEM
|
|
|
1(i)(1)
|
Form
of underwriting agreement for offering of common stock.
|
|
|
1(ii)(1)
|
Form
of underwriting agreement for offering of preferred
stock.
|
|
|
1(iii)(1)
|
Form
of underwriting agreement for offering of units.
|
|
|
1(iv)(1)
|
Form
of underwriting agreement for offering of debt securities (senior debt
securities, senior subordinated debt securities and/or subordinated debt
securities).
|
|
|
1(v)(1)
|
Form
of underwriting agreement for offering of warrants.
|
|
|
2(i)
|
Master
Sale and Purchase Agreement between W.C. Heraeus GmbH and Kulicke and
Soffa Industries, Inc., dated July 31, 2008 is incorporated by reference
to Exhibit 10.1 of the Company’s Form 8-K filed on July 31,
2008.
|
|
|
2(ii)
|
Amendment
No. 1 to the Master Sale and Purchase Agreement between W.C. Heraeus GmbH
and Kulicke and Soffa Industries, Inc., dated as of September 5, 2008 is
incorporated by reference to Exhibit 2.2 of the Company’s Form 8-K filed
on October 2, 2008.
|
|
|
2(iii)
|
Asset
Purchase Agreement between Orthodyne Electronics Corporation and Kulicke
and Soffa Industries, Inc., dated July 31, 2008 is incorporated by
reference to Exhibit 10.2 of the Company’s Form 8-K filed on July 31,
2008.
|
|
|
2(iv)
|
Amendment
to the Asset Purchase Agreement between Orthodyne Electronics Corporation
and Kulicke and Soffa Industries, Inc., dated as of October 3, 2008 is
incorporated by reference to Exhibit 2.2 of the Company’s Form 8-K filed
on October 8, 2008.
|
|
|
4(i)
|
The
Company’s Form of Amended and Restated Articles of Incorporation dated
December 5, 2007, filed as Exhibit 3(i) to the Company’s annual report on
Form 10-K for the year ended September 29, 2007, is incorporated herein by
reference.
|
|
|
4(ii)
|
The
Company’s Form of Amended and Restated By-Laws dated December 5, 2007,
filed as Exhibit 3(ii) to the Company’s annual report on Form 10-K for the
year ended September 29, 2007, are incorporated herein by
reference.
|
II-2
|
4(iii)
|
Specimen
Common Share Certificate of Kulicke and Soffa Industries, Inc., filed as
Exhibit 4 to the Company’s Form 8-A12G/A dated September 11, 1995, SEC
file number 000-00121, is incorporated herein by
reference.
|
|
|
4(iv)
|
Senior
debt securities indenture.
|
|
|
4(v)
|
Senior
subordinated debt securities indenture.
|
|
|
4(vi)
|
Subordinated
debt securities indenture.
|
|
|
4(vii)
|
Form
of any senior debt security (included in Exhibit
4(iv)).
|
|
|
4(viii)
|
Form
of any senior subordinated debt security (included in Exhibit
4(v)).
|
|
|
4(ix)
|
Form
of any subordinated debt security (included in Exhibit
4(vi)).
|
|
|
4(x)(1)
|
Form
of any certificate of designation with respect to any preferred stock
(together with form of preferred stock certificate).
|
|
|
4(xi)
(1)
|
Form
of unit agreement.
|
|
|
4(xii)
(1)
|
Form
of debt warrant agreement for warrants sold alone, including form of
warrant.
|
|
|
4(xiii)
(1)
|
Form
of debt warrant agreement for warrants sold attached to debt securities,
including form of warrant.
|
|
|
4(xiv)
(1)
|
Form
of equity warrant agreement for warrants sold alone, including form of
warrant.
|
|
|
4(xv)
|
Indenture,
including Form of Note, dated as of June 30, 2004 between the Company and
J.P. Morgan Trust Company, National Association, as Trustee, filed as
Exhibit 4.1 to the Company’s quarterly report on Form 10-Q for the
quarterly period ended June 30, 2004, is incorporated herein by
reference.
|
|
|
4(xvi)
|
Registration
Rights Agreement dated as of June 30, 2004, between the Company and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Initial
Purchaser, filed as Exhibit 4.2 to the Company’s quarterly report on Form
10-Q for the quarterly period ended June 30, 2004, is incorporated herein
by reference.
|
|
|
4(xvii)
|
Indenture,
including Form of Note, between the Company and The Bank of New York,
dated as of June 6, 2007, filed as Exhibit 4.1 to the Company’s Form 8-K
dated June 7, 2007, is incorporated herein by
reference.
|
|
|
4(xviii)
|
Registration
Rights Agreement dated as of June 6, 2007, between the Company and Bank of
America Securities, LLC as Initial Purchaser, filed as Exhibit 10.1 to the
Company’s Form 8-K dated June 6, 2007, is incorporated by
reference.
|
|
|
5
|
Opinion
of Drinker Biddle & Reath LLP.
|
|
|
12
|
Computation
of Ratio of Earnings to Fixed Charges.
