AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 25, 2002
REGISTRATION NO. 333-81334
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AMKOR TECHNOLOGY, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 23-1722724
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1345 ENTERPRISE DRIVE
WEST CHESTER, PENNSYLVANIA 19380
(610) 431-9600
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
KEVIN HERON, ESQ.
GENERAL COUNSEL
1345 ENTERPRISE DRIVE
WEST CHESTER, PENNSYLVANIA 19380
(610) 431-9600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
LARRY W. SONSINI, ESQ.
BRUCE M. MCNAMARA, ESQ.
ROBERT A. CLAASSEN, ESQ.
ROBERT D. SANCHEZ, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
(650) 493-9300
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ____________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ] ____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
---------------------
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, AS AMENDED, OR UNTIL THIS 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 THE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED APRIL 25, 2002
PROSPECTUS
$750,000,000
AMKOR TECHNOLOGY, INC.
BY THIS PROSPECTUS, WE MAY OFFER --
DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
WARRANTS
SUBSCRIPTION RIGHTS
SEE "RISK FACTORS" ON PAGE 5 FOR INFORMATION YOU SHOULD CONSIDER BEFORE
BUYING THE SECURITIES.
Our common stock is listed on the Nasdaq National Market under the symbol
"AMKR." On April 24, 2002, the reported last sale price of our common stock on
the Nasdaq National Market was $20.15 per share.
---------------------
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplements carefully before
you invest.
---------------------
This prospectus may not be used to offer and sell securities unless
accompanied by a prospectus supplement.
---------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This prospectus is dated , 2002
SUMMARY
This prospectus is part of a registration statement on Form S-3 that we
filed with the Securities and Exchange Commission utilizing a "shelf"
registration process. Under this shelf process, we may, from time to time, sell
any combination of securities described in this prospectus in one or more
offerings, up to a total dollar amount of $750,000,000. 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, including the specific amounts,
prices and terms of the securities offered. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with additional
information described below under the heading "Where You Can Find More
Information."
AMKOR TECHNOLOGY, INC.
Amkor is the world's largest subcontractor of semiconductor packaging and
test services. The company has built a leading position through:
- one of the industry's broadest offerings of packaging and test services,
- expertise in the development and implementation of packaging and test
technology,
- long-standing relationships with customers, including many of the world's
leading semiconductor companies, and
- expertise in high-volume manufacturing.
We also market the output of fabricated semiconductor wafers provided by a
wafer fabrication foundry owned and operated by Anam Semiconductor, Inc. (ASI).
The semiconductors that we package and test for our customers ultimately become
components in electric systems used in communications, computing, consumer,
industrial, automotive and military applications. Our customers include, among
others, Agere Systems, Inc., Atmel Corporation, Intel Corporation, LSI Logic
Corporation, Motorola, Inc., Philips Electronics N.V., ST Microelectronics PTE,
Sony Semiconductor Corporation, Texas Instruments, Inc. and Toshiba Corporation.
The outsourced semiconductor packaging and test market is very competitive. We
also compete from time to time with many of our vertically integrated customers,
who may decide to outsource or not outsource certain of their packaging and test
requirements.
Packaging and test are an integral part of the semiconductor manufacturing
process. Semiconductor manufacturing begins with silicon wafers and involves the
fabrication of electronic circuitry into complex patterns, thus creating
individual chips on the wafers. The packaging process creates an electrical
interconnect between the semiconductor chip and the system board. In packaging,
the fabricated semiconductor chips are separated from the wafer, attached to a
substrate and encased in a protective environment to provide optimal electrical
and thermal performance. Increasingly, packages are custom designed for specific
chips and specific end-market applications.
Our principal executive offices are located at 1345 Enterprise Drive, West
Chester, Pennsylvania 19380. Our telephone number is (610) 431-9600.
THE SECURITIES WE MAY OFFER
We may offer up to $750,000,000 of debt securities, common stock, preferred
stock, depositary shares and warrants. The prospectus supplement will describe
the specific amounts, prices and terms of these securities.
We may sell the securities to or through underwriters, dealers or agents or
directly to purchasers. Our agents and we reserve the sole right to accept and
to reject in whole or in part any proposed purchase of securities. The
prospectus supplement, which we will provide to you each time we offer
securities, will set forth the names of any underwriters, dealers or agents
involved in the sale of the securities and any applicable fee, commission or
discount arrangements with them.
1
DEBT SECURITIES
GENERAL
We may offer unsecured general obligations in the form of either senior,
senior subordinated or subordinated debt. The senior debt securities, the senior
subordinated debt securities and the subordinated debt securities are together
referred to in this prospectus as the "debt securities." The senior debt
securities will have the same rank as all of our other unsecured, unsubordinated
debt. The senior subordinated debt securities will be junior to our specified
senior debt obligations. The subordinated debt securities will be junior to our
senior debt and our senior subordinated debt. Senior debt generally includes all
indebtedness for money borrowed by us, except indebtedness that is stated to be
not senior to, or to have the same rank as, or is expressly junior to the
subordinated debt securities. We may issue debt securities that are convertible
into, or exchangeable for, shares of common stock or other securities or
property.
The senior, senior subordinated and subordinated debt will be issued under
separate indentures between us and State Street Bank and Trust Company, as
trustee. We have summarized the general features of the debt securities from the
indentures in this prospectus. We encourage you to read the indentures which are
included or incorporated by reference as exhibits to our Registration Statement
No. (333-81334). Instructions on how you can get copies of these documents are
provided below under the heading "Where You Can Find More Information."
INDENTURE PROVISIONS THAT APPLY TO SENIOR, SENIOR SUBORDINATED AND SUBORDINATED
DEBT
- The Indentures do not limit the amount of debt that we may issue or
provide holders any protection should there be a highly leveraged
transaction involving our company.
- The indentures generally allow us to merge, consolidate with another U.S.
company, limited, partnership, trust or other business entity or to
convey, transfer or lease our properties and assets substantially as an
entirety to another U.S. company, partnership, trust or other business
entity, so long as the successor assumes our obligations under the
indentures and immediately after giving effect to the transaction we are
not in default under the indentures. If these events occur, the other
company will be required to assume our responsibilities on the debt, and
we will generally be released from all liabilities and obligations.
- The indentures provide that holders of a majority of the total principal
amount of the debt outstanding in any series may vote to change our
obligations or your rights concerning the debt. But to change the payment
of principal, interest, or adversely effect the right to convert or
certain other matters, every holder in that series must consent.
- We may discharge the indentures and defease restrictive covenants by
depositing sufficient funds with the trustee to pay the obligations when
due, provided certain conditions are met. All amounts due to you on the
debt would be paid by the trustee from the deposited funds.
EVENTS OF DEFAULT
The following are the events of default under the indentures:
(1) failure to pay principal of or any premium on any debt security of
that series when due,
(2) failure to pay any interest on any debt security of that series
for 30 days when due,
(3) failure to deposit any sinking fund payment when due,
(4) failure to perform any other covenant in the indenture that
continues for 60 days after being given the notice required in the
indenture,
(5) our bankruptcy, insolvency or reorganization, and
(6) any other event of default specified in the indenture.
2
REMEDY
Upon an event of default, other than a bankruptcy, insolvency or
reorganization, the trustee or holders of 25% of the principal amount
outstanding in a series may declare all outstanding principal amounts
immediately due and payable. However, the holders of a majority in principal
amount of the affected securities may, under certain circumstances, rescind this
action.
INDENTURE PROVISIONS THAT APPLY ONLY TO SENIOR SUBORDINATED DEBT SECURITIES AND
SUBORDINATED DEBT SECURITIES
The subordinated debt securities will be subordinated to all senior debt
and senior subordinated debt. The senior subordinated debt securities will be
subordinated to specified senior debt obligations.
COMMON STOCK
We may issue shares of common stock. Holders of common stock are entitled
to receive dividends declared by our board of directors or an authorized
committee of our board of directors. We have never paid cash dividends on our
common stock. We expect to retain future earnings for use in the operation and
expansion of our business. We do not anticipate paying cash dividends on our
common stock in the future. Each holder of common stock is entitled to one vote
per share. The holders of common stock have no preemptive rights.
PREFERRED STOCK AND DEPOSITARY SHARES
We may issue our preferred stock, par value $0.001 per share, in one or
more series. Our board of directors, or an authorized committee of our board of
directors, will determine the dividend, voting, conversion and other rights of
the series being offered and the terms and conditions relating to its offering
and sale at the time of the offer and sale. We may also issue fractional shares
of preferred stock that will be represented by depositary shares and depositary
receipts.
WARRANTS
We may issue warrants for the purchase of debt securities, preferred stock
or common stock. We may issue warrants independently or together with other
securities.
SUBSCRIPTION RIGHTS
We may issue subscription rights to purchase common stock, preferred stock,
depositary shares or warrants to purchase preferred stock or common stock. We
may issue subscription rights independently or together with other securities.
3
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the Securities
and Exchange Commission, in accordance with the Securities Exchange Act of 1934,
as amended. You may read and copy our reports, proxy statements and other
information filed by us at the public reference facilities of the Securities and
Exchange Commission at the Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the Commission at 1-800-SEC-0330 for further
information about the public reference rooms. Our reports, proxy statements and
other information filed with the Commission are available to the public over the
Internet at the Commission's World Wide Web site at http://www.sec.gov.
The Commission allows us to "incorporate by reference" into this prospectus
the information we filed with it. This means that we can disclose important
information by referring you to those documents. The information incorporated by
reference is considered to be a part of this prospectus, and information that we
file later with the Commission will automatically update and supersede this
information. We incorporate by reference the documents listed below and any
future filings made by us with the Commission under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act until our offering is complete.
1. Our Annual Report on Form 10-K for the fiscal year ended December 31,
2001, filed with the SEC on April 1, 2002, as amended by our 10-K/A, filed with
the SEC on April 25, 2002, and
2. Our Current Reports on Form 8-K filed with the SEC on April 1, 2002 and
April 25, 2002.
You may request a copy of these filings, at no cost, by writing,
telephoning or emailing us at the following address:
Investor Relations
Amkor Technology, Inc.
1900 South Price Road
Chandler, AZ 85248
Tel: (480) 821-5000
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
4
RISK FACTORS
You should carefully consider the risks described below and the other
information contained or incorporated by reference in this prospectus before
investing in our securities. The following section discloses the known material
risks facing our company. Additional risks and uncertainties that are presently
unknown to us or that we currently deem immaterial may also impair our business
operations. We cannot assure you that any of the events discussed in the risk
factors below will not occur. If they do, our business, financial condition or
results of operations could be materially adversely affected. In such case, the
trading price of our securities could decline, and you might lose all or part of
your investment.
This prospectus contains forward-looking statements made as of the date of
this prospectus regarding our expected performance that involve risks and
uncertainties. Our actual results could differ materially from those anticipated
in these forward-looking statements as a result of certain factors, including
the risks faced by us described below and elsewhere in this prospectus.
DEPENDENCE ON THE HIGHLY CYCLICAL SEMICONDUCTOR AND ELECTRONIC PRODUCTS
INDUSTRIES -- WE OPERATE IN VOLATILE INDUSTRIES, AND INDUSTRY DOWNTURNS HARM OUR
PERFORMANCE.
Our business is tied to market conditions in the semiconductor industry,
which is highly cyclical. Because our business is, and will continue to be,
dependent on the requirements of semiconductor companies for subcontracted
packaging, test and wafer fabrication services, any downturn in the
semiconductor industry or any other industry that uses a significant number of
semiconductor devices, such as the personal computer and telecommunication
devices industries, could have a material adverse effect on our business.
