As filed with the Securities and Exchange Commission on July 2, 2003
Registration No. 333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------
DIODES INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
3050 East Hillcrest Drive
Westlake Village, California 91362
(Address of principal executive offices) (Zip Code)
95-2039518
(I.R.S. Employer Identification No.)
DIODES INCORPORATED 2001 OMNIBUS EQUITY INCENTIVE PLAN
(Full title of the plan)
Carl C. Wertz
Chief Financial Officer
3050 East Hillcrest Drive
Westlake Village, California 91362
(Name and address of agent for service)
(805) 446-4800
(Telephone number, including area code, of agent for service)
Copy to:
Charles S. Kaufman, Esq.
Sheppard, Mullin, Richter & Hampton LLP
333 South Hope Street, 48th Floor
Los Angeles, California 90071
(213) 620-1780
CALCULATION OF REGISTRATION FEE
- ---------------------------- -------------------------- ------------------------- -------------------------- -----------------------
Title of each class of Proposed maximum Proposed maximum Amount of
securities to be registered Amount to be registered offering price per aggregate offering registration fee(2)
(1) share (2) price(2)
- ---------------------------- -------------------------- ------------------------- -------------------------- -----------------------
Common Stock, par value 1,000,000 shares $19.21 $19,210,000 $1,554
$0.66 2/3 per share
- ---------------------------- -------------------------- ------------------------- -------------------------- -----------------------
(1) In addition, this Registration Statement also covers such indeterminate
number of shares of Common Stock as may be issued pursuant to the
employee benefit plan described here as a result of the adjustment
provisions thereof.
(2) Pursuant to Rule 457(h), the maximum offering price, per share and in
the aggregate, and the registration fee were calculated based upon the
average of the high and low prices of the Common Stock on June 30,
2003, as reported on the Nasdaq Stock Market.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I
of Form S-8 will be sent or given to participants in the 2001 Omnibus Equity
Incentive Plan of Diodes Incorporated, a Delaware corporation (the "Company"),
as specified by Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Act of 1933, as amended
(the "Securities Act"). Such documents need not be filed with the Commission
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Securities Act Rule 424 in accordance with the Note to
Part I of Form S-8. These documents, and the documents incorporated by reference
in this Registration Statement pursuant to Item 3 of Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Company with
the Commission are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for its fiscal year ended
December 31, 2002, filed with the Commission on March 31, 2003;
(b) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 2003, filed with the Commission on May 14, 2003;
(c) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, since the end of the
fiscal year covered by the annual report referred to in (a) above; and
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (File No. 00030811), filed
with the Commission on June 15, 2000, including any amendment or report
filed for the purposes of updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), prior to the filing of a post-effective amendment
that indicates that all securities offered hereby have been sold or that
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any information that is
furnished in any document incorporated or deemed to be incorporated by reference
herein, but that is not deemed "filed" under the Securities Act or the Exchange
Act, is not incorporated by reference herein. Any statement contained herein or
in a document, all or a portion of which is incorporated or deemed to be
incorporated by reference herein, shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or amended, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
2
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides
that a corporation may indemnify directors and officers as well as other
employees and individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation or a
derivative action), if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceedings, had no reasonable cause to
believe their conduct was unlawful.
A similar standard applies in the case of derivative actions,
except that indemnification only extends to expenses (including attorneys' fees)
actually and reasonably incurred in connection with the defense or settlement of
such action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's certificate of
incorporation, bylaws, disinterested director vote, stockholder vote, agreement
or otherwise.
As permitted by Section 145 of the Delaware General
Corporation Law, Article EIGHTH of the Company's Certificate of Incorporation,
as amended, provides:
"The Company shall indemnify any and all persons whom it has
the power to indemnify pursuant to the General Corporation Law
of Delaware against any and all expenses, judgments, fines,
amounts paid in settlement, and any other liabilities to the
fullest extent permitted by such Law and may, at the
discretion of the Board of Directors, purchase and maintain
insurance, at its expense, to protect itself and such persons
against any such expense, judgment, fine, amount paid in
settlement or other liability, whether or not the Company
would have the power to so indemnify such person under the
General Corporation Law of Delaware."
Also as permitted by Section 145 of the Delaware General
Corporation Law, Article IV of the Company's Bylaws, as amended, provides:
"Section 1. This corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether, civil, criminal, administrative or investigative
(other than an action by or in the right of this corporation)
by reason of the fact that he is or was a director, officer,
employee or agent of this corporation, or is or was serving at
the request of this corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses
(including attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of this corporation, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to
the best interests of this corporation, and with respect to
any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
3
Section 2. This corporation shall indemnify any person who was
or is a party, or is threatened to be made a party, to any
threatened, pending or completed action or suit by or in the
right of this corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer,
employee or agent of this corporation, or is or was serving at
the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of
this corporation, and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to this corporation
unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case,
such expenses which the Court of Chancery or such other court
shall deem proper.
Section 3. To the extent that a director, officer, employee or
agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding
referred to in Sections 1 and 2, or in defense of any claim,
issue or matter therein, he shall be indemnified against
expenses (including attorney's fees) actually and reasonably
incurred by him in connection therewith.
