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As filed with the Securities and Exchange Commission on May 10, 2005
Registration No. 333--------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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DIODES INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 95-2039518
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3050 East Hillcrest Drive
Westlake Village, California 91362
(Address of principal executive offices) (Zip Code)
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 1,500,000 shares $28.35 $42,525,000 $5,006
$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 herein 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 May 9, 2005,
as reported on the Nasdaq Stock Market.
EXPLANATORY NOTE
Diodes Incorporated (the "Company") hereby files this Registration Statement on
Form S-8 with the Securities and Exchange Commission (the "Commission") to
register 1,500,000 additional shares of the Company's Common Stock for issuance
pursuant to the Company's 2001 Omnibus Equity Incentive Plan (the "Plan"), and
such indeterminate number of additional shares as may become available under the
Plan as a result of the adjustment provisions thereof. On June 11, 2001, the
shareholders of the Company approved the Plan, which provides for the issuance
of up to 2,000,000 shares of the Company's Common Stock (subject to adjustment).
The Company registered 1,000,000 such shares on a Registration Statement on Form
S-8 (File No. 333-106775) filed with the Securities and Exchange Commission on
July 2, 2003.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I
of Form S-8 (plan information and registrant information) 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"). These 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, 2003, filed with the Commission on March 15, 2004;
(b) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 2004, filed with the Commission on May 10, 2004;
(c) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 2004, filed with the Commission on August 9, 2004;
(d) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 2004, filed with the Commission on November 9,
2004;
(e) 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;
(f) The Company's Annual Report on Form 10-K for its fiscal year ended
December 31, 2004, filed with the Commission on March 16, 2005;
(g) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 2005, filed with the Commission on May 9, 2005; and
(h) The Company's Amended Annual Report on Form 10-K/A for its fiscal year
ended December 31, 2004, filed with the Commission on May 2, 2005;
(i) 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.
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.
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
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 (1)
3.2 Bylaws of Diodes Incorporated (2)
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 3.1 to the Company's Registration
Statement on Form S-8 (File No. 333-106775), filed with the Securities
and Exchange Commission on July 2, 2003.
(2) 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
(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.
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 May 9,
2005.
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.
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) May 9, 2005
/s/ Carl C. Wertz Chief Financial Officer, Secretary, and
Carl C. Wertz Treasurer (Principal Financial and
Accounting Officer) May 9, 2005
/s/ Raymond Soong Chairman of the Board May 9, 2005
Raymond Soong
/s/ Michael R. Giordano Director May 9, 2005
Michael R. Giordano
/s/ Keh-Shew Lu Director May 9, 2005
Keh-Shew Lu
/s/ M.K. Lu Director May 9, 2005
M.K. Lu
/s/ Shing Mao Director May 9, 2005
Shing Mao
/s/ John M. Stich Director May 9, 2005
John M. Stich
EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
3.1 Certificate of Incorporation of Diodes Incorporated,
as amended to date (1)
3.2 Bylaws of Diodes Incorporated (2)
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 8)
(1) Incorporated by reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-8 (File No. 333-106775), filed with the Securities
and Exchange Commission on July 2, 2003.
(2) 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.
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January 28, 2005,
appearing in the Annual Report on Form 10-K filed March 16, 2005 and Form 10-K/A
filed May 2, 2005 of Diodes Incorporated for the year ended December 31, 2004.
/s/ Moss Adams LLP
Moss Adams LLP
Los Angeles, California
May 11, 2005
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
DIODES INCORPORATED
Filed with the Secretary of State of the State of Delaware on July 29, 1968. As
amended on June 14, 2000.
FIRST: The name of the corporation (hereinafter called the "Company")
is DIODES INCORPORATED.
SECOND: The registered office of the Company in the State of Delaware
is located at 100 West Tenth Street, in the City of Wilmington, in the County of
New Castle. The name of its registered agent at that address is The Corporation
Trust Company.
THIRD: The nature of the business, or objects or purposes to be
transacted, promoted, or carried on are as follows:
(1) To engage in the business of manufacturing solid state and
electronic devices.
(2) To do everything necessary, proper, advisable, or convenient for
the accomplishment of the purposes hereinabove set forth, and to do all other
things incidental thereto connected therewith, which are not forbidden by
statute or by this Certificate of Incorporation.
(3) To engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
(4) To carry out the purposes hereinabove set forth in any state,
territory, district or possession of the United States, or in any foreign
country, to the extent that such purposes are not forbidden by the law of such
state, territory, district or possession of the United States or by such foreign
country; and, in the case of any state or territory, district or possession of
the United States, or any foreign country, in which one or more of such purposes
are forbidden by law, to limit the purpose or purposes for which the company
proposes to carry on in such state, territory, district or possession of the
United States, or foreign country, to such purpose or purposes as are not
forbidden by the law thereof, and any certificate for application to do business
in such state, territory, district or possession of the United States, or
foreign country.
FOURTH: The Company is authorized to issue a total of thirty-one
million (31,000,000) shares of all classes of stock. Of such total number of
authorized shares of stock, thirty million (30,000,000) shares are Common Stock,
each of which shares of Common Stock has a par value of Sixty-Six and Two-Thirds
Cents ($.66-2/3), and one million (1,000,000) shares are Preferred Stock, each
of which shares of Preferred Stock has a par value of One Dollar ($1.00).