CONDITIONS IN THE SEMICONDUCTOR INDUSTRY WEAKENED SIGNIFICANTLY IN 2001 AND MAY
NOT RECOVER AS EXPECTED -- WE HAVE BEEN, AND MAY CONTINUE TO BE, AFFECTED BY
THESE TRENDS.
The semiconductor industry weakened significantly in 2001 and conditions
are expected to improve in 2002. The significant uncertainty throughout the
industry related to market demand is hindering the visibility throughout the
supply chain and that lack of visibility makes it difficult to forecast the
recovery of the semiconductor industry. There can be no assurance that overall
industry conditions will recover in 2002, or if industry conditions do not
recover what impact that would have on our business.
FLUCTUATIONS IN OPERATING RESULTS -- OUR OPERATING RESULTS MAY VARY
SIGNIFICANTLY AS A RESULT OF FACTORS THAT WE CANNOT CONTROL.
Our operating results have varied significantly from period to period. Many
factors could materially and adversely affect our revenues, gross profit and
operating income, or lead to significant variability of quarterly or annual
operating results. These factors include, among others:
- the cyclical nature of both the semiconductor industry and the markets
addressed by end-users of semiconductors,
- the short-term nature of our customers' commitments, timing and volume of
orders relative to our production capacity,
- changes in our capacity utilization,
- evolutions in the life cycles of our customers' products,
- rescheduling and cancellation of large orders,
- erosion of packaging selling prices,
- fluctuations in wafer fabrication service charges paid to ASI,
- changes in costs, availability and delivery times of raw materials and
components and changes in costs and availability of labor,
- fluctuations in manufacturing yields,
5
- changes in product mix,
- timing of expenditures in anticipation of future orders,
- availability and cost of financing for expansion,
- ability to develop and implement new technologies on a timely basis,
- competitive factors,
- changes in effective tax rates,
- loss of key personnel or the shortage of available skilled workers,
- international political, economic or terrorist events,
- currency and interest rate fluctuations,
- environmental events, and
- intellectual property transactions and disputes.
DECLINING AVERAGE SELLING PRICES -- THE SEMICONDUCTOR INDUSTRY PLACES DOWNWARD
PRESSURE ON THE PRICES OF OUR PRODUCTS.
Historically, prices for our packaging and test services and wafer
fabrication services have declined over time. We expect that average selling
prices for our packaging and test services will continue to decline in the
future. If we cannot reduce the cost of our packaging and test services and
wafer fabrication services to offset a decline in average selling prices, our
future operating results could suffer.
HIGH LEVERAGE AND RESTRICTIVE COVENANTS -- OUR SUBSTANTIAL INDEBTEDNESS COULD
MATERIALLY RESTRICT OUR OPERATIONS AND ADVERSELY AFFECT OUR FINANCIAL CONDITION.
We now have, and for the foreseeable future will have, a significant amount
of indebtedness. At December 31, 2001, we had indebtedness outstanding of
approximately $1,826 million and available borrowings of an additional $100
million under our revolving line of credit. In addition, despite current debt
levels, the terms of the indentures governing our indebtedness do not prohibit
us or our subsidiaries from incurring substantially more debt. If new debt is
added to our consolidated debt level, the related risks that we now face could
intensify.
Covenants in the agreements governing our existing debt, and debt we may
incur in the future, may materially restrict our operations, including our
ability to incur debt, pay dividends, make certain investments and payments, and
encumber or dispose of assets. In addition, financial covenants contained in
agreements relating to our existing and future debt could lead to a default in
the event our results of operations do not meet our plans. A default under one
debt instrument may also trigger cross-defaults under our other debt
instruments. An event of default under any debt instrument, if not cured or
waived, could have a material adverse effect on us. Our substantial indebtedness
could:
- increase our vulnerability to general adverse economic and industry
conditions;
- limit our ability to fund future working capital, capital expenditures,
research and development and other general corporate requirements;
- require us to dedicate a substantial portion of our cash flow from
operations to service interest and principal payments on our debt;
- limit our flexibility to react to changes in our business and the
industry in which we operate;
- place us at a competitive disadvantage to any of our competitors that
have less debt; and
- limit, along with the financial and other restrictive covenants in our
indebtedness, among other things, our ability to borrow additional funds.
6
RELATIONSHIP WITH ASI -- OUR BUSINESS PERFORMANCE CAN BE ADVERSELY AFFECTED BY
ASI'S FINANCIAL PERFORMANCE OR A DISRUPTION IN THE WAFER FABRICATION SERVICES
ASI PROVIDES TO US.
As of December 31, 2001 we owned approximately 42% of ASI's outstanding
voting stock. Accordingly, we report ASI's financial results in our financial
statements through the equity method of accounting. If ASI's results of
operations are adversely affected for any reason (including as a result of
losses at its consolidated subsidiaries and equity investees), our results of
operations will suffer as well. Financial or other problems affecting ASI could
also lead to a complete loss of our investment in ASI. Our wafer fabrication
business may suffer if ASI reduces its operations or if our relationship with
ASI is disrupted.
Our wafer fabrication business depends on ASI providing wafer fabrication
services on a timely basis. If ASI were to significantly reduce or curtail its
operations for any reason, or if our relationship with ASI were to be disrupted
for any reason, our wafer fabrication business would be harmed. We may not be
able to identify and qualify alternate suppliers of wafer fabrication services
quickly, if at all. In addition, we currently have no other qualified third
party suppliers of wafer fabrication services and do not have any plans to
qualify additional third party suppliers.
The weakness in the semiconductor industry in 2001 adversely affected the
demand for the wafer output from ASI's foundry, our wafer fabrication services
results and ASI's operating results. Demand for our wafer fabrication services
and the wafer output from ASI's foundry have improved significantly in 2002.
However, there can be no assurance that industry conditions will continue to
improve as expected. If industry conditions do not recover as expected, our and
ASI's operating results could be adversely affected.
ABSENCE OF BACKLOG -- WE MAY NOT BE ABLE TO ADJUST COSTS QUICKLY IF OUR
CUSTOMERS' DEMAND FALLS SUDDENLY.
Our packaging and test business does not typically operate with any
material backlog. We expect that in the future our packaging and test net
revenues in any quarter will continue to be substantially dependent upon our
customers' demand in that quarter. None of our customers has committed to
purchase any significant amount of packaging or test services or to provide us
with binding forecasts of demand for packaging and test services for any future
period. In addition, our customers could reduce, cancel or delay their purchases
of packaging and test services. Because a large portion of our costs is fixed
and our expense levels are based in part on our expectations of future revenues,
we may be unable to adjust costs in a timely manner to compensate for any
revenue shortfall.
RISKS ASSOCIATED WITH INTERNATIONAL OPERATIONS -- WE DEPEND ON OUR FACTORIES IN
THE PHILIPPINES, KOREA, JAPAN, TAIWAN AND CHINA. MANY OF OUR CUSTOMERS' AND
VENDORS' OPERATIONS ARE ALSO LOCATED OUTSIDE OF THE U.S.
We provide packaging and test services through our factories located in the
Philippines, Korea, Japan, Taiwan and China. We also source wafer fabrication
services from ASI's wafer fabrication facility in Korea. Moreover, many of our
customers' and vendors' operations are located outside the U.S. The following
are some of the risks inherent in doing business internationally:
- regulatory limitations imposed by foreign governments;
- fluctuations in currency exchange rates;
- political and terrorist risks;
- disruptions or delays in shipments caused by customs brokers or
government agencies;
- unexpected changes in regulatory requirements, tariffs, customs, duties
and other trade barriers;
- difficulties in staffing and managing foreign operations; and
- potentially adverse tax consequences resulting from changes in tax laws.
7
DIFFICULTIES INTEGRATING ACQUISITIONS -- WE FACE CHALLENGES AS WE INTEGRATE NEW
AND DIVERSE OPERATIONS AND TRY TO ATTRACT QUALIFIED EMPLOYEES TO SUPPORT OUR
EXPANSION PLANS.
We have experienced, and may continue to experience, growth in the scope
and complexity of our operations and in the number of our employees. This growth
has strained our managerial, financial, manufacturing and other resources.
Future acquisitions may result in inefficiencies as we integrate new operations
and manage geographically diverse operations.
In order to manage our growth, we must continue to implement additional
operating and financial systems and controls. If we fail to successfully
implement such systems and controls in a timely and cost-effective manner as we
grow, our business and financial performance could be materially adversely
affected.
Our success depends to a significant extent upon the continued service of
our key senior management and technical personnel, any of whom would be
difficult to replace. In addition, in connection with our expansion plans, we
will be required to increase the number of qualified engineers and other
employees at our existing factories, as well as factories we may acquire.
Competition for qualified employees is intense, and our business could be
adversely affected by the loss of the services of any of our existing key
personnel. We cannot assure you that we will continue to be successful in hiring
and properly training sufficient numbers of qualified personnel and in
effectively managing our growth. Our inability to attract, retain, motivate and
train qualified new personnel could have a material adverse effect on our
business.
RISKS ASSOCIATED WITH OUR WAFER FABRICATION BUSINESS -- OUR WAFER FABRICATION
BUSINESS IS SUBSTANTIALLY DEPENDENT ON TEXAS INSTRUMENTS.
Our wafer fabrication business depends significantly upon Texas
Instruments. The amended Manufacturing and Purchasing Agreement requires Texas
Instruments to purchase from us at least 40% of ASI's wafer fabrication
facility's capacity in the quarter ending March 31, 2002, 30% of such capacity
in the quarter ending June 30, 2002, and 20% of such capacity in each subsequent
quarter, and, under certain circumstances, Texas Instruments has the right to
purchase from us up to 70% of this capacity. From time to time, Texas
Instruments has failed to meet its minimum purchase obligations, and we cannot
assure you that Texas Instruments will meet its purchase obligations in the
future. As a result of the weakness in the semiconductor industry, Texas
Instruments and our other customers' demand for the output of ASI's wafer
foundry decreased significantly in 2001. Texas Instruments did not meet the
minimum purchase commitment throughout the twelve months ended December 31,
2001. Texas Instruments has made certain concessions to us to partially mitigate
the shortfall in demand. If Texas Instruments fails to meet its purchase
obligations, our company and ASI's businesses could be harmed.
Texas Instruments has transferred certain of its complementary metal oxide
silicon ("CMOS") process technology to ASI, and ASI is dependent upon Texas
Instruments' assistance for developing other state-of-the-art wafer
manufacturing processes. In addition, ASI's technology agreements with Texas
Instruments only cover 0.35 micron, 0.25 micron, and 0.18 micron CMOS process
technology. Texas Instruments has provided ASI a license to use wafer
fabrication-related TI trade secrets for non-Texas Instruments products. Texas
Instruments has not granted ASI a license to Texas Instruments patents,
copyrights, or maskworks. Moreover, Texas Instruments has no obligation to
transfer any next-generation technology to ASI. Our company and ASI's businesses
could be harmed if ASI cannot obtain new technology on commercially reasonable
terms or ASI's relationship with Texas Instruments is disrupted for any reason.
