Form S-8 DIODES INC /DEL/
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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 | 95-2039518 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
| 4949 Hedgcoxe Road, Suite 200 Plano, Texas |
75024 | |
| (Address of Principal Executive Offices) | (Zip Code) | |
Diodes Incorporated 2013 Equity Incentive Plan
(Full title of the plan)
Richard D. White
Chief Financial Officer and Secretary
Diodes Incorporated
4949 Hedgcoxe Road, Suite 200
Plano, Texas, 75024
(Name and Address of Agent For Service)
(972) 987-3900
(Telephone number, including area code, of agent for service)
Copies to:
Rick F. Yeh, Esq.
Diodes Incorporated
4949 Hedgcoxe Road, Suite 200
Plano, TX 75024
(927) 987-3970
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large Accelerated filer |
x |
Accelerated filer |
¨ | |||
| Non-accelerated filer |
¨ (Do not check if a smaller reporting company) |
Smaller reporting company |
¨ | |||
CALCULATION OF REGISTRATION FEE
|
| ||||||||
| Title of Securities to be Registered |
Amount to be Registered (1) |
Proposed Maximum Offering Price Per Share |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee | ||||
| Common Stock, par value $0.66 2/3 per share: To be issued pursuant to the Diodes Incorporated 2013 Equity Incentive Plan |
724,158 shares | $18.655 (2) | $13,509,167.50 (2) | $1,360.37 | ||||
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| (1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Common Stock which become issuable pursuant to the Diodes Incorporated 2013 Equity Incentive Plan by reason of any stock split, stock dividend, recapitalization or any other similar transaction, effected without receipt of consideration, which results in an increase in the Registrant’s outstanding shares of Common Stock. |
| (2) | Estimated pursuant to Rules 457(c) and 457(h) under the Securities Act solely for the purpose of calculating the registration fee, based on the average of the high and low prices of the Registrant’s Common Stock as reported on the Nasdaq Global Select Market on June 24, 2016. |
The Registration Statement shall become effective upon filing in accordance with Rule 462(a) under the Securities Act.
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed to register 724,158 shares of Common Stock in connection with awards granted to employees of Pericom Semiconductor Corporation (“Pericom”) under Registrant’s 2013 Equity Incentive Plan pursuant to the terms of the Agreement and Plan of Merger by and among Registrant, PSI Merger Sub, Inc. (“Merger Sub”) and Pericom dated as of September 2, 2015, whereby Merger Sub merged with and into Pericom, with Pericom surviving as a wholly-owned subsidiary of Registrant.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Program Annual Information.*
| * | Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act and the Note to Part I of Form S-8. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Securities and Exchange Commission (the “SEC”) allows the Registrant to “incorporate by reference” the information that the Registrant files with them, which means that the Registrant can disclose important information by reference to those documents. The information incorporated by reference is considered to be part of this Registration Statement, and later information filed with the SEC will update and supersede this information. The following documents filed by the Registrant with the SEC are hereby incorporated by reference into this Registration Statement:
| (a) | The Registrant’s latest Annual Report on Form 10-K for the fiscal year ended December 31, 2015, filed on March 11, 2016; |
| (b) | All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the Registrant’s latest Annual Report; and |
| (c) | The description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A filed on June 15, 2000, pursuant to Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such descriptions. |
In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, will be incorporated by reference into this Registration Statement from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the 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 statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
The legality of the purchase of shares of Registrant’s Common Stock under Registrant’s 2013 Equity Incentive Plan has been passed on by Rick F. Yeh, In House Counsel of Registrant. Mr. Yeh is paid a salary by Registrant, is a participant in various employee benefit plans of Registrant and owns 604 shares of Common Stock and 760 unvested restricted Stock Units.
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 Registrant’s Certificate of Incorporation, as amended, provides:
EIGHTH: 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 Registrant’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.
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.
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Section 3. To the extent that a director, officer, employee or agent of this 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 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 Registrant has entered into agreements to indemnify its directors and executive officers (pursuant to the form of agreement in Exhibit 10.5 to the Registrant’s Form 8-K filed with the SEC on September 2, 2005 (SEC Accession No. 0001144204-05-027933)) to the fullest extent authorized or permitted by the Delaware General Corporation Law or other statutes of Delaware having similar import and effect. These indemnification agreements, among other things, indemnify the Registrant’s directors and executive officers for certain expenses and liabilities (including attorneys’ fees), judgments, fines and settlement amounts incurred by such persons. In accordance with the indemnification agreements, the Registrant may also obtain an insurance policy pursuant to which the directors and executive officers of the Registrant are insured, within the limits and subject to the limitations of the policy, against 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 having been such directors or executive officers. The Registrant has entered into agreements to indemnify its directors and executive officers (pursuant to the form of agreement in Exhibit 10.5 to the Registrant’s Form 8-K filed with the SEC on September 2, 2005 (SEC Accession No. 0001144204-05-027933)) to the fullest extent authorized or permitted by the Delaware General Corporation Law or other statutes of Delaware having similar import and effect. These indemnification agreements, among other things, indemnify the Registrant’s directors and executive officers for certain expenses and liabilities (including attorneys’ fees), judgments, fines and settlement amounts incurred by such persons. In accordance with the indemnification agreements, the Registrant may also obtain an insurance policy pursuant to which the directors and executive officers of the Registrant are insured, within the limits and subject to the limitations of the policy, against 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 having been such directors or executive officers.
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The Registrant 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.
The foregoing summaries are necessarily subject to the complete text of the statute, the Registrant’s Certificate of Incorporation and Bylaws and the arrangements referred to above and are qualified in their entirety by reference thereto.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits hereto is incorporated herein by this reference.
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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) to include any material information with respect to the plan of distribution not previously disclosed in 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 information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 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 Section 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 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.
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(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC 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.
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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-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Plano, State of Texas, on June 30, 2016.