|
|
|
23(i)
|
Consent
of PricewaterhouseCoopers LLP (Independent Registered Public Accounting
Firm).
|
II-3
|
23(ii)
|
Consent
of McGladrey & Pullen, LLP (Independent Registered Public Accounting
Firm).
|
|
|
23(iii)
|
Consent
of Drinker Biddle & Reath LLP (included in Exhibit
5).
|
|
|
24(i)
|
Power
of Attorney (contained in the signature page to this registration
statement).
|
|
|
25.1(2)
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of the trustee under the indenture with respect to the senior
debt securities.
|
|
|
25.2(2)
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of the trustee under the indenture with respect to the senior
subordinated debt securities.
|
|
|
25.3(2)
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of the trustee under the indenture with respect to the
subordinated debt securities.
|
|
(1)
|
To
be filed as an exhibit or incorporated by reference as an exhibit to a
document incorporated or deemed to be incorporated by reference in this
registration statement, including, where permitted, a Current Report on
Form 8-K.
|
|
(2)
|
To
be incorporated by reference to a subsequent filing in accordance with
Section 305(b)(2) of the Trust Indenture Act of 1939, as
amended.
|
ITEM
17. UNDERTAKINGS
|
(a)
|
The
undersigned registrant hereby
undertakes:
|
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(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 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 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement.
II-4
Provided, however, that
paragraphs (1)(i), (1)(ii) and (1)(iii) of this section do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Securities and
Exchange 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, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B relating to
an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposed of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona
fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(5) That
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell securities to the purchaser,
if the securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
II-5
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(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 reports 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) The
undersigned registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under subsection (a) of
section 310 of the Trust Indenture Act ("Act") in accordance with the rules and
regulations prescribed by the Commission under section 305(b)2 of the
Act.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-6
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 on Form S-3
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Fort Washington, State of Pennsylvania on this 2nd day of July,
2009.
|
KULICKE
AND SOFFA INDUSTRIES, INC.
|
|
|
By:
|
/s/ C. Scott Kulicke
|
|
C.
Scott Kulicke
|
|
|
Chairman
of the Board and Chief Executive
Officer
|
|
POWER OF
ATTORNEY
Each
person whose signature appears below constitutes and appoints C. Scott Kulicke
and Maurice E. Carson, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign and file any and
all amendments to this registration statement (including post-effective
amendments) and any subsequent registration statement filed by Kulicke and Soffa
Industries, Inc. pursuant to Rule 462(b) of the Securities Act of 1933, and to
file the same with exhibits thereto and other documents in connection therewith
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
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
|
|||
|
C.
Scott Kulicke
|
Officer
(principal executive officer)
|
July
2, 2009
|
||
|
/s/ Maurice E. Carson
|
Senior
Vice President and Chief Financial
|
|||
|
Maurice
E. Carson
|
Officer
(principal financial officer and
principal
accounting officer)
|
July
2, 2009
|
||
|
/s/ Brian R. Bachman
|
||||
|
Brian
R. Bachman
|
Director
|
July
2, 2009
|
||
|
/s/ John A. O’Steen
|
||||
|
John
A. O’Steen
|
Director
|
July
2, 2009
|
||
|
/s/ Garrett E. Pierce
|
||||
|
Garrett
E. Pierce
|
Director
|
July
2, 2009
|
||
|
/s/ MacDonell Roehm, Jr.
|
||||
|
MacDonell
Roehm, Jr.
|
Director
|
July
2, 2009
|
||
|
/s/ Barry Waite
|
||||
|
Barry
Waite
|
Director
|
July
2, 2009
|
||
|
/s/ C. William Zadel
|
||||
|
C.
William Zadel
|
Director
|
July
2, 2009
|
S-1
EXHIBIT
INDEX
|
EXHIBIT
|
||
|
NUMBER
|
ITEM
|
|
|
1(i)(1)
|
Form
of underwriting agreement for offering of common stock.
|
|
|
1(ii)(1)
|
Form
of underwriting agreement for offering of preferred
stock.
|
|
|
1(iii)(1)
|
Form
of underwriting agreement for offering of units.
|
|
|
1(iv)(1)
|
Form
of underwriting agreement for offering of debt securities (senior debt
securities, senior subordinated debt securities and/or subordinated debt
securities).
|
|
|
1(v)(1)
|
Form
of underwriting agreement for offering of warrants.
|
|
|
2(i)
|
Master
Sale and Purchase Agreement between W.C. Heraeus GmbH and Kulicke and
Soffa Industries, Inc., dated July 31, 2008 is incorporated by reference
to Exhibit 10.1 of the Company’s Form 8-K filed on July 31,
2008.
|
|
|
2(ii)
|
Amendment
No. 1 to the Master Sale and Purchase Agreement between W.C. Heraeus GmbH
and Kulicke and Soffa Industries, Inc., dated as of September 5, 2008 is
incorporated by reference to Exhibit 2.2 of the Company’s Form 8-K filed
on October 2, 2008.