In order for the Manufacturing and Purchasing Agreement and the technology
assistance agreements to continue until December 31, 2007, Amkor, ASI and Texas
Instruments would have to enter into a new technology assistance agreement by
December 31, 2002. However, the advanced wafer fabrication technology that would
be licensed under this agreement would require ASI either to (i) invest in
excess of $400 million to refurbish its existing manufacturing facility,
requiring the shutdown of part or all of its existing facility during the period
of refurbishment, or (ii) obtain access to a new or existing manufacturing
facility owned by a third party that could support the advanced technology. A
third option for ASI would be to build and equip a new manufacturing facility,
but this option would require substantially greater capital investment by ASI
than the other options. We cannot be certain that Amkor and ASI will be able to
negotiate successfully a new technical
8
assistance agreement with Texas Instruments. Moreover, we believe that it will
be extremely difficult for ASI to finance, acquire and equip the necessary
manufacturing facility to deploy the advanced wafer fabrication technology that
would be transferred by Texas Instruments. In the event the Manufacturing and
Purchasing Agreement and the technology assistance agreements with Texas
Instruments were to be terminated, we cannot be certain what the nature of
Amkor's and ASI's business relationship, if any, would be with Texas
Instruments. If Texas Instruments were to significantly reduce or terminate its
purchase of ASI's wafer fabrication services, our wafer fabrication business
would be seriously harmed.
Under the existing technical assistance agreements between Texas
Instruments and ASI, ASI has a license to use wafer fabrication-related trade
secrets of Texas Instruments for non-Texas Instruments' products. In the event
that the Manufacturing and Purchase Agreement is terminated, this license will
also terminate. At such time, it would be necessary for ASI to negotiate a new
license agreement with Texas Instruments relating to its trade secrets, or ASI
would not be able to continue its wafer fabrication operations as currently
practiced. This would have the result of shutting down the wafer fabrications
business of ASI and Amkor unless and until alternative technology arrangements
could be made and implemented at ASI's wafer manufacturing facility.
DEPENDENCE ON MATERIALS AND EQUIPMENT SUPPLIERS -- OUR BUSINESS MAY SUFFER IF
THE COST OR SUPPLY OF MATERIALS OR EQUIPMENT CHANGES ADVERSELY.
We obtain from various vendors the materials and equipment required for the
packaging and test services performed by our factories. We source most of our
materials, including critical materials such as leadframes and laminate
substrates, from a limited group of suppliers. Furthermore, we purchase all of
our materials on a purchase order basis and have no long-term contracts with any
of our suppliers. Our business may be harmed if we cannot obtain materials and
other supplies from our vendors: (1) in a timely manner, (2) in sufficient
quantities, (3) in acceptable quality and (4) at competitive prices.
RAPID TECHNOLOGICAL CHANGE -- OUR BUSINESS WILL SUFFER IF WE CANNOT KEEP UP WITH
TECHNOLOGICAL ADVANCES IN OUR INDUSTRY.
The complexity and breadth of both semiconductor packaging and test
services and wafer fabrication are rapidly changing. As a result, we expect that
we will need to offer more advanced package designs and new wafer fabrication
technology in order to respond to competitive industry conditions and customer
requirements. Our success depends upon the ability of our company and ASI to
develop and implement new manufacturing processes and package design
technologies. The need to develop and maintain advanced packaging and wafer
fabrication capabilities and equipment could require significant research and
development and capital expenditures in future years. In addition, converting to
new package designs or process methodologies could result in delays in producing
new package types or advanced wafer designs that could adversely affect our
ability to meet customer orders.
Technological advances also typically lead to rapid and significant price
erosion and may make our existing products less competitive or our existing
inventories obsolete. If we cannot achieve advances in package design and wafer
fabrication technology or obtain access to advanced package designs and wafer
fabrication technology developed by others, our business could suffer.
COMPETITION -- WE COMPETE AGAINST ESTABLISHED COMPETITORS IN BOTH THE PACKAGING
AND TEST BUSINESS AND THE WAFER FABRICATION BUSINESS.
The subcontracted semiconductor packaging and test market is very
competitive. This sector is comprised of 12 principal companies. We face
substantial competition from established packaging and test service providers
primarily located in Asia, including companies with significant manufacturing
capacity, financial resources, research and development operations, marketing
and other capabilities. These companies also have established relationships with
many large semiconductor companies that are current or potential customers of
our company. On a larger scale, we also compete with the internal semiconductor
packaging and test capabilities of many of our customers.
9
The subcontracted wafer fabrication business is also highly competitive.
Our wafer fabrication services compete primarily with other subcontractors of
semiconductor wafers, including those of Chartered Semiconductor Manufacturing,
Inc., Taiwan Semiconductor Manufacturing Company, Ltd. and United
Microelectronics Corporation. Each of these companies has significant
manufacturing capacity, financial resources, research and development
operations, marketing and other capabilities and has been operating for some
time. Many of these companies have also established relationships with many
large semiconductor companies that are current or potential customers of our
company. If we cannot compete successfully in the future against existing or
potential competitors, our operating results would suffer.
ENVIRONMENTAL REGULATIONS -- FUTURE ENVIRONMENTAL REGULATIONS COULD PLACE
ADDITIONAL BURDENS ON OUR MANUFACTURING OPERATIONS.
The semiconductor packaging process uses chemicals and gases and generates
byproducts that are subject to extensive governmental regulations. For example,
at our foreign manufacturing facilities, we produce liquid waste when silicon
wafers are diced into chips with the aid of diamond saws, then cooled with
running water. Federal, state and local regulations in the United States, as
well as environmental regulations internationally, impose various controls on
the storage, handling, discharge and disposal of chemicals used in our
manufacturing processes and on the factories we occupy.
Increasingly, public attention has focused on the environmental impact of
semiconductor manufacturing operations and the risk to neighbors of chemical
releases from such operations. In the future, applicable land use and
environmental regulations may: (1) impose upon us the need for additional
capital equipment or other process requirements, (2) restrict our ability to
expand our operations, (3) subject us to liability or (4) cause us to curtail
our operations.
PROTECTION OF INTELLECTUAL PROPERTY -- WE MAY BECOME INVOLVED IN INTELLECTUAL
PROPERTY LITIGATION.
As of February 28, 2002, we held 121 U.S. patents, we had 257 pending
patents and we were preparing an additional 20 patent applications for filing.
In addition to the U.S. patents, we held 440 patents in foreign jurisdictions.
We expect to continue to file patent applications when appropriate to protect
our proprietary technologies, but we cannot assure you that we will receive
patents from pending or future applications. In addition, any patents we obtain
may be challenged, invalidated or circumvented and may not provide meaningful
protection or other commercial advantage to us.
We may need to enforce our patents or other intellectual property rights or
to defend our company against claimed infringement of the rights of others
through litigation, which could result in substantial cost and diversion of our
resources. If we fail to obtain necessary licenses or if we face litigation
relating to patent infringement or other intellectual property matters, our
business could suffer.
Although we are not currently a party to any material litigation, the
semiconductor industry is characterized by frequent claims regarding patent and
other intellectual property rights. If any third party makes a valid claim
against us, we could be required to:
- discontinue the use of certain processes;
- cease the manufacture, use, import and sale of infringing products;
- pay substantial damages;
- develop non-infringing technologies; or
- acquire licenses to the technology we had allegedly infringed.
10
CONTINUED CONTROL BY EXISTING STOCKHOLDERS -- MR. JAMES KIM AND MEMBERS OF HIS
FAMILY CAN DETERMINE THE OUTCOME OF ALL MATTERS REQUIRING STOCKHOLDER APPROVAL.
As of February 28, 2002, Mr. James Kim and members of his family
beneficially owned approximately 44.7% of our outstanding common stock. Mr.
James Kim's family, acting together, will substantially control all matters
submitted for approval by our stockholders. These matters could include:
- the election of all of the members of our Board of Directors;
- proxy contests;
- approvals of transactions between our company and ASI or other entities
in which Mr. James Kim and members of his family have an interest,
including transactions which may involve a conflict of interest;
- mergers involving our company;
- tender offers; and
- open market purchase programs or other purchases of our common stock.
STOCK PRICE VOLATILITY
The trading price of our common stock has been and is likely to continue to
be highly volatile and could be subject to wide fluctuations in response to
factors such as:
- actual or anticipated quarter-to-quarter variations in operating results;
- announcements of technological innovations or new products and services
by Amkor or our competitors;
- general conditions in the semiconductor industry;
- changes in earnings estimates or recommendations by analysts;
- developments affecting ASI; and
- or other events or factors, many of which are out of our control.
In addition, the stock market in general, and the Nasdaq National Market
and the markets for technology companies in particular, have experienced extreme
price and volume fluctuations. This volatility has affected the market prices of
securities of companies like ours for that have often been unrelated or
disproportionate to the operating performance. These broad market fluctuations
may adversely affect the market price of our common stock.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the periods indicated is
as follows:
FISCAL YEAR ENDED DECEMBER 31,
--------------------------------
1997 1998 1999 2000 2001
---- ---- ---- ---- ----
Ratio of earnings to fixed charges.......................... 2.5x 4.4x 2.6x 2.4x -x(1)
---------------
(1) The ratio of earnings to fixed charges was less than 1:1 for the nine months
ended December 31, 2001. In order to achieve a ratio of earnings to fixed
charges of 1:1, we would have had to generate an additional $430.0 million
of earnings in the year ended December 31, 2001.
We have calculated the ratio of earnings to fixed charges by dividing (1)
the sum of (x) income before income taxes, equity in income (loss) of investees
and minority interest plus (y) fixed charges by (2) fixed charges. Fixed charges
consist of interest expense plus one-third of rental expense. We believe that
one-third of rental expense is representative of the interest factor of rental
payments under our operating leases.
11
USE OF PROCEEDS
Unless otherwise indicated in the prospectus supplement, the net proceeds
from the sale of securities offered by this prospectus will be used to repay
debt, for acquisitions and for general corporate purposes. Pending such uses, we
will invest the net proceeds in investment grade, interest-bearing securities.
DESCRIPTION OF THE DEBT SECURITIES
The debt securities will either be our senior debt securities, our senior
subordinated debt securities or our subordinated debt securities. The debt
securities will be issued under one or more separate indentures between us and
State Street Bank and Trust Company, N.A., as trustee. Senior debt securities
will be issued under a senior indenture, senior subordinated debt securities
will be issued under a senior subordinated indenture and subordinated debt
securities will be issued under a subordinated indenture. Together, the senior
indenture, the senior subordinated indenture and the subordinated indenture are
called indentures. The prospectus, together with its prospectus supplement, will
describe the terms of a particular series of debt securities.
The following is a summary of the most important provisions and definitions
of the indentures. The summary of selected provisions of the indentures and the
debt securities appearing below and in the prospectus supplement are not
complete and we encourage you to read all the provisions of the applicable
indenture and certificates evidencing the applicable debt securities. The
prospectus supplement, and any supplemental indenture, may add, delete, update
or change the terms of the debt securities as described in this prospectus. For
additional information, you should look at the applicable indenture and
certificate evidencing the applicable debt securities that have been or will be
filed or incorporated by reference as exhibits to the registration statement,
which includes this prospectus. In this description of the debt securities, the
words "Amkor," "we," "us" or "our" refer only to Amkor Technology, Inc. and not
to any of our subsidiaries, unless we otherwise expressly state or the context
otherwise requires.
GENERAL
Debt securities may be issued in separate series without limitation as to
aggregate principal amount. We may specify a maximum aggregate principal amount
for the debt securities of any series. We are not limited as to the amount of
debt securities we may issue under the indentures.