| DIODES INCORPORATED | ||
| By: | /s/ Keh-Shew Lu | |
| Keh-Shew Lu | ||
| President and Chief Executive Officer | ||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Keh-Shew Lu and Richard D. White and each of them acting individually, as his or her true and lawful attorneys-in-fact and agents, each with full power of substitution, for him or her in any and all capacities, to sign: (1) this Registration Statement on Form S-8 under the Securities Act of 1933, as amended (the “Securities Act”), in connection with the registration under the Securities Act of shares of common stock of the Registrant to be issued in connection with the Diodes Incorporated 2013 Equity Incentive Plan; 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 Securities Act to keep such Registration Statement effective or to terminate its effectiveness; and/or to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, with full power of each to act alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Name and Signature |
Title |
Date | ||
| /s/ KEH-SHEW LU Keh-Shew Lu |
President, Chief Executive Officer, and Director (Principal Executive Officer) | June 30, 2016 | ||
| /s/ RICHARD D. WHITE Richard D. White |
Chief Financial Officer and Secretary (Principal Financial Officer) | June 30, 2016 | ||
| /s/ BRETT R. WHITMIRE Brett R. Whitmire |
Corporate Controller (Principal Accounting Officer) | June 30, 2016 | ||
| /s/ RAYMOND SOONG Raymond Soong |
Chairman of the Board of Directors | June 30, 2016 | ||
| /s/ C.H. CHEN C.H. Chen |
Director | June 30, 2016 | ||
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| /s/ MICHAEL R. GIORDANO Michael R. Giordano |
Director | June 30, 2016 | ||
| /s/ L.P. HSU L.P. Hsu |
Director | June 30, 2016 | ||
| /s/ JOHN M. STICH John M. Stich |
Director | June 30, 2016 | ||
| /s/ MICHAEL K.C. TSAI Michael K.C. Tsai |
Director | June 30, 2016 | ||
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INDEX TO EXHIBITS
The following documents are filed as exhibits to this registration statement:
| Exhibit |
Description of Document | |
| 4.1 | Certificate of Incorporation of Diodes Incorporated, as amended (incorporated by reference to Exhibit 3.1 of the Diodes Incorporated Quarterly Report on Form 10-Q filed with the SEC on May 10, 2013). | |
| 4.2 | Amended Bylaws of Diodes Incorporated (incorporated by reference to Exhibit 3.1 of the Diodes Incorporated Current Report on Form 8-K filed with the SEC on January 11, 2016). | |
| 4.3 | Form of Certificate for Common Stock, par value $0.66 2/3 per share, for Diodes Incorporated (incorporated by reference to Exhibit 4.1 of the Diodes Incorporated Registration Statement on Form S-3 filed with the SEC on August 25, 2005). | |
| 5.1 | Opinion of Rick F. Yeh, Esq.* | |
| 23.1 | Consent of Moss Adams LLP, Independent Registered Public Accounting Firm.* | |
| 23.2 | Consent of Rick F. Yeh, Esq. (included in Exhibit 5.1).* | |
| 24.1 | Power of Attorney (included as part of the signature page to this Registration Statement).* | |
| 99.1 | Diodes Incorporated 2013 Equity Incentive Plan (incorporated by reference to Exhibit 99.1 of the Diodes Incorporated Registration Statement on Form S-8 filed with the SEC on June 13, 2013). | |
| 99.2 | Form of Stock Unit Agreement (Substitute for Pericom Semiconductor Corporation Domestic Existing RSUs and Options).* | |
| 99.3 | Form of Stock Unit Agreement (Substitute for Pericom Semiconductor Corporation International Existing RSUs and Options).* | |
| * | Filed herewith |
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Exhibit 5.1
OPINION OF RICK F. YEH, ESQ.
June 30, 2016
Diodes Incorporated
4949 Hedgcoxe Road, Suite 200
Plano, TX 75024
| Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
I am a member of the Bar of the State of Michigan and am In House Counsel at Diodes Incorporated, a Delaware corporation (the “Company”). I am familiar with the Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended, to be filed with the Securities and Exchange Commission, covering 724,158 shares (the “Shares”) of the Company’s Common Stock, par value $0.66 2/3 per share, in connection with awards granted to employees of Pericom Semiconductor Corporation under the Company’s 2013 Equity Incentive Plan (the “2013 Plan”) pursuant to the terms of the Agreement and Plan of Merger by and among the Company, PSI Merger Sub, Inc. and Pericom Semiconductor Corporation (“Pericom”) dated as of September 2, 2015 (the “Merger Agreement”).
At your request, I have examined the Company’s Certificate of Incorporation and bylaws and originals or copies certified, or otherwise identified to my satisfaction, of such other documents, corporate records, certificates of public officials and other instruments as I deemed necessary or advisable for the purpose of rendering this opinion.
This opinion is being furnished in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
Based on the foregoing review, and in reliance thereon, I am of the opinion that the Shares in connection with the grant of awards to employees of Pericom pursuant to the Merger Agreement as contemplated in the applicable agreements provided for under the 2013 Plan have been duly authorized by all necessary corporate action on the part of the Company and will be validly issued, fully-paid and non-assessable.
I hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the reference to me under the caption “Interests of Named Experts and Counsel” in Part II, Item 5 of the Registration Statement. In giving this consent, I do not concede that I am within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, the rules and regulations of the Securities and Exchange Commission promulgated thereunder or Item 509 of Regulation S-K.
I express no opinion as to matters governed by any laws other than the Delaware General Corporation Law.
My opinion is expressly limited to the matters set forth above, and I render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Shares, the 2013 Plan, the award agreements related to the Shares, or the Registration Statement.
| Respectfully submitted, |
| /s/ Rick F. Yeh |
| Rick F. Yeh |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement (Form S-8) of Diodes Incorporated (the “Company”) of our report dated March 11, 2016, related to the consolidated financial statements of the Company and the effectiveness of internal control over financial reporting of the Company appearing in the Annual Report (Form 10-K) for the year ended December 31, 2015, filed with the Securities and Exchange Commission.
/s/ Moss Adams LLP
Los Angeles, California
June 30, 2016
Exhibit 99.2
Domestic Existing RSUs and Options
DIODES INCORPORATED
2013 EQUITY INCENTIVE PLAN
STOCK UNIT AGREEMENT
WHEREAS, on November 25, 2015, the transactions contemplated by the Agreement and Plan of Merger between Diodes Incorporated, a Delaware corporation, (the “Company”), PSI Merger Sub, Inc. and Pericom Semiconductor Corporation (“Pericom”) dated September 2, 2015, as amended November 6, 2015 (the “Merger Agreement”) were consummated and Pericom became a wholly owned subsidiary of the Company; and
WHEREAS, pursuant to the terms of the Merger Agreement, each outstanding award of restricted stock units of Pericom (“Pericom RSUs”) or each unexpired and unexercised award of options to purchase shares of common stock of Pericom (“Pericom Options”) that is not vested prior to the Effective Time (as defined in the Merger Agreement) shall be cancelled and replaced by the Company and become an award of Stock Units issued under the Diodes Incorporated 2013 Equity Incentive Plan as it may be amended from time to time (the “Plan”) with respect to the number of Shares, rounded down to the nearest whole Share, that is equal to (A) for Pericom RSUs, the product of the number of shares of Pericom common stock that were subject to such unvested Pericom RSUs immediately prior to the Effective Time multiplied by the quotient obtained by dividing the Merger Consideration (as defined in the Merger Agreement) by the VWAP of Parent Stock (as defined in the Merger Agreement), or (B) for Pericom Options, the product of (a) the number of unexercised shares of Pericom common stock that were subject to such award of unvested Pericom Options immediately prior to the Effective Time multiplied by (b) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the exercise price per unexercised share subject to such award of Pericom Options and then divided by (c) the VWAP of Parent Stock (as defined in the Merger Agreement); and
NOW, THEREFORE, as replacement for the Unvested Pericom Award, the Company hereby awards Stock Units to the Participant named below. The terms and conditions of the Award are set forth in this cover sheet and in the attached Stock Unit Agreement (together, this “Agreement”) and in the Plan.