|
|
|
2(iii)
|
Asset
Purchase Agreement between Orthodyne Electronics Corporation and Kulicke
and Soffa Industries, Inc., dated July 31, 2008 is incorporated by
reference to Exhibit 10.2 of the Company’s Form 8-K filed on July 31,
2008.
|
|
|
2(iv)
|
Amendment
to the Asset Purchase Agreement between Orthodyne Electronics Corporation
and Kulicke and Soffa Industries, Inc., dated as of October 3, 2008 is
incorporated by reference to Exhibit 2.2 of the Company’s Form 8-K filed
on October 8, 2008.
|
|
|
4(i)
|
The
Company’s Form of Amended and Restated Articles of Incorporation dated
December 5, 2007, filed as Exhibit 3(i) to the Company’s annual report on
Form 10-K for the year ended September 29, 2007, is incorporated herein by
reference.
|
|
|
4(ii)
|
The
Company’s Form of Amended and Restated By-Laws dated December 5, 2007,
filed as Exhibit 3(ii) to the Company’s annual report on Form 10-K for the
year ended September 29, 2007, are incorporated herein by
reference.
|
|
|
4(iii)
|
Specimen
Common Share Certificate of Kulicke and Soffa Industries, Inc., filed as
Exhibit 4 to the Company’s Form 8-A12G/A dated September 11, 1995, SEC
file number 000-00121, is incorporated herein by
reference.
|
|
|
4(iv)
|
Senior
debt securities indenture.
|
|
|
4(v)
|
Senior
subordinated debt securities indenture.
|
|
|
4(vi)
|
Subordinated
debt securities indenture.
|
E-1
|
4(vii)
|
Form
of any senior debt security (included in Exhibit
4(iv)).
|
|
|
4(viii)
|
Form
of any senior subordinated debt security (included in Exhibit
4(v)).
|
|
|
4(ix)
|
Form
of any subordinated debt security (included in Exhibit
4(vi)).
|
|
|
4(x)(1)
|
Form
of any certificate of designation with respect to any preferred stock
(together with form of preferred stock certificate).
|
|
|
4(xi)
(1)
|
Form
of unit agreement.
|
|
|
4(xii)
(1)
|
Form
of debt warrant agreement for warrants sold alone, including form of
warrant.
|
|
|
4(xiii)
(1)
|
Form
of debt warrant agreement for warrants sold attached to debt securities,
including form of warrant.
|
|
|
4(xiv)
(1)
|
Form
of equity warrant agreement for warrants sold alone, including form of
warrant.
|
|
|
4(xv)
|
Indenture,
including Form of Note, dated as of June 30, 2004 between the Company and
J.P. Morgan Trust Company, National Association, as Trustee, filed as
Exhibit 4.1 to the Company’s quarterly report on Form 10-Q for the
quarterly period ended June 30, 2004, is incorporated herein by
reference.
|
|
|
4(xvi)
|
Registration
Rights Agreement dated as of June 30, 2004, between the Company and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Initial
Purchaser, filed as Exhibit 4.2 to the Company’s quarterly report on Form
10-Q for the quarterly period ended June 30, 2004, is incorporated herein
by reference.
|
|
|
4(xvii)
|
Indenture,
including Form of Note, between the Company and The Bank of New York,
dated as of June 6, 2007, filed as Exhibit 4.1 to the Company’s Form 8-K
dated June 7, 2007, is incorporated herein by
reference.
|
|
|
4(xviii)
|
Registration
Rights Agreement dated as of June 6, 2007, between the Company and Bank of
America Securities, LLC as Initial Purchaser, filed as Exhibit 10.1 to the
Company’s Form 8-K dated June 6, 2007, is incorporated by
reference.
|
|
|
5
|
Opinion
of Drinker Biddle & Reath LLP.
|
|
|
12
|
Computation
of Ratio of Earnings to Fixed Charges.
|
|
|
23(i)
|
Consent
of PricewaterhouseCoopers LLP (Independent Registered Public Accounting
Firm).
|
|
|
23(ii)
|
Consent
of McGladrey & Pullen, LLP (Independent Registered Public
Accounting Firm).
|
|
|
23(iii)
|
Consent
of Drinker Biddle & Reath LLP (included in Exhibit
5).
|
|
|
24(i)
|
Power
of Attorney (contained in the signature page to this registration
statement).
|
|
|
25.1(2)
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of the trustee under the indenture with respect to the senior
debt securities.
|
E-2
|
25.2(2)
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of the trustee under the indenture with respect to the senior
subordinated debt securities.
|
|
|
25.3(2)
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of the trustee under the indenture with respect to the
subordinated debt securities.
|
|
(1)
|
To
be filed as an exhibit or incorporated by reference as an exhibit to a
document incorporated or deemed to be incorporated by reference in this
registration statement, including, where permitted, a Current Report on
Form 8-K.
|
|
(2)
|
To
be incorporated by reference to a subsequent filing in accordance with
Section 305(b)(2) of the Trust Indenture Act of 1939, as
amended.
|
E-3