The prospectus supplement will set forth, among other matters:
- whether the debt securities are senior, senior subordinated or
subordinated,
- the offering price,
- the title,
- any limit on the aggregate principal amount,
- the person who shall be entitled to receive interest, if other than the
record holder on the record date,
- the date the principal will be payable,
- the interest rate, if any, the date interest will accrue, the interest
payment dates and the regular record dates,
- the place where payments shall be made,
- any mandatory or optional redemption provisions,
- if applicable, the method for determining how principal, premium, if any,
or interest will be calculated by reference to an index or formula,
- if other than U.S. currency, the currency or currency units in which
principal, premium, if any, or interest will be payable and whether we or
the holder may elect payment to be made in a different currency,
12
- the portion of the principal amount that will be payable upon
acceleration of stated maturity, if other than the entire principal
amount,
- if the principal amount payable at stated maturity will not be
determinable as of any date prior to stated maturity, the amount which
will be deemed to be the principal amount,
- any defeasance provisions, if different from those described below under
"Satisfaction and Discharge; Defeasance,"
- any conversion or exchange provisions, if different from those described
below under "Conversion,"
- whether the debt securities will be issuable in the form of a global
security,
- any subordination provisions, if different from those described below
under "Subordination,"
- any deletions of, or changes or additions to, the events of default or
covenants, and
- any other specific terms of such debt securities.
Unless otherwise specified in the prospectus supplement:
- the debt securities will be registered debt securities, and
- registered debt securities denominated in U.S. dollars will be issued in
denominations of $1,000 or an integral multiple of $1,000.
Debt securities may be sold at a substantial discount below their stated
principal amount, bearing no interest or interest at a rate which at time of
issuance is below market rates.
EXCHANGE AND TRANSFER
Debt securities may be transferred or exchanged at the office of the
security registrar or at the office of any transfer agent designated by us. We
will not impose a service charge for any transfer or exchange, but we may
require holders to pay any tax or other governmental charges associated with any
transfer or exchange.
In the event of any potential redemption in part of debt securities of any
series, we will not be required to:
- issue, register the transfer of, or exchange any debt security of that
series during a period beginning at the opening of business 15 days
before the day of mailing of a notice of redemption and ending at the
close of business on the day of the mailing, or
- register the transfer of or exchange any debt security of that series
selected for redemption, in whole or in part, except the unredeemed
portion being redeemed in part.
We have initially appointed the trustee as the security registrar. Any
transfer agent, in addition to the security registrar, initially designated by
us will be named in the prospectus supplement. We may designate additional
transfer agents or change transfer agents or change the office of the transfer
agent. However, we will be required to maintain a transfer agent in each place
of payment for the debt securities of each series.
GLOBAL SECURITIES
The debt securities of any series may be represented, in whole or in part,
by one or more global securities. Each global security will:
- be registered in the name of a depositary that we will identify in a
prospectus supplement,
- be deposited with the depositary or nominee or custodian, and
- bear any required legends.
13
No global security may be exchanged in whole or in part for debt securities
registered in the name of any person other than the depositary or any nominee
unless:
- the depositary has notified us that it is unwilling or unable to continue
as depositary or has ceased to be qualified to act as depositary,
- an event of default shall have occurred and be continuing, or
- any other circumstances described in a prospectus supplement.
As long as the depositary, or its nominee, is the registered owner of a
global security, the depositary or nominee will be considered the sole owner and
holder of the debt securities represented by the global security for all
purposes under the indentures. Except in the above limited circumstances, owners
of beneficial interests in a global security will not be:
- entitled to have the debt securities registered in their names,
- entitled to physical delivery of certificated debt securities, and
- considered to be holders of those debt securities under the indenture.
Payments on a global security will be made to the depositary or its nominee
as the holder of the global security. Some jurisdictions have laws that require
that certain purchasers of securities take physical delivery of such securities
in definitive form. These laws may impair the ability to transfer beneficial
interests in a global security.
Institutions that have accounts with the depositary or its nominee are
referred to as "participants." Ownership of beneficial interests in a global
security will be limited to participants and to persons that may hold beneficial
interests through participants. The depositary will credit, on its book-entry
registration and transfer system, the respective principal amounts of debt
securities represented by the global security to the accounts of its
participants.
Ownership of beneficial interests in a global security will be shown on and
effected through records maintained by the depositary, with respect to
participants' interests, or any participant, with respect to interests of
persons held by participants on their behalf.
Payments, transfers and exchanges relating to beneficial interests in a
global security will be subject to policies and procedures of the depositary.
The depositary's policies and procedures may change from time to time. Neither
we nor the trustee will have any responsibility or liability for the
depositary's or any participant's records with respect to beneficial interests
in a global security.
PAYMENT AND PAYING AGENTS
The provisions of this paragraph will apply to the debt securities unless
otherwise indicated in the prospectus supplement. Payment of interest on a debt
security on any interest payment date will be made to the person in whose name
the debt security is registered at the close of business on the regular record
date. Payment on debt securities of a particular series will be payable at the
office of a paying agent or paying agents designated by us. However, at our
option, we may pay interest by mailing a check to the record holder. Except as
otherwise disclosed in a prospectus supplement, the corporate trust office of
the trustee will be designated as our sole paying agent.
We may also name any other paying agents in the prospectus supplement. We
may designate additional paying agents, change paying agents or change the
office of any paying agent. However, we will be required to maintain a paying
agent in each place of payment for the debt securities of a particular series.
14
All moneys paid by us to a paying agent for payment on any debt security
which remain unclaimed for a period ending the earlier of:
- 10 business days prior to the date the money would be turned over to the
state, or
- at the end of two years after such payment was due
will be repaid to us. Thereafter, the holder may look only to us for such
payment.
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may not consolidate with or merge into any other person, in a
transaction in which we are not the surviving corporation, or convey, transfer
or lease our properties and assets substantially as an entirety to, any person,
unless:
- the successor, if any, is a U.S. corporation, limited liability company,
partnership, trust or other business entity,
- the successor assumes our obligations on the debt securities and under
the indentures,
- immediately after giving effect to the transaction, no default or event
of default shall have occurred and be continuing, and
- certain other conditions are met.
CONVERSION
We may issue debt securities that are convertible into, or exchangeable
for, shares of common stock, shares of preferred stock, depositary shares or
other securities or property. If we issue debt securities that are convertible
into shares of our common stock, the following provisions included in the
indentures will apply.
If debt securities not called for redemption are converted after a record
date for the payment of interest and prior to the next succeeding interest
payment date, such debt securities must be accompanied by funds equal to the
interest payable on such succeeding interest payment date on the principal
amount so converted unless there exists at the time of conversion a default in
the payment of interest on the debt securities. We are not required to issue
fractional shares of common stock upon conversion of the debt securities and, in
lieu thereof, will pay a cash adjustment based upon the market price of our
common stock on the last trading day prior to the date of conversion.
A holder delivering a debt security for conversion will not be required to
pay any taxes or duties payable in respect of the issue or delivery of common
stock on conversion, but will be required to pay any tax or duty which may be
payable in respect of any transfer involved in the issue or delivery of the
common stock in a name other than the holder of the debt security.
The price at which you will be able to convert your debt securities into
common stock will be subject to adjustment (under formulae set forth in the
indentures) in certain events, including:
(1) our issuance of common stock as a dividend or distribution on
common stock,
(2) certain subdivisions and combinations of our common stock,
(3) our issuance to all or substantially all holders of our common
stock of certain rights or warrants to purchase common stock at a price per
share less than the current market price,
(4) the dividend or other distribution to all holders of our common
stock of shares of our capital stock (other than common stock) or evidences
of our indebtedness or assets (including securities, but excluding those
rights, warrants, dividends and distributions referred to above or paid
exclusively in cash),
(5) dividends or other distributions consisting exclusively of cash
(excluding any cash portion of distributions referred to in clause (6)) to
all holders of common stock to the extent such distributions,
15
combined together with (A) all such all-cash distributions made within the
preceding 12 months in respect of which no adjustment has been made plus
(B) any cash and the fair market value of other consideration payable in
respect of any tender offers by us or any of our subsidiaries for common
stock referred to in clause (6) below concluded within the preceding 12
months in respect of which no adjustment has been made, exceeds 15% of our
market capitalization on the record date for such distribution, and
(6) the purchase of common stock pursuant to a tender offer made by us
or any of our subsidiaries to the extent that the aggregate consideration,
together with (A) any cash and the fair market value of any other
consideration payable in any other tender offer expiring within 12 months
preceding such tender offer in respect of which no adjustment has been made
plus (B) the aggregate amount of any such all-cash distributions referred
to in clause (5) above to all holders of common stock within the 12 months
preceding the expiration of such tender offer in respect of which no
adjustments have been made, exceeds 15% of our market capitalization on the
expiration date of such tender offer.
In lieu of adjusting the conversion price pursuant to clauses (4) or (5)
above, we may reserve shares, evidences of indebtedness, assets or cash for
distribution to holders upon their conversion of debt securities.
We many, from time to time and to the extent permitted by law, reduce the
conversion price of the debt securities by any amount for any period of at least
20 days, in which case we shall give at least 15 days' notice of such decrease,
if our board of directors has made a determination that such decrease would be
in our best interests, which determination shall be conclusive. We may, at our
option, make such reductions in the conversion price, in addition to those set
forth above, as our board of directors deems advisable to avoid or diminish any
income tax to holders of common stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated as
such for income tax purposes.
EVENTS OF DEFAULT
Each indenture defines an event of default with respect to any series of
debt securities as one or more of the following events:
(1) failure to pay principal of or any premium on any debt security of
that series when due,
(2) failure to pay any interest on any debt security of that series
for 30 days when due,
(3) failure to deposit any sinking fund payment when due,
(4) failure to perform any other covenant in the indenture that
continues for 60 days after being given the notice required in the
indenture,
(5) our bankruptcy, insolvency or reorganization, and
(6) any other event of default specified in the indenture.
An event of default of one series of debt securities is not necessarily an
event of default for any other series of debt securities.
If an event of default, other than an event of default described in clause
(5) above, shall occur and be continuing, either the trustee or the holders of
at least 25% in aggregate principal amount of the outstanding securities of that
series may declare the principal amount of the debt securities of that series to
be due and payable immediately. If an event of default described in clause (5)
above shall occur, the principal amount of all the debt securities of that
series will automatically become immediately due and payable. Any payment by us
on the senior subordinated debt securities and the subordinated debt securities
following any acceleration will be subject to the subordination provisions
described below under "Subordination -- Senior Subordinated Debt Securities" and
"-- Subordinated Debt Securities."
After acceleration the holders of a majority in aggregate principal amount
of the outstanding securities of that series may, under certain circumstances,
rescind and annul such acceleration if all events of default, other
16
than the non-payment of accelerated principal, interest or premium, or other
specified amount, have been cured or waived.
Other than the duty to act with the required care during an event of
default, the trustee will not be obligated to exercise any of its rights or
powers at the request of the holders unless the holders offer to the trustee
reasonable indemnity. Generally, the holders of a majority in aggregate
principal amount of the outstanding debt securities of any series will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the trustee or exercising any trust or power conferred on
the trustee.
A holder will not have any right to institute any proceeding under the
indentures, or for the appointment of a receiver or a trustee, or for any other
remedy under the indentures, unless:
(1) the holder has previously given to the trustee written notice of a
continuing event of default with respect to the debt securities of that
series,
(2) the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made a written request and
have offered reasonable indemnity to the trustee to institute the
proceeding, and
(3) the trustee has failed to institute the proceeding within 60 days
after the request, and
(4) the trustee has not received direction inconsistent with the
original request from the holders of a majority in aggregate principal
amount of the outstanding debt securities of that series within 60 days
after the original request.
Holders may, however, sue to enforce the payment of principal, premium or
interest on or after the due date without following the procedures listed in (1)
through (4) above.