Date of Award:
Name of Participant:
Number of Stock Units Awarded:
Fair Market Value of a Share on Date of Stock Unit Grant: $ .
Domestic Existing RSUs and Options
Vesting Schedule:
The vesting schedule applicable to the Unvested Pericom Award shall continue to apply to the Stock Units; provided, however, that any service-based vesting requirements shall be determined based on Service (as defined in the Plan) and any such number of Shares subject to the Stock Units that would otherwise vest monthly during each calendar quarter period shall instead vest on the first day of such calendar quarter period (i.e. if a portion of the Stock Units were regularly scheduled to vest on October 15, 2016, November 15, 2016 and December 15, 2016, all such portion shall instead vest on October 1, 2016), provided all other vesting criteria are satisfied. The Stock Units shall become fully vested and all forfeiture restrictions on such Stock Units shall lapse upon the earlier of (i) a Change in Control, or (ii) termination of Participant’s Service following the Date of Award (each, an “Acceleration Date”).
By signing this cover sheet, you agree to all of the terms and conditions described in this Agreement and in the Plan. You are also acknowledging receipt of this Agreement and a copy of the Plan, the Plan’s prospectus, a copy of Proxy Materials and other required documents, all of which are made available to you without charge. The Proxy Materials, which include the proxy statement and the annual report to stockholders, can be accessed at http://investor.diodes.com/phoenix.zhtml?c=62202&p=proxy or alternatively, can be requested from the Company’s legal department, Diodes Incorporated, 4949 Hedgcoxe Road, Suite 200, Plano, Texas 75024 with telephone number (972) 987-3900. Any inconsistency between this Agreement and the Plan shall be resolved by reference to the Plan.
| Participant: |
| |
| (Signature) | ||
| Company: |
| |
| (Signature) | ||
Attachment
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Domestic Existing RSUs and Options
DIODES INCORPORATED
2013 EQUITY INCENTIVE PLAN
STOCK UNIT AGREEMENT
| 1. The Plan and Other Agreements |
The text of the Plan is incorporated in this Agreement by reference. You and the Company agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement. Unless otherwise defined in this Agreement, certain capitalized terms used in this Agreement are defined in the Plan. |
| This Agreement and the Plan constitute the entire understanding between you and the Company regarding this Award of Stock Units. Any prior agreements, commitments or negotiations concerning this Award are superseded. |
| 2. Award of Stock Units |
The Company awards you the number of Stock Units shown on the cover sheet of this Agreement. The Award is subject to the terms and conditions of this Agreement and the Plan. The Company will not issue any Shares if the issuance of such Shares at that time would violate any law or regulation. |
| 3. Vesting and Settlement |
This Award will vest according to the Vesting Schedule described in the cover sheet of this Agreement. To the extent a Stock Unit becomes vested and subject to your satisfaction of any tax withholding obligations as discussed below, each vested Stock Unit will entitle you to receive one Share which will be distributed to you on the earlier of (i) an Acceleration Date, or (ii) the applicable scheduled vesting date set forth in the first sentence of the Vesting Schedule section in the cover sheet to this Agreement. Issuance of such Shares shall be in complete satisfaction of such vested Stock Units. Such settled Stock Units shall be immediately cancelled and no longer outstanding and you shall have no further rights or entitlements related to those settled Stock Units. |
| 4. Transfer of Award |
You cannot gift, transfer, assign, alienate, pledge, hypothecate, attach, sell, or encumber this Award. If you attempt to do any of these things, this Award will immediately become invalid. You may, however, dispose of this Award in your will or it may be transferred by the laws of descent and distribution. Regardless of any marital property settlement agreement, the Company is not obligated to recognize your spouse’s interest in your Award in any other way. |
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Domestic Existing RSUs and Options
| 5. Leaves of Absence |
For purposes of this Award, your Service does not terminate when you go on a bona fide leave of absence that was approved by the Company in writing, if the terms of the leave of absence provide for Service crediting, or when Service crediting is required by applicable law. Your Service terminates in any event when the approved leave of absence ends unless you immediately return to active work. |
| The Company determines which leaves of absence count for this purpose (along with determining the effect of a leave of absence on vesting of the Award), and when your Service terminates for all purposes under the Plan. |
| 6. Stockholder Rights |
As a holder of Stock Units, you shall have no rights other than those of a general creditor of the Company. Subject to the terms of this Agreement, a holder of outstanding Stock Units has none of the rights and privileges of a stockholder of the Company. Without limiting the generality of the foregoing, a holder of outstanding Stock Units has no right to vote or to receive dividends (if any) on the shares represented by such Stock Units. Subject to the terms and conditions of this Agreement, Stock Units create no fiduciary duty of the Company to you and only represent an unfunded and unsecured contractual obligation of the Company. The Stock Units shall not be treated as property or as a trust fund of any kind. |
| You, or your estate, shall have no rights as a stockholder of the Company with regard to the Award until you have been issued the applicable Shares by the Company and have satisfied all other conditions specified in the Plan. No adjustment shall be made for cash or stock dividends or other rights for which the record date is prior to the date when such applicable Shares are issued, except as provided in the Plan. |
| 7. Taxes and Withholding |
You will be solely responsible for payment of any and all applicable taxes, including without limitation any penalties or interest based upon such tax obligations, associated with this Award. |
| The delivery to you of any Shares underlying vested Stock Units will not be permitted unless and until you have satisfied any withholding or other taxes that may be due. Any such tax withholding obligations may be settled in the Company’s discretion by the Company withholding and retaining a portion of the Shares from the Shares that would otherwise be deliverable to you under the vesting Stock Units as provided |
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Domestic Existing RSUs and Options
| in the next two sentences. Such withheld Shares will be applied to pay the withholding obligation by using the aggregate fair market value of the withheld Shares as of the date of settlement. You will be delivered the net amount of vested Shares after the Share withholding has been effected and you will not receive the withheld Shares. The Company will not deliver any fractional number of Shares. |
| 8. Code Section 409A |
This Award will be administered and interpreted to comply with Code Section 409A. The provisions of the Plan concerning Code Section 409A will apply to this Award to the extent needed. |
| 9. Restrictions on Resale |
By signing this Agreement, you agree not to sell, transfer, dispose of, pledge, hypothecate, make any short sale of, or otherwise effect a similar transaction of any Shares acquired under this Award (each a “Sale Prohibition”) at a time when applicable laws, regulations or Company or underwriter trading policies prohibit the sale or disposition of Shares. |
| The Company shall have the right to designate one or more periods of time, each of which generally will not exceed one hundred eighty (180) days in length (provided however, that such period may be extended in connection with the Company’s release (or announcement of release) of earnings results or other material news or events), and to impose a Sale Prohibition, if the Company determines (in its sole discretion) that such limitation(s) is/are needed in connection with a public offering of Shares or to comply with an underwriter’s request or trading policy, or could in any way facilitate a lessening of any restriction on transfer pursuant to the Securities Act or any state securities laws with respect to any issuance of securities by the Company, facilitate the registration or qualification of any securities by the Company under the Securities Act or any state securities laws, or facilitate the perfection of any exemption from the registration or qualification requirements of the Securities Act or any applicable state securities laws for the issuance or transfer of any securities. The Company may issue stop/transfer instructions and/or appropriately legend any stock certificates issued pursuant to this Award in order to ensure compliance with the foregoing. |