Section 4. Any indemnification under Section 1 and 2 (unless
ordered by a court) shall be made by this corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is
proper in the circumstances because he has met the applicable
standard of conduct set forth in Sections 1 and 2. Such
determination shall be made (1) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a
quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the stockholders.
Section 5. Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by this corporation in
advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors in the
specific case upon receipt of an undertaking by or on behalf
of the director, officer, employee or agent to repay such
amount unless it shall ultimately be determined that he is
entitled to be indemnified by this corporation as authorized
by this by-law.
Section 6. The indemnification provided in this by-law shall
not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.
Section 7. This corporation, when authorized by the Board of
Directors, shall purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or
agent of this corporation, or is or was serving at the request
of this corporation as a director, officer, employee or agent
4
of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of
his status as such, whether or not this corporation would have
the power to indemnify him against such liability under the
provisions of this by-law."
The Company maintains an insurance policy pursuant to which
the directors and certain officers of the Company are insured, within the limits
and subject to the limitations of the policy, against certain expenses in
connection with the defense of certain claims, actions, suits or proceedings,
and certain liabilities which might be imposed as a result of such claims,
actions, suits or proceedings, which may be brought against them by reason of
their being or having been such directors or officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description of Exhibit
------ ----------------------
3.1 Certificate of Incorporation of Diodes Incorporated, as amended to date
3.2 Bylaws of Diodes Incorporated (1)
5.1 Opinion of Sheppard, Mullin, Richter & Hampton LLP
23.1 Consent of Moss Adams LLP
23.2 Consent of Sheppard, Mullin, Richter & Hampton LLP (included in its
opinion filed as Exhibit 5.1)
24.1 Power of Attorney (See page 7)
- ---------------------
(1) Incorporated by reference to Exhibit 3.2 to the Company's
Registration Statement on Form 8-A (File No. 00030811), filed with the
Securities and Exchange Commission on June 15, 2000.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
5
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form S-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of 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 which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference in this Registration Statement shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, executive officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
6
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Westlake Village, State of California, on June 30,
2003.
DIODES INCORPORATED
By /s/ C.H. Chen
C.H. Chen,
President, Chief Executive Officer
and Director (Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each of the undersigned
directors and officers of Diodes Incorporated, a Delaware corporation (the
"Company"), hereby nominate and appoint C.H. Chen and Carl C. Wertz, and each of
them acting or signing singly, as his or her agents and attorneys-in-fact (the
"Agents"), in his or her respective name and in the capacity or capacities
indicated below to execute and/or file, with all exhibits thereto, and other
documents in connection therewith, (1) a registration statement on Form S-8
under the Securities Act of 1933, as amended, (the "Act"), in connection with
the registration under the Act of shares of the Company's common stock issuable
under the 2001 Omnibus Equity Incentive Plan (including the schedules and all
exhibits and other documents filed therewith or constituting a part thereof);
and (2) any one or more amendments to any part of the foregoing registration
statement, including any post-effective amendments, or appendices or supplements
that may be required to be filed under the Act to keep such registration
statement effective or to terminate its effectiveness.
Further, the undersigned do hereby authorize and direct such
agents and attorneys-in-fact to take any and all actions and execute and file
any and all documents with the Securities and Exchange Commission (the "SEC"),
or state regulatory agencies, necessary, proper or convenient in their opinion
to comply with the Act and the rules and regulations or orders of the SEC, or
state regulatory agencies, adopted or issued pursuant thereto, including the
making of any requests for acceleration of the effective date of said
registration statement, to the end that the registration statement of the
Company shall become effective under the Act and any other applicable law.
Finally, each of the undersigned does hereby ratify, confirm
and approve each and every act and document which the said appointment agents
and attorneys-in-fact may take, execute or file pursuant thereto with the same
force and effect as though such action had been taken or such documents had been
executed or filed by the undersigned respectively.
This Power of Attorney shall remain in full force and effect
until revoked or superseded by written notice filed with the SEC.
7
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ C.H. Chen President, Chief Executive Officer, and
C.H. Chen Director (Principal Executive Officer) June 30, 2003
/s/ Carl C. Wertz Chief Financial Officer, Secretary, and
Carl C. Wertz Treasurer (Principal Financial and
Accounting Officer) June 30, 2003
/s/ Raymond Soong Chairman of the Board June 30, 2003
Raymond Soong
/s/ Michael R. Giordano Director June 30, 2003
Michael R. Giordano
/s/ Keh-Shew Lu Director June 30, 2003
Keh-Shew Lu
/s/ M.K. Lu Director June 30, 2003
M.K. Lu
/s/ Shing Mao Director June 30, 2003
Shing Mao
/s/ John M. Stich Director June 30, 2003
John M. Stich
8
EXHIBIT INDEX
Exhibit Number Description of Exhibit
3.1 Certificate of Incorporation of Diodes Incorporated,
as amended to date
3.2 Bylaws of Diodes Incorporated (1)
5.1 Opinion of Sheppard, Mullin, Richter & Hampton LLP
23.1 Consent of Moss Adams LLP
23.2 Consent of Sheppard, Mullin, Richter & Hampton LLP (included
in its opinion filed as
Exhibit 5.1)
24.1 Power of Attorney (See page 7)
(1) Incorporated by reference to Exhibit 3.2 to the Company's
Registration Statement on Form 8-A (File No. 00030811), filed with the
Securities and Exchange Commission on June 15, 2000.
9