We will furnish the trustee an annual statement by our officers as to
whether or not we are in default in the performance of the indenture and, if so,
specifying all known defaults.
MODIFICATION AND WAIVER
We and the trustee may make modifications and amendments to the indentures,
or enter into one or more supplemental indentures, with the consent of the
holders of a majority in aggregate principal amount of the outstanding
securities of each series affected by the modification or amendment. We may also
make modifications and amendments to the indentures, or enter into one or more
supplemental indentures, without their consent, for certain purposes including,
but not limited to:
- providing for a successor of our company to assume the covenants under
the indenture,
- adding covenants or events of default for the benefit of the holders,
- making certain changes to facilitate the issuance of the securities,
- curing any ambiguity or correcting or supplementing any defects or
inconsistencies, provided that such modification or amendment shall not
materially adversely affect the holders,
- securing the securities,
- providing for a successor trustee, and
- permitting or facilitating the defeasance and discharge of the
securities.
However, neither we nor the trustee may make any modification or amendment
without the consent of the holder of each outstanding security of that series
affected by the modification or amendment if such modification or amendment
would:
- change the stated maturity of any debt security,
- reduce the principal, premium, if any, or interest on any debt security,
17
- reduce the principal of an original issue discount security or any other
debt security payable on acceleration of maturity,
- change the place of payment or the currency in which any debt security is
payable,
- impair the right to sue for any payment after the stated maturity or
redemption date,
- if senior subordinated debt securities or subordinated debt securities,
modify the subordination provisions in a materially adverse manner to the
holders of such senior subordinated debt securities,
- adversely affect the right to convert any debt security, or
- change the provisions in the indenture that relate to modifying or
amending the indenture.
SATISFACTION AND DISCHARGE; DEFEASANCE
We may be discharged from our obligations, subject to limited exceptions,
on the debt securities of any series that have matured or will mature or are
redeemed within one year if we deposit with the trustee enough cash to pay all
the principal, interest and any premium due to the stated maturity date or
redemption date of the debt securities. If we are discharged from our
obligations on any series of senior subordinated debt securities or subordinated
debt securities as described in this paragraph, the subordination provisions of
the related indenture will no longer be applicable with respect to that series
of debt securities.
Each indenture contains a provision that permits us to elect:
- to be discharged from all of our obligations, subject to limited
exceptions, with respect to any series of debt securities then
outstanding; and/or
- to be released from our obligations with respect to any series of debt
securities then outstanding under the following covenants and from the
consequences of an event of default resulting from a breach of these
covenants:
- covenants as to payment of taxes and maintenance of properties,
- any covenants provided in a prospectus supplement for the benefits
of the holders of such debt securities, and
- any covenants provided in a prospectus supplement that establish
the form or terms of such debt securities.
To make either of the above elections with respect to a series of debt
securities, we must deposit in trust with the trustee enough money to pay in
full the principal, interest and premium on the debt securities of that series.
This amount may be made in cash and/or U.S. government obligations. As a
condition to either of the above elections, we must deliver to the trustee an
opinion of counsel that the holders of the debt securities will not recognize
income, gain or loss for Federal income tax purposes as a result of the action.
If we satisfy the conditions applicable to either of the above elections with
respect to any series of senior subordinated debt securities or subordinated
debt securities, the subordination provisions applicable to the debt securities
of that series will no long be applicable.
If we effect covenant defeasance with respect to any series of debt
securities and those debt securities are declared due an payable because of the
occurrence of an event of default (other than an event of default resulting from
a breach of the covenants from which we have been released as a result of that
covenant defeasance), the amount of moneys and/or U.S. government obligations
deposited to effect that release may not be sufficient to pay amounts due on the
debt securities of that series at the time of any acceleration resulting from
that event of default. However, we would remain liable to make payment of those
amounts at the time of acceleration.
18
NOTICES
Notices to holders will be given by mail to the addresses of the holders in
the security register.
GOVERNING LAW
The indentures and the debt securities will be governed by, and construed
under, the law of the State of New York, without regard to conflicts of laws
principles.
REGARDING THE TRUSTEE
The indentures limit the right of the trustee, if it becomes our creditor,
to obtain payment of claims or secure its claims.
The trustee is permitted to engage in certain other transactions. If the
trustee acquires any conflicting interest, however, the trustee must eliminate
the conflict or resign.
NO PROTECTION IN THE EVENT OF A CHANGE OF CONTROL
Unless otherwise indicated in a prospectus supplement with respect to a
particular series of debt securities, the debt securities will not contain any
provisions which may afford holders of the debt securities protection in the
event we have a change in control or in the event of a highly leveraged
transaction (whether or not such transaction results in a change in control).
COVENANTS
Unless otherwise indicated in a prospectus supplement, the debt securities
will not contain any restrictive covenants, including covenants restricting
either us or any of our subsidiaries from incurring, issuing, assuming or
guarantying any indebtedness secured by a lien on any of our or our
subsidiaries' property or capital stock, or restricting either us or any of our
subsidiaries from entering into sale and leaseback transactions.
SUBORDINATION
SENIOR DEBT SECURITIES
The senior debt securities will be unsecured and will rank equally in right
of payment with all of our other unsecured and non-subordinated senior debt.
SENIOR SUBORDINATED DEBT SECURITIES
The senior subordinated debt securities are subordinated in right of
payment, to the extent provided in the senior subordinated indenture, to the
prior payment in full in cash or other payment satisfactory to holders of senior
debt of all senior debt, including our 9 1/4% Senior Notes Due March 2006, our
9 1/4% Senior Notes Due February 2008 and any other senior debt securities
specified in the prospectus supplement. The senior subordinated debt securities
will rank equally in right of payment with our 10 1/2% Senior Subordinated Notes
due May 2009. The senior subordinated debt securities will rank senior in right
of payment to our 5 3/4% Convertible Subordinated Notes Due June 2006, our 5%
Convertible Subordinated Notes Due March 2007 and any other subordinated
indebtedness. In the event of any dissolution, winding up, liquidation or
reorganization of us, the holders of the specified senior debt shall be entitled
to receive payment in full before holders of senior subordinated debt securities
shall be entitled to receive any payment or distribution on any senior
subordinated debt securities.
In the event of insolvency, upon any distribution of our assets, holders of
senior subordinated debt securities are required to pay over their share of such
distribution to the trustee in bankruptcy, receiver or other person distributing
the assets of the Company to pay all senior debt remaining to the extent
necessary to pay all holders of senior indebtedness in full.
19
If the maturity of the senior subordinated debt securities is accelerated
following an event of default under the senior subordinated debt securities, we
will not make any payment on the senior subordinated debt securities until the
senior debt is paid in full. We or the trustee for the senior subordinated debt
securities will notify the holders of senior debt of any acceleration of the
maturity of the senior subordinated debt securities.
The subordination provisions will prevent us from making any payments on
the senior subordinated securities if:
- we fail to pay any payment on any senior debt beyond the applicable grace
period; or
- any other default occurs and is continuing under any designated senior
debt that permits holders of the designated senior debt to accelerate the
maturity of any designated senior debt and any holders of designated
senior debt send the trustee and us a notice of such default, which is
referred to as a "payment blockage notice."
We may resume making payments on the senior subordinated debt securities
once the default on the senior debt is cured or waived or otherwise ceases to
exist. We may also resume making payment on the senior subordinated debt
securities following a non-payment default, regardless of whether it has been
waived or cured, 179 days after the date on which the applicable payment
blockage notice is received. No new payment blockage period may start pursuant
to a payment blockage notice unless 365 days have elapsed since our receipt of
the prior payment blockage notice.
No non-payment default that existed on any senior debt on the date of
delivery of any payment blockage notice to the trustee shall be the basis for a
subsequent payment blockage notice.
In the event that any holder of senior subordinated debt securities, or the
trustee acting on their behalf, receives a payment or distribution of assets in
contravention of any terms of the senior subordinated indenture, then the
payment or distribution is to be held by the recipient in trust for the benefit
of holders of senior debt.
DEFINITIONS RELATING TO SENIOR SUBORDINATED DEBT SECURITIES
"indebtedness" means:
- our indebtedness for borrowed money,
- our obligations evidenced by a note, debenture, bond or other written
instrument,
- our obligations as lessee under leases required, in conformity with
generally accepted accounting principles, to be accounted for as
capitalized lease obligations on the balance sheet,
- our obligations under any lease or related document, including a purchase
agreement, in connection with the lease of real property which provides
that we are contractually obligated to purchase or cause a third party to
purchase the leased property and as a result guarantee a minimum residual
value of the leased property to the lessor and our obligations under such
lease or related document to purchase or to cause a third party to
purchase such leased property,
- our obligations in connection with letters of credit, bank guarantees or
bankers' acceptances, including reimbursement obligations,
- debt of others secured by a lien, mortgage or security interest on our
property,
- our obligations in connection with the deferred purchase price of any
property or assets,
- our obligations under any interest rate or currency swap agreements, cap,
floor and collar agreements, spot and forward contracts and similar
agreements and arrangements,
- our obligations under direct or indirect guaranties in respect of, and
obligations to purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, obligations of others of the kinds
referred to above, and
20
- our obligations under any deferrals, renewals, extensions, refinancings
or refundings of any of the above obligations
"designated senior debt" means (i) any senior debt outstanding under our
credit agreement, our 9 1/4% Senior Notes due March 2006 and our 9 1/4% Senior
Notes due February 2008, and (ii) any senior debt if the instrument evidencing
the senior debt or other agreements to which we are a party, expressly provides
that the senior debt is to be "designated senior debt" for purposes of the
senior subordinated indenture and any supplemental indenture relating to the
senior subordinated securities.
"senior debt" means the principal of, premium, if any, and interest on,
including bankruptcy interest and fees, and rent payable on all our
indebtedness, whether outstanding on the date of the indenture or thereafter
created, incurred, assumed, guaranteed or in effect guaranteed by us, including
all renewals or extensions. The term "senior debt" does not, however, include:
- indebtedness evidenced by the senior subordinated debt securities,
- indebtedness evidenced by the subordinated debt securities,
- liabilities for taxes,
- indebtedness between or among us and any of our subsidiaries, except if
it is pledged as security for any senior debt,
- our accounts payable to trade creditors arising in the ordinary course of
business,
- our 10 1/2% Senior Subordinated Notes due May 2009,
- our 5 3/4% Convertible Subordinated Notes due June 2006,
- our 5% Convertible Notes due March 2007, and
- any indebtedness if the instrument evidencing the indebtedness indicates
that it is to be equal to or junior to the subordinated securities.
However, senior debt shall not include any indebtedness or obligation that
provides that such indebtedness or obligation is not superior in right of
payment to the senior subordinated debt securities.
The senior subordinated debt securities are effectively subordinated to all
existing and future liabilities of our subsidiaries. Any right we have to
participate in any distribution of the assets of any of our subsidiaries upon
their liquidation, reorganization or insolvency, and the consequent right of
holders of subordinated debt securities to participate in those assets, will be
subject to the claims of the creditors of such subsidiary. In addition, any
claim we may have as a creditor would still be subordinate to any security
interest in the assets of such subsidiary and any indebtedness of such
subsidiary senior to that held by us.
SUBORDINATED DEBT SECURITIES
The subordinated debt securities are subordinated in right of payment, to
the extent provided in the subordinated indenture, to the prior payment in full
in cash or other payment satisfactory to holders of senior debt of all senior
debt, including our 9 1/4% Senior Notes Due March 2006, our 9 1/4% Senior Notes
Due February 2008, our 10 1/2% Senior Subordinated Notes Due May 2009 and any
other senior debt securities or senior subordinated debt securities. The
subordinated debt securities will rank equally in right of payment with our
5 3/4% Convertible Subordinated Notes Due June 2006, our 5% Convertible
Subordinated Notes Due March 2007 and any other subordinated indebtedness issued
by us from time to time. In the event of any dissolution, winding up,
liquidation or reorganization of us, the holders of senior debt shall be
entitled to receive payment in full before holders of subordinated debt
securities shall be entitled to receive any payment or distribution on any
subordinated debt securities.
In the event of insolvency, upon any distribution of our assets, holders of
subordinated debt securities are required to pay over their share of such
distribution to the trustee in bankruptcy, receiver or other person
21
distributing the assets of the Company to pay all senior debt remaining to the
extent necessary to pay all holders of senior indebtedness in full.
If the maturity of the subordinated debt securities is accelerated
following an event of default under the subordinated debt securities, we will
not make any payment on the subordinated debt securities until the senior debt
is paid in full. We or the trustee for the subordinated securities will notify
the holders of senior debt of any acceleration of the maturity of the
subordinated debt securities.
The subordination provisions will prevent us from making any payments on
the subordinated securities if:
- we fail to pay any payment on any senior debt beyond the applicable grace
period; or
- any other default occurs and is continuing under any designated senior
debt that permits holders of the designated senior debt to accelerate the
maturity of any designated senior debt and any holders of designated
senior debt send the trustee and us a notice of such default, which is
referred to as a "payment blockage notice."
We may resume making payments on the subordinated debt securities once the
default on the senior debt is cured or waived or otherwise ceases to exist. We
may also resume making payment on the subordinated debt securities following a
non-payment default, regardless of whether it has been waived or cured, 179 days
after the date on which the applicable payment blockage notice is received. No
new payment blockage period may start pursuant to a payment blockage notice
unless 365 days have elapsed since our receipt of the prior payment blockage
notice.
No non-payment default that existed on any senior debt on the date of
delivery of any payment blockage notice shall be the basis for a subsequent
payment blockage notice.
In the event that any holder of subordinated debt securities, or the
trustee acting on their behalf, receives a payment or distribution of assets in
contravention of any terms of the subordinated indenture, then the payment or
distribution is to be held by the recipient in trust for the benefit of holders
of senior debt.
DEFINITIONS RELATING TO SUBORDINATED DEBT SECURITIES
"indebtedness" means:
- our indebtedness for borrowed money,
- our obligations evidenced by a note, debenture, bond or other written
instrument,
- our obligations as lessee under leases required, in conformity with
generally accepted accounting principles, to be accounted for as
capitalized lease obligations on the balance sheet,
- our obligations under any lease or related document, including a purchase
agreement, in connection with the lease of real property which provides
that we are contractually obligated to purchase or cause a third party to
purchase the leased property and as a result guarantee a minimum residual
value of the leased property to the lessor and our obligations under such
lease or related document to purchase or to cause a third party to
purchase such leased property,
- our obligations in connection with letters of credit, bank guarantees or
bankers' acceptances, including reimbursement obligations,
- debt of others secured by a lien, mortgage or security interest on our
property,
- our obligations in connection with the deferred purchase price of any
property or assets,
- our obligations under any interest rate or currency swap agreements, cap,
floor and collar agreements, spot and forward contracts and similar
agreements and arrangements,
- our obligations under direct or indirect guaranties in respect of, and
obligations to purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, obligations of others of the kinds
referred to above, and
22
- our obligations under any deferrals, renewals, extensions, refinancings
or refundings of any of the above obligations
"designated senior debt" means (i) any senior debt outstanding under our
credit agreement, our 9 1/4% Senior Notes due March 2006, our 9 1/4% Senior
Notes due February 2008 and our 10 1/2% Senior Subordinated Notes due May 2009,
and (ii) any senior debt if the instrument evidencing the senior debt or other
agreements to which we are a party, expressly provides that the senior debt is
to be "designated senior debt" for purposes of the subordinated indenture and
any supplemental indenture relating to the subordinated securities.
"senior debt" means the principal of, premium, if any, and interest on,
including bankruptcy interest and fees, and rent payable on all our
indebtedness, whether outstanding on the date of the indenture or thereafter
created, incurred, assumed, guaranteed or in effect guaranteed by us, including
all renewals or extensions. The term "senior debt" does not, however, include:
- indebtedness evidenced by the subordinated debt securities,
- liabilities for taxes,
- indebtedness between or among us and any of our subsidiaries, except if
it is pledged as security for any senior debt,
- our accounts payable to trade creditors arising in the ordinary course of
business,
- our 5 3/4% Convertible Subordinated Notes due June 2006,
- our 5% Convertible Subordinated Notes due March 2007, and
- any indebtedness if the instrument evidencing the indebtedness indicates
that it is to be equal to or junior to the subordinated securities.
However, senior debt shall not include any indebtedness or obligation that
provides that such indebtedness or obligation is not superior in right of
payment to the subordinated debt securities.
The subordinated debt securities are effectively subordinated to all
existing and future liabilities of our subsidiaries. Any right we have to
participate in any distribution of the assets of any of our subsidiaries upon
their liquidation, reorganization or insolvency, and the consequent right of
holders of subordinated debt securities to participate in those assets, will be
subject to the claims of the creditors of such subsidiary. In addition, any
claim we may have as a creditor would still be subordinate to any security
interest in the assets of such subsidiary and any indebtedness of such
subsidiary senior to that held by us.
DESCRIPTION OF CAPITAL STOCK
GENERAL
We are authorized to issue up to 500,000,000 shares of common stock, $.001
par value, and 10,000,000 shares of preferred stock, $.001 par value. As of
January 1, 2002, there were an aggregate of 161,782,287 shares of common stock
outstanding. In addition, as of January 1, 2002, an aggregate of 12,356,366
shares of common stock were issuable upon exercise of outstanding options, and
an additional 5,415,000 shares of common stock were reserved for issuance
pursuant to future option grants, under the Company's 1998 Stock Plan, 1998
Stock Option Plan for French Employees, and 1998 Director Option Plan. An
aggregate of 1,500,000 shares of common stock were reserved for issuance
pursuant to sales under the Company's 1998 Employee Stock Purchase Plan and
401(k) Plan. 3,900,000 shares of common stock were reserved for issuance upon
conversion of outstanding warrants and 11,655,414 shares of common stock were
reserved for issuance upon conversion of our convertible notes.
The following description of our capital stock does not purport to be
complete and we encourage you to read our Certificate of Incorporation and
Bylaws, which have been publicly filed with the SEC, and the provisions of
applicable Delaware law.
23
DESCRIPTION OF COMMON STOCK
Holders of common stock are entitled to one vote per share on all matters
to be voted upon by the stockholders. Holders of common stock do not have
cumulative voting rights, and, therefore, holders of a majority of the shares
voting for the election of directors can elect all of the directors. In such
event, the holders of the remaining shares will not be able to elect any
directors. See "Risk Factors -- Continued Control by Existing Stockholders."
Holders of the common stock are entitled to receive such dividends as may be
declared from time to time by the Board of Directors out of funds legally
available therefore, subject to the terms of any existing or future agreements
with our debtholders. We have never declared or paid cash dividends on our
capital stock. We expect to retain future earnings, if any, for use in the
operation and expansion of our business, and do not anticipate paying any cash
dividends in the foreseeable future. In the event of our liquidation,
dissolution or winding up, the holders of common stock are entitled to share
ratably in all assets legally available for distribution after payment of all
debts and other liabilities and subject to the prior rights of any holders of
preferred stock then outstanding.
DESCRIPTION OF PREFERRED STOCK
Our Board of Directors is authorized to issue up to 10,000,000 shares of
preferred stock in one or more series and to fix the price, rights, preferences,
privileges and restrictions thereof, including dividend rights, dividend rates,
conversion rights, voting rights, terms of redemption, redemption prices,
liquidation preferences and the number of shares constituting a series or the
designation of such series, without any further vote or action by our
stockholders. No shares of preferred stock are currently designated or issued.
DESCRIPTION OF THE DEPOSITARY SHARES
At our option, we may elect to offer fractional shares of preferred stock,
rather than full shares of preferred stock. If we do, we will issue to the
public receipts for depositary shares and each of these depositary shares will
represent a fraction (to be set forth in the prospectus supplement) of a share
of a particular series of preferred stock. Each owner of a depositary share will
be entitled, in proportion to the applicable fractional interest in shares of
preferred stock underlying that depositary share, to all rights and preferences
of the preferred stock underlying that depositary share. Those rights include,
to the extent applicable, dividend, voting, redemption and liquidation rights.
The shares of preferred stock underlying the depositary shares will be
deposited with a bank or trust company selected by us to act as depositary,
under a deposit agreement between us, the depositary and the holders of the
depositary receipts. The depositary will be the transfer agent, registrar and
dividend disbursing agent for the depositary shares.
Depositary receipts issued pursuant to the depositary agreement will
evidence the depositary shares. Holders of depositary receipts agree to be bound
by the deposit agreement, which requires holders to take certain actions such as
filing proof of residence and paying certain charges.
The summary of terms of the depositary shares contained in this prospectus
is not complete. For the complete terms of the depositary shares, you should
refer to the prospectus supplement for that series of depositary shares and the
forms of the deposit agreement, our certificate of incorporation and the
certificate of amendment for the applicable series of preferred stock that are,
or will be, filed with the Securities and Exchange Commission with respect to
that series. The provisions set forth below with respect to depositary shares
may be modified in the applicable prospectus supplement with respect to such
series of depositary shares.
DIVIDENDS
The depositary will distribute all cash dividends or other cash
distributions received in respect of the series of preferred stock underlying
the depositary shares to the record holders of depositary receipts in proportion
to the number of depositary shares owned by those holders on the relevant record
date, which will be the same date as the record date for the preferred stock.
24
In the event of a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary receipts
that are entitled to receive the distribution, unless the depositary determines
that it is not feasible to make the distribution. If this occurs, the
depositary, with our approval, may adopt another method for the distribution,
including selling the property and distributing the net proceeds to the holders,
as set forth in the prospectus supplement.
LIQUIDATION PREFERENCE
Unless otherwise set forth in the prospectus supplement, in the event of
our voluntary or involuntary liquidation, dissolution or winding up, the holders
of each depositary share will be entitled to receive the fraction of the
liquidation preference, if any, accorded each share of the applicable series of
preferred stock, as set forth in the applicable prospectus supplement.
REDEMPTION
If a series of preferred stock underlying the depositary shares is subject
to redemption, the depositary shares will be redeemed from the proceeds received
by the depositary resulting from the redemption, in whole or in part, of
preferred stock held by the depositary. Whenever we redeem any preferred stock
held by the depositary, the depositary will redeem, as of the same redemption
date, the number of depositary shares representing the preferred stock so
redeemed. The depositary will mail the notice of redemption to the record
holders of the depositary receipts promptly upon receiving the notice from us
and, unless otherwise provided in the applicable prospectus supplement, no fewer
than 35 or more than 60 days prior to the date fixed for redemption of the
preferred stock and the depositary shares.