| If the sale of Shares acquired under this Award is not registered under the Securities Act, but an exemption is available which requires an investment representation or other representation and warranty, you shall represent and agree |
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Domestic Existing RSUs and Options
| that the Shares being acquired are being acquired for investment, and not with a view to the sale or distribution thereof, and shall make such other representations and warranties as are deemed necessary or appropriate by the Company and its counsel. |
| You may also be required, as a condition of this Award, to enter into any Company stockholder agreement or other agreements that are applicable to stockholders. |
| 10. Clawback Policy |
You expressly acknowledge and agree to be bound by Section 15(e) of the Plan, which contains provisions addressing the Company’s policy on recoupment of equity or other compensation. |
| 11. No Retention Rights |
Your Award or this Agreement does not give you the right to be retained by the Company (or any Parent or any Subsidiaries or Affiliates) in any capacity. The Company (or any Parent and any Subsidiaries or Affiliates) reserves the right to terminate your Service at any time and for any reason. |
| 12. Extraordinary Compensation |
This Award and the Shares subject to the Award are not intended to constitute or replace any pension rights or compensation and are not to be considered compensation of a continuing or recurring nature, or part of your normal or expected compensation, and in no way represent any portion of your salary, compensation or other remuneration for any purpose, including but not limited to, calculating any severance, resignation, termination, redundancy, dismissal, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments. |
| 13. Adjustments |
In the event of a stock split, a stock dividend or a similar change in the Company stock, the number of outstanding Stock Units covered by this Award shall be adjusted (and rounded down to the nearest whole number) pursuant to the Plan. Your Stock Units shall be subject to the terms of the agreement of merger, liquidation or reorganization in the event the Company is subject to such corporate activity. |
| 14. Legends |
All certificates or book entries representing the Common Stock issued under this Award may, where applicable, have endorsed thereon the following notations or legends and any other notation or legend the Company determines appropriate: |
| “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND OPTIONS TO |
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Domestic Existing RSUs and Options
| PURCHASE SUCH SHARES SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE REGISTERED HOLDER, OR HIS OR HER PREDECESSOR IN INTEREST. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY BY THE HOLDER OF RECORD OF THE SHARES REPRESENTED BY THIS CERTIFICATE.” |
| “THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR QUALIFIED UNDER THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR QUALIFICATION UNDER APPLICABLE STATE LAWS OR AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION OR QUALIFICATION IS NOT REQUIRED.” |
| 15. Applicable Law |
This Agreement will be interpreted and enforced under the laws of the State of Delaware without reference to the conflicts of law provisions thereof. |
| 16. Regulatory Compliance |
The issuance of Common Stock pursuant to this Agreement shall be subject to full compliance with all applicable requirements of law and the requirements of any stock exchange or interdealer quotation system upon which the Common Stock may be listed or traded. |
| 17. Binding Effect; No Third Party Beneficiaries |
This Agreement shall be binding upon and inure to the benefit of the Company and you and any respective heirs, representatives, successors and permitted assigns. This Agreement shall not confer any rights or remedies upon any person other than the Company and you and any respective heirs, representatives, successors and permitted assigns. The parties agree that this Agreement shall survive the settlement or termination of the Award. |
| 18. Notice |
Any notice to be given or delivered to the Company relating to this Agreement shall be in writing and addressed to the Company at its principal corporate offices. All notices shall be deemed effective upon personal delivery or upon deposit in |
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Domestic Existing RSUs and Options
| the postal mail, postage prepaid and properly addressed to the Company. Any notice to be given or delivered to you relating to this Agreement may be delivered by electronic form including without limitation by email (including prospectuses required by the SEC) as well as all other documents that the Company is required to deliver to its security holders (including annual reports and proxy statements). The Company may also deliver these documents by posting them on a web site maintained by the Company or by a third party under contract with the Company. |
| 19. Voluntary Participant |
You acknowledge that you are voluntarily participating in the Plan. |
| 20. No Rights to Future Awards; No Rights with respect to Unvested Pericom Award |
Your rights, if any, in respect of or in connection with this Award or any other Awards are derived solely from the discretionary decision of the Company to permit you to participate in the Plan and to benefit from a discretionary future Award. By accepting this Award, you expressly acknowledge that (i) there is no obligation on the part of the Company to continue the Plan and/or grant any additional Awards to you or benefits in lieu of other Awards even if Awards have been granted repeatedly in the past, and (ii) you shall have no further rights whatsoever with respect to the Unvested Pericom Award. All decisions with respect to future Awards, if any, will be at the sole discretion of the Committee. |
| 21. Future Value |
The future value of the underlying Shares is unknown and cannot be predicted with certainty. If the underlying Shares do not maintain or increase their value after the Date of Award, the Award could have little or no value. If you obtain Shares under this Award, the value of the Shares acquired upon settlement may subsequently increase or decrease in value, and could decrease to a value less than the taxes payable upon settlement. |
| 22. No Advice Regarding Award |
The Company has not provided any tax, legal or financial advice, nor has the Company made any recommendations regarding your participation in the Plan, or your acquisition or sale of the underlying Shares. You are hereby advised to consult with your own personal tax, legal and financial advisors regarding your participation in the Plan before taking any action related to the Plan. |
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Domestic Existing RSUs and Options
| 23. No Right to Damages |
You will have no right to bring a claim or to receive damages if any portion of the Award is cancelled or expires. The loss of existing or potential profit in the Award will not constitute an element of damages in the event of the termination of your Service for any reason, even if the termination is in violation of an obligation of the Company or a Parent or a Subsidiary or an Affiliate to you. |
| 24. Data Privacy |
You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this document by the Company for the exclusive purpose of implementing, administering and managing your participation in the Plan. You understand that the Company holds certain personal information about you, including, but not limited to, name, home address and telephone number, date of birth, gender, social security or insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all Awards or any other entitlement to Shares awarded, cancelled, purchased, exercised, vested, unvested or outstanding in your favor for the purpose of implementing, managing and administering the Plan (“Data”). You understand that the Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in your country or elsewhere and that the recipient country may have different data privacy laws and protections than your country. You authorize the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Data, as may be required to a broker or other third party with whom you may elect to deposit any Shares acquired under the Plan. |