A statement of the designations of the authorized classes of stock or
of any series thereof, and the powers, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, or of the authority of the Board of Directors to fix by
resolution or resolutions such designations and other terms, is as follows:
(1) Preferred Stock:
Shares of Preferred Stock may be issued from time to time in one or
more series.
The Board of Directors is hereby authorized, within the limitations and
restrictions stated in this Article FOURTH, to fix by resolution or resolutions
the designation of each series of Preferred Stock and the powers, preferences
and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, including, without limiting
the generality of the foregoing, such provisions as may be desired concerning
voting, redemption, dividends, dissolution or the distribution of assets,
conversion or exchange, and such other subjects or matters as may be fixed by
resolution or resolutions of the Board of Directors under the General
Corporation Law of Delaware.
If any proposed amendment to the Certificate of Incorporation of the
Company would alter or change the preferences, special rights or powers given to
any one or more outstanding series of Preferred Stock, so as to affect such
series adversely, or would authorize the issuance of a class or classes of stock
having preferences or rights with respect to dividends or dissolution or the
distribution of assets that would be superior to the preferences or rights of
such series of Preferred Stock , then the holders of each such series of
Preferred Stock so affected by the amendment shall be entitled to vote as a
series upon such amendment, and the affirmative vote of two-thirds (2/3) of the
outstanding shares of each such series shall be necessary to the adoption
thereof, in addition to such other vote as may be required by the General
Corporation Law of Delaware.
The number of authorized shares of Preferred Stock may be increased or
decreased by the affirmative vote of the holders of a majority of the stock of
the Company entitled to vote, without there being a class vote of the Preferred
Stock.
(2) Common Stock:
Subject to all of the preferences and rights of the Preferred Stock or
a series thereof that may be fixed by a resolution or resolutions of the Boards
of Directors, dividends may be paid on the Common Stock as and when declared by
the Board of Directors, out of any funds of the Company legally available for
the payment of such dividends.
Except as may otherwise be provided by a resolution or resolutions of
the Board of Directors concerning the Preferred Stock or a series thereof, or by
this Certificate of Incorporation or the General Corporation Law of Delaware,
the holders of the shares of Common Stock issued and outstanding shall have and
possess the exclusive right to notice of stockholders' meetings and the
exclusive power to vote.
FIFTH: The name and mailing address of the incorporation is as follows:
NAME ADDRESS
A.D. Grier 100 West Tenth Street
Wilmington, Delaware
SIXTH: At all elections of Directors of the Company, each stockholder who is
entitled to vote upon such election shall be entitled to as many votes as shall
be equal to the number of votes which (except for this provision as to
cumulative voting)
he would be entitled to cast for the election of Directors with respect to his
shares of stock multiplied by the number of Directors to be elected, and he may
cast all of such votes for a single Director or may distribute them among the
number to be voted for or for any two or more of them, as he sees fit.
SEVENTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter or
repeal the By-Laws of the Company.
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.
EXHIBIT 5.1
[Sheppard, Mullin, Richter & Hampton LLP Letterhead]
March 25, 2005
Diodes Incorporated
3050 East Hillcrest Drive
Westlake Village, California 91362
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as special counsel to Diodes Incorporated, a
Delaware corporation (the "Company"), in connection with the registration on
Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended, of 1,500,000 shares of the Company's Common Stock, $0.66 2/3 par value
per share, reserved for issuance under the 2001 Omnibus Equity Incentive Plan
(the "Plan") of the Company. 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.
We have reviewed the Company's charter documents and the
corporate proceedings taken by the Company with respect to the establishment of
the Plan. With respect to the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to originals of all documents submitted to us as
certified or reproduced copies. We also have obtained from the officers of the
Company certificates as to certain factual matters necessary for the purpose of
this opinion and, insofar as this opinion is based on matters of fact, we have
relied on such certificates without independent investigation.
Based on such review, we are of the opinion that, if, as and
when the shares of the Company's Common Stock are issued and sold (and the
consideration therefore received and appropriate stock certificates therefore
executed and delivered) pursuant to the provisions of the Plan, such shares will
be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion letter as Exhibit 5.1
to the Registration Statement.
We express no opinion as to matters governed by any laws other
than the Delaware General Corporation Law, the applicable provisions of the
Delaware Constitution and reported decisions of the Delaware courts interpreting
these laws.
We express no opinion on securities issue pursuant to any
other registration statement of the Company.
This opinion letter is rendered as of the date first written
above and we disclaim any obligation to advise you of facts, circumstances,
events or developments which hereafter may be brought to our attention and which
may alter, affect or modify the opinion expressed herein. Our opinion is
expressly limited to the matters set forth above and we render no opinion,
whether by implication or otherwise, as to any other matters relating to the
Company, the Plan, or the shares of the Company's Common Stock issuable under
the Plan.
Respectfully submitted,
/s/ Sheppard, Mullin, Richter & Hampton LLP
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP