þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Delaware
(State or other jurisdiction of incorporation or organization) |
95-2039518
(I.R.S. Employer Identification Number) |
15660 North Dallas Parkway, Suite 850
Dallas, Texas (Address of principal executive offices) |
75248 (Zip Code) |
|
Title of Eachve Class | Name of Each Exchange on Which Registered | ||
|
Common Stock, Par Value $0.66 2/3 | The NASDAQ Stock Market LLC |
Large accelerated filer þ | Accelerated filer o |
Non-accelerated filer
o
(Do not check if a smaller reporting company) |
Smaller reporting company o |
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Continuing to focus on increasing packaging integration,
particularly with our existing standard array and customer-specific array
products, in order to achieve products with increased circuit density,
reduced component count and lower overall product cost;
Expanding existing products and developing new products in our
function specific array lines, which combine multiple discrete
semiconductor components to achieve specific common electronic device
functionality at a low cost; and
Developing new product lines, which we refer to as end-equipment
specific arrays, which combine discrete components with logic and/or
standard analog circuits to provide system-level solutions for
high-volume, high-growth applications.
Discrete semiconductor products, including performance Schottky
rectifiers; performance Schottky diodes; Zener diodes and performance
Zener diodes, including tight tolerance and low operating current types;
standard, fast, super-fast and ultra-fast recovery rectifiers; bridge
rectifiers; switching diodes; small signal bipolar transistors; prebiased
transistors; MOSFETs; thyristor surge protection devices; and transient
voltage suppressors;
Complex high-density diode, transistor and mixed technology
arrays, in multi-pin ultra-miniature surface-mount packages, including
customer specific and function specific arrays;
Silicon wafers used in manufacturing these products; and
Analog, including power management devices and Hall effect
sensors.
End Markets
2006
2007
2008
End product applications
36
%
36
%
32
%
Set-top boxes, game consoles, digital audio players, digital cameras, mobile handsets, flat-panel displays, personal medical devices
36
%
37
%
33
%
Notebooks, flat-panel monitors, motherboards, PDAs, multi-function printers, servers, network interface cards, hard disk drives
14
%
15
%
16
%
Gateways, routers, switches, hubs, fiber optics, DSL, cable and standard modems, networking (wireless, ethernet, power/phone line)
12
%
10
%
16
%
Ballast lighting, power supplies, DC-DC conversion, security/access systems, motor controls, HVAC
2
%
2
%
3
%
Comfort controls, audio/video players, GPS navigation, safety, security, satellite radios, engine controls, HID lighting
pay substantial damages for past, present and future use of the infringing technology;
cease the manufacture, use or sale of infringing products;
discontinue the use of infringing technology;
expend significant resources to develop non-infringing technology;
pay substantial damages to our customers or end-users to discontinue use or replace infringing technology with
non-infringing technology;
license technology from the third party claiming infringement, which license may not be available on
commercially reasonable terms, or at all; or
relinquish intellectual property rights associated with one or more of our patent claims, if such claims are
held invalid or otherwise unenforceable.
difficulties associated with owning a manufacturing business, including, but not limited to, the maintenance
and management of manufacturing facilities, equipment, employees and inventories and limitations on the flexibility of
controlling overhead;
difficulties in continuing expansion of our operations in Asia and Europe, because of the distance from our
U.S. headquarters and differing regulatory and cultural environments;
the need for skills and techniques that are outside our traditional core expertise;
less flexibility in shifting manufacturing or supply sources from one region to another;
even when independent suppliers offer lower prices, we would continue to acquire wafers from our captive
manufacturing facility, which may result in us having higher costs than our competitors;
difficulties developing and implementing a successful research and development team; and
difficulties developing, protecting, and gaining market acceptance of, our proprietary technology.
unexpected losses of key employees or customers of the acquired company;
bringing the acquired companys standards, processes, procedures and controls into conformance with our
operations;
coordinating our new product and process development;
hiring additional management and other critical personnel;
increasing the scope, geographic diversity and complexity of our operations;
difficulties in consolidating facilities and transferring processes and know-how;
difficulties in reducing costs of the acquired entitys business;
diversion of managements attention from the management of our business; and
adverse effects on existing business relationships with customers.
making it more difficult for us to meet our payment and other obligations under the notes and our other
outstanding debt;
resulting in an event of default if we fail to comply with the financial and other restrictive covenants
contained in our debt agreements, which event of default could result in all of our debt becoming immediately due and
payable and, in the case of an event of default under our secured debt, such as our senior secured credit facility,
could permit the lenders to foreclose on our assets securing that debt;
reducing the availability of our cash flow to fund working capital, capital expenditures, acquisitions and
other general corporate purposes, and limiting our ability to obtain additional financing for these purposes;
subjecting us to the risk of increased sensitivity to interest rate increases on our indebtedness with
variable interest rates, including borrowings under senior secured credit facility;
limiting our flexibility in planning for, or reacting to, and increasing our vulnerability to, changes in our
business, the industry in which we operate and the general economy; and
placing us at a competitive disadvantage compared to our competitors that have less debt or are less
leveraged.
changes in, or impositions of, legislative or regulatory requirements, including tax laws in the
United States and in the countries in which we manufacture or sell our products;
compliance with trade or other laws in a variety of jurisdictions;
trade restrictions, transportation delays, work stoppages, and economic and political
instability;
changes in import/export regulations, tariffs and freight rates;
difficulties in collecting receivables and enforcing contracts;
currency exchange rate fluctuations;
restrictions on the transfer of funds from foreign subsidiaries to the United States;
the possibility of international conflict, particularly between or among China and Taiwan and
the United States;
legal regulatory, political and cultural differences among the countries in which we do business;
longer customer payment terms; and
changes in U.S. or foreign tax regulations.
general economic conditions in the countries where we sell our products;
seasonality and variability in the computing and communications market and our other end-markets;
the timing of our and our competitors new product introductions;
product obsolescence;
the scheduling, rescheduling and cancellation of large orders by our customers;
the cyclical nature of demand for our customers products;
our ability to develop new process technologies and achieve volume production at our fabrication
facilities;
changes in manufacturing yields;
changes in gross profit margins;
adverse movements in exchange rates, interest rates or tax rates; and
the availability of adequate supply commitments from our outside suppliers or subcontractors.
use a significant portion of our available cash;
issue equity securities, which would dilute current stockholders percentage ownership;
incur substantial debt;
incur or assume contingent liabilities, known or unknown;
incur amortization expenses related to intangibles; and
incur large, immediate accounting write-offs.
Primary use
Location
Lease expiration
Sq.Ft.
Dallas, Texas
February 2012
8,000
Westlake Village, California
December 2009
31,000
San Jose, California
January 2010
4,000
Amherst, New Hampshire
Monthly
< 1,000
Lemont, Illinois
Monthly
< 1,000
Fountain Valley, California
Monthly
< 1,000
Brookline, New Hampshire
Monthly
< 1,000
Great River, New York
December 2013
2,000
Beauzelle, France
February 2012
< 1,000
Shanghai, China
October 2009
4,000
Shenzhen, China
April 2012
5,000
Kwai Fong, Hong Kong
Monthly
4,200
Munich, Germany
July 2011
10,581
Kowloon Bay, Hong Kong
March 2011
10,000
Hsinchu, Taiwan
Monthly
31,000
Shanghai, China
February 2012
145,000
Shanghai, China
March 2012
112,000
Lees Summit, Missouri
June 2013
70,000
Oldham, England
Owned
156,020
Neuhaus, Germany
Owned
52,506
Taipei, Taiwan
Owned
12,000
Taipei, Taiwan
Owned
11,000
Taipei, Taiwan
Owned
24,000
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Calendar Quarter
Closing Sales Price of
Ended
Common Stock
High
Low
$
8.32
$
5.59
17.13
3.44
28.26
17.31
30.93
22.55
29.71
20.22
34.71
27.40
32.84
26.31
27.85
23.06
26.94
21.89
2003
2004
2005
2006
2007
2008
Return %
19.08
105.79
14.28
27.13
-79.85
Cum
$
100.00
119.08
245.05
280.04
356.01
71.75
Return %
9.16
2.12
10.39
13.87
-39.96
Cum
$
100.00
109.16
111.47
123.05
140.12
84.12
Return %
16.27
0.75
13.57
4.88
-44.84
Cum
$
100.00
116.27
117.14
133.04
139.53
76.96
Source:
Data provided by Zacks Investment Research, Inc., copyright 2009. Used with permission. All rights reserved.
(In thousands, except per share data)
Years ended December 31,
Income Statement Data
2004
2005
2006
2007
2008
$
185,703
$
214,765
$
343,308
$
401,159
$
432,785
60,735
74,377
113,892
130,379
132,528
23,517
30,183
47,817
55,127
68,373
3,422
3,713
8,237
12,955
21,882
360
836
3,706
7,865
1,061
4,089
26,939
33,896
56,414
69,979
105,915
33,796
40,481
57,478
60,400
26,613
28
819
6,699
18,117
11,991
(665
)
(598
)
(1,844
)
(6,831
)
(9,348
)
(418
)
406
(1,212
)
(225
)
16,594
32,741
41,108
61,121
71,461
45,850
6,514
6,685
11,689
9,428
4,585
(676
)
(1,094
)
(1,289
)
(2,376
)
(2,290
)
25,551
33,329
48,143
59,657
38,975
$
0.85
$
0.96
$
1.25
$
1.51
$
0.96
$
0.73
$
0.86
$
1.16
$
1.41
$
0.91
30,160
34,752
38,443
39,601
40,709
34,811
38,842
41,502
42,331
42,638
As of December 31,
Balance Sheet Data
2004
2005
2006
2007
2008
$
167,801
$
289,515
$
622,139
$
706,365
$
894,143
49,571
146,651
395,354
451,801
209,832
7,833
4,865
237,115
235,815
400,646
112,148
225,474
294,167
369,598
372,327
(1)
Adjusted for the effect of 3-for-2 stock splits in December 2005 and July 2007.
We completed the acquisition of Zetex plc (Zetex) in June;
Revenue for 2008 increased 8% over 2007 to $432.8 million, including seven months of Zetex
revenues;
Gross profit for 2008 increased 2% or $2.1 million over 2007 to $132.5 million;
In connection with the acquisition of Zetex, we entered into a margin loan for $165 million
secured by our auction rate securities (ARS) portfolio, which was replaced on November 4, 2008 with a
no net cost loan from UBS BANK USA (UBS Bank);
On October 29, 2008, we entered into a settlement agreement with UBS AG and its affiliates (UBS
AG) that will allow us to sell our ARS portfolio to UBS AG at par value at any time during the period of
June 30, 2010 through July 2, 2012; and
During the fourth quarter of 2008, we repurchased $46.5 million of our $230 million 2.25%
Convertible Senior Notes due 2026 for approximately $23.2 million in cash resulting in a $22.8 million
pre-tax gain.
Shut down of Zetex 4 inch wafer fabrication line in Oldham, England;
Consolidate our wafer output lines;
Currently, our Shanghai facilities are under-loaded, therefore, we are transferring the production
of products acquired in our purchase of Zetex into our Shanghai packaging facilities sooner than
originally planned and thereby reducing our dependence on subcontractors and maximizing the utilization of
our internal capacity;
As part of our manufacturing strategy, we plan to reduce inventory and will continue to evaluate
our raw material costs in order to reduce our gold consumption while protecting and maintaining product
performance;
Reduce capital expenditures from our previous 10 to 12 percent model to less than 2% until such
time that the market recovers and additional manufacturing capacity is needed;
Restructure our product development organization and consolidate the acquired Zetex design teams;
Headcount reductions across the entire organization, primarily at our wafer fabrication facilities
in Kansas City and Oldham;
Temporary site shut-downs and mandatory time off; and
Implement a hiring and compensation freeze, and from an overall expense perspective, implement
strict controls over discretionary spending in order to conserve cash.
Continue to rapidly introduce innovative discrete and analog semiconductor products;
Expand our available market opportunities;
Maintain intense customer focus;
Enhance cost competitiveness; and
Pursue selective strategic acquisitions.
The current economic downturn has resulted in a decrease in demand for our products, which we
expect to continue until economic conditions improve. As a result, for 2009, we do not expect to sustain
our historical growth rate. In addition, our net sales for 2008 reflect the impact of the overall
weakening economy, in particular on key targeted end-equipment in the consumer and computing markets, as
well as our foundry and subcontracting business, which showed greater weakness than our core revenue
drivers.
We have experienced substantial pressure from our customers and competitors to reduce the selling
price of our products. See Risk Factors
We are and will continue to be under continuous pressure from
our customers and competitors to reduce the price of our products, which could adversely affect our growth
and profit margins
in Part I, Item 1A of this Annual Report. Although we do not expect to sustain our
historical growth rate in 2009, we expect any future improvements in net income to result primarily from
increases in sales volume and improvements in product mix, which will continue to improve the average
selling prices of our products.
Sales of new products (products that have been sold for three years or less) for the years ended
December 31, 2006, 2007 and 2008 amounted to 28.2%, 35.1% and 26.9% of total sales, respectively,
including the contribution of recent acquisitions. New products generally have gross profit margins that
are higher than the margins of our standard products. We believe the sales from new products is an
important measure given the short life cycles of some of our products. See Risk Factors
Our business
may be adversely affected by obsolete inventories as a result of changes in demand for our products and
change in life cycles of our products
in Part I, Item 1A of this Annual Report for additional information
about product life cycles.
Our gross profit margin was 30.6% in 2008, compared to 32.5% in 2007 and 33.2% in 2006. Our gross
profit margin decrease in 2008 was affected by lower capacity utilization at our manufacturing operations
primarily due to current economic conditions along with the one time non-cash expense of $5.4 million
incurred during the third quarter of 2008 for the increase in inventory for reasonable profit allowance in
accordance with Financial Accounting Standards Board (FASB) Statement of Financial Accounting Standards
(SFAS) No. 141,
Business Combinations
and depreciation expense of fixed assets in connection with the
Zetex acquisition. In 2007, we completed the move of our analog product from Taiwan to our Shanghai
manufacturing facilities to increase the gross margin on this product line. Future gross profit margins
will depend primarily on our utilization, product mix, cost savings, and the demand
For 2008, the percentage of our net sales derived from our Asian subsidiaries was 74.2%, compared
to 75.4% in 2007 and 71.9% in 2006. We expect our net sales to the Asian market to increase as a
percentage of our total net sales as a result of our customers continuing to shift their manufacturing of
electronic products to Asia.
As a result of the Zetex acquisition we have added significant revenue in Europe. As such, Europe
accounted for approximately 15.6% of our revenues in 2008.
As of December 31, 2008, we had invested approximately $197.3 million in our manufacturing
facilities in China. During 2008, we invested approximately $30.0 million in these manufacturing
facilities, and we expect to continue to invest in our manufacturing facilities, although the amount to be
invested will depend on product demand and new product developments.
For 2008, our capital expenditures were approximately 12.3% of annual revenue. Given the current
economic conditions and our efforts to reduce costs, we expect capital expenditures to be less than 2% of
revenue for 2009 or until economic conditions improve and additional manufacturing capacity is needed.
We increased our investment in research and development from $13.5 million in 2007 to $22.5
million in 2008, primarily as a result of the Zetex acquisition. In 2008, research and development
expenses were approximately 5.2% of net sales. Although research and development increased in 2008, we
expect the investment to decrease for 2009 as we are planning to restructure our product development
organization and consolidate our design teams and to reduce costs, but to increase as a percentage of net
sales due to the lower expected net sales.
The condition of the economy in general and of the semiconductor industry in particular, in which
we are currently experiencing a global decrease in demand for our products,
Our customers adjustments in their order levels,
Changes in our pricing policies or the pricing policies of our competitors or suppliers,
The termination of key supplier relationships,
The rate of introduction to, and acceptance of new products by, our customers,
Our ability to compete effectively with our current and future competitors,
Our ability to enter into and renew key corporate and strategic relationships with our customers,
vendors and strategic alliances,
Changes in foreign currency exchange rates,
A major disruption of our information technology infrastructure, and
Unforeseen catastrophic events, such as armed conflict, terrorism, fires, typhoons and
earthquakes.
Percent of Net sales
Percentage Dollar Increase (Decrease)
Year Ended December 31,
Year Ended December 31,
2004
2005
2006
2007
2008
04
to 05
05 to 06
06 to 07
07 to 08
100
%
100
%
100
%
100
%
100
%
15.6
%
59.9
%
16.9
%
7.9
%
(67.3
)
(65.4
)
(66.8
)
(67.5
)
(69.4
)
12.3
63.4
18.0
10.9
32.7
34.6
33.2
32.5
30.6
22.5
53.1
14.5
1.6
(14.5
)
(15.8
)
(16.4
)
(17.4
)
(24.5
)
25.8
63.6
22.2
17.9
18.2
18.8
16.7
15.1
6.1
19.8
42.0
5.1
(55.9
)
0.4
2.0
4.5
2.8
2825.0
717.9
170.4
(33.8
)
(0.6
)
(0.3
)
0.1
(1.7
)
(2.2
)
(10.1
)
208.4
270.4
36.9
(0.2
)
0.2
(0.1
)
3.8
197.1
398.5
81.4
74.8
17.6
18.7
19.0
17.8
10.6
25.6
48.7
16.9
(35.8
)
3.5
3.1
3.4
2.4
1.1
2.6
74.9
(19.3
)
(51.4
)
(0.4
)
(0.5
)
(0.4
)
(0.6
)
(0.5
)
61.8
17.8
84.3
(3.6
)
13.7
15.0
15.2
14.9
9.0
30.4
44.4
23.9
(34.7
)
(1)
Operating expenses consists of selling, general and administrative, research and
development, amortization of acquisition related intangible assets, in-process research and
development and restructuring charges.
2007
2008
$401,159
$
432,785
Net sales for the year
Percentage of
ended December 31
net sales
2007
2008
2007
2008
$
156,183
$
130,045
38.9
%
30.0
%
102,562
118,577
25.6
%
27.4
%
81,408
85,906
20.3
%
19.8
%
17,563
21,901
4.4
%
5.1
%
5,111
17,021
1.3
%
3.9
%
9,854
14,852
2.5
%
3.4
%
7,710
12,821
1.8
%
3.1
%
20,768
31,662
5.2
%
7.3
%
$
401,159
$
432,785
100
%
100
%
2007
2008
$
270,780
$
300,257
$
130,379
$
132,528
32.5%
30.6%
2007
2008
$
55,127
$
68,373
2007
2008
$12,955
$
21,882
2007
2008
$836
$
3,706
2007
2008
$
$
7,865
2007
2008
$1,061
$
4,089
2007
2008
$18,117
$
11,991
2007
2008
$
6,831
$
9,348
2007
2008
$
(225
)
$
16,594
2007
2008
$
9,428
$
4,585
2007
2008
$
2,376
$
2,290
2007
2008
$
59,657
$
38,975
2006
2007
$
343,308
$
401,159
Net sales for the year
Percentage of
ended December 31
net sales
2006
2007
2006
2007
$
118,303
$
156,183
34.5
%
38.9
%
96,401
102,562
28.1
%
25.6
%
76,357
81,408
22.2
%
20.3
%
52,247
61,006
15.2
%
15.2
%
$
343,308
$
401,159
100
%
100
%
2006
2007
$
229,416
$
270,780
$
113,892
$
130,379
33.2
%
32.5
%
2006
2007
$
47,817
$
55,127
2006
2007
$
8,237
$
12,955
2006
2007
$
$
1,061
2006
2007
$
6,699
$
18,117
2006
2007
$
1,884
$
6,831
2006
2007
$
(1,212
)
$
(225
)
2006
2007
$
11,689
$
9,428
2006
2007
$
1,289
$
2,376
2006
2007
$
48,143
$
59,657
In January 2009, we borrowed an additional $1.7 million against our no net cost loan
facility with UBS BANK USA, bringing the total outstanding balance to $213 million. See
below for additional information about our no net cost loan facility.
Due to the lower interest rate earned on cash balances by one of our foreign
subsidiaries and higher interest rate charged to borrow cash in the U.S., we transferred
approximately $5 million from that foreign subsidiary into our U.S. bank account during the
first quarter of 2009.
In February 2009, we paid in full the outstanding balance on our revolving credit
commitment and our term loan facility and terminated our Amended and Restated Credit
Agreement and Covenant Agreement with Union Bank. We have no current plans to replace
these credit facilities; however, should future business needs arise and the credit markets
permit, we may seek to obtain additional credit facilities.
Year Ended December 31,
2006
2007
Change
2007
2008
Change
$
72,081
$
90,771
$
18,690
$
90,771
$
57,171
$
(33,600
)
(325,695
)
(88,363
)
237,332
(88,363
)
(203,501
)
(115,138
)
228,989
4,674
(224,315
)
4,674
196,868
192,194
225
209
(16
)
209
(3,221
)
(3,430
)
$
(24,400
)
$
7,291
$
31,691
$
7,291
$
47,317
$
40,026
Payments due by period (in thousands)
Less than
More than
Total
1 year
1-3 years
3-5 years
5 years
$
401,985
$
1,339
$
1,371
$
730
$
398,545
2,557
448
654
655
800
19,709
5,506
7,711
6,366
126
11,984
11,984
5,478
5,478
$
441,713
$
12,771
$
9,736
$
7,751
$
411,455
(1)
On each of October 1, 2011, October 1, 2016 and October 1, 2021, holders of our
Convertible Senior Notes may require the Company to purchase all or a portion of their
Notes at a purchase price in cash equal to 100% of the principal amount of the Notes to
be purchased, plus any accrued and unpaid interest to, but excluding, the purchase date.
recorded, processed, summarized and reported within the time period
specified in the Commissions rules and forms; and
accumulated and communicated to our management, including the Chief
Executive Officer and the Chief Financial Officer, to allow timely decisions
required disclosure.
(a)
Financial Statements and Schedules
(1) Financial statements:
Page
(2) Schedules:
(b)
Exhibits
The exhibits listed on the Index to Exhibits at page 119 are filed as
exhibits or incorporated by reference to this Annual Report.
(c)
Financial Statements of Unconsolidated Subsidiaries and Affiliates
Not Applicable.
Diodes Incorporated and Subsidiaries
February 25, 2009
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands)
December 31,
2007
2008
ASSETS
$
56,179
$
103,496
323,472
89,578
74,574
53,031
99,118
5,173
3,994
10,576
15,578
538,009
296,760
320,625
123,407
174,667
3,241
2,745
9,643
35,928
25,135
56,791
6,930
6,627
$
706,365
$
894,143
CONSOLIDATED BALANCE SHEETS (Continued)
CONSOLIDATED STATEMENTS OF INCOME
CONSOLIDATED STATEMENTS OF STOCKHOLDERS EQUITY
Years ended December 31, 2006, 2007 and 2008
CONSOLIDATED STATEMENTS OF CASH FLOWS
CONSOLIDATED STATEMENTS OF CASH FLOWS (Continued)
Years ended December 31,
2006
2007
2008
$
1,771
$
7,595
$
8,982
$
3,377
$
6,921
$
7,290
$
6,655
$
$
$
878
$
1,733
$
(2,333
)
$
56,896
$
$
169,959
(17,737
)
(41,367
)
(3,888
)
24,566
$
35,271
$
$
153,158
Holding companies
100% owned
100% owned
100% owned (2008)
100% owned (2008)
Subsidiaries
100% owned
100% owned
99.8% owned
95% owned
95% owned
100% owned
100% owned
100% owned
100% owned
100% owned (2008)
100% owned (2008)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Balance at
Additions charged
Deductions
Balance at
beginning of
period
to costs &
expenses
& currency
changes
end of
period
$
534
$
263
$
180
$
617
$
617
$
1
$
153
$
465
$
465
$
758
$
(101
)
$
1,324
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Year Ended December 31,
2006
2007
2008
$
48,143
$
59,657
$
38,975
38,443
39,601
40,709
$
1.25
$
1.51
$
0.96
38,443
39,601
40,709
3,059
2,730
1,929
41,502
42,331
42,638
$
1.16
$
1.41
$
0.91
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Twelve Months Ended December 31,
2006
2007
2008
$
48,143
$
59,657
$
38,975
1,296
292
(40,106
)
(4,722
)
(4,511
)
$
49,439
$
59,949
$
(10,364
)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Total Allocation
Assets acquired
$
299
922
125
7,801
(339
)
(400
)
$
8,408
$
176,138
3,595
$
179,733
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Previously
Revised purchase
disclosed as of
Changes in purchase
price allocation on
September 30, 2008
price allocation
acquisition date
$
13,445
$
$
13,445
35,991
35,991
4,363
4,363
52,291
(48
)
52,243
10,276
(10,276
)
136
136
47,440
834
48,274
27,637
10,162
37,799
$
191,579
$
672
$
192,251
$
6,057
$
$
6,057
16,806
16,806
10,873
10,873
1,259
672
1,931
3,846
3,846
38,841
672
39,513
$
152,738
$
$
152,738
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Twelve Months Ended
December 31,
2007
2008
$
530,934
$
483,026
$
65,659
$
26,742
$
1.66
$
0.66
$
1.55
$
0.63
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Level 1:
Quoted Prices
Level 2:
in Active
Significant
Markets for
Other
Level 3:
Identical
Observable
Significant
Description
Assets
Inputs
Unobservable
Total
$
$
$
288,530
$
288,530
32,095
32,095
$
$
$
320,625
$
320,625
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Level 3:
Significant
Unobservable
Inputs
$
320,700
(32,095
)
32,095
(75
)
$
320,625
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
As of December 31, 2008
Cost Basis
Realized Gains
Realized Losses
Fair Value
$
320,625
$
$
(32,095
)
$
288,530
32,095
32,095
$
320,625
$
32,095
$
(32,095
)
$
320,625
As of December 31, 2007
Cost Basis
Unrealized Gains
Unrealized Losses
Fair Value
$
320,700
$
$
$
320,700
2,772
2,772
$
323,472
$
$
$
323,472
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
% of FFELP guaranty
Par Value
% of Total
$
195,000
60.8
%
86,825
27.1
%
17,000
5.3
%
3,800
1.2
%
18,000
5.6
%
$
320,625
100
%
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2007
2008
$
21,245
$
46,992
11,868
23,436
19,918
28,690
$
53,031
$
99,118
2007
2008
$
9,287
$
32,915
8,968
13,746
196,559
248,260
214,814
294,921
(96,060
)
(134,118
)
118,754
160,803
4,653
13,864
$
123,407
$
174,667
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
As of December 31, 2008
Gross
Currency
Carrying
Accumulated
exchange
Intangible Assets
Useful life
Amount
Amortization
and other
Net
5-15 years
$
14,006
$
(2,217
)
$
(206
)
$
11,583
3 years
1,212
(823
)
(104
)
285
2-10 years
29,248
(2,115
)
(7,574
)
19,559
12 years
6,521
(284
)
(1,736
)
4,501
$
50,987
$
(5,439
)
$
(9,620
)
$
35,928
As of December 31, 2007
Gross
Currency
Carrying
Accumulated
exchange
Intangible Assets
Useful life
Amount
Amortization
and other
Net
5-15 years
$
10,831
$
(1,194
)
$
6
$
9,643
$
10,831
$
(1,194
)
$
6
$
9,643
Years
$
4,368
4,319
4,253
4,216
3,512
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2007
2008
Acquisitions/
Acquisitions/
purchase
Currency
purchase
Currency
Balance,
accounting
exchange
Balance,
accounting
exchange
Balance,
Jan 1
adjustments
and other
Dec 31
adjustments
and other
Dec 31
$
881
$
$
$
881
$
$
$
881
4,209
4,209
4,209
19,940
105
20,045
(226
)
19,819
37,799
(5,917
)
31,882
$
25,030
$
$
105
$
25,135
$
37,799
$
(6,143
)
$
56,791
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Outstanding at
2008
December 31,
Credit Facilities
Terms
2007
2008
$
30,000
$
$
19,448
6,098
$
49,448
$
$
6,098
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
$
2,006
346
358
370
361
398,544
$
401,985
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For years ending December 31,
$
448
326
327
328
1,128
2,557
(326
)
2,231
(377
)
$
1,854
2007
2008
$
10,517
$
8,001
4,558
6,243
3,708
2,015
3,604
4,462
2,129
831
1,100
1,294
1,061
4,164
5,349
$
27,841
$
31,195
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2006
2007
2008
$
$
$
6,555
5,668
9,748
641
230
14
7,196
5,898
9,762
4,708
2,345
1,608
(215
)
(5,992
)
4,493
2,345
(4,384
)
1,185
(793
)
$
11,689
$
9,428
$
4,585
2006
2007
2008
Percent
Percent
Percent
of pretax
of pretax
of pretax
Amount
earnings
Amount
earnings
Amount
earnings
$
21,392
35.0
$
25,011
35.0
$
16,048
35.0
2,506
4.1
231
0.3
240
0.5
(16,993
)
(27.8
)
(21,063
)
(29.5
)
(16,908
)
(36.9
)
2,614
4.3
1,185
1.7
495
1.1
2,270
3.7
(3,339
)
(4.7
)
5,044
7.1
550
1.2
1,185
1.7
(412
)
(0.9
)
1,514
3.3
2,753
6.0
(100
)
(0.2
)
1,174
1.6
305
0.7
$
11,689
19.1
$
9,428
13.2
$
4,585
10.0
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2007
2008
$
3,200
$
4,122
1,185
1,035
(263
)
(1,451
)
$
4,122
$
3,706
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2007
2008
$
1,229
$
1,534
1,085
785
1,200
1,659
1,675
$
5,173
$
3,994
$
544
$
1,313
7,976
8,560
1,868
2,790
1,887
1,707
4,078
7,984
16,353
22,354
(5,043
)
(5,593
)
11,310
16,761
(2,284
)
(4,602
)
(5,785
)
(9,417
)
(8,069
)
(14,019
)
$
3,241
$
2,742
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Defined Benefit Plan
$
204
4,186
(3,812
)
$
578
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Defined Benefit Plan
$
121,842
204
4,185
(9,087
)
(1,837
)
(32,039
)
$
83,268
$
111,664
(10,264
)
(1,837
)
(28,279
)
$
71,284
$
(11,984
)
6.6
%
6.7
%
6.4
%
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Asset category
Expected long-term return
Assets allocation
7.8
%
51.5
%
5.2
%
48.3
%
2.0
%
0.2
%
6.5
%
100
%
Year
$
2,502
2,789
3,134
3,379
3,508
$
21,294
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2006
2007
2008
$
5,394
$
4,824
$
3,594
603
463
330
469
273
112
$
6,466
$
5,560
$
4,036
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2006
2007
2008
54.34
%
54.52
%
55.30
%
5.88
6.63
6.94
3
%
4.91
%
4.08
%
2.56
%
2.50
%
2.50
%
N/A
N/A
N/A
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Weighted
Weighted
Average
Average
Remaining
Exercise
Contractual
Aggregate
Stock options
Shares
Price
Term (years)
Intrinsic Value
6,139
$
6.97
6.74
$
84,277
365
23.05
(1,055
)
4.14
23,164
(81
)
16.03
5,368
8.49
6.36
81,396
3,910
5.97
5.57
69,161
5,368
8.49
265
24.96
(1,260
)
6.04
26,722
(105
)
19.53
4,268
10.06
5.95
85,393
3,411
7.55
5.36
76,814
4,268
10.06
241
27.95
(540
)
5.48
8,775
(74
)
20.67
3,895
$
11.61
5.35
$
2,327
3,342
$
9.28
4.81
$
2,327
Weighted
average
remaining
Weighted
Range of exercise
Number
contractual
average
Plan
prices
outstanding
life (years)
exercise price
$
1.33-7.09
398
1.31
$
5.37
1.33-7.09
188
2.21
4.88
2.53-28.45
3,309
6.00
12.74
$
1.33-28.45
3,895
5.35
$
11.61
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Weighted
average
Weighted
remaining
average
Range of exercise
Number
contractual
exercise
Plan
prices
outstanding
life (years)
price
$
1.33-7.09
398
1.31
$
5.37
1.33-7.09
188
2.21
4.88
2.53-28.45
2,756
5.49
10.14
$
1.33-28.45
3,342
4.81
$
9.28
2006
2007
2008
$
1,558
$
3,743
$
5,116
121
351
653
127
210
331
$
1,806
$
4,304
$
6,100
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Weighted
Average
Aggregate
Grant Date
Intrinsic
Restricted Stock Grants
Shares
Fair Value
Value
495
$
11.53
364
23.26
(7
)
23.31
852
$
16.45
$
20,141
852
$
16.45
297
26.00
(84
)
23.19
(47
)
23.73
1,018
$
18.34
$
30,602
1,018
$
18.34
283
26.47
(391
)
16.29
$
9,649
(64
)
26.23
846
$
21.41
$
5,125
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2006
2007
2008
$
22,374
$
24,809
$
15,279
$
48,778
$
49,224
$
48,964
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2006
2007
2008
$
1,481
$
2,586
$
3,486
$
5,973
$
6,005
$
6,555
2007
2008
$
3,526
$
2,920
1,879
2,413
$
5,405
$
5,333
$
8,906
$
6,133
4,229
3,662
$
13,135
$
9,795
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2008
Asia
North
America
Europe
Consolidated
$
346,023
$
113,620
$
28,328
$
487,971
(25,056
)
(27,153
)
(2,977
)
(55,186
)
$
320,967
$
86,467
$
25,351
$
432,785
$
105,957
$
31,213
$
37,497
$
174,667
$
333,639
$
409,921
$
150,583
$
894,143
2007
Asia
North
America
Europe (1)
Consolidated
$
514,195
$
122,274
$
$
636,469
(211,913
)
(23,397
)
(235,310
)
$
302,282
$
98,877
$
$
401,159
$
103,220
$
20,187
$
$
123,407
$
240,196
$
466,169
$
$
706,365
2006
Asia
North
America
Europe (1)
Consolidated
$
405,002
$
117,867
$
$
522,869
(158,131
)
(21,430
)
(179,561
)
$
246,871
$
96,437
$
$
343,308
$
82,021
$
13,448
$
$
95,469
$
241,979
$
380,160
$
$
622,139
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
% of Total
2008
Revenue
Revenue
$
130,045
30.0
%
118,577
27.4
%
85,906
19.8
%
21,901
5.1
%
17,021
3.9
%
14,852
3.4
%
12,821
3.1
%
$
31,662
7.3
%
$
432,785
100
%
% of Total
2007
Revenue
Revenue
$
156,183
38.9
%
102,562
25.6
%
81,408
20.3
%
17,563
4.4
%
9,854
2.5
%
7,710
1.8
%
5,111
1.3
%
$
20,768
5.2
%
$
401,159
100
%
% of Total
2006
Revenue
Revenue
$
118,303
34.5
%
96,401
28.1
%
76,357
22.2
%
$
52,247
15.2
%
$
343,308
100
%
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
$
5,506
3,984
3,727
3,455
3,037
$
19,709
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Quarter Ended
March 31
June 30
Sept. 30 (1)
Dec. 31
Fiscal 2008
$
95,580
$
116,018
$
134,047
$
87,141
31,916
39,618
38,118
22,876
14,203
13,108
(2,946
)
14,611
$
0.35
$
0.32
$
(0.07
)
$
0.36
0.33
0.31
(0.07
)
0.35
Quarter Ended
March 31
June 30
Sept. 30
Dec. 31
Fiscal 2007
$
92,020
$
96,283
$
105,264
$
107,591
29,524
30,678
34,152
36,024
13,009
12,249
16,101
18,298
$
0.33
$
0.31
$
0.40
$
0.46
0.31
0.29
0.38
0.43
Quarter Ended
March 31
June 30
Sept. 30
Dec. 31
Fiscal 2006
$
73,589
$
82,712
$
92,575
$
94,432
24,214
27,433
30,696
31,549
9,312
11,385
12,770
14,675
$
0.25
$
0.30
$
0.33
$
0.38
0.23
0.27
0.30
0.35
(1)
Net income for the three months ended September 30, 2008 was effected
by purchase price accounting adjustments in connection with the
acquisition of Zetex, mainly due to one time non-cash expenses related to
acquired intangible IPR&D and inventory adjustment for reasonable profit
allowance.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DIODES INCORPORATED (Registrant)
By:
/s/ Keh-Shew Lu
February 26, 2009
KEH-SHEW LU
President and Chief Executive Officer
(Principal Executive Officer)
By:
/s/ Carl C. Wertz
February 26, 2009
CARL C. WERTZ
Chief Financial Officer, Treasurer, and Secretary
(Principal Financial and Accounting Officer)
President and Chief Executive Officer
(Principal Executive Officer)
Chief Financial Officer, Treasurer, and Secretary
(Principal Financial and Accounting Officer)
/s/ C.H. Chen
Chairman of the Board of Directors
C.H. CHEN
Director
/s/ L.P. Hsu
Director
L.P. HSU
Director
/s/ John M. Stich
Director
JOHN M. STICH
Director
Director
Exhibit
Filed
Number
Description
Form
Date of First Filing
Number
Herewith
Stock Purchase Agreement dated as of December 20, 2005, by and
among DII Taiwan Corporation Ltd., Anachip Corporation, Lite-On
Semiconductor Corporation, Shin Sheng Investment Limited and Sun
Shining Investment Corp.