VOTING
Upon receipt of notice of any meeting at which the holders of preferred
stock are entitled to vote, the depositary will mail the information contained
in the notice of meeting to the record holders of the depositary receipts
underlying the preferred stock. Each record holder of those depositary receipts
on the record date will be entitled to instruct the depositary as to the
exercise of the voting rights pertaining to the amount of preferred stock
underlying that holder's depositary shares. The record date for the depositary
will be the same date as the record date for the preferred stock. The depositary
will try, as far as practicable, to vote the preferred stock underlying the
depositary shares in accordance with such instructions, and we will agree to
take all action which may be deemed necessary by the depositary in order to
enable the depositary to do so. The depositary will not vote the preferred stock
to the extent that it does not receive specific instructions from the holders of
depositary receipts.
WITHDRAWAL OF PREFERRED STOCK
Owners of depositary shares are entitled, upon surrender of depositary
receipts at the principal office of the depositary and payment of any unpaid
amount due to the depositary, to receive the number of whole shares of preferred
stock underlying the depositary shares. Partial shares of preferred stock will
not be issued. Holders of preferred stock will not be entitled to deposit the
shares under the deposit agreement or to receive depositary receipts evidencing
depositary shares for the preferred stock.
AMENDMENT AND TERMINATION OF DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may be amended at any time and from time to
time by agreement between us and the depositary. However, any amendment which
materially and adversely alters the rights of the holders of depositary shares,
other than fee changes, will not be effective unless the amendment has been
approved by at least a majority of the depositary shares then outstanding. The
deposit agreement may be terminated by the depositary or us only if:
- all outstanding depositary shares have been redeemed, or
- there has been a final distribution in respect of the preferred stock in
connection with our dissolution and such distribution has been made to
all the holders of depositary shares.
25
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will also pay
charges of the depositary in connection with the initial deposit of the
preferred stock and the initial issuance of the depositary shares, any
redemption of the preferred stock and all withdrawals of preferred stock by
owners of depositary shares. Holders of depositary receipts will pay transfer,
income and other taxes and governmental charges and other specified charges as
provided in the deposit agreement to be for their accounts. The depositary may
refuse to transfer depositary shares, withhold dividends and distributions and
sell the depositary shares evidenced by the depositary receipt if the charges
are not paid.
MISCELLANEOUS
The depositary will forward to the holders of depositary receipts all
reports and communications we deliver to the depositary that we are required to
furnish to the holders of the preferred stock. In addition, the depositary will
make available for inspection by holders of depositary receipts at the principal
office of the depositary, and at such other places as it may from time to time
deem advisable, any reports and communications we deliver to the depositary as
the holder of preferred stock.
Neither the depositary nor we will be liable if either of us is prevented
or delayed by law or any circumstance beyond our control in performing our
respective obligations under the deposit agreement. Our obligations and those of
the depositary will be limited to performance in good faith of our respective
duties under the deposit agreement. Neither the depositary nor we will be
obligated to prosecute or defend any legal proceeding in respect of any
depositary shares or preferred stock unless satisfactory indemnity is furnished.
We and the depositary may rely on written advice of counsel or accountants, on
information provided by holders of depositary receipts or other persons believed
in good faith to be competent to give such information and on documents believed
to be genuine and to have been signed or presented by the proper party or
parties.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering a notice to us of its
election to do so. We may remove the depositary at any time. Any such
resignation or removal will take effect upon the appointment of a successor
depositary and its acceptance of such appointment. The successor depositary must
be appointed within 60 days after delivery of the notice for resignation or
removal and must be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$150,000,000.
FEDERAL INCOME TAX CONSEQUENCES
Owners of the depositary shares will be treated for United States federal
income tax purposes as if they were owners of the preferred stock underlying the
depositary shares. As a result, owners will be entitled to take into account for
United States federal income tax purposes income and deductions to which they
would be entitled if they were holders of such preferred stock. No gain or loss
will be recognized for United States federal income tax purposes upon the
withdrawal of preferred stock in exchange for depositary shares. The tax basis
of each share of preferred stock to an exchanging owner of depositary shares
will be, upon such exchange, the same as the aggregate tax basis of the
depositary shares exchanged. The holding period for preferred stock in the hands
of an exchanging owner of depositary shares will include the period during which
such person owned such depositary shares.
DESCRIPTION OF THE WARRANTS
GENERAL
We may issue warrants for the purchase of debt securities, preferred stock
or common stock. Warrants may be issued independently or together with debt
securities, preferred stock or common stock and may be attached to or separate
from any offered securities. Each series of warrants will be issued under a
separate
26
warrant agreement to be entered into between us and a bank or trust company, as
warrant agent. The warrant agent will act solely as our agent in connection with
the warrants and will not have any obligation or relationship of agency or trust
for or with any holders or beneficial owners of warrants.
This summary of certain provisions of the warrants is not complete. For the
complete terms of the warrant agreement, you should refer to the prospectus
supplement for that series of warrants and the warrant agreement for that
particular series.
DEBT WARRANTS
The prospectus supplement relating to a particular issue of warrants to
purchase debt securities will describe the terms of the debt warrants, including
the following:
- the title of the debt warrants,
- the offering price for the debt warrants, if any,
- the aggregate number of the debt warrants,
- the designation and terms of the debt securities purchasable upon
exercise of the debt warrants,
- if applicable, the designation and terms of the debt securities that the
debt warrants are issued with and the number of debt warrants issued with
each debt security,
- if applicable, the date from and after which the debt warrants and any
debt securities issued with them will be separately transferable,
- the principal amount of debt securities that may be purchased upon
exercise of a debt warrant and the price at which the debt securities may
be purchased upon exercise, which may be payable in cash, securities or
other property,
- the dates on which the right to exercise the debt warrants will commence
and expire,
- if applicable, the minimum or maximum amount of the debt warrants that
may be exercised at any one time,
- whether the debt warrants represented by the debt warrant certificates or
debt securities that may be issued upon exercise of the debt warrants
will be issued in registered or bearer form,
- information with respect to book-entry procedures, if any,
- the currency or currency units in which the offering price, if any, and
the exercise price are payable,
- if applicable, a discussion of material United States federal income tax
considerations,
- the antidilution provisions of the debt warrants, if any,
- the redemption or call provisions, if any, applicable to the debt
warrants, and
- any additional terms of the debt warrants, including terms, procedures,
and limitations relating to the exchange and exercise of the debt
warrants.
STOCK WARRANTS
The prospectus supplement relating to a particular issue of warrants to
issue our common stock or preferred stock will describe the terms of the
warrants, including the following:
- the title of the warrants,
- the offering price for the warrants, if any,
- the aggregate number of the warrants,
27
- the designation and terms of the common stock or preferred stock that may
be purchased upon exercise of the warrants,
- if applicable, the designation and terms of the securities with which the
warrants are issued and the number of warrants issued with each security,
- if applicable, the date from and after which the warrants and any
securities issued with the warrants will be separately transferable,
- the number of shares of common stock or preferred stock that may be
purchased upon exercise of a warrant and the price at which such shares
may be purchased upon exercise,
- the dates on which the right to exercise the warrants shall commence and
expire,
- if applicable, the minimum or maximum amount of the warrants that may be
exercised at any one time,
- the currency or currency units in which the offering price, if any, and
the exercise price are payable,
- if applicable, a discussion of material United States federal income tax
considerations,
- the antidilution provisions of the warrants, if any,
- the redemption or call provisions, if any, applicable to the warrants,
and
- any additional terms of the warrants, including terms, procedures, and
limitations relating to the exchange and exercise of the warrants.
DESCRIPTION OF THE SUBSCRIPTION RIGHTS
GENERAL
We may issue subscription rights to purchase common stock, preferred stock,
depositary shares or warrants to purchase preferred stock or common stock.
Subscription rights may be issued independently or together with any other
offered security and may or may not be transferable by the purchaser receiving
the subscription rights. In connection with any subscription rights offering to
our stockholders, we may enter into a standby underwriting arrangement with one
or more underwriters pursuant to which such underwriter will purchase any
offered securities remaining unsubscribed for after such subscription rights
offering. In connection with a subscription rights offering to our stockholders,
certificates evidencing the subscription rights and a prospectus supplement will
be distributed to our stockholders on the record date set by us for receiving
subscription rights in such subscription rights offering.
The applicable prospectus supplement will describe the following terms of
subscription rights in respect of which this prospectus is being delivered:
- the title of such subscription rights,
- the securities for which such subscription rights are exercisable,
- the exercise price for such subscription rights,
- the number of such subscription rights issued to each stockholder,
- the extent to which such subscription rights are transferable,
- if applicable, a discussion of the material United States federal income
tax considerations applicable to the issuance or exercise of such
subscription rights,
- the date on which the right to exercise such subscription rights shall
commence, and the date on which such right shall expire,
28
- the extent to which such subscription rights includes an
over-subscription privilege with respect to unsubscribed securities,
- the extent to which such subscription rights have a step-up privilege
with respect to fractional shares,
- if applicable, the material terms of any standby underwriting arrangement
entered into by us in connection with the subscription rights offering,
and
- any other terms of such subscription rights, including terms, procedures
and limitations relating to the exchange and exercise of such
subscription rights.
EXERCISE OF SUBSCRIPTION RIGHTS
Each subscription right will entitle the holder of subscription rights to
purchase for cash such principal amount of shares of preferred stock, depository
shares, common stock, warrants or any combination thereof, at such exercise
price as shall in each case be set forth in, or be determinable as set forth in,
the prospectus supplement relating to the subscription rights offered thereby.
Subscription rights may be exercised at any time up to the close of business on
the expiration date for such subscription rights set forth in the prospectus
supplement. After the close of business on the expiration date, all unexercised
subscription rights will become void.
Subscription rights may be exercised as set forth in the prospectus
supplement relating to the subscription rights offered thereby. Upon receipt of
payment and the subscription rights certificate properly completed and duly
executed at the corporate trust office of the subscription rights agent or any
other office indicated in the prospectus supplement, we will, as soon as
practicable, forward the shares of preferred stock or common stock, depository
shares or warrants purchasable upon such exercise. In the event that not all of
the subscription rights issued in any offering are exercised, we may determine
to offer any unsubscribed offered securities directly to persons other than
stockholders, to or through agents, underwriters or dealers or through a
combination of such methods, including pursuant to standby underwriting
arrangements, as set forth in the applicable prospectus supplement.
PLAN OF DISTRIBUTION
We may sell the securities separately or together:
- through one or more underwriters or dealers in a public offering and sale
by them,
- directly to investors, or
- through agents.
We may distribute the securities:
- from time to time in one or more transactions at a fixed price or prices,
which may be changed from time to time;
- at market prices prevailing at the times of sale,
- at prices related to such prevailing market prices, or
- at negotiated prices.
We will describe the method of distribution of the securities in the
prospectus supplement.
We may determine the price or other terms of the securities offered under
this prospectus by use of an electronic auction. We will describe how any
auction will determine the price or any other terms, how potential investors may
participate in the auction and the nature of the underwriters' obligations in
the related supplement to this prospectus.
Underwriters, dealers or agents may receive compensation in the form of
discounts, concessions or commissions from us or our purchasers, as their agents
in connection with the sale of securities. These
29
underwriters, dealers or agents may be considered to be underwriters under the
Securities Act of 1933, as amended. As a result, discounts, commissions, or
profits on resale received by the underwriters, dealers or agents may be treated
as underwriting discounts and commissions. The prospectus supplement will
identify any such underwriter, dealer or agent and describe any compensation
received by them from us, provided, however, that if we make an at the market
offering of equity securities under Rule 415(a)(4) of the Securities Act, we
will file a post-effective amendment to identify the underwriters of such
transaction. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
Underwriters, dealers and agents may be entitled to indemnification by us
against certain civil liabilities, including liabilities under the Securities
Act, or to contribution with respect to payments made by the underwriters,
dealers or agents, under agreements between us and the underwriters, dealers and
agents.