| 25. Other Information |
You agree to receive stockholder information, including copies of any annual report, proxy statement and periodic report, from the Company’s website, if the Company wishes to provide such information through its website. You acknowledge that copies of the Plan, Plan prospectus, Plan information and stockholder information are also available upon written or telephonic request to the Plan’s administrator. |
| 26. Further Assistance |
You agree to provide assistance reasonably requested by the Company in connection with actions taken by you while providing services to the Company, including but not limited to assistance in connection with any lawsuits or other claims against the Company arising from events during the period in which you rendered service to the Company. |
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Domestic Existing RSUs and Options
| 27. Legal Compliance |
The Company (or any Parent or any Subsidiaries or Affiliates) is not responsible for your legal compliance requirements relating to this Award, including, but not limited to, tax reporting. |
| 28. Additional Conditions |
If the Company shall determine, in its sole discretion, that the consent or approval of any governmental authority is necessary or desirable as a condition to the payment of benefits to you pursuant to the Plan, such payment shall not occur until such registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Company. |
| 29. Enforcement |
The Company will be entitled to enforce its rights under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights to which it may be entitled. You agree and acknowledge that money damages may not be an adequate remedy for breach of the provisions of this Agreement and that the Company may in its sole discretion apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement. |
| 30. Nondisclosure of Confidential Information |
You acknowledge that the businesses of the Company is highly competitive and that the Company’s strategies, methods, books, records, and documents, technical information concerning their products, equipment, services, and processes, procurement procedures and pricing techniques, the names of and other information (such as credit and financial data) concerning former, present or prospective customers and business affiliates, all comprise confidential business information and trade secrets which are valuable, special, and unique assets which the Company uses in their business to obtain a competitive advantage over competitors. You further acknowledge that protection of such confidential business information and trade secrets against unauthorized disclosure and use is of critical importance to the Company in maintaining its competitive position. You acknowledge that by reason of your duties to and association with the Company, you have had and will have access to and have and will become informed of confidential business information which is a competitive asset of the Company. You hereby agree that you will not, at any time during or after employment, make any unauthorized disclosure of any confidential business |
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Domestic Existing RSUs and Options
| information or trade secrets of the Company, or make any use thereof, except in the carrying out of services responsibilities. You shall take all necessary and appropriate steps to safeguard confidential business information and protect it against disclosure, misappropriation, misuse, loss and theft. Confidential business information shall not include information in the public domain (but only if the same becomes part of the public domain through a means other than a disclosure prohibited hereunder). The above notwithstanding, a disclosure shall not be unauthorized if (i) it is required by law or by a court of competent jurisdiction or (ii) it is in connection with any judicial, arbitration, dispute resolution or other legal proceeding in which your legal rights and obligations as a service provider or under this Agreement are at issue; provided, however, that you shall, to the extent practicable and lawful in any such events, give prior notice to the Company of your intent to disclose any such confidential business information in such context so as to allow the Company an opportunity (which you will not oppose) to obtain such protective orders or similar relief with respect thereto as may be deemed appropriate. Any information not specifically related to the Company would not be considered confidential to the Company. In the event of any conflict in terms between this Section 30 and the terms of any Company confidentiality or proprietary information agreement you have executed, the terms of such other confidentiality or proprietary information agreement shall prevail and govern. Nothing in the Plan or this Agreement prohibits you from reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the SEC, the Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation. You do not need the prior authorization of the Company or its legal department to make any such reports or disclosures and you are not required to notify the Company that you have made any such reports or disclosures. |
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Exhibit 99.3
International Existing RSUs and Options
For Use in China, Germany, South Korea, Taiwan and the United Kingdom
DIODES INCORPORATED
2013 EQUITY INCENTIVE PLAN
STOCK UNIT AGREEMENT
WHEREAS, on November 25, 2015, the transactions contemplated by the Agreement and Plan of Merger between Diodes Incorporated, a Delaware corporation, (the “Company”), PSI Merger Sub, Inc. and Pericom Semiconductor Corporation (“Pericom”) dated September 2, 2015, as amended November 6, 2015 (the “Merger Agreement”) were consummated and Pericom became a wholly owned subsidiary of the Company; and
WHEREAS, pursuant to the terms of the Merger Agreement, each outstanding award of restricted stock units of Pericom (“Pericom RSUs”) or each unexpired and unexercised award of options to purchase shares of common stock of Pericom (“Pericom Options”) that is not vested prior to the Effective Time (as defined in the Merger Agreement) shall be cancelled and replaced by the Company and become an award of Stock Units issued under the Diodes Incorporated 2013 Equity Incentive Plan as it may be amended from time to time (the “Plan”) with respect to the number of Shares, rounded down to the nearest whole Share, that is equal to (A) for Pericom RSUs, the product of the number of shares of Pericom common stock that were subject to such unvested Pericom RSUs immediately prior to the Effective Time multiplied by the quotient obtained by dividing the Merger Consideration (as defined in the Merger Agreement) by the VWAP of Parent Stock (as defined in the Merger Agreement), or (B) for Pericom Options, the product of (a) the number of unexercised shares of Pericom common stock that were subject to such award of unvested Pericom Options immediately prior to the Effective Time multiplied by (b) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the exercise price per unexercised share subject to such award of Pericom Options and then divided by (c) the VWAP of Parent Stock (as defined in the Merger Agreement); and
NOW, THEREFORE, as replacement for the Unvested Pericom Award, the Company hereby awards Stock Units to the Participant named below. The terms and conditions of the Award are set forth in this cover sheet and in the attached Stock Unit Agreement (together, this “Agreement”) and in the Plan.
Date of Award:
Name of Participant:
Number of Stock Units Awarded:
Fair Market Value of a Share on Date of Stock Unit Grant: $ .
International Existing RSUs and Options
For Use in China, Germany, South Korea, Taiwan and the United Kingdom
Vesting Schedule:
The vesting schedule applicable to the Unvested Pericom Award shall continue to apply to the Stock Units; provided, however, that any service-based vesting requirements shall be determined based on Service (as defined in the Plan) and any such number of Shares subject to the Stock Units that would otherwise vest monthly during each calendar quarter period shall instead vest on the first day of such calendar quarter period (i.e. if a portion of the Stock Units were regularly scheduled to vest on October 15, 2016, November 15, 2016 and December 15, 2016, all such portion shall instead vest on October 1, 2016), provided all other vesting criteria are satisfied. The Stock Units shall become fully vested and all forfeiture restrictions on such Stock Units shall lapse upon the earlier of (i) a Change in Control, or (ii) termination of Participant’s Service following the Date of Award (each, an “Acceleration Date”).