8-K
December 21, 2005
2.1
Asset Purchase Agreement dated as of October 18, 2006, by and
among DII Taiwan Corporation Ltd., APD Semiconductor, Inc. and
Certain Shareholders Thereof, and entered into by the parties on
October 19, 2006
8-K
October 24, 2006
2.1
Amendment to the Asset Purchase Agreement, dated October 18, 2006,
by and among Diodes Incorporated, DII Taiwan Corporation Ltd., APD
Semiconductor, Inc. and APD Semiconductor (Asia) Inc., and entered
into by the parties on October 19, 2006
8-K
October 24, 2006
2.2
Second Amendment to Asset Purchase Agreement dated as of October
31, 2006, by and among Diodes Incorporated, DII Taiwan Corporation
Ltd., APD Semiconductor, Inc. and APD Semiconductor (Asia) Inc.
8-K
November 7, 2006
2.1
Certificate of Incorporation, as amended.
S-3
September 8, 2005
3.1
Amended By-laws of the Company dated July 19, 2007
8-K
July 23, 2007
3.1
Form of Certificate for Common Stock, par value $0.66 2/3 per share
S-3
August 25, 2005
4.1
Form of Convertible Senior Notes due 2026
S-3
October 4, 2006
4.1
Form of Indenture for the Convertible Senior Notes due 2026
S-3
October 4, 2006
4.3
Companys 401(k) Plan Adoption Agreement
10-K
March 31, 1995
Companys 401(k) Plan Basic Plan Documentation #03
10-K
March 31, 1995
Companys Incentive Bonus Plan
S-8
May 9, 1994
Companys 1993 Non-Qualified Stock Option Plan
S-8
May 9, 1994
Companys 1993 Incentive Stock Option Plan
10-K
March 31, 1995
KaiHong Compensation Trade Agreement for SOT-23 Product
10-Q/A
October 27, 1995
10.2
KaiHong Compensation Trade Agreement for MELF Product
10-Q/A
October 27, 1995
10.3
Lite-On Power Semiconductor Corporation Distributorship Agreement
10-Q
July 27, 1995
10.4
Loan Agreement between the Company and FabTech Incorporated
10-K
April 1, 1996
10.16
KaiHong Joint Venture Agreement between the Company and Mrs. J.H.
Xing
10-K
April 1, 1996
10.17
Quality Assurance Consulting Agreement between LPSC and Shanghai
KaiHong Electronic Company, Ltd.
10-Q
August 14, 1996
10.18
Guaranty Agreement between the Company and Shanghai KaiHong
Electronic Co., Ltd.
10-K
March 26, 1997
10.21
Guaranty Agreement between the Company and Xing International, Inc.
10-K
March 26, 1997
10.22
Bank Guaranty for Shanghai KaiHong Electronic Co., LTD
10-Q
August 14,1998
10.25
Consulting Agreement between the Company and J.Y. Xing
10-Q
November 13,1998
10.26
Exhibit
Filed
Number
Description
Form
Date of First Filing
Number
Herewith
Diodes-Taiwan Relationship Agreement for FabTech Wafer Sales
10-Q
August 11, 1999
10.28
Volume Purchase Agreement dated as of October 25, 2000, between FabTech,
Inc. and Lite-On Power Semiconductor Corporation
8-K
December 18, 2000
10.31
Diodes Incorporated Building Lease Third Amendment
10-Q
November 2, 2001
10.36
2001 Omnibus Equity Incentive Plan
DEF14A
April 27, 2001
B
Sale and Leaseback Agreement between the Company and Shanghai Ding Hong
Company, Ltd.
10-Q
May 15, 2002
10.46
Lease Agreement between the Company and Shanghai Ding Hong Company,
Ltd.
10-Q
May 15, 2002
10.47
Lease Agreement for Plant #2 between the Company and Shanghai Ding Hong
Electronic Equipment Limited
10-Q
August 9, 2004
10.52
$5 Million Term Note with Union Bank
10-Q
August 9, 2004
10.53
First Amendment To Amended And Restated Credit Agreement
10-Q
August 9, 2004
10.54
Covenant Agreement between Union Bank and FabTech, Inc.
10-Q
August 9, 2004
10.55
Amendment to The Sale and Lease Agreement dated as January 31, 2002 with
Shanghai Ding Hong Electronic Co., Ltd.
10-Q
August 9, 2004
10.56
Lease Agreement between Diodes Shanghai and Shanghai Yuan Hao Electronic
Co., Ltd.
10-Q
August 9, 2004
10.57
Supplementary to the Lease agreement dated as September 30, 2003 with
Shanghai Ding Hong Electronic Co., Ltd.
10-Q
August 9, 2004
10.58
Second Amendment to Amended and Restated Credit Agreement dated as of
August 29, 2005, between Diodes Incorporated and Union Bank of
California, N.A.
8-K
September 2, 2005
10.59
Covenant Agreement dated as of August 29, 2005, between FabTech, Inc.
and Union Bank of California, N.A.
8-K
September 2, 2005
10.60
Revolving Note dated as of August 29, 2005, of Diodes Incorporated
payable to Union Bank of California, N.A.
8-K
September 2, 2005
10.61
Term Note dated as of August 29, 2005, of FabTech, Inc. payable to Union
Bank of California, N.A.
8-K
September 2, 2005
10.62
Security Agreement dated as of February 27, 2003, between the Company
and Union Bank of California, N.A.
8-K
September 2, 2005
10.63
Security Agreement dated as of February 27, 2003, between FabTech, Inc.
and Union Bank of California, N.A.
8-K
September 2, 2005
10.64
Continuing Guaranty dated as of December 1, 2000, between the Company
and Union Bank of California, N.A.
8-K
September 2, 2005
10.65
Continuing Guaranty dated as of December 1, 2000, between FabTech, Inc.
and Union Bank of California, N.A.
8-K
September 2, 2005
10.66
Employment agreement between Diodes Incorporated and Dr. Keh-Shew Lu
dated August 29, 2005
8-K
September 2, 2005
10.1
Employment agreement between Diodes Incorporated and Mark King, dated
August 29, 2005.
8-K
September 2, 2005
10.2
Employment agreement between Diodes Incorporated and Joseph Liu, dated
August 29, 2005.
8-K
September 2, 2005
10.3
Employment agreement between Diodes Incorporated and Carl Wertz, dated
August 29, 2005.
8-K
September 2, 2005
10.4
Exhibit
Filed
Number
Description
Form
Date of First Filing
Number
Herewith
Form of Indemnification Agreement between Diodes and its directors
and executive officers.
8-K
September 2, 2005
10.5
Wafer purchase Agreement dated January 10, 2006 between Diodes
Incorporated Taiwan Co., Ltd and Lite-on Semiconductor Corporation
8-K
January 12, 2006
2.1
Supplementary to the Lease Agreement dated on September 5, 2004 with
Shanghai Ding Hong Electronic Co., Ltd.
10-Q
May 10, 2006
10.14
Supplementary to the Lease Agreement dated on June 28, 2004 with
Shanghai Yuan Hao Electronic Co., Ltd.
10-Q
May 10, 2006
10.15
Agreement on Application, Construction and Transfer of Power
Facilities, dated as of March 15, 2006, between the Company and
Shanghai Yahong Electronic Co., Ltd
10-Q
May 10, 2006
10.16
Amendment of 1993 Non-Qualified Stock Option Plan, the 1993 Incentive
Stock Option Plan and the 2001 Equity Incentive Plan of the Company
dated as of September 22, 2006
8-K
September 26, 2006
10.2
Amended and Restated Lease Agreement dated as of September 1, 2006,
between Diodes FabTech, Inc. with Townsend Summit, LLC
8-K
October 11, 2006
10.1
Agreement on purchase of office building located in Taiwan dated
April 14, 2006, between Diodes Taiwan and First International
Computer, Inc.
8-K
October 11, 2006
10.2
Deferred Compensation Plan effective January 1, 2007
8-K
January 8, 2007
99.1
A Supplement dated January 1, 2007 to the Lease Agreement on Disposal
of Waste and Scraps between Diodes Shanghai and Shanghai Yuan Hao
Electronic Co., Ltd.
10-K
February 29, 2008
10.50
A Supplement dated January 1, 2007 to the Lease Agreement on Disposal
of Waste and Scraps between Diodes China and Shanghai Ding Hong
Electronic Co., Ltd
10-K
February 29, 2008
10.51
Plating Process Agreement made and entered into among Diodes China,
Diodes Shanghai, Shanghai Ding Hong Electronic Co., Ltd. and Shanghai
Micro-Surface Co., Ltd.
10-K
February 29, 2008
10.52
Supplementary Agreement dated December 31, 2007 to the Lease
Agreement dated June, 28, 2004 for Leasing Diodes Shanghai New
Buildings Fourth and Fifth Floor between Diodes Shanghai and
Shanghai Yuan Hao Electronic Co., Ltd.
10-K
February 29, 2008
10.53
Accommodation Building Fourth and Fifth Floor Lease Agreement dated
December 31, 2007 between Diodes Shanghai and Shanghai Ding Hong
Electronic Co., Ltd.
10-K
February 29, 2008
10.54
Consulting Agreement between the Company and Mr. M.K. Lu.
10-K
February 29, 2008
10.55
Foreign Exchange Agreement dated as of April 3, 2008, between Union
Bank of California, N.A. and Diodes FabTech, Inc.
8-K
April 4, 2008
99.2
Escrow Agreement dated as of April 3, 2008, among Diodes FabTech,
Inc., UBS Limited and Union Bank of California, N.A.
8-K
April 4, 2008
99.4
Irrevocable Standby Letter of Credit dated as of March 31, 2008,
issued by UBS Financial Services Inc. (incorporated by reference to
Exhibit 99.1 to Form 8-K filed with the Commission on April 4, 2008).
10-Q
May 12, 2008
10.1
Fourth Amendment to Amended and Restated Credit Agreement dated as of
March 28, 2008, between Diodes Incorporated and Union Bank of
California, N.A. (incorporated by reference to Exhibit 99.3 to Form
8-K filed with the Commission on April 4, 2008).
10-Q
May 12, 2008
10.2
Exhibit
Filed
Number
Description
Form
Date of First Filing
Number
Herewith
Continuing Guaranty
Agreement dated
April 3, 2008,
between Diodes
Incorporated and
Union Bank of
California N.A.
(incorporated by
reference to
Exhibit 99.5 to
Form 8-K filed with
the Commission on
April 4, 2008).
10-Q
May 12, 2008
10.3
Guaranty Agreement
dated March 28,
2008, between
Diodes Incorporated
and UBS Financial
Services, Inc.
(incorporated by
reference to
Exhibit 99.6 to
Form 8-K filed with
the Commission on
April 4, 2008).
10-Q
May 12, 2008
10.4
Addendum to
Guaranty Agreement
dated March 28,
2008, between
Diodes Incorporated
and UBS Financial
Services, Inc.
(incorporated by
reference to
Exhibit 99.7 to
Form 8-K filed with
the Commission on
April 4, 2008).
10-Q
May 12, 2008
10.5
Clients Agreement
dated March 28,
2008, between
Diodes Incorporated
and UBS Financial
Services, Inc.
(incorporated by
reference to
Exhibit 99.8 to
Form 8-K filed with
the Commission on
April 4, 2008).
10-Q
May 12, 2008
10.6
Addendum to
Clients Agreement
dated March 28,
2008, between
Diodes Incorporated
and UBS Financial
Services, Inc.
(incorporated by
reference to
Exhibit 99.9 to
Form 8-K filed with
the Commission on
April 4, 2008).
10-Q
May 12, 2008
10.7
Terms and
Conditions For
Irrevocable Standby
Letter of Credit
dated March 28,
2008, between
Diodes Incorporated
and UBS Financial
Services, Inc.
(incorporated by
reference to
Exhibit 99.10 to
Form 8-K filed with
the Commission on
April 4, 2008).
10-Q
May 12, 2008
10.8
Addendum to Terms
and Conditions For
Irrevocable Standby
Letter of Credit
dated March 28,
2008, between
Diodes Incorporated
and UBS Financial
Services, Inc.
10-Q
May 12, 2008
10.9
Implementation Deed
dated April 2008,
between Diodes
Incorporated and
Zetex plc.
10-Q
May 12, 2008
10.10
Revolving note
dated as of March
28, 2008, of Diodes
Incorporated
payable to Union
Bank of California,
N.A.
10-Q
May 12, 2008
10.11
Contract for the
Purchase and Sale
of Real Estate
dated May 6, 2008,
between Diodes
Incorporated and
West Plano Land
Company, LP.
10-Q
August 11, 2008
10.1
Service Agreement
between Diodes
Zetex Limited and
Colin Keith Greene,
dated June 30,
2008.
10-Q
August 11, 2008
10.2
Side Letter to the
Service Agreement
between Diodes
Zetex Limited and
Hans Rohrer, dated
July 11, 2008.
10-Q
August 11, 2008
10.3
Amendment to the
Addendum to
Clients Agreement
and Terms and
Conditions for
Irrevocable Standby
Letter of Credit,
dated June 9, 2008,
between Diodes
Incorporated and
UBS Financial
Services, Inc.
8-K
June 13, 2008
99.1
Fourth Floor of the
Accommodation
Building Lease
Agreement dated
January 1, 2008,
between Shanghai
Kai Hong Technology
Co., Ltd. and
Shanghai Ding Hong
Electronic Co.,
Ltd.
10-Q
August 11, 2008
10.5
Factory Building
Lease Agreement
dated March 1, 2008
between Shanghai
Kai Hong Technology
Co., Ltd. and
Shanghai Yuan Hao
Electronic Co. Ltd.
10-Q
August 11, 2008
10.6
Exhibit
Filed
Number
Description
Form
Date of First Filing
Number
Herewith
Second Amendment to Addendum to Clients Agreement and Terms
and Conditions For Irrevocable Standby Letter of Credit dated
October 2, 2008, between Diodes Incorporated and UBS Financial
Services, Inc.
8-K
October 10, 2008
99.1
Acceptance Form, Offering Letter and Current Rate and Dividend
Information on UBS Offer Relating to Auction Rate Securities
Settlement with Diodes Incorporated dated as of October 8,
2008, issued by UBS Financial Services Inc.
8-K
November 4, 2008
99.1
Credit Line Account Application and Agreement for Organization
and Businesses dated as of November 4, 2008, between Diodes
Incorporated and UBS Bank USA.
8-K
November 4, 2008
99.2
Addendum to Credit Line Account Application and Agreement
dated as of November 4, 2008, between Diodes Incorporated and
UBS Bank USA.
8-K
November 4, 2008
99.3
Union Bank Credit Line Maturity Date Extension
10-Q
November 7, 2008
10.1
Supplemental Agreement to the Factory Building Lease Agreement
dated as of August 11, 2008 between Shanghai Kai Hong
Technology Electronic Co., Ltd. and Shanghai Yuan Hao
Electronic Co., Ltd.
10-Q
November 7, 2008
10.2
DSH #2 Building Lease Agreement dated as of August 11, 2008
between Shanghai Kai Hong Technology Electronic Co., Ltd. and
Shanghai Yuan Howe Electronics Co., Ltd.
10-Q
November 7, 2008
10.3
Letter agreement dated as of November 17, 2008 extending the
maturity date of the Companys revolving line of credit as
stated in the Amended and Restated Credit Agreement dated as
of March 28, 2008, between Diodes Incorporated and Union Bank
of California, N.A.
8-K
January 23, 2009
99.2
Distributorship Agreement dated November 1, 2008 between
Shanghai Kai Hong Technology Co., Ltd. and Shanghai Keylink
Logistic Co., Ltd.
10-K
February 26, 2009
10.83
X
Lease Facility Safety Management Agreement dated December 31,
2008 between Shanghai Kai Hong Technology Co., Ltd. and
Shanghai Yuan Howe Electronic Co., Ltd.
10-K
February 26, 2009
10.84
X
Abbreviated Standard Form of Agreement Between Owner and
Architech dated August 25, 2008 between Corgan Associates,
Inc. and Diodes Incorporated.
10-K
February 26, 2009
10.85
X
1969 Incentive Bonus Plan, amended December 22, 2008.
10-K
February 26, 2009
10.86
X
Diodes Incorporated 2001 Omnibus Equity Incentive Plan, amended
December 22, 2008.
10-K
February 26, 2009
10.87
X
Diodes Incorporated Deferred Compensation Plan Effective
January 1,
2007, amended December 22, 2008.
10-K
February 26, 2009
10.88
X
Code of Ethics for Chief Executive Officer and Senior
Financial Officers
**.
Preferability letter from independent accountants regarding
change in accounting principle.
10-Q
November 7, 2008
18.1
Exhibit
Filed
Number
Description
Form
Date of First Filing
Number
Herewith
Subsidiaries of the Registrant
X
Consent of Independent Registered Public Accounting Firm
X
Certification Pursuant to Rule 13a-14(a) of the
Securities Exchange Act of 1934, adopted pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002
X
Certification Pursuant to Rule 13a-14(a) of the
Securities Exchange Act of 1934, adopted pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002
X
Certification Pursuant to 18 U.S.C. adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
X
Certification Pursuant to 18 U.S.C. adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
X
*
Constitute management contracts, or compensatory plans or arrangements, which are required to be
filed pursuant to Item 601 of Regulation S-K.
**
Provided in the Corporate Governance portion of the Investor Relations section of the Companys
website at http://www.diodes.com.
-1-
-2-
-3-
-4-
-5-
-6-
-7-
Shanghai Kai Hong Technology Co., Ltd. | Shanghai Keylink Logistic Co., Ltd. | |||||||||
|
||||||||||
By
|
By | |||||||||
|
||||||||||
|
||||||||||
|
||||||||||
|
Authorized Representative
Plant No.1, Lane 18, SanZhuang Road, Songjiang Export Zone, Shanghai, Peoples Republic of China |
Authorized Representative
Plant No. 1 18, Floor #2 Lane 18, SanZhuang Road, Songjiang Export Zone, Shanghai Peoples Republic of China |
-8-
Lease Facility Safety Management Agreement
|
||
Party A (Lessor):
|
Shanghai Yuan Howe Electronic Co., Ltd. Legal Address: No.8 of 18 Lane San Zhuang Road, Songiiang Export Proceeding Zone, Shanghai | |
Party B (Lessee):
|
Shanghai Kai Hong Technology Electronic Co., Ltd., Legal Address: No.1 of 18 Lane San Zhuang Road, Songiiang Export Proceeding Zone, Shanghai | |
Location where the Agreement will be performed (address):
|
Buildings of new factory in No.2 of 18 Lane San Zhuang Road, Songiiang Export Proceeding Zone, Shanghai |
1
2
Party A Shanghai Yuan Howe Electronic Co., Ltd.: (stamp)
|
Party B Shanghai Kai Hong Technology Electronic Co., Ltd.: (stamp) | |
|
||
Representative of Party A:
|
Representative of Party B: |
3
|
||||
AIA Document B151 1997. Copyright
©
1974, 1978, 1987 and 1997
by
The American Institute of Architects
. All rights reserved. WARNING:
This AIA
®
Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of
this AIA
®
Document, or any portion of it, may result in
severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law.
This draft was produced by AIA
software at 09:46:44 on 06/03/2005 under Order No.1000146078_3 which
expires on 11/11/2005, and is not for resale.
|
1 | |||
User Notes:
|
(1812181036) |
|
||||
AIA Document B151 1997. Copyright
©
1974, 1978, 1987 and 1997
by
The American Institute of Architects
. All rights reserved. WARNING:
This AIA
®
Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of
this AIA
®
Document, or any portion of it, may result in
severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law.
This draft was produced by AIA
software at 09:46:44 on 06/03/2005 under Order No.1000146078_3 which
expires on 11/11/2005, and is not for resale.
|
2 | |||
User Notes:
|
(1812181036) |
|
||||
AIA Document B151 1997. Copyright
©
1974, 1978, 1987 and 1997
by
The American Institute of Architects
. All rights reserved. WARNING:
This AIA
®
Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of
this AIA
®
Document, or any portion of it, may result in
severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law.
This draft was produced by AIA
software at 09:46:44 on 06/03/2005 under Order No.1000146078_3 which
expires on 11/11/2005, and is not for resale.
|
3 | |||
User Notes:
|
(1812181036) |
|
||||
AIA Document B151 1997. Copyright
©
1974, 1978, 1987 and 1997
by
The American Institute of Architects
. All rights reserved. WARNING:
This AIA
®
Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of
this AIA
®
Document, or any portion of it, may result in
severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law.
This draft was produced by AIA
software at 09:46:44 on 06/03/2005 under Order No.1000146078_3 which
expires on 11/11/2005, and is not for resale.
|
4 | |||
User Notes:
|
(1812181036) |
.1 | inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owners program or Project budget; | ||
.3 | due to changes required as a result of the Owners failure to render decisions in a timely manner or |
|
||||
AIA Document B151 1997. Copyright
©
1974, 1978, 1987 and 1997
by
The American Institute of Architects
. All rights reserved. WARNING:
This AIA
®
Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of
this AIA
®
Document, or any portion of it, may result in
severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law.
This draft was produced by AIA
software at 09:46:44 on 06/03/2005 under Order No.1000146078_3 which
expires on 11/11/2005, and is not for resale.
|
5 | |||
User Notes:
|
(1812181036) |
|
||||
AIA Document B151 1997. Copyright
©
1974, 1978, 1987 and 1997
by
The American Institute of Architects
. All rights reserved. WARNING:
This AIA
®
Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of
this AIA
®
Document, or any portion of it, may result in
severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law.
This draft was produced by AIA
software at 09:46:44 on 06/03/2005 under Order No.1000146078_3 which
expires on 11/11/2005, and is not for resale.
|
6 | |||
User Notes:
|
(1812181036) |
|
||||
AIA Document B151 1997. Copyright
©
1974, 1978, 1987 and 1997
by
The American Institute of Architects
. All rights reserved. WARNING:
This AIA
®
Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of
this AIA
®
Document, or any portion of it, may result in
severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law.
This draft was produced by AIA
software at 09:46:44 on 06/03/2005 under Order No.1000146078_3 which
expires on 11/11/2005, and is not for resale.
|
7 | |||
User Notes:
|
(1812181036) |
.1 | give written approval of an increase in such fixed limit; | ||
.2 | authorize rebidding or renegotiating of the Project within a reasonable time; | ||
.3 | terminate in accordance with Section 8.5; or | ||
.4 | cooperate in revising the Project scope and quality as required to reduce the Construction Cost. |
|
||||
AIA Document B151 1997. Copyright
©
1974, 1978, 1987 and 1997
by
The American Institute of Architects
. All rights reserved. WARNING:
This AIA
®
Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of
this AIA
®
Document, or any portion of it, may result in
severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law.
This draft was produced by AIA
software at 09:46:44 on 06/03/2005 under Order No.1000146078_3 which
expires on 11/11/2005, and is not for resale.
|
8 | |||
User Notes:
|
(1812181036) |
|
||||
AIA Document B151 1997. Copyright
©
1974, 1978, 1987 and 1997
by
The American Institute of Architects
. All rights reserved. WARNING:
This AIA
®
Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of
this AIA
®
Document, or any portion of it, may result in
severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law.
This draft was produced by AIA
software at 09:46:44 on 06/03/2005 under Order No.1000146078_3 which
expires on 11/11/2005, and is not for resale.
|
9 | |||
User Notes:
|
(1812181036) |
|
||||
AIA Document B151 1997. Copyright
©
1974, 1978, 1987 and 1997
by
The American Institute of Architects
. All rights reserved. WARNING:
This AIA
®
Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of
this AIA
®
Document, or any portion of it, may result in
severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law.
This draft was produced by AIA
software at 09:46:44 on 06/03/2005 under Order No.1000146078_3 which
expires on 11/11/2005, and is not for resale.
|
10 | |||
User Notes:
|
(1812181036) |
|
||||
AIA Document B151 1997. Copyright
©
1974, 1978, 1987 and 1997
by
The American Institute of Architects
. All rights reserved. WARNING:
This AIA
®
Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of
this AIA
®
Document, or any portion of it, may result in
severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law.
This draft was produced by AIA
software at 09:46:44 on 06/03/2005 under Order No.1000146078_3 which
expires on 11/11/2005, and is not for resale.
|
11 | |||
User Notes:
|
(1812181036) |
.1 | transportation in connection with the Project, authorized out-of-town travel and subsistence, and electronic communications; | ||
.2 | fees paid for securing approval of authorities having jurisdiction over the Project; | ||
.3 | reproductions, plots, standard form documents, postage, handling and delivery of Instruments of Service; | ||
. | |||
.5 | renderings exclusive of elevations or site plans, models and mock-ups requested by the Owner; | ||
.6 | expense of professional liability insurance dedicated exclusively to this Project or the expense of additional insurance coverage or limits requested by the Owner in excess of that normally carried by the Architect and the Architects consultants; | ||
.7 | reimbursable expenses as designated in Article 12; | ||
.8 | other similar direct Project-related expenditures. |
|
||||
AIA Document B151 1997. Copyright
©
1974, 1978, 1987 and 1997
by
The American Institute of Architects
. All rights reserved. WARNING:
This AIA
®
Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of
this AIA
®
Document, or any portion of it, may result in
severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law.
This draft was produced by AIA
software at 09:46:44 on 06/03/2005 under Order No.1000146078_3 which
expires on 11/11/2005, and is not for resale.
|
12 | |||
User Notes:
|
(1812181036) |
Building 75,000 sf
|
||||
*Master Planning
|
$ | 9,000 | ||
*Architectural Core & Shell
|
$ | 275,250 | ||
*Architectural Interior Design
|
$ | 164,250 | ||
* Landscape Architecture
|
$ | 20,250 | ||
* Structural Engineering
|
$ | 36,750 | ||
* MEP/FP Engineering
|
$ | 96,000 | ||
Allowances
|
||||
*Signage
|
$ | 6,000 | ||
*Acoustic
|
$ | 3,000 | ||
*Lighting
|
$ | 4,500 | ||
*Water Features
|
TBD | |||
Structured Parking 88.200 sf
|
Add Service 1 | |||
*Architectural
|
$79,380 ($0.90 psf) | |||
*Structural
|
$26,460 ($0.30 psf) | |||
*MEP/FP
|
$8,820 ($0.10 psf) |
Schematic Design Phase:
|
Fifteen | percent | (15 | %) | ||||||||
Design Development Phase:
|
Twenty | percent | (20 | %) | ||||||||
Construction Documents Phase:
|
Forty | percent | (40 | %) | ||||||||
Bidding or Negotiation Phase:
|
Five | percent | (5 | %) | ||||||||
Construction Phase:
|
Twenty | percent | (20 | %) | ||||||||
Total Basic Compensation
|
one hundred | percent | (100.00 | %) |
Managing Principal
|
$ | 275.00 | ||||||
Principal
|
$ | 230.00 | ||||||
Design Director
|
$ | 230.00 | ||||||
Vice President
|
$ | 195.00 | ||||||
Associate
|
$ | 170.00 | ||||||
Project Manager
|
$ | 125.00 | $ | 170.00 | ||||
Senior Architect
|
$ | 115.00 | $ | 155.00 |
|
||||
AIA Document B151 1997. Copyright
©
1974, 1978, 1987 and 1997
by
The American Institute of Architects
. All rights reserved. WARNING:
This AIA
®
Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of
this AIA
®
Document, or any portion of it, may result in
severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law.
This draft was produced by AIA
software at 09:46:44 on 06/03/2005 under Order No.1000146078_3 which
expires on 11/11/2005, and is not for resale.
|
13 | |||
User Notes:
|
(1812181036) |
Project Architect
|
$ | 95.00 | $ | 145.00 | ||||
Project Architectural Staff
|
$ | 75.00 | $ | 130.00 | ||||
Architect
|
$ | 90.00 | $ | 110.00 | ||||
Architectural Staff
|
$ | 70.00 | $ | 110.00 | ||||
Architectural Intern
|
$ | 60.00 | 90.00 | |||||
Student Architectural Intern
|
$ | 50.00 | $ | 70.00 | ||||
ID Project Manager
|
$ | 115.00 | $ | 155.00 | ||||
Senior Interior Designer
|
$ | 95.00 | $ | 120.00 | ||||
Project Interior Designer
|
$ | 85.00 | $ | 115.00 | ||||
Project Interior Design Staff
|
$ | 70.00 | $ | 100.00 | ||||
Interior Designer
|
$ | 75.00 | $ | 95.00 | ||||
Interior Design Staff
|
$ | 65.00 | $ | 90.00 | ||||
Interior Design Intern
|
$ | 60.00 | $ | 75.00 | ||||
Student Interior Design
|
$ | 45.00 | $ | 60.00 | ||||
Construction Administrator
|
$ | 110.00 | $ | 120.00 | ||||
Specifications Writer
|
$ | 110.00 | ||||||
Computer Systems
|
$ | 90.00 | $ | 120.00 | ||||
Graphic Designer
|
$ | 65.00 | $ | 115.00 | ||||
Specialist
|
$ | 55.00 | $ | 65.00 | ||||
Administrative Support
|
$ | 65.00 | $ | 85.00 |
|
||||
AIA Document B151 1997. Copyright
©
1974, 1978, 1987 and 1997
by
The American Institute of Architects
. All rights reserved. WARNING:
This AIA
®
Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of
this AIA
®
Document, or any portion of it, may result in
severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law.
This draft was produced by AIA
software at 09:46:44 on 06/03/2005 under Order No.1000146078_3 which
expires on 11/11/2005, and is not for resale.
|
14 | |||
User Notes:
|
(1812181036) |
|
||||
AIA Document B151 1997. Copyright
©
1974, 1978, 1987 and 1997
by
The American Institute of Architects
. All rights reserved. WARNING:
This AIA
®
Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of
this AIA
®
Document, or any portion of it, may result in
severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law.
This draft was produced by AIA
software at 09:46:44 on 06/03/2005 under Order No.1000146078_3 which
expires on 11/11/2005, and is not for resale.
|
15 | |||
User Notes:
|
(1812181036) |
Photocopies
|
$0.50/Copy (BW) $1.00 (Color 8.5x11), $2.00 (Color 11X17) | |
Blueline Reproduction
|
$5.00/Sheet | |
Mileage to Job Site
|
$0.50.5/Mile | |
CAD Graphics Plotting for Design
|
Approximately $15/Sheet for black and white; Approximately $40/Sheet for color | |
Reviews & Presentations (not for
Construction Drawings) |
(The exact charge will vary with sheet size and be
based on Corgan Associates, Inc.s prevailing standard
rates)
|
OWNER
|
ARCHITECT | |||||
|
||||||
|
|
|||||
Rick White, Sr. Vice-President, Finance
|
Matt Mooney, Principal | |||||
|
|
|
||||
AIA Document B151 1997. Copyright
©
1974, 1978, 1987 and 1997
by
The American Institute of Architects
. All rights reserved. WARNING:
This AIA
®
Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of
this AIA
®
Document, or any portion of it, may result in
severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law.
This draft was produced by AIA
software at 09:46:44 on 06/03/2005 under Order No.1000146078_3 which
expires on 11/11/2005, and is not for resale.
|
16 | |||
User Notes:
|
(1812181036) |
2
Diodes Incorporated, a Delaware corporation (the Company), by action of its Board of Directors, hereby adopt the Diodes Incorporated 2001 Omnibus Equity Incentive Plan (the Plan) with the following provisions: | |||
1. | Purpose The purpose of the Plan is to promote and advance the interests of the Company and its stockholders by enabling the Company and its Subsidiaries to attract, retain and motivate officers, directors, employees and independent contractors by providing for performance-based benefits, and to strengthen the mutuality of interests between such persons and the Companys stockholders. The Plan is designed to meet this intent by offering performance-based stock and cash incentives and other equity-based incentive awards, thereby providing a proprietary interest in pursuing the long-term growth, profitability and financial success of the Company. | ||
2. | Definitions For purposes of this Plan, the following terms shall have the meanings set forth below: |
(i) | Any person, including a group as defined in Section 13(d)(3) of the Exchange Act, becomes the beneficial owner of stock of the Company with respect to which twenty-five percent (25%) or more of the total number of votes for the election of the Board may be cast; | ||
(ii) | As a result of, or in connection with, any cash tender offer, exchange offer, merger or other business combination, sale of assets or contested election, or combination of the foregoing, persons who were directors of the Company just prior to such event shall cease to constitute a majority of the Board; | ||
(iii) | The stockholders of the Company shall approve an agreement providing either for a transaction in which the Company will cease to be an independent publicly owned corporation or for a sale or other disposition of all or substantially all the assets of the Company; or | ||
(iv) | A tender offer or exchange offer is made for the shares of the Common Stock (other than one made by the Company) and the shares of the Common Stock are acquired thereunder. |
1
(i) | If the Common Stock is admitted to trading or listing on a national securities exchange registered under the Exchange Act, the closing price for any day shall be the last reported sale price, or in the case no such reported sale takes place on such date, the average of the last reported bid and ask prices, in either case on the principal national securities exchange on which the Common Stock is admitted to trading or listed; | ||
(ii) | If not listed or admitted to trading on any national securities exchange, the last sale price of the Common Stock on the National Association of Securities Dealers Automated Quotation National Market System (NMS) or, in the case no such reported sale takes place, the average of the closing bid and ask prices on such date; | ||
(iii) | If not quoted on the NMS, the average of the closing bid and ask prices of the Common Stock on the National Association of Securities Dealers Automated Quotation System (NASDAQ) or any comparable system; or | ||
(iv) | If the Common Stock is not listed on NASDAQ or any comparable system, the closing bid and ask prices as furnished by any member of the National Association of Securities Dealers, Inc., selected from time to time by the Committee for that purpose. |
2
3. | Administration. | ||
(a) | The Plan shall be administered by a committee appointed by the Board. The Committee shall be comprised solely of not less than two persons who are outside directors within the meaning of Section 162(m)(4)(C) of the Code and non-employee directors within the meaning of Rule 16b-3 of the Exchange Act. Members of the Committee shall serve at the pleasure of the Board and the Board may from time to time remove members from, or add members to, the Committee. No person who is not an outside director within the meaning of Section 162(m)(4)(C) of the Code and a non-employee director within the meaning of Rule 16b-3 of the Exchange Act may serve on the Committee. Appointment to the Committee of any person who is not an outside director and a non-employee director shall automatically be null and void, and any person on the Committee who ceases to be an outside director and a non-employee director shall automatically and without further action cease to be a member of the Committee. |
3
(b) | A majority of the members of the Committee shall constitute a quorum for the transaction of business. Action approved in writing by a majority of the members of the Committee then serving shall be as effective as if the action had been taken by unanimous vote at a meeting duly called and held. | ||
(c) | The Committee is authorized to construe and interpret the Plan, to promulgate, amend, and rescind rules and procedures relating to the implementation of the Plan, and to make all other determinations necessary or advisable for the administration of the Plan. Any determination, decision, or action of the Committee in connection with the construction, interpretation, administration, or application of the Plan shall be binding upon all Participants and any person claiming under or through any Participant. Although the Committee is anticipated to make certain Awards that constitute performance-based compensation within the meaning of Section 162(m)(4)(C) of the Code, the Committee is also expressly authorized to make Awards that do not constitute performance-based compensation within the meaning of that provision. By way of example, and not by way of limitation, the Committee, in its sole and absolute discretion, may issue an Award that is not based on a performance goal, as set forth in (i) below, but is based solely on continued service to the Company. | ||
(d) | The Committee may employ or retain persons other than members of the Committee to assist the Committee to carry out its responsibilities under such conditions and limitations as it may prescribe, except that the Committee may not delegate its authority with regard to selection for participation of and the granting of Awards to persons subject to Section 16 of the Exchange Act or with regard to any of its duties under Section 162(m) of the Code necessary for awards under this Plan to qualify as performance-based compensation for purposes of Section 162(m)(4)(C) of the Code. | ||
(e) | The Committee is expressly authorized to make such modifications to the Plan as are necessary to effectuate the intent of the Plan as a result of any changes in the income tax, accounting, or securities law treatment of Participants and the Plan. | ||
(f) | The Company shall effect the granting of Awards under the Plan in accordance with the determinations made by the Committee, by execution of instruments in writing in such form as approved by the Committee. | ||
(g) | The Committee may not increase an Award once granted, although it may grant additional Awards to the same Participant. | ||
(h) | The Committee shall keep the Board informed as to its actions and make available to the Board its books and records. Although the Committee has the authority to establish and administer the Plan, the Board reserves the right at any time to abolish the Committee and administer the Plan itself. | ||
(i) | In the case of an Award that is intended to qualify as performance-based compensation for purposes of Code Section 162(m)(4)(C), the Committee shall establish in writing at the time of making the Award the business criterion or criteria that must be satisfied for payment pursuant to the Award and the amount payable upon satisfaction of those standards. Those standards are also referred to herein as performance goals. Such criterion or criteria shall be established prior to the Participant rendering the services to which they relate and while the outcome is substantially uncertain or at such other time permitted under Treasury Regulations Section 1.162-27(e)(2). In carrying out these duties, the Committee shall use objective written standards for establishing both the performance goal and the amount of compensation such that a third party with knowledge of the relevant facts would be able to determine whether and to what extent the goal has been satisfied and the amount of compensation payable. The Committee shall provide a copy of the document setting forth such standards to the affected Participant and shall retain such written material in its permanent books and records. | ||
(j) | In the case of remuneration that is intended to qualify as performance-based compensation for purposes of Code Section 162(m)(4)(C), other than Performance Awards granted pursuant to Section 9 of the Plan, the Committee and the Board shall disclose to the stockholders of the Company the material terms under which such remuneration is to be paid under the Plan, and shall seek approval of the stockholders by a majority vote in a separate stockholder vote before payment of such remuneration. For these purposes, the material terms include the individuals (or class of individuals) eligible to receive such compensation, a description of the business criterion or criteria on which the performance goal is based, either the maximum |
4
amount of the compensation to be paid thereunder or the formula used to calculate the amount of compensation if the performance goal is attained, and such other terms as required under Code Section 162(m)(4)(C) and the Treasury Regulations thereunder determined from time to time. The foregoing actions shall be undertaken in conformity with the rules of Code Section 162(m)(4)(C)(ii) and Treasury Regulations promulgated thereunder. Such remuneration shall not be payable under this Plan in the absence of such an approving stockholder vote. In the case of remuneration that is not intended to qualify as performance-based compensation under Code Section 162(m)(4)(C), the Committee and the Board shall make such disclosures to and seek such approval from the stockholders of the Company as they reasonably determine are required by law. |
(k) | To the extent required under Code Section 162(m)(4)(C), before any payment of remuneration under this Plan, the Committee must certify in writing that the performance goals and any other material terms of the Award were in fact satisfied. Such certification shall be kept with the permanent books and records of the Committee, and the Committee shall provide the affected Participant with a copy of such certification. | ||
(l) | The Committee shall use its good faith best efforts to comply with the requirements of Section 162(m)(4)(C) of the Code for Awards that are intended to qualify under that section as performance-based compensation, but shall have no liability to the Company or any recipient in the event one or more Awards do not so qualify. | ||
4. | Duration of and Common Stock Subject to the Plan. | ||
(a) | Term . The Plan shall become effective as of June 11, 2001, the date of its adoption by the Board, subject to ratification by the stockholders of the Company within twelve (12) months after the effective date. In the event that the stockholders of the Company do not ratify the Plan within twelve (12) months after the effective date, any Awards granted pursuant to the Plan shall be rescinded automatically. Unless sooner terminated by the Board, the Plan shall continue until June 11, 2011, one day prior to the tenth (10th) anniversary of the Plans effective date, when it shall terminate and no Awards may be granted under the Plan thereafter. The termination of the Plan shall not affect the Awards that are outstanding on the termination date. | ||
(b) | Shares of Common Stock Subject to the Plan . The maximum total number of shares of Common Stock with respect to which aggregate stock Awards may be granted under the Plan shall be five million eight hundred eighty-three thousand two hundred seventeen (5,883,217). Notwithstanding the foregoing, the maximum number of shares of Common Stock which may be issued pursuant to Incentive Stock Options under this Plan may not exceed five million eight hundred eighty-three thousand two hundred seventeen (5,883,217). |
(i) | All of the amounts stated in this Paragraph (b) are subject to adjustment as provided in Section 15 below. | ||
(ii) | For the purpose of computing the total number of shares of Common Stock available for Awards under the Plan, there shall be counted against the foregoing limitations the number of shares of Common Stock subject to issuance upon exercise or used for payment or settlement of Awards, subject to clauses (iv), (v) and (vi) of this Paragraph (b). | ||
(iii) | If any Awards are forfeited, terminated, expire unexercised, settled or paid in cash in lieu of stock or exchanged for other Awards, the shares of Common Stock which were theretofore subject to such Awards shall again be available for Awards under the Plan to the extent of such forfeiture or expiration of such Awards. | ||
(iv) | Each share of Common Stock subject to issuance under any award, other than options or Stock Appreciation Rights, shall be counted against the foregoing limitations as 1.52 shares. | ||
(v) | To the extent a Stock Appreciation Right is settled for shares of Common Stock, the number of shares used for determining the benefit under such Stock Appreciation Right, to the extent exercised, shall be counted against the foregoing limitations, regardless of the number of shares used to settle the Stock Appreciation Right upon such exercise. |
5
(vi) | To the extent a Stock Option is exercised on a cashless basis, the number of shares of Common Stock issued upon such exercise, plus the number of shares of Common Stock retained by the Company, shall be counted against the foregoing limitations. |
(c) | Source of Common Stock . Common Stock which may be issued under the Plan may be either authorized and unissued stock or issued stock which have been reacquired by the Company. No fractional shares of Common Stock shall be issued under the Plan. | ||
5. | Eligibility Incentive Stock Options may only be granted to Employees of the Company or a Subsidiary. Employees, Non-Employee Directors, and Consultants of the Company or a Subsidiary are eligible to receive Non-Qualified Stock Options, Stock Appreciation Rights, Restricted Awards, Performance Awards and other Awards under the Plan. | ||
6. | Stock Options Stock options granted under the Plan may be in the form of Incentive Stock Options or Non-Qualified Stock Options (collectively referred to as Stock Options). Stock Options shall be subject to the terms and conditions set forth below. Each written Stock Option agreement shall contain such additional terms and conditions, not inconsistent with the express provisions of the Plan, as the Committee shall deem desirable. | ||
(a) | Grant . Stock Options shall be granted under the Plan on such terms and conditions not inconsistent with the provisions of the Plan and pursuant to written agreements with the Participant in such form as the Committee may from time to time approve in its sole and absolute discretion. The terms of individual Stock Option agreements need not be identical. Each Stock Option agreement shall state specifically whether it is intended to be an Incentive Stock Option agreement or a Non-Qualified Stock Option agreement. Stock Options may be granted alone or in addition to other Awards under the Plan. No person may be granted (in any calendar year) options to purchase more than one-hundred thousand (100,000) shares of Common Stock (subject to adjustment pursuant to Section 15 below). The foregoing sentence is an annual limitation on grants and not a cumulative limitation. | ||
(b) | Exercise Price . Except as otherwise provided for in Paragraph (f) below, the exercise price per share of Common Stock purchasable under a Stock Option shall be determined by the Committee at the time of grant; provided, however, that the exercise price per share may not be less than one hundred percent (100%) of the Fair Market Value of the Common Stock on the Date of Grant of such Stock Option. | ||
(c) | Option Term . The term of each Stock Option shall be fixed by the Committee. However, the term of any Stock Option shall not exceed ten (10) years after the Date of Grant of such Stock Option. | ||
(d) | Exercisability . A Stock Option shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Committee at the Date of Grant and set forth in the written Stock Option agreement. A written Stock Option agreement may, if permitted pursuant to its terms, become exercisable in full upon the occurrence of events selected by the Committee that are beyond the control of the Participant (including, but not limited to, a Change in Control). | ||
(e) | Method of Exercise . A Stock Option may be exercised, in whole or in part, by giving written notice of exercise to the Committee specifying the number of shares of Common Stock to be purchased. Such notice shall be accompanied by payment in full of the exercise price (i) in cash or (ii) if acceptable to the Committee, in shares of Common Stock or a Qualified Note. The Committee may also permit Participants, either on a selective or aggregate basis, to simultaneously exercise Stock Options and sell the shares of Common Stock thereby acquired, pursuant to a brokerage or similar arrangement, approved in advance by the Committee, and use the proceeds from such sale as payment of part or all of the exercise price of such shares; provided, however, that such payment of the exercise price would not cause the Company to recognize compensation expense for financial reporting purposes. The Committee may also permit a cashless exercise, subject to any conditions or limitations that the Committee may establish. | ||
(f) | Special Rules for Incentive Stock Options . The terms specified below shall be applicable to all Incentive Stock Options. Stock Options which are specifically designated as Non-Qualified Stock Options when issued under the Plan shall not be subject to the terms of this Paragraph. |
6
(i) | Ten Percent Stockholder . If any Employee to whom an Incentive Stock Option is granted is a Ten Percent Stockholder, then the exercise price of the Incentive Stock Option shall not be less than one hundred and ten percent (110%) of the Fair Market Value of the Common Stock on the Date of Grant of such Incentive Stock Option, and the term of the Incentive Stock Option shall not exceed five (5) years measured from the Date of Grant of such option. | ||
(ii) | Dollar Limitation . In the case of an Incentive Stock Option, the aggregate Fair Market Value of the Optioned Stock (determined as of the Date of Grant of each Stock Option) with respect to Stock Options granted to any Employee under the Plan (or any other option plan of the Company or any Affiliate) that may for the first time become exercisable as Incentive Stock Options during any one calendar year shall not exceed the sum of one hundred thousand dollars ($100,000). To the extent the Employee holds two or more such Stock Options which become exercisable for the first time in the same calendar year, the foregoing limitation on the exercisability of such Stock Options as Incentive Stock Options shall be applied on the basis of the order in which such Stock Options are granted. Any Stock Options in excess of such limitation shall automatically be treated as Non-Qualified Stock Options. |
(g) | Without the approval of the stockholders of the Company, Stock Options and Stock Appreciation Rights granted under the Plan will not be repriced, replaced or regranted through cancellation, or by lowering the exercise price of a previously granted Award. | ||
7. | Stock Appreciation Rights The grant of Stock Appreciation Rights under the Plan shall be subject to the following terms and conditions. Furthermore, the Stock Appreciation Rights shall contain such additional terms and conditions, not inconsistent with the express terms of the Plan, as the Committee shall deem desirable. The terms of each Stock Appreciation Right granted shall be set forth in a written agreement between the Company and the Participant receiving such grant. The terms of such agreements need not be identical. | ||
(a) | Stock Appreciation Rights . A Stock Appreciation Right is an Award determined by the Committee entitling a Participant to receive an amount equal to the excess of the Fair Market Value of a share of Common Stock on a fixed date, which shall be the date concluding a measuring period set by the Committee upon granting the Stock Appreciation Right, over the Fair Market Value of a share of Common Stock on the Date of Grant of the Stock Appreciation Right, multiplied by the number of shares of Common Stock subject to the Stock Appreciation Right. No Stock Appreciation Rights granted in any calendar year to any person may be measured by an amount of shares of Common Stock in excess of one hundred thousand (100,000) shares, subject to adjustment under Section 15 below. The foregoing sentence is an annual limitation on grants and not a cumulative limitation. | ||
(b) | Grant . A Stock Appreciation Right may be granted in addition to or completely independent of any other Award under the Plan. Upon grant of a Stock Appreciation Right, the Committee shall select and inform the Participant regarding the number of shares of Common Stock subject to the Stock Appreciation Right and the date that constitutes the close of the measuring period. | ||
(c) | Measuring Period . A Stock Appreciation Right shall accrue in value from the Date of Grant over a time period established by the Committee. In the written Stock Appreciation Right agreement, the Committee may also provide (but is not required to provide) that a Stock Appreciation Right shall be automatically payable on one or more specified dates prior to the normal end of the measuring period upon the occurrence of events selected by the Committee (including, but not limited to, a Change in Control) that are beyond the control of the Participant. The Committee may provide (but is not required to provide) in the Stock Appreciation Right agreement that in the case of a cash payment such acceleration in payment shall also be subject to discounting of the payment to reasonably reflect the time value of money using any reasonable discount rate selected by the Committee in accordance with Treasury Regulations under Code Section 162(m). | ||
(d) | Form of Payment . Payment pursuant to a Stock Appreciation Right may be made (i) in cash, (ii) in shares of Common Stock, or (iii) in any combination of the above, as the Committee shall determine in its sole and absolute discretion. The Committee may elect to make this determination either at the time the Stock Appreciation Right is granted, at the time of payment or at any time in between such dates. However, any |
7
Stock Appreciation Right paid upon or subsequent to the occurrence of a Change in Control shall be paid in cash. |
8. | Restricted Awards Restricted Awards granted under the Plan may be in the form of either Restricted Stock Grants or Restricted Unit Grants. Restricted Awards shall be subject to the following terms and conditions. Furthermore, the Restricted Awards shall be pursuant to a written agreement executed both by the Company and the Participant, which agreement shall contain such additional terms and conditions, not inconsistent with the express provisions of the Plan, as the Committee shall deem desirable in its sole and absolute discretion. The terms of such written agreements need not be identical. | ||
(a) | Restricted Stock Grants . A Restricted Stock Grant is an Award of shares of Common Stock transferred to a Participant subject to such terms and conditions as the Committee deems appropriate, as set forth in Paragraph (d) below. | ||
(b) | Restricted Unit Grants . A Restricted Unit Grant is an Award of units (with each unit having a value equivalent to one share of Common Stock) granted to a Participant subject to such terms and conditions as the Committee deems appropriate, including, without limitation, the requirement that the Participant forfeit all or a portion of such units upon termination of Service for specified reasons within a specified period of time, and restrictions on the sale, assignment, transfer or other disposition of such units. | ||
(c) | Grants of Awards . Restricted Awards may be granted under the Plan in such form and on such terms and conditions as the Committee may from time to time approve. Restricted Awards may be granted alone or in addition to other Awards under the Plan. Subject to the terms of the Plan, the Committee shall determine the number of Restricted Awards to be granted to a Participant and the Committee may impose different terms and conditions (including performance goals) on any particular Restricted Award made to any Participant. Each Participant receiving a Restricted Stock Grant shall be issued a stock certificate in respect of such shares of Common Stock. Such certificate shall be registered in the name of such Participant, shall be accompanied by a stock power duly executed by such Participant, and shall bear an appropriate legend referring to the terms, conditions and restrictions applicable to such Award. The certificate evidencing the shares shall be held in custody by the Company until the restrictions imposed thereon shall have lapsed or been removed. No person may be granted (in any calendar year) Restricted Awards that are intended to constitute performance-based compensation within the meaning of Section 162(m)(4)(C) of the Code, totaling or measured by more than one-hundred thousand (100,000) shares of Common Stock (subject to adjustment pursuant to Section 15 below). The foregoing sentence is an annual limitation on grants and not a cumulative limitation. | ||
(d) | Restriction Period . Restricted Awards shall provide that in order for a Participant to vest in such Awards, the Participant must continuously provide Services, subject to relief for specified reasons, for such period as the Committee may designate at the time of the Award (Restriction Period). If the Committee so provides in the written agreement with the Participant, a Restricted Award may also be subject to satisfaction of such performance goals as are set forth in such agreement. During the Restriction Period, a Participant may not sell, assign, transfer, pledge, encumber, or otherwise dispose of shares of Common Stock received under a Restricted Stock Grant. The Committee, in its sole discretion, may provide for the lapse of restrictions during the Restriction Period upon the occurrence of events selected by the Committee that are beyond the control of the Participant (including, but not limited to, a Change in Control). The Committee may provide (but is not required to provide) in the written agreement with the recipient that in the case of a cash payment such acceleration in payment shall also be subject to discounting of the payment to reasonably reflect the time value of money using any reasonable discount rate selected by the Committee in accordance with Treasury Regulations under Code Section 162(m). Upon expiration of the applicable Restriction Period (or lapse of restrictions during the Restriction Period where the restrictions lapse in installments or by action of the Committee), the Participant shall be entitled to receive his or her Restricted Award or portion thereof, as the case may be. | ||
(e) | Payment of Awards . A Participant who receives a Restricted Stock Grant shall be paid solely by release of the restricted stock at the termination of the Restriction Period (whether in one payment, in installments or otherwise). A Participant shall be entitled to receive payment for a Restricted Unit Grant (or portion thereof) in an amount equal to the aggregate Fair Market Value of the shares of Common Stock covered by such Award upon the expiration of the applicable Restriction Period. Payment in settlement of a Restricted |
8
Unit Grant shall be made as soon as practicable but in no event later than sixty (60) days following the conclusion of the specified Restriction Period (i) in cash, (ii) in shares of Common Stock, or (iii) in any combination of the above, as the Committee shall determine in its sole and absolute discretion. The Committee may elect to make this determination either at the time the Award is granted, at the time of payment or at any time in between such dates. |
(f) | Rights as a Stockholder . A Participant shall have, with respect to the shares of Common Stock received under a Restricted Stock Grant, all of the rights of a stockholder of the Company, including the right to vote the stock, and the right to receive any cash dividends. Such cash dividends shall be withheld, however, until their release upon lapse of the restrictions under the Restricted Award. Stock dividends issued with respect to the shares covered by a Restricted Stock Grant shall be treated as additional shares under the Restricted Stock Grant and shall be subject to the same restrictions and other terms and conditions that apply to shares under the Restricted Stock Grant with respect to which the dividends are issued. | ||
9. | Performance Awards Performance Awards granted under the Plan may be in the form of either Performance Share Grants or Performance Unit Grants. Performance Awards shall be subject to the terms and conditions set forth below. Furthermore, the Performance Awards shall be subject to written agreements, which shall contain such additional terms and conditions, not inconsistent with the express provisions of the Plan, as the Committee shall deem desirable in its sole and absolute discretion. Such agreements need not be identical. | ||
(a) | Performance Share Grants . A Performance Share Grant is an Award of units (with each unit equivalent in value to one share of Common Stock) granted to a Participant subject to such terms and conditions as the Committee deems appropriate, including, without limitation, the requirement that the Participant forfeit such units (or a portion of such units) in the event certain performance criteria are not met within a designated period of time. | ||
(b) | Performance Unit Grants . A Performance Unit Grant is an Award of units (with each unit representing such monetary amount as designated by the Committee) granted to a Participant subject to such terms and conditions as the Committee deems appropriate, including, without limitation, the requirement that the Participant forfeit such units (or a portion of such units) in the event certain performance criteria are not met within a designated period of time. | ||
(c) | Grants of Awards . Performance Awards shall be granted under the Plan pursuant to written agreements with the Participant in such form as the Committee may from time to time approve. Performance Awards may be granted alone or in addition to other Awards under the Plan. Subject to the terms of the Plan, the Committee shall determine the number of Performance Awards to be granted to a Participant and the Committee may impose different terms and conditions on any particular Performance Award made to any Participant. No Performance Share Grants granted in any calendar year to any one person may be measured by more than one-hundred thousand (100,000) shares of Common Stock (subject to adjustment pursuant to Section 15 below). The maximum amount payable for any calendar year pursuant to a Performance Unit Grant shall not exceed $4,000,000. The preceding two sentences are annual limitation on grants and a not cumulative limitation. | ||
(d) | Performance Goals and Performance Periods . Performance Awards shall provide that, in order for a Participant to vest in such Awards, the Company must achieve certain performance goals (Performance Goals) over a designated performance period selected by the Committee (Performance Period). The Performance Goals and Performance Period shall be established by the Committee, in its sole and absolute discretion. The Committee shall establish Performance Goals for each Performance Period before the commencement of the Performance Period and while the outcome is substantially uncertain or at such other time permitted under Treasury Regulations Section 1.162-27(e)(2). The Committee shall also establish a schedule or schedules for such Performance Period setting forth the portion of the Performance Award which will be earned or forfeited based on the degree of achievement of the Performance Goals actually achieved or exceeded. In setting Performance Goals, the Committee may use any one or more of the following performance criteria, applied to either the Company as a whole or to a business unit, Affiliate, or business segment, either individually, alternatively, or in any combination, and measured either annually or cumulatively over a period of years, on an absolute basis or relative to a pre-established target, to previous years results or to a designated comparison group, in each case as specified by the Committee in the |
9
Award: (i) cash flow, (ii) earnings (including gross margin, earnings before interest and taxes, earnings before taxes, and net earnings), (iii) earnings per share, (iv) growth in earnings or earnings per share, (v) stock price, (vi) return on equity or average shareholders equity, (vii) total shareholder return, (viii) return on capital, (ix) return on assets or net assets, (x) return on investment, (xi) revenue, (xii) income or net income, (xiii) operating income or net operating income, (xiv) operating profit or net operating profit, (xv) operating margin, (xvi) return on operating revenue, (xvii) market share, (xviii) contract awards or backlog, (xix) overhead or other expense reduction, (xx) growth in shareholder value relative to the moving average of the S&P 500 Index or a peer group index, (xxi) credit rating, (xxii) strategic plan development and implementation, (xxiii) improvement in workforce diversity, (xxiv) EBITDA, and (xxv) any other similar criteria. |
(e) | Payment of Awards . In the case of a Performance Share Grant, the Participant shall be entitled to receive payment for each unit earned in an amount equal to the aggregate Fair Market Value of the shares of Common Stock covered by such Award as of the end of the Performance Period. In the case of a Performance Unit Grant, the Participant shall be entitled to receive payment for each unit earned in an amount equal to the dollar value of each unit times the number of units earned. The Committee, pursuant to the written agreement with the Participant, may make such Performance Awards payable in whole or in part upon the occurrence of events selected by the Committee that are beyond the control of the Participant (including, but not limited to, a Change in Control). The Committee may provide (but is not required to provide) in the written agreement with the recipient that, in the case of a cash payment, acceleration in payment of a Performance Award shall also be subject to discounting to reasonably reflect the time value of money using any reasonable discount rate selected by the Committee in accordance with Treasury Regulations under Code Section 162(m). Payment in settlement of a Performance Award shall be made as soon as practicable but in no event later than sixty (60) days following the conclusion of the Performance Period (i) in cash, (ii) in shares of Common Stock, or (iii) in any combination of the above, as the Committee may determine in its sole and absolute discretion. The Committee may elect to make this determination either at the time the Award is granted, at the time of payment, or at any time in between such dates. | ||
10. | Other Stock-Based and Combination Awards. | ||
(a) | The Committee may grant other Awards under the Plan pursuant to which Common Stock is or may in the future be acquired, or Awards denominated in stock units, including ones valued using measures other than market value. Such other stock-based grants may be granted either alone or in addition to any other type of Award granted under the Plan. To the extent that an Award is intended to constitute performance-based compensation within the meaning of Section 162(m)(4)(C) of the Code, such Award shall be subject to Paragraph (d) of Section 9 of the Plan. No stock-based Award granted in any calendar year to any one person, to the extent such Award is intended to satisfy the requirements for performance-based compensation under Section 162(m) of the Code, may be denominated by more than one-hundred thousand (100,000) shares of Common Stock. | ||
(b) | The Committee may also grant Awards under the Plan in combination with other Awards or in exchange of Awards, or in combination with or as alternatives to grants or rights under any other employee plan of the Company, including the plan of any acquired entity. | ||
(c) | Subject to the provisions of the Plan, the Committee shall have authority to determine the individuals to whom and the time or times at which the Awards shall be made, the number of shares of Common Stock to be granted or covered pursuant to such Awards, and any and all other conditions and/or terms of the Awards. | ||
11. | Deferral Elections. The Committee may permit a Participant to elect to defer his or her receipt of the payment of cash or the delivery of shares of Common Stock that would otherwise be due to such Participant by virtue of the exercise, earn out or vesting of an Award made under the Plan. If any such election is permitted, the Committee shall establish rules and procedures for such payment deferrals, including the possible (a) payment or crediting of reasonable interest on such deferred amounts credited in cash, and (b) the payment or crediting of dividend equivalents in respect of deferrals credited in units of Common Stock. The Company and the Committee shall not be responsible to any person in the event that the payment deferral does not result in deferral of income for tax purposes. Notwithstanding any part of the |
10
foregoing to the contrary, it is the Companys intent that all Awards granted under this Plan, and any payment deferral permitted under this Plan, shall not cause an imposition of the additional taxes provided for in Section 409A(a)(1)(B) of the Code. |
12. | Dividend Equivalents Awards of Stock Options, Stock Appreciation Rights, Restricted Unit Grants, Performance Share Grants, and other stock-based Awards may, in the sole and absolute discretion of the Committee, earn dividend equivalents. In respect of any such Award which is outstanding on a dividend record date for Common Stock, the Participant may be credited with an amount equal to the amount of cash or stock dividends that would have been paid on the shares of Common Stock covered by such Award had such shares been issued and outstanding on such dividend record date. The Committee shall establish such rules and procedures governing the crediting of dividend equivalents, including the timing, form of payment, and payment contingencies of such dividend equivalents, as it deems appropriate or necessary. | ||
13. | Termination of Service The terms and conditions under which an Award may be exercised after a Participants termination of Service shall be determined by the Committee and reflected in the written agreement with the Participant concerning the Award. | ||
14. | Non-Transferability of Awards No Award under the Plan, and no rights or interest therein, shall be assignable or transferable by a Participant except by will or the laws of descent and distribution. Subject to the foregoing, during the lifetime of a Participant, Awards are exercisable only by, and payments in settlement of Awards will be payable only to, the Participant or his or her legal representative if the Participant is Disabled. | ||
15. | Adjustments Upon Changes in Capitalization, Etc. | ||
(a) | The existence of the Plan and the Awards granted hereunder shall not affect or restrict in any way the right or power of the Board or the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change in the Companys capital structure or its business, any merger or consolidation of the Company, any issue of bonds, debentures, preferred or prior preference stocks ahead of or affecting the Common Stock or the rights thereof, the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding. | ||
(b) | (i) The maximum aggregate total number of shares of Common Stock for which Awards in respect thereof may be granted, the number and kind of Shares covered by each outstanding Award, the maximum number of shares of Common Stock that may be sold or awarded to any Participant, and the price per share (but not the total price) subject to each outstanding Award shall be proportionally adjusted to prevent dilution or enlargement of rights under the Plan for any change in the outstanding Common Stock subject to the Plan, or subject to any Award, resulting from any stock splits, combination or exchange of shares of Common Stock, consolidation, spin-off or recapitalization of shares of Common Stock or any capital adjustment or transaction similar to the foregoing or any distribution to holders of Common Stock other than regular cash dividends. (ii) The Committee shall make such adjustment in such manner as it may deem equitable and appropriate, subject to compliance with applicable laws. Any determination, substitution or adjustment made by the Committee under this Section shall be conclusive and binding on all persons. Except as expressly provided herein, neither the Companys issuance of shares of stock of any class or securities convertible into shares of stock of any class, nor the conversion of any convertible securities of the Company, shall be treated as a transaction requiring any substitution or adjustment under this Section. | ||
(c) | The Committee may also make such adjustments in the number of shares covered by, and the price or other value of any outstanding Awards in the event of a spin-off or other distribution (other than normal cash dividends) of Company assets to stockholders. | ||
16. | Change in Control. | ||
(a) | Except as otherwise provided for in Paragraph (b) below, in the event of a Change in Control, and except as otherwise provided in Award agreements: |
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(i) | All Stock Options and Stock Appreciation Rights then outstanding shall become fully exercisable as of the date of the Change in Control (and shall terminate at such time as specified in the Award agreement); | ||
(ii) | All restrictions and conditions of all Restricted Stock Grants and Restricted Unit Grants then outstanding shall be deemed satisfied as of the date of the Change in Control; and | ||
(iii) | All Performance Share Grants and Performance Unit Grants shall be deemed to have been fully earned as of the date of the Change in Control. |
Any payment in settlement of Stock Appreciation Rights in (i) or Awards discussed in (ii) and (iii) above, shall be made on the date of the Change in Control; provided, however, that if making such payments would result in the imposition of taxes under Code Section 409A, then the payments shall instead be made on the originally schedules date(s) set forth in the Award Agreements. | |||
(b) | In the event that any payment under this Plan (alone or in conjunction with other payments) would otherwise constitute an excess parachute payment under Section 280G of the Code (in the sole judgment of the Committee), such payment shall be reduced or eliminated to the extent the Committee determines necessary to avoid deduction disallowance under Section 280G of the Code or the imposition of excise tax under Section 4999 of the Code. The Committee may consult with a Participant regarding the application of Section 280G and/or Section 4999 to payments otherwise due to such Participant under the Plan, but the judgment of the Committee as to applicability of those provisions, the degree to which a payment must be reduced to avoid those provisions, and which Awards shall be reduced, is final. | ||
17. | Amendment and Termination . | ||
Without further approval of the stockholders, the Board may at any time terminate the Plan, or may amend it from time to time in such respects as the Board may deem advisable. However, the Board may not, without approval of the stockholders, make any amendment which would (a) increase the aggregate number of shares of Common Stock which may be issued under the Plan (except for adjustments pursuant to Section 15 above), (b) materially modify the requirements as to eligibility for participation in the Plan, or (c) materially increase the benefits accruing to Participants under the Plan. Notwithstanding the above, the Board may amend the Plan to take into account changes in applicable securities laws, federal income tax laws and other applicable laws. Further, should the provisions of Rule 16b-3, or any successor rule, under the Exchange Act be amended, the Board may amend the Plan in accordance with any modifications to that rule without the need for stockholder approval. Notwithstanding the foregoing, the Plan may not be amended more than once every six months other than to comply with the changes in the Code. | |||
18. | Miscellaneous Matters. | ||
(a) | Tax Withholding . |
(i) | The Companys obligation to deliver Common Stock and/or pay any amount under the Plan shall be subject to the satisfaction of all applicable federal, state, local, and foreign tax withholding requirements. | ||
(ii) | The Committee may, in its discretion, provide the Participants or their successors with the right to use previously vested Common Stock in satisfaction of all or part of the taxes incurred by such Participants in connection with the Plan; provided, however, that this form of payment shall be limited to the withholding amount calculated using the minimum statutory rates. Such right may be provided to any such holder in either or both of the following formats. |
1. | Stock Withholding : The election to have the Company withhold, from the Common Stock otherwise issuable under the Plan, a portion of the Common Stock with an aggregate Fair Market Value equal to the taxes calculated using the minimum statutory rates. |
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2. | Stock Delivery : The election to deliver to the Company, at the time the taxes are required to be withheld, one or more shares of Common Stock previously acquired by the Participant or his or her successor with an aggregate Fair Market Value equal to the taxes calculated using the minimum statutory rates. | ||
(b) | Not an Employment or Service Contract . Neither the adoption of the Plan nor the granting of any Award shall confer upon any Participant any right to continue in the Service of the Company or an Affiliate, as the case may be, nor shall it interfere in any way with the right of the Company or an Affiliate to terminate the Services of any of its Employees, Non-Employee Directors, or Consultants at any time, with or without cause. | ||
(c) | Unfunded Plan . The Plan shall be unfunded and the Company shall not be required to segregate any assets that may at any time be represented by Awards under the Plan. Any liability of the Company to any person with respect to any Award under the Plan shall be based solely upon any written contractual obligations that may be effected pursuant to the Plan. No such obligation of the Company shall be deemed to be secured by any pledge of, or other encumbrance on, any property of the Company. | ||
(d) | Annulment of Awards . The grant of any Award under the Plan payable in cash is provisional until cash is paid in settlement thereof. The grant of any Award payable in Common Stock is provisional until the Participant becomes entitled to the certificate in settlement thereof. Payment under any Awards granted pursuant to the Plan is wholly contingent upon stockholder approval of the Plan. Where approval for an Award sought pursuant to Section 162(m)(4)(C)(ii) is not granted by the Companys stockholders, the Award shall be annulled automatically. In the event the Service of a Participant is terminated for cause (as defined below), any Award which is provisional shall be annulled as of the date of such termination for cause. For purposes of the Plan, the term terminated for cause means any discharge because of personal dishonesty, willful misconduct, breach of fiduciary duty involving personal profit, continuing intentional or habitual failure to perform stated duties, violation of any law (other than minor traffic violations or similar misdemeanor offenses not involving moral turpitude), or material breach of any provision of an employment or independent contractor agreement with the Company. | ||
(e) | Other Company Benefit and Compensation Programs . Payments and other benefits received by a Participant under an Award made pursuant to the Plan shall not be deemed a part of a Participants regular, recurring compensation for purposes of the termination indemnity or severance pay law of any state. Furthermore, such benefits shall not be included in, nor have any effect on, the determination of benefits under any other employee benefit plan or similar arrangement provided by the Company or a Subsidiary unless expressly so provided by such other plan or arrangement, or except where the Committee expressly determines that inclusion of an Award or portion of an Award should be included. Awards under the Plan may be made in combination with or in addition to, or as alternatives to, grants, awards or payments under any other Company or Subsidiary plans. The Company or any Subsidiary may adopt such other compensation programs and additional compensation arrangements (in addition to this Plan) as it deems necessary to attract, retain, and motivate officers, directors, employees or independent contractors for their service with the Company and its Subsidiaries. | ||
(f) | Securities Law Restrictions . No shares of Common Stock shall be issued under the Plan unless counsel for the Company shall be satisfied that such issuance will be in compliance with applicable federal and state securities laws. Certificates for shares of Common Stock delivered under the Plan may be subject to such stock-transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Common Stock is then listed, and any applicable federal or state securities law. The Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions. | ||
(g) | Award Agreement . Each Participant receiving an Award under the Plan shall enter into a written agreement with the Company in a form specified by the Committee agreeing to the terms and conditions of the Award and such related matters as the Committee shall, in its sole and absolute discretion, determine. | ||
(h) | Costs of Plan . The costs and expenses of administering the Plan shall be borne by the Company. |
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(i) | Governing Law . The Plan and all actions taken thereunder shall be governed by and construed in accordance with the laws of the State of Delaware. | ||
(j) | Code Section 409A . Notwithstanding anything in the Plan to the contrary, the Plan and Awards granted hereunder are intended to comply with the requirements of Code Section 409A and shall be interpreted in a manner consistent with such intention. If, upon a Participants separation from service within the meaning of Code Section 409A, the Participant is then a specified employee (as defined in Code Section 409A), the Company shall defer payment of nonqualified deferred compensation subject to Code Section 409A payable as a result of and within six (6) months following such separation from service under this Plan and/or applicable Award Agreement until the earlier of (i) ten (10) days after the Company receives notification of the Participants death, or (ii) the first business day of the seventh month following the Participants separation from service. Any such delayed payments shall be made without interest. |
14
Article I
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Establishment and Purpose
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1 | |||
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Article II
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Definitions
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1 | |||
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Article III
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Eligibility and Participation
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8 | |||
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Article IV
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Deferral Elections
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9 | |||
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Article V
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Modifications to Payment Schedules
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11 | |||
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Article VI
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Company Contributions
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12 | |||
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Article VII
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Valuation of Account Balances; Investments
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13 | |||
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Article VIII
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Distribution and Withdrawals
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14 | |||
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Article IX
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Administration
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18 | |||
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Article X
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Amendment and Termination
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19 | |||
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Article XI
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Informal Funding
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21 | |||
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Article XII
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Claims
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21 | |||
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Article XIII
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General Conditions
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28 |
1
2.1 | Account . Account means a bookkeeping account maintained by the Plan Administrator to record the Companys payment obligation to a Participant as determined under the terms of the Plan. The Plan Administrator may maintain an Account to record the total obligation to a Participant and component Accounts to reflect amounts payable at different times and in different forms pursuant to the terms of a Participants Deferral Election. Reference to an Account means any such Account established by the Plan Administrator, as the context requires. Accounts are intended to constitute unfunded obligations of the Company within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. | |
2.2 | Account Balance . Account Balance means, with respect to any Account, the total amount of the Companys payment obligation from such Account as of the most recent Valuation Date. | |
2.3 | Affiliate . Affiliate means a corporation, trade or business that, together with the Company, is treated as a single employer under Code Section 414(b) or (c). | |
2.4 | Beneficiary . Beneficiary means a natural person, estate, or trust designated by a Participant to receive payments to which a Beneficiary is entitled in accordance with provisions of the Plan. The Participants spouse, if living, otherwise the Participants estate, shall be the Beneficiary if: |
(i) | the Participant has not designated a natural person or trust as Beneficiary, or | ||
(ii) | all designated Beneficiaries have predeceased the Participant. |
A former spouse shall have no interest under the Plan, as Beneficiary or otherwise, unless (i) the Participant designates such person as a Beneficiary after dissolution of the |
Page 1 of 30
marriage or (ii) such interest is ordered under a domestic relations order described in Section 8.10. |
Page 2 of 30
2.12 | Company Contribution . Company Contribution means a credit by the Company to a Participants Account(s) in accordance with the provisions of Article VI of the Plan. Company Contributions are credited at the sole discretion of the Company and the fact that a Company Contribution is credited in one year shall not obligate the Company to continue to make such Company Contribution in subsequent years. | |
2.13 | Company Stock . Company Stock means phantom shares of common stock issued by Company. | |
2.14 | Compensation . Compensation means a Participants base salary, bonus, commission, and such other cash or equity-based compensation (if any) approved by the Committee as Compensation that may be deferred under this Plan. Compensation shall not include any compensation that has been previously deferred under this Plan or any other arrangement subject to Code Section 409A. | |
2.15 | Death Benefit . Death Benefit means payment to a Participants Beneficiary(ies) of all remaining unpaid Account Balances as provided in Section 8.4 of the Plan. | |
2.16 | Deferral . Deferral means the credits to a Participants Accounts attributable to deferrals of Compensation described in Treas. Reg. Section 1.409A-1(b)(1) and Earnings on such amounts as provided in Treas. Reg. Section 1.409A-1(b)(2), except where the context of the Plan clearly indicates otherwise. | |
2.17 | Deferral Election . Deferral Election means an agreement between a Participant and the Company specifying any or all of the following: (i) the amount of each component of Compensation subject to the Deferral Election; (ii) the investment allocation described in Section 7.2; and (iii) the Payment Schedule. The Plan Administrator may permit different deferral amounts for each component of Compensation and may establish a minimum or maximum deferral amount for each such component. Unless otherwise specified by the Plan Administrator in the Deferral Election agreement, Participants may defer up to 80% of their base salary and up to 100% of other types of Compensation for a Plan Year. | |
To the extent permissible under Code Section 409A, the Plan Administrator may reduce a Participants Deferral Election as necessary to permit sufficient non-deferred Compensation from which the Company may satisfy a Participants obligations regarding welfare plans and from which to satisfy tax withholding obligations, and/or to conform the Deferral Election and the Plan to applicable law. | ||
2.18 | Disability . Disability means that a Participant (i) is unable to engage in any substantial gainful activity by reason of any medically-determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve months, or (ii) is, by reason of any medically-determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Company. The determination of the existence of a |
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Disability shall be made by the Plan Administrator in accordance with Code Section 409A. |
2.19 | Disability Benefit . Disability Benefit means a payment by the Company to a Participant of all remaining unpaid Account Balances in a single lump sum in the event of such Participants Disability. | |
2.20 | Earnings . Earnings means an adjustment to the value of an Account in accordance with Article VII. | |
2.21 | Effective Date . Effective Date means January 1, 2007. | |
2.22 | Eligible Employee . Eligible Employee means a member of a select group of management or highly compensated employees of the Company within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, as determined by the Committee from time to time in its sole discretion. | |
2.23 | Employee . Employee means an employee of the Company. | |
2.24 | ERISA . ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time. | |
2.25 | Fiscal Year Compensation . Fiscal Year Compensation means Compensation earned during one or more consecutive fiscal years of the Company, all of which is paid after the last day of such fiscal year or years. | |
2.26 | Participant . Participant means an Eligible Employee who has received notification of his or her eligibility to defer Compensation under the Plan under Section 3.1 and any other person with an Account Balance greater than zero, regardless of whether such individual continues to be an Eligible Employee of the Company. A Participants continued participation in the Plan shall be governed by Section 3.2 and Section 3.3 of the Plan. | |
2.27 | Payment Schedule . Payment Schedule means the date as of which payment under the Plan will commence and the form in which such payment will be made. |
(a) | Retirement Benefit . Except in the case of a Specified Employee, payment of a Participants Retirement Benefit will be made (or will commence) on the first business day of the month following the month in which a Participant Retires. Payment will be made in a single lump sum unless the Participant specifies an alternative form of payment in his first Deferral Election (filed prior to earning any Company Contribution or obtaining a legally binding right to Company Contributions to his or her Retirement/Termination Account). A Participant may also specify an alternative form of payment under Section 5.1. Alternative forms of payment include (i) a lump sum payment between 0% and 100% of the Account Balance and (ii) any remaining Account Balance payable in a series of substantially equal annual installments from two to fifteen years. For purposes of |
Page 4 of 30
Article V, (i) each lump sum payment and (ii) each series of substantially equal installment payments elected by the Participant will be treated as a single form of payment. If a lump sum equal to less than 100% of the Retirement/Termination Account is paid, the payment commencement date for the installment form of payment will be the first anniversary of the payment of the lump sum. |
(b) | Termination Benefit . Except in the case of a Specified Employee, payment of a Participants Termination Benefit will be made on the first business day of the month following the month in which a Participant incurs a Separation from Service that entitles such Participant to a Termination Benefit. Payment will be made in a single lump sum. | ||
(c) | Specified Date Payments . Payment from a Participants Specified Date Account will be made (or will commence) as of the first day of the month or year specified under the elections described in Section 4.4, as modified under Section 5.1. Unless a Participant specifies an alternative form of payment under Sections 4.4 and 5.1, payment will be made in a single lump sum. Alternative forms of payment include a series of substantially equal annual installments payable over two to five years. For purposes of Article V, a series of installment payments will be treated as a single form of payment. The time and form of payment upon an earlier Separation from Service, death, Disability is specified in Section 4.4(b). | ||
(d) | Death Benefit. Payment to a Participants Beneficiary(ies) in the event of death shall be paid in a single lump sum. Payment will be made as of the first day of the first month following the Participants death. | ||
(e) | Disability Benefit. Payment due to Disability will be made in a single lump sum as of the first day of the first month following the Participants Disability. |
2.28 | Performance-Based Compensation . Performance-Based Compensation means Compensation where the amount of, or entitlement to, the Compensation is contingent on the satisfaction of pre-established organizational or individual performance criteria relating to a performance period of at least twelve consecutive months in which the Participant performs services for the Company. Organizational or individual performance criteria are considered pre-established if established in writing by not later than ninety (90) days after the commencement of the period of service to which the criteria relate, provided that the outcome is substantially uncertain at the time the criteria are established. Performance-Based Compensation may include payments based on performance criteria that are not approved by the Board of Directors or by the stockholders of the Company. Performance-Based Compensation does not include any amount or portion of any amount that will be paid either regardless of performance, or based upon a level of performance that is substantially certain to be met at the time the criteria is established. Performance criteria may be subjective but must relate to the performance of the Participant, a group of Employees that includes the Participant or a business unit (which may include the Company) for which the Participant provides services. The determination that any subjective performance criteria have been met shall |
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not be made by the Participant or by a family member of the Participant, or by a person under the supervision of the Participant or a Participants family members where any amount of the compensation of such person is controlled in whole or in part by the Participant or such family member. Compensation based on Company Stock may constitute Performance-Based Compensation if it is based solely on an increase in the value of such stock after the date of grant or award. The determination of whether Compensation qualifies as Performance-Based Compensation will be made in accordance with Treas. Reg. Section 1.409A-1(e) and subsequent guidance. |
2.29 | Plan . Plan means the Diodes Incorporated Deferred Compensation Plan as documented herein and as may be amended from time to time hereafter. | |
2.30 | Plan Administrator . Plan Administrator means the Committee, or such individuals appointed by the Committee, acting pursuant to the powers and authority granted under Section 9.1 of the Plan. | |
2.31 | Plan Year . Plan Year means January 1 through December 31. | |
2.32 | Retire/Retirement . Retire and Retirement means a voluntary Separation from Service on or after the earlier of: (i) attaining age 60 with at least 20 Years of Service, or (ii) attaining age 65. | |
2.33 | Retirement Benefit . Retirement Benefit shall mean a payment from a Participants Retirement/Termination Account to such Participant due to such Participants Retirement. Payment of a Retirement Benefit will be made as provided in Section 8.1(a) of the Plan. | |
2.34 | Retirement/Termination Account . Retirement/Termination Account means an Account established by the Plan Administrator to record the amount payable to a Participant due to his or her Separation from Service. | |
2.35 | Separation from Service . An Employee incurs a Separation from Service upon termination of employment with the Company and all Affiliates. The occurrence of a Separation from Service is determined by the Plan Administrator under the facts and circumstances and in accordance with Code Section 409A. | |
A Participants absence from work due to military leave, sick leave, or other bona fide leave of absence (such as temporary employment by the government) shall not constitute a Separation from Service if the period of such leave does not exceed six months or such longer period as is provided either by statute or by contract. If the period of leave exceeds six months and the Participants right to reemployment after such extended leave is not provided either by statute or by contract, the Participant shall be deemed to have incurred a Separation from Service on the first day immediately following such six-month period. | ||
An Employee not described under the preceding leave of absence provisions is deemed to |
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have incurred a Separation from Service if he or she provides services to the Company or an Affiliate at an annual rate that is less than 20% of the services rendered, on average, during the immediately preceding three full calendar years of employment (or the actual period of employment, if less than three years). |
2.36 | Specified Date Account . A Specified Date Account means an Account established pursuant to Section 4.4 that will be paid (or that will commence to be paid) at a future date as specified in the Participants Deferral Election. Unless otherwise determined by the Plan Administrator, a Participant may maintain no more than five Specified Date Accounts. A Specified Date Account may be identified in enrollment materials as an In-Service Account. | |
2.37 | Specified Employee . Specified Employee means a key employee (as defined in Code Section 416(i) without regard to Code Section 416(i)(5)), at any time during the 12-month period ending on a Specified Employee identification date, of the Company or an Affiliate any stock of which is actively traded on an established securities market or otherwise, or as defined in Treas. Regulation 1.409A-1(i). | |
The Plan Administrator will identify Specified Employees. The determination of which Employees are Specified Employees will be determined as of the 12-month period ending each December 31, and will become effective on and after the following April 1. | ||
2.38 | Substantial Risk of Forfeiture . Substantial Risk of Forfeiture shall have the meaning specified in Treas. Reg. Section 1.409A-1(d). | |
2.39 | Termination Benefit . Termination Benefit means a payment from a Participants Retirement/Termination Account due to such Participants Separation from Service other than Retirement or death. Payment of a Termination Benefit will be paid as provided in Section 8.1(b). | |
2.40 | Unforeseeable Emergency . An Unforeseeable Emergency is a severe financial hardship of the Participant or Beneficiary resulting from an illness or accident of the Participant or Beneficiary, the Participants or Beneficiarys spouse, or the Participants or Beneficiarys dependent (as defined in Code section 152, without regard to Code Section 152 (b)(1), (b)(2) and (d)(1)(B)); loss of the Participants or Beneficiarys property due to casualty (including the need to rebuild a home following damage to a home not otherwise covered by insurance, for example, as a result of a natural disaster); or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant or Beneficiary. For example, the imminent foreclosure of or eviction from the Participants or Beneficiarys primary residence may constitute an Unforeseeable Emergency. In addition, the need to pay for medical expenses, including non-refundable deductibles, as well as for the costs of prescription drug medication, may constitute an Unforeseeable Emergency. Finally, the need to pay for the funeral expenses of a spouse or a dependent (as defined in Code section 152, without regard to Code Section 152 (b)(1), (b)(2) and (d)(1)(B)) may also constitute an Unforeseeable Emergency. Except as otherwise provided in this section, the purchase of a home and the |