We may grant underwriters who participate in the distribution of securities
an option to purchase additional securities to cover over-allotments, if any, in
connection with the distribution.
All securities will be new issues of securities with no established trading
market, except in the case of our common stock. Underwriters involved in the
public offering and sale of securities may make a market in the securities.
However, they are not obligated to make a market and may discontinue
market-making activity at any time. No assurance can be given as to the
liquidity of the trading market for any securities.
Underwriters or agents and their associates may be customers of, engage in
transactions with or perform services for us in the ordinary course of business.
LEGAL MATTERS
Wilson Sonsini Goodrich & Rosati, Professional Corporation, Palo Alto,
California, will pass upon the validity of the issuance of the securities
offered by this prospectus for us.
EXPERTS
The audited consolidated financial statements of Amkor Technology, Inc. and
its subsidiaries for the year ended December 31, 1999, included in our Annual
Report on Form 10-K, for the year ended December 31, 2001 incorporated by
reference in this prospectus, have been audited by Arthur Andersen LLP,
independent public accountants. In their report, that firm states that with
respect to the investment in ASI and with respect to Amkor Technology Korea,
Inc. ("ATK"), one of our wholly-owned subsidiaries, its opinion is based on the
report of Samil Accounting Corporation.
On September 11, 2000, we dismissed Arthur Andersen LLP as our independent
public accountants. We engaged PricewaterhouseCoopers LLP as our new independent
public accountants as of September 18, 2000.
The consolidated financial statements of Amkor Technology, Inc. and its
subsidiaries as of and for the years ended December 31, 2001 and 2000, included
in our Annual Report on Form 10-K incorporated by reference in this prospectus,
except as they relate to Amkor Technology Philippines (P1/P2), Inc. and Amkor
Technology Philippines (P3/P4), Inc. (both wholly-owned subsidiaries of ours),
have been audited by PricewaterhouseCoopers LLP, independent accountants, and
insofar as they relate to Amkor Technology Philippines (P1/P2), Inc. and Amkor
Technology Philippines (P3/P4), Inc., by SyCip Gorres Velayo & Co., as stated in
their report which is included in our Annual Report on Form 10-K, incorporated
by reference in this prospectus.
30
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses, other than any underwriting
discount and commissions, in connection with the issuance and distribution of
the securities being registered. All amounts indicated are estimates (other than
the registration fee):
Registration fee............................................ $ 69,000
Trustee's fees and expenses................................. 25,000
Accounting fees and expenses................................ 75,000
Printing and engraving...................................... 50,000
Transfer agent and registrar fees and expenses.............. 25,000
Blue sky and legal investment fees and expenses............. 20,000
Legal fees and expenses of the registrant................... 150,000
Miscellaneous............................................... 20,000
Total..................................................... $434,000
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("Delaware Law")
authorizes a court to award or a corporation's Board of Directors to grant
indemnification to directors and officers in terms that are sufficiently broad
to permit indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended. Our bylaws provide for the mandatory indemnification of our
directors and officers to the maximum extent permitted by Delaware law. Our
bylaws also provide (i) that we may modify the scope of indemnification by
individual contracts with our directors and officers, and (ii) that we shall not
be required to indemnify any director or officer unless the indemnification is
required by law, the proceeding in which indemnification is sought was
authorized in advance by our board of directors, the indemnification is provided
by us, in our sole discretion pursuant to powers vested in us under the General
Corporation Law of Delaware or the indemnification is required by individual
contract. In addition our bylaws give us the power to indemnify our employees
and agents to the maximum extent permitted by Delaware law.
We refer you to the form of underwriting agreement to be filed as an
exhibit to this Registration Statement as incorporated by reference as an
exhibit to a current Report on Form 8-K for certain provisions regarding
indemnification of our officers and directors by the underwriters.
ITEM 16. EXHIBITS
The following exhibits are filed with this Registration Statement or
incorporated by reference herein:
EXHIBIT
NUMBER EXHIBIT TITLE
------- -------------
1.1 Form of Underwriting Agreement.*
3.1 Restated Certificate of Incorporation.(1)
3.2 Certificate of Correction to Certificate of
Incorporation.(2)
3.3 Restated Bylaws.(2)
4.1 Form of Senior Indenture.***
4.2 Form of Senior Subordinated Indenture.***
4.3 Form of Subordinated Indenture.***
4.4 Form of Senior Debt Security (included in Exhibit 4.1).***
II-1
EXHIBIT
NUMBER EXHIBIT TITLE
------- -------------
4.5 Form of Senior Subordinated Debt Security (included in
Exhibit 4.2).***
4.6 Form of Subordinated Debt Security (included in Exhibit
4.3).***
4.7 Form of Preferred Stock Certificate of Designation.*
4.8 Form of Preferred Stock Certificate.*
4.9 Form of Deposit Agreement.*
4.10 Form of Depositary Receipt (included in Exhibit 4.9).*
4.11 Form of Warrant Agreement.*
4.12 Form of Warrant Certificate (included in Exhibit 4.11).*
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.***
12.1 Computation of Ratio of Earnings to Fixed Charges.(3)
23.1 Consent of PricewaterhouseCoopers LLP, independent
accountants.
23.2 Consent of SyCip Gorres Velayo & Co., independent public
accountants.
23.3 Consent of Samil Accounting Corporation, independent public
accountants.
23.4 Consent of Arthur Andersen LLP, independent public
accountants.
23.5 Consent of Siana Carr and O'Connor, LLP, independent public
accountants.
23.6 Consent of Ahn Kwon & Co., independent accountants.
23.7 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1).***
24.1 Power of Attorney**
25.1 Form T-1 Statement of Eligibility of Trustee for Senior
Indenture under the Trust Indenture Act of 1939.***
25.2 Form T-1 Statement of Eligibility of Trustee for Senior
Subordinated Indenture under the Trust Indenture Act of
1939.***
25.3 Form T-1 Statement of Eligibility of Trustee for
Subordinated Indenture under the Trust Indenture Act of
1939.***
---------------
* To be filed as an exhibit to a report pursuant to Section 13(a) or 15(d) of
the Securities Act of 1934.
** Previously filed on January 24, 2002.
*** Previously filed on April 9, 2002.
(1) Incorporated by reference to the Registrant's Registration Statement on Form
S-1 filed October 6, 1997, as amended (File No. 333-37235).
(2) Incorporated by reference to the Registrant's Registration Statement on Form
S-1 filed August 28, 1998, as amended (File No. 333-49645).
(3) Incorporated by reference from Registrant's Annual Report on Form 10-K for
the year ended December 31, 2001.
ITEM 17. UNDERTAKINGS
1. 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, as amended, (the "Securities Act");
(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
II-2
in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that the undertakings set forth in clauses (i) and
(ii) above shall not apply if the information required to be included in
a post-effective amendment by these clauses is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 that remain unsold at the
termination of the offering.
2. The undersigned registrant hereby undertakes, that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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.
3. In the case that the securities to be registered are offered to existing
security holders pursuant to warrants or rights and any securities not taken by
security holders are reoffered to the public, the undersigned registrant hereby
undertakes to supplement the prospectus, after the expiration of the
subscription period, to set forth the results of the subscription offer, the
transactions by the underwriters during the subscription period, the amount of
unsubscribed securities to be purchased by the underwriters, and the terms of
any subsequent reoffering thereof. If any public offering by the underwriters is
to be made on terms differing from those set forth on the cover page of the
prospectus, a post-effective amendment will be filed to set forth the terms of
such offering.
4. 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 provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the 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 Act and
will be governed by the final adjudication of such issue.
II-3
5. The undersigned registrant hereby undertakes that:
(a) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(b) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
6. The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Trust Indenture Act.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of West Chester, Commonwealth of Pennsylvania, on April
25, 2002.
AMKOR TECHNOLOGY, INC.
By: /s/ KENNETH T. JOYCE
------------------------------------
Kenneth T. Joyce
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, on
April 25, 2002 this Registration Statement has been signed by the following
persons in the capacities indicated:
NAME TITLE DATE
---- ----- ----
* Chief Executive Officer and April 25, 2002
------------------------------------------------ Chairman
James J. Kim
* President and director April 25, 2002
------------------------------------------------
John N. Boruch
/s/ KENNETH T. JOYCE Chief Financial Officer April 25, 2002
------------------------------------------------ (Principal Financial and
Kenneth T. Joyce Accounting Officer)
* Director April 25, 2002
------------------------------------------------
Winston J. Churchill
* Director April 25, 2002
------------------------------------------------
Thomas D. George
* Director April 25, 2002
------------------------------------------------
Gregory K. Hinckley
* Director April 25, 2002
------------------------------------------------
Juergen Knorr
* Director April 25, 2002
------------------------------------------------
John B. Neff
*By: /s/ KENNETH T. JOYCE
------------------------------------------
Kenneth T. Joyce
Attorney-in-Fact
II-5
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT TITLE
------- -------------
1.1 Form of Underwriting Agreement.*
3.1 Restated Certificate of Incorporation.(1)
3.2 Certificate of Correction to Certificate of
Incorporation.(2)
3.3 Restated Bylaws.(2)
4.1 Form of Senior Indenture.***
4.2 Form of Senior Subordinated Indenture.***
4.3 Form of Subordinated Indenture.***
4.4 Form of Senior Debt Security (included in Exhibit 4.1).***
4.5 Form of Senior Subordinated Debt Security (included in
Exhibit 4.2).***
4.6 Form of Subordinated Debt Security (included in Exhibit
4.3).***
4.7 Form of Preferred Stock Certificate of Designation.*
4.8 Form of Preferred Stock Certificate.*
4.9 Form of Deposit Agreement.*
4.10 Form of Depositary Receipt (included in Exhibit 4.9).*
4.11 Form of Warrant Agreement.*
4.12 Form of Warrant Certificate (included in Exhibit 4.11).*
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.***
12.1 Computation of Ratio of Earnings to Fixed Charges.(3)
23.1 Consent of PricewaterhouseCoopers LLP, independent
accountants.
23.2 Consent of SyCip Gorres Velayo & Co., independent public
accountants.
23.3 Consent of Samil Accounting Corporation, independent public
accountants.
23.4 Consent of Arthur Andersen LLP, independent public
accountants.
23.5 Consent of Siana Carr and O'Connor, LLP, independent public
accountants.
23.6 Consent of Ahn Kwon & Co., independent accountants.
23.7 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1).***
24.1 Power of Attorney**
25.1 Form T-1 Statement of Eligibility of Trustee for Senior
Indenture under the Trust Indenture Act of 1939.***
25.2 Form T-1 Statement of Eligibility of Trustee for Senior
Subordinated Indenture under the Trust Indenture Act of
1939.***
25.3 Form T-1 Statement of Eligibility of Trustee for
Subordinated Indenture under the Trust Indenture Act of
1939.***
---------------
* To be filed as an exhibit to a report pursuant to Section 13(a) or 15(d) of
the Securities Act of 1934.
** Previously filed on January 24, 2002.
*** Previously filed on April 9, 2002.
(1) Incorporated by reference to the Registrant's Registration Statement on Form
S-1 filed October 6, 1997, as amended (File No. 333-37235).
(2) Incorporated by reference to the Registrant's Registration Statement on Form
S-1 filed August 26, 1998, as amended (File No. 333-49645).
(3) Incorporated by reference from Registrant's Annual Report on Form 10-K for
the year ended December 31, 2001.