By signing this cover sheet, you agree to all of the terms and conditions described in this Agreement and in the Plan. You are also acknowledging receipt of this Agreement and a copy of the Plan, the Plan’s prospectus, a copy of Proxy Materials and other required documents, all of which are made available to you without charge. The Proxy Materials, which include the proxy statement and the annual report to stockholders, can be accessed at http://investor.diodes.com/phoenix.zhtml?c=62202&p=proxy or alternatively, can be requested from the Company’s legal department, Diodes Incorporated, 4949 Hedgcoxe Road, Suite 200, Plano, Texas 75024 with telephone number (972) 987-3900. Any inconsistency between this Agreement and the Plan shall be resolved by reference to the Plan.
| Participant: |
| |
| (Signature) | ||
| Company: |
| |
| (Signature) | ||
Attachment
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International Existing RSUs and Options
For Use in China, Germany, South Korea, Taiwan and the United Kingdom
DIODES INCORPORATED
2013 EQUITY INCENTIVE PLAN
STOCK UNIT AGREEMENT
| 1. The Plan and Other Agreements |
The text of the Plan is incorporated in this Agreement by reference. You and the Company agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement. Unless otherwise defined in this Agreement, certain capitalized terms used in this Agreement are defined in the Plan. |
| This Agreement and the Plan constitute the entire understanding between you and the Company regarding this Award of Stock Units. Any prior agreements, commitments or negotiations concerning this Award are superseded. |
| 2. Award of Stock Units |
The Company awards you the number of Stock Units shown on the cover sheet of this Agreement. The Award is subject to the terms and conditions of this Agreement and the Plan. The Company will not issue any Shares if the issuance of such Shares at that time would violate any law or regulation. |
| 3. Vesting and Settlement |
This Award will vest according to the Vesting Schedule described in the cover sheet of this Agreement. To the extent a Stock Unit becomes vested and subject to your satisfaction of any tax withholding obligations as discussed below, each vested Stock Unit will entitle you to receive one Share which will be distributed to you on the earlier of (i) an Acceleration Date, or (ii) the applicable scheduled vesting date set forth in the first sentence of the Vesting Schedule section in the cover sheet to this Agreement. Issuance of such Shares shall be in complete satisfaction of such vested Stock Units. Such settled Stock Units shall be immediately cancelled and no longer outstanding and you shall have no further rights or entitlements related to those settled Stock Units. |
| 4. Transfer of Award |
You cannot gift, transfer, assign, alienate, pledge, hypothecate, attach, sell, or encumber this Award. If you attempt to do any of these things, this Award will immediately become invalid. You may, however, dispose of this Award in your will or it may be transferred by the laws of descent and distribution. Regardless of any marital property settlement agreement, the Company is not obligated to recognize your spouse’s interest in your Award in any other way. |
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International Existing RSUs and Options
For Use in China, Germany, South Korea, Taiwan and the United Kingdom
| 5. Leaves of Absence |
For purposes of this Award, your Service does not terminate when you go on a bona fide leave of absence that was approved by the Company in writing, if the terms of the leave of absence provide for Service crediting, or when Service crediting is required by applicable law. Your Service terminates in any event when the approved leave of absence ends unless you immediately return to active work. |
| The Company determines which leaves of absence count for this purpose (along with determining the effect of a leave of absence on vesting of the Award), and when your Service terminates for all purposes under the Plan. |
| 6. Stockholder Rights |
As a holder of Stock Units, you shall have no rights other than those of a general creditor of the Company. Subject to the terms of this Agreement, a holder of outstanding Stock Units has none of the rights and privileges of a stockholder of the Company. Without limiting the generality of the foregoing, a holder of outstanding Stock Units has no right to vote or to receive dividends (if any) on the Shares represented by such Stock Units. Subject to the terms and conditions of this Agreement, Stock Units create no fiduciary duty of the Company to you and only represent an unfunded and unsecured contractual obligation of the Company. The Stock Units shall not be treated as property or as a trust fund of any kind. |
| You, or your estate, shall have no rights as a stockholder of the Company with regard to the Award until you have been issued the applicable Shares by the Company and have satisfied all other conditions specified in the Plan. No adjustment shall be made for cash or stock dividends or other rights for which the record date is prior to the date when such applicable Shares are issued, except as provided in the Plan. |
| 7. Taxes and Withholding |
You will be solely responsible for payment of any and all applicable taxes, including without limitation any penalties or interest based upon such tax obligations, associated with this Award. |
| The delivery to you of any Shares underlying vested Stock Units will not be permitted unless and until you have satisfied any withholding or other taxes that may be due. Any such tax withholding obligations may be settled in the Company’s discretion by the Company withholding and retaining a portion of the Shares from the Shares that would otherwise be deliverable to you under the vesting Stock Units as provided |
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International Existing RSUs and Options
For Use in China, Germany, South Korea, Taiwan and the United Kingdom
| in the next two sentences. Such withheld Shares will be applied to pay the withholding obligation by using the aggregate fair market value of the withheld Shares as of the date of settlement. You will be delivered the net amount of vested Shares after the Share withholding has been effected and you will not receive the withheld Shares. The Company will not deliver any fractional number of Shares. |
| 8. Code Section 409A |
This Award will be administered and interpreted to comply with Code Section 409A. The provisions of the Plan concerning Code Section 409A will apply to this Award to the extent needed. |
| 9. Restrictions on Resale |
By signing this Agreement, you agree not to sell, transfer, dispose of, pledge, hypothecate, make any short sale of, or otherwise effect a similar transaction of any Shares acquired under this Award (each a “Sale Prohibition”) at a time when applicable laws, regulations or Company or underwriter trading policies prohibit the sale or disposition of Shares. |
| The Company shall have the right to designate one or more periods of time, each of which generally will not exceed one hundred eighty (180) days in length (provided however, that such period may be extended in connection with the Company’s release (or announcement of release) of earnings results or other material news or events), and to impose a Sale Prohibition, if the Company determines (in its sole discretion) that such limitation(s) is/are needed in connection with a public offering of Shares or to comply with an underwriter’s request or trading policy, or could in any way facilitate a lessening of any restriction on transfer pursuant to the Securities Act or any state securities laws with respect to any issuance of securities by the Company, facilitate the registration or qualification of any securities by the Company under the Securities Act or any state securities laws, or facilitate the perfection of any exemption from the registration or qualification requirements of the Securities Act or any applicable state securities laws for the issuance or transfer of any securities. The Company may issue stop/transfer instructions and/or appropriately legend any stock certificates issued pursuant to this Award in order to ensure compliance with the foregoing. |
| If the sale of Shares acquired under this Award is not registered under the Securities Act, but an exemption is available which requires an investment representation or other representation and warranty, you shall represent and agree |
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International Existing RSUs and Options
For Use in China, Germany, South Korea, Taiwan and the United Kingdom
| that the Shares being acquired are being acquired for investment, and not with a view to the sale or distribution thereof, and shall make such other representations and warranties as are deemed necessary or appropriate by the Company and its counsel. |
| You may also be required, as a condition of this Award, to enter into any Company stockholder agreement or other agreements that are applicable to stockholders. |
| 10. Clawback Policy |
You expressly acknowledge and agree to be bound by Section 15(e) of the Plan, which contains provisions addressing the Company’s policy on recoupment of equity or other compensation. |
| 11. No Retention Rights |
Your Award or this Agreement does not give you the right to be retained by the Company (or any Parent or any Subsidiaries or Affiliates) in any capacity. The Company (or any Parent or any Subsidiaries or Affiliates) reserves the right to terminate your Service at any time and for any reason. |
| In the event you are not an employee of the Company, your Award will not be interpreted to form an employment contract or relationship with the Company; and furthermore, the grant of the Award will not be interpreted to form an employment contract with your employer (or any Parent or any Subsidiaries or Affiliates). |
| 12. Extraordinary Compensation |
This Award and the Shares subject to the Award are not intended to constitute or replace any pension rights or compensation and are not to be considered compensation of a continuing or recurring nature, or part of your normal or expected compensation, and in no way represent any portion of your salary, compensation or other remuneration for any purpose, including but not limited to, calculating any severance, resignation, termination, redundancy, dismissal, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments. |
| 13. Adjustments |
In the event of a stock split, a stock dividend or a similar change in the Company stock, the number of outstanding Stock Units covered by this Award shall be adjusted (and rounded down to the nearest whole number) pursuant to the Plan. Your Stock Units shall be subject to the terms of the agreement of merger, liquidation or reorganization in the event the Company is subject to such corporate activity. |
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International Existing RSUs and Options
For Use in China, Germany, South Korea, Taiwan and the United Kingdom
| 14. Legends |
All certificates or book entries representing the Common Stock issued under this Award may, where applicable, have endorsed thereon the following notations or legends and any other notation or legend the Company determines appropriate: |
| “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND OPTIONS TO PURCHASE SUCH SHARES SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE REGISTERED HOLDER, OR HIS OR HER PREDECESSOR IN INTEREST. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY BY THE HOLDER OF RECORD OF THE SHARES REPRESENTED BY THIS CERTIFICATE.” |
| “THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR QUALIFIED UNDER THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR QUALIFICATION UNDER APPLICABLE STATE LAWS OR AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION OR QUALIFICATION IS NOT REQUIRED.” |
| 15. Applicable Law |
This Agreement will be interpreted and enforced under the laws of the State of Delaware, United States of America without reference to the conflicts of law provisions thereof. |
| 16. Regulatory Compliance |
The issuance of Common Stock pursuant to this Agreement shall be subject to full compliance with all applicable requirements of law and the requirements of any stock exchange or interdealer quotation system upon which the Common Stock may be listed or traded. |
| 17. Binding Effect; No Third Party Beneficiaries |
This Agreement shall be binding upon and inure to the benefit of the Company and you and any respective heirs, representatives, successors and permitted assigns. This Agreement shall not confer any rights or remedies upon any person other than the Company and you and any respective heirs, representatives, successors and permitted assigns. The parties agree that this Agreement shall survive the settlement or termination of the Award. |
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International Existing RSUs and Options
For Use in China, Germany, South Korea, Taiwan and the United Kingdom
| 18. Notice |
Any notice to be given or delivered to the Company relating to this Agreement shall be in writing and addressed to the Company at its principal corporate offices. All notices shall be deemed effective upon personal delivery or upon deposit in the postal mail, postage prepaid and properly addressed to the Company. Any notice to be given or delivered to you relating to this Agreement may be delivered by electronic form including without limitation by email (including prospectuses required by the SEC) as well as all other documents that the Company is required to deliver to its security holders (including annual reports and proxy statements). The Company may also deliver these documents by posting them on a web site maintained by the Company or by a third party under contract with the Company. |
| 19. Voluntary Participant |
You acknowledge that you are voluntarily participating in the Plan. |
| 20. No Rights to Future Awards; No Rights with respect to Unvested Pericom Award |
Your rights, if any, in respect of or in connection with this Award or any other Awards are derived solely from the discretionary decision of the Company to permit you to participate in the Plan and to benefit from a discretionary future Award. By accepting this Award, you expressly acknowledge that (i) there is no obligation on the part of the Company to continue the Plan and/or grant any additional Awards to you or benefits in lieu of other Awards even if Awards have been granted repeatedly in the past, and (ii) you shall have no further rights whatsoever with respect to the Unvested Pericom Award. All decisions with respect to future Awards, if any, will be at the sole discretion of the Committee. |
| 21. Future Value |
The future value of the underlying Shares is unknown and cannot be predicted with certainty. If the underlying Shares do not maintain or increase their value after the Date of Award, the Award could have little or no value. If you obtain Shares under this Award, the value of the Shares acquired upon settlement may subsequently increase or decrease in value, and could decrease to a value less than the taxes payable upon settlement. |
-8-
International Existing RSUs and Options
For Use in China, Germany, South Korea, Taiwan and the United Kingdom
| 22. No Advice Regarding Award |
The Company has not provided any tax, legal or financial advice, nor has the Company made any recommendations regarding your participation in the Plan, or your acquisition or sale of the underlying Shares. You are hereby advised to consult with your own personal tax, legal and financial advisors regarding your participation in the Plan before taking any action related to the Plan. |
| 23. No Right to Damages |
You will have no right to bring a claim or to receive damages if any portion of the Award is cancelled or expires. The loss of existing or potential profit in the Award will not constitute an element of damages in the event of the termination of your Service for any reason, even if the termination is in violation of an obligation of the Company or a Parent or a Subsidiary or an Affiliate to you. |
| 24. Data Privacy |
You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this document by the Company (or any Parent or any Subsidiaries or Affiliates) for the exclusive purpose of implementing, administering and managing your participation in the Plan. You understand that the Company (or any Parent or any Subsidiaries or Affiliates) holds certain personal information about you, including, but not limited to, name, home address and telephone number, date of birth, gender, social security or insurance number or other identification number, salary, nationality, job title, any Shares or directorships held in the Company (or any Parent or any Subsidiaries or Affiliates), details of all Awards or any other entitlement to Shares awarded, cancelled, purchased, exercised, vested, unvested or outstanding in your favor for the purpose of implementing, managing and administering the Plan (“Data”). You understand that the Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in your country or elsewhere and that the recipient country may have different data privacy laws and protections than your country. You authorize the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Data, as may be required to a broker or other third party with whom you may elect to deposit any Shares acquired under the Plan. You understand that Data will be held only as long as is necessary to implement, administer and manage participation in the Plan. You understand that you may view your Data, request additional information about the storage and processing of the Data, |
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International Existing RSUs and Options
For Use in China, Germany, South Korea, Taiwan and the United Kingdom
| require any necessary amendments to the Data or refuse or withdraw the consents herein, in any case without cost, by contacting the Chief Financial Officer in writing. You understand that refusing or withdrawing consent may affect your ability to participate in the Plan. For more information on the consequences of refusing to consent or withdrawing consent, you may contact the Chief Financial Officer. |
| 25. Legal Compliance |
The Company (or any Parent or any Subsidiaries or Affiliates) is not responsible for your legal compliance requirements relating to Award, including, but not limited to, tax reporting and the exchange of local currency into or from U.S. dollars. |
| 26. Additional Conditions |
If the Company shall determine, in its sole discretion, that the consent or approval of any governmental authority is necessary or desirable as a condition to the payment of benefits to you pursuant to the Plan, such payment shall not occur until such registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Company. |
| 27. Currency Exchange Risk |
You agree and acknowledge that you will bear any and all risk associated with the exchange or fluctuation of currency associated with the Award (the “Currency Exchange Risk”). You waive and release the Company (or any Parent or any Subsidiaries or Affiliates) from any potential claims arising out of the Currency Exchange Risk. |
| 28. Exchange Control Requirements |
You agree and acknowledge that you will comply with any and all exchange control requirements applicable to the Award and any resulting funds including, without limitation, reporting or repatriation requirements. |
| 29. English Language |
You agree to receive the terms and conditions of this Agreement and any other related communications in English. If you receive this Agreement or any other document related to the Plan translated into a language other than English and if the translated version is different than the English version, the English version will control. |
| 30. Electronic Delivery |
The Company may, in its sole discretion, deliver any documents related to this Award, including materials relating to its Annual Meeting of Stockholders, by electronic means or request your consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and agree to participate in the Plan through any on-line or electronic system established and maintained by the Company or another third party designated by the Company. |
-10-
International Existing RSUs and Options
For Use in China, Germany, South Korea, Taiwan and the United Kingdom
| 31. Other Information |
You agree to receive stockholder information, including copies of any annual report, proxy statement and periodic report, from the Company’s website, if the Company wishes to provide such information through its website. You acknowledge that copies of the Plan, Plan prospectus, Plan information and stockholder information are also available upon written or telephonic request to the Plan’s administrator. |
| 32. Special Terms for Employees in China |
Notwithstanding any contrary provision of the Agreement, if you are employed in China, then you acknowledge and agree that: |
| (a) You will not acquire Shares pursuant to this Award, or transfer, assign, sell or otherwise deal with those Shares, except in compliance with applicable laws and the terms of this Agreement. |
| (b) The Company need not issue Shares to you when your Stock Units vest unless and until (i) it determines in its sole discretion that compliance with applicable laws in China will not impose an excessive burden on the Company and (ii) it has set up any procedures it determines in its sole discretion are necessary or desirable to enable it comply with applicable laws in China. |
| (c) The Company may require you to sell promptly following vesting, the Shares you receive when your Stock Units vest. You authorize the Company or its designated brokerage firm to perform this transaction for you, and agree that applicable commissions and fees due in connection with the sale may be deducted from your proceeds. You agree that such Shares will be sold at prevailing market prices and waive any claim based on the timing of the sale or the price received for your Shares. If the Company requires you to sell, or sells, your Shares under this paragraph 35, no Shares will be delivered to you and you would not have any rights as a stockholder of the Company. |
| (d) When your Stock Units vest, if the Company does not require the immediate sale of the Shares you receive, the Company may require that you retain those Shares in your account at the Company’s designated brokerage firm until you sell the Shares, even if you stop working for the Company or an Affiliate. Following your termination of employment, the Company may restrict your ability to sell or transfer those Shares in your account. Within a specified period of time (e.g., 90 days) following your termination of employment the Company may sell any Shares in your account that you received from your Stock Units. |
-11-
International Existing RSUs and Options
For Use in China, Germany, South Korea, Taiwan and the United Kingdom
| (e) When the Shares resulting from the vesting of your Stock Units are sold, the proceeds of such sale, after deduction of applicable commissions and fees, may be transferred to China and made available to you through an account maintained by an Affiliate in China. |
| 33. Further Assistance |
You agree to provide assistance reasonably requested by the Company in connection with actions taken by you while providing services to the Company, including but not limited to assistance in connection with any lawsuits or other claims against the Company arising from events during the period in which you rendered service to the Company. |
| 34. Legal Compliance |
The Company (or any Parent or any Subsidiaries or Affiliates) is not responsible for your legal compliance requirements relating to this Award, including, but not limited to, tax reporting. |
| 35. Additional Conditions |
If the Company shall determine, in its sole discretion, that the consent or approval of any governmental authority is necessary or desirable as a condition to the payment of benefits to you pursuant to the Plan, such payment shall not occur until such registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Company. |
| 36. Enforcement |
The Company will be entitled to enforce its rights under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights to which it may be entitled. You agree and acknowledge that money damages may not be an adequate remedy for breach of the provisions of this Agreement and that the Company may in its sole discretion apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement. |
| 37. Nondisclosure of Confidential Information |
You acknowledge that the businesses of the Company is highly competitive and that the Company’s strategies, methods, books, records, and documents, technical information concerning their products, equipment, services, and processes, procurement procedures and pricing techniques, the names of and other information (such as credit and financial data) concerning former, present or prospective |
-12-
International Existing RSUs and Options
For Use in China, Germany, South Korea, Taiwan and the United Kingdom
| customers and business affiliates, all comprise confidential business information and trade secrets which are valuable, special, and unique assets which the Company uses in their business to obtain a competitive advantage over competitors. You further acknowledge that protection of such confidential business information and trade secrets against unauthorized disclosure and use is of critical importance to the Company in maintaining its competitive position. You acknowledge that by reason of your duties to and association with the Company, you have had and will have access to and have and will become informed of confidential business information which is a competitive asset of the Company. You hereby agree that you will not, at any time during or after employment, make any unauthorized disclosure of any confidential business information or trade secrets of the Company, or make any use thereof, except in the carrying out of services responsibilities. You shall take all necessary and appropriate steps to safeguard confidential business information and protect it against disclosure, misappropriation, misuse, loss and theft. Confidential business information shall not include information in the public domain (but only if the same becomes part of the public domain through a means other than a disclosure prohibited hereunder). The above notwithstanding, a disclosure shall not be unauthorized if (i) it is required by law or by a court of competent jurisdiction or (ii) it is in connection with any judicial, arbitration, dispute resolution or other legal proceeding in which your legal rights and obligations as a service provider or under this Agreement are at issue; provided, however, that you shall, to the extent practicable and lawful in any such events, give prior notice to the Company of your intent to disclose any such confidential business information in such context so as to allow the Company an opportunity (which you will not oppose) to obtain such protective orders or similar relief with respect thereto as may be deemed appropriate. Any information not specifically related to the Company would not be considered confidential to the Company. In the event of any conflict in terms between this Section 37 and the terms of any Company confidentiality or proprietary information agreement you have executed, the terms of such other confidentiality or proprietary information agreement shall prevail and govern. Nothing in the Plan or this Agreement prohibits you from reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the SEC, the Congress, and any agency Inspector General, or making other disclosures that |
-13-
International Existing RSUs and Options
For Use in China, Germany, South Korea, Taiwan and the United Kingdom
| are protected under the whistleblower provisions of federal law or regulation. You do not need the prior authorization of the Company or its legal department to make any such reports or disclosures and you are not required to notify the Company that you have made any such reports or disclosures. |
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