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payment of college tuition are not Unforeseeable Emergencies. Whether a Participant or Beneficiary is faced with an Unforeseeable Emergency permitting a distribution under section 8.5 of the Plan is to be determined by the Plan Administrator based on the relevant facts and circumstances of each case, but, in any case, a distribution on account of Unforeseeable Emergency may not be made to the extent that such emergency is or may be reimbursed through insurance or otherwise, by liquidation of the Participants assets, to the extent the liquidation of such assets would not cause severe financial hardship, or by cessation of Deferrals under this Plan. |
2.41 | Valuation Date . Valuation Date shall mean each Business Day. | |
2.42 | Year of Service . A Year of Service shall mean each 12-month period of continuous service with the Company. |
3.1 | Eligibility and Participation . An Eligible Employee becomes eligible to file a Deferral Election upon receipt of notification of eligibility from the Plan Administrator. Such Eligible Employee becomes a Participant upon the earlier to occur of (i) a credit of Company Contributions under Article VI or (ii) filing his or her initial Deferral Election in accordance with Article IV. | |
3.2 | Duration . A Participant shall be eligible to defer Compensation and receive allocations of Company Contributions, subject to the terms of the Plan, for as long as such Participant is an Eligible Employee. A Participant who is no longer an Eligible Employee but continues to be employed by the Company may not defer Compensation under the Plan but may otherwise exercise all of the rights of a Participant under the Plan with respect to his or her Account(s). On and after a Separation from Service, a Participant shall remain a Participant as long as his or her Account Balance is greater than zero and during such time may continue to make allocation elections as provided in Section 7.2. An individual shall cease being a Participant in the Plan when all benefits under the Plan to which he or she is entitled have been paid. | |
3.3 | Revocation of Future Participation . Notwithstanding the provisions of Section 3.2, the Committee may, in its discretion, revoke a Participants eligibility to make future Deferrals under this Plan. Such revocation will not affect in any manner a Participants Account Balance or other terms of this Plan. |
4.1 | Deferral Elections, Generally. |
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(a) | An Eligible Employee shall submit a Deferral Election during the enrollment periods established by the Plan Administrator and in the manner specified by the Plan Administrator, but in any event, in accordance with Section 4.2. A Deferral Election that is not timely filed with respect to a service period or component of Compensation shall be considered void and shall have no effect with respect to such service period or Compensation. | ||
(b) | Each Deferral Election will specify the amount of Deferrals and the allocation of Deferrals to the Participants Accounts. A Participant may specify in his or her initial Deferral Election the Payment Schedule for the Retirement/Termination Account. A Participant may specify in the Deferral Election that establishes a Specified Date Account the Payment Schedule for such Account in the manner set forth in Section 4.4. If the time and form is not specified in a Deferral Election, the time and form of payment shall be the time and form specified in Section 2.27. |
4.2 | Timing Requirements for Deferral Elections. |
(a) | First Year of Eligibility . Upon notification of his or her eligible status under Section 3.1, and subject to this paragraph (a), an Eligible Employee has up to 30 days to submit a Deferral Election with respect to Compensation paid for services to be performed after the election during such year. The Deferral Election described in this paragraph becomes irrevocable on the first day following such 30 th day. An Eligible Employee may file a Deferral Election under this Section 4.2(a) only if he or she does not participate in any other account balance plan as defined in Treas. Reg. Section 1.409A-1(c)(2)(i)(A) maintained by the Company or an Affiliate, other than as permitted in Treas. Reg. Section 1.409A-1(c)(2)(ii). | ||
A Deferral Election filed under this Section 4.2(a) applies to Compensation paid for services to be performed after the deferral Election is made. For Compensation that is earned based upon a specified performance period (e.g. over a calendar year or fiscal year), where a Deferral Election is made in the first year of eligibility but after the beginning of the service period, unless the Compensation may be timely deferred under this Section 4.2(c), (e), or (g), the election will be deemed to apply to Compensation paid for services performed subsequent to the election if the election applies to the portion of the Compensation equal to the total amount of the Compensation for the service period multiplied by the ratio of the number of days remaining in the performance period after the Deferral Election becomes irrevocable over the total number of days in the performance period. | |||
(b) | Prior Year Deferrals . Participants may defer Compensation by filing a Deferral Election no later than December 31 of the year prior to the year in which such Compensation is earned. A Deferral Election described in this paragraph shall become irrevocable with respect to such Compensation as of January 1 of the year |
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in which such Compensation is earned. |
(c) | Performance-Based Compensation . A Deferral Election may be filed with respect to Performance-Based Compensation, provided that: |
(i) | the Participant performs services continuously from a date no later than the date upon which the performance criteria for such Performance-Based Compensation are established through a date no earlier than the date upon which the Participant submits a Deferral Election; | ||
(ii) | the Deferral Election is submitted no later than the date that is six months before the end of the performance period during which such Performance-Based Compensation is earned; and | ||
(iii) | in no event may an election to defer Performance-Based Compensation be made after such Performance-Based Compensation has become substantially certain to be paid or readily ascertainable. |
A Deferral Election becomes irrevocable with respect to Performance-Based Compensation as of the day immediately following the date described in paragraph (c)(ii). | |||
(d) | Commissions . For purposes of determining Compensation that may be deferred under Sections 4.2(a) or (b), commissions are considered to be earned in the year a customer remits payment to the Company or an Affiliate. | ||
(e) | Deferral Election with Respect to Fiscal Year Compensation . A Participant may defer Fiscal Year Compensation by filing a Deferral Election prior to the first day of the fiscal year or years in which such Fiscal Year Compensation is earned. The Deferral Election described in this paragraph becomes irrevocable on the first day of the fiscal year or years to which it applies. | ||
(f) | Short-Term Deferrals . Compensation that meets the definition of a short-term deferral described in Treas. Reg. Section 1.409A-1(b)(4) may be deferred under a Deferral Election filed not later than twelve months prior to the date on which the Substantial Risk of Forfeiture lapses. The Payment Schedule for such Deferral must specify a commencement date no earlier than five years after the forfeiture restriction lapses. | ||
(g) | Deferral Election With Respect to Certain Forfeitable Rights . With respect to a legally binding right to a payment in a subsequent year that is subject to a forfeiture condition requiring the Participants continued services for a period of at least twelve months from the date the Participant obtains the legally binding right, an election to defer such Compensation may be made on or before the 30 th day after the Participant obtains the legally binding right to the Compensation, provided that the election is made at least twelve months in advance of the earliest |
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date at which the forfeiture condition could lapse. The Deferral Election described in this paragraph becomes irrevocable after such 30 th day. |
4.3 | Evergreen Deferral Elections . The Plan Administrator, in its discretion, may provide in the Deferral Election that such Deferral Election will continue in effect for each subsequent year or performance period. Such evergreen Deferral Elections will become effective with respect to an item of Compensation on the date such election becomes irrevocable under Section 4.2. An evergreen Deferral Election may be terminated or modified prospectively with respect to Compensation for which such election remains revocable under Section 4.2. A Participant whose Deferral Election is suspended due to an Unforeseeable Emergency will be required to file a new Deferral Election under this Article IV in order to continue making Deferrals under the Plan. | |
4.4 | Specified Date Elections . A Participants Deferral Election may establish a Specified Date Account by specifying the Payment Schedule for Deferrals and Earnings credited to such Account. |
(a) | Allocation of Deferrals. A Deferral Election may allocate Deferrals to one or more Specified Date Accounts. The Plan Administrator may, in its discretion, establish a minimum deferral period (for example, the third Plan Year following the year Compensation subject to the Deferral Election is earned). | ||
(b) | Effect of Earlier Separation from Service, Death, Disability. In the event of a Separation from Service, death, or Disability, the unpaid balance of a Specified Date Account will be paid in accordance with the Payment Schedule for the earlier event. Notwithstanding the foregoing, the Plan Administrator may allow a Participant to elect not to receive payment upon Separation from Service, but to receive the Specified Date Accounts as of the specified date. Such election must be made (i) on the Deferral Election form that establishes a Specified Date Account or (ii) in a subsequent election under Article V. Such election, once made, is irrevocable as to such Account. |
4.5 | Deductions from Pay . The Plan Administrator has the authority to determine the payroll practices under which any component of Compensation subject to a Deferral Election will be deducted from a Participants Compensation. |
5.1 | Participants Right to Modify . Subject to Section 5.2, a Participant may modify the Payment Schedule with respect to an Account, provided such modification complies with the requirements of Sections 5.1(a) and (b). |
(a) | Time of Election. The date on which a modification election is submitted to the Plan Administrator must be at least twelve months prior to the date on which |
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payment commences under the Payment Schedule in effect prior to modification, and the date payments commence under the modified Payment Schedule must occur no earlier than five years after the date payment would have commenced under the Payment Schedule in effect prior to the effective date of the modification election. Under no circumstances may a modification election result in an acceleration of payments in violation of Code Section 409A. |
(b) | Effective Date . A modification election described in Section 5.1(a) is irrevocable upon receipt by the Plan Administrator and becomes effective on the date that is twelve months after the date the modification is filed with the Plan Administrator | ||
(c) | Effect on Accounts. An election to modify a Payment Schedule is specific to the Specified Date or Retirement/Termination Account to which it applies, and shall not be construed to affect the Payment Schedules of any other Accounts. | ||
(d) | Effect of Modification Election Upon Death or Disability. A modification to the form of payment from any Account that would also change the form of payment upon the Participants death or Disability will be effective at the time specified in Section 5.1(b) above. Payment will be made in accordance with Section 2.27, without regard to the five-year requirement specified in Section 5.1(a). |
5.2 | Modifications Authorized Under Notice 2007-86 . Notwithstanding any provision of this Plan to the contrary, during calendar year 2008, a Participant may modify a Payment Schedule of any Account without regard to the requirements of Section 5.1(a) and (b); provided, however, that any modification election purporting to modify an Account with a Payment Schedule commencing during 2008 or which would cause the commencement date of the Payment Schedule for an Account to be accelerated into 2008 shall be null and void to the extent such election is inconsistent with the requirements of Code Section 409A and regulations. The Plan Administrator has the authority to prescribe the time and manner under which such modifications may be made; provided, however, the modifications permitted under this Section 5.3 must be consummated on or before December 31. 2008. |
6.1 | Discretionary Company Contributions . The Company may, from time to time in its sole and absolute discretion, credit Company Contributions to any Participant in any amount determined by the Company. Such contributions will be credited to a Participants Retirement/Termination Account. | |
6.2 | Vesting . Company Contributions described in Section 6.1, above, and the Earnings thereon, shall vest in accordance with the vesting schedule(s) established by the Committee at the time that the Company Contribution is made. All Company Contributions shall become 100% vested upon the occurrence of the earliest of: (i) the |
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death of the Participant; (ii) the Disability of the Participant, (iii) Retirement of the Participant, or (iv) a Change in Control. The Company may, at any time, in its sole discretion, increase a Participants vested interest in a Company Contribution. The portion of a Participants Accounts that remains unvested upon his or her Separation from Service after the application of the terms of this Section 6.2 shall be forfeited. |
7.1 | Valuation . Deferrals shall be credited to appropriate Accounts on the date such Compensation would have been paid to the Participant absent the Deferral Election. Company Contributions shall be credited in accordance with the provisions of Article VI, as determined by the Plan Administrator. Valuation of Accounts shall be performed under procedures approved by the Plan Administrator. | |
7.2 | Earnings Credit . Each Account will be credited with Earnings on each Business Day, based upon the Participants investment allocation among a menu of investment options selected in advance by the Plan Administrator, in accordance with the provisions of this Section 7.2 (investment allocation). |
(a) | Investment Options . Investment options will consist of actual investments, which may include stocks, bonds, mutual fund shares, Company Stock and other investments. The Committee, in its sole discretion, shall be permitted to add or remove investment funds from the Plan menu from time to time provided that any such additions or removals of investment funds shall not be effective with respect to any period prior to the effective date of such change. | ||
(b) | Investment Allocations. A Participants investment allocation constitutes a deemed, not actual, investment among the investment options comprising the investment menu. At no time shall a Participant have any real or beneficial ownership in any investment option included in the investment menu, nor shall the Company or any trustee acting on its behalf have any obligation to purchase actual securities as a result of a Participants investment allocation. A Participants investment allocation shall be used solely for purposes of adjusting the value of a Participants Account Balances. | ||
A Participants Deferral Election shall specify the investment allocation for Deferrals. Deferrals may be allocated among the investment options in increments of 1%. The Participants investment allocation will become effective on the same Business Day or, in the case of investment allocations received after a time specified by the Plan Administrator, the next Business Day. The investment allocation specified in such Deferral Election will remain in effect until the Participant modifies the investment allocation in accordance with procedures adopted by the Plan Administrator. |
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Participants also may re-allocate current Account Balances among the investment options in increments of 1% by filing a new investment allocation at the time and in the form specified by the Plan Administrator. The Participants investment allocation will become effective on the same Business Day or, in the case of investment allocations received after a time specified by the Plan Administrator, the next Business Day. The investment allocation shall apply prospectively to the Account or Accounts identified in the allocation. | |||
(c) | Unallocated Deferrals and Accounts . If any portion of a Deferral or Account Balance has not been allocated to an investment option, such portion shall be invested in an investment option, the primary objective of which is the preservation of capital, as determined by the Committee. | ||
(d) | Company Stock . The Committee may include Company Stock as one of the investment options described in Section 7.2(a). The Committee may, in its sole discretion, limit the investment allocation of Company Contributions to Company Stock. The Committee may also require Deferrals consisting of equity-based Compensation be allocated to Company Stock. |
(1) | Diversification . A Participant may not re-allocate an investment in Company Stock into another investment option. The portion of an Account that is invested in Company Stock will be paid under Article VIII in the form of whole shares of Company Stock. | ||
(2) | Effect on Installment Payments . If an Account is to be paid in installments, the Plan Administrator will determine the portion of each payment that will be paid in the form of Company Stock. | ||
(3) | Dividend Equivalents . Dividend equivalents with respect to Company Stock will be credited to the applicable Accounts in the form of additional shares or units of Company Stock. |
8.1 | Separation Payments . Payments will be made to a Participant upon a Separation from Service as follows: |
(a) | Retirement Benefit. A Retirement Benefit will be paid to Participants who incur a Separation from Service that qualifies as a Retirement. The amount of the Retirement Benefit payment will be based on the vested Retirement/Termination Account Balance and will be paid in accordance with the Payment Schedule in effect for such benefit and the provisions of Section 8.7. |
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(b) | Termination Benefit. In the event that a Participant experiences a Separation from Service that does not qualify as a Retirement, the Termination Benefit will be paid to such Participant. The amount of the Termination Benefit will be based on the vested Retirement/Termination Account Balance and will be paid in accordance with the Payment Schedule in effect for the Termination Benefit and the provisions of Section 8.7. | ||
(c) | Specified Employees. If, upon a Participants Separation from Service, the Participant is then a specified employee (as defined in Code Section 409A), then to the extent necessary to comply with Code Section 409A and avoid the imposition of taxes under Code Section 409A, the commencement date of a Payment Schedule shall be delayed until the earlier of (i) ten (10) days after the Plan Administrator receives notification of the Participants death or (ii) the first business day of the seventh month following the Participants Separation from Service. Any such delayed payment(s) shall be made without interest. Any subsequent installment payment s shall be paid on the dates(s) specified in the Participants Payment Schedule. |
8.2 | Specified Date Accounts . Subject to Section 4.4(b), the vested Account Balance of each Specified Date Account will be paid in accordance with the Payment Schedule in effect for such Account and the provisions of Section 8.7. | |
8.3 | Disability Benefit . Upon the Plan Administrators determination that a Participant is Disabled, the Company shall pay all unpaid Account Balances as a Disability Benefit in accordance with the Disability Benefit Payment Schedule and the provisions of Section 8.7. | |
8.4 | Death Benefit . In the event of the Participants death prior to receiving all payments from his or her Accounts, the Participants remaining Account Balances will be paid to the Participants Beneficiaries in accordance with the Death Benefit Payment Schedule and the provisions of Section 8.7. | |
8.5 | Unforeseeable Emergency . A Participant may submit a written request to the Plan Administrator to receive a distribution from his or her vested Account Balance(s) if the Participant experiences an Unforeseeable Emergency. Distributions of amounts in the event of an Unforeseeable Emergency are limited to the extent reasonably needed to satisfy the emergency need which cannot be met from other sources. The amount of such distribution shall be subtracted first from the vested portion of the Participants Retirement/Termination Account until depleted and then from the vested Specified Date Accounts, beginning with the Specified Date Account with the latest payment commencement date. For purposes of the preceding sentence, any minimum deferral requirement specified in the Plan or Section 5.1 shall not apply. | |
8.6 | Change in Control . A Participant who incurs a Separation from Service within twenty four (24) months following the date of a Change in Control shall receive payment of his or her vested Accounts in a single lump sum. Payment will be made as of the later of the |
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date specified for a Termination Benefit under Section 2.27 or the date applicable to Specified Employees under Section 8.1(c). |
8.7 | Valuation and Payment . Payment amounts will be based on the valuation of the applicable Account Balance as of the Valuation Date specified by the Plan Administrator in its discretion. | |
Payment is treated as made upon the payment commencement date under the applicable Payment Schedule if the payment is made on or after such date in the same calendar year or, if later, by the 15 th day of the third calendar month following the date specified under the arrangement. If a calculation of the amount of the payment is not administratively practical due to events beyond the control of the Participant, a Beneficiary or the Participants estate, the payment will be treated as made upon the date specified under the Payment Schedule if the payment is made during the first calendar year in which the payment becomes administratively practicable. | ||
8.8 | Installments; Declining Balance Calculation . If a Payment Schedule specifies installment payments, annual payments will be made beginning as of the payment commencement date for such installments and shall continue on each anniversary thereof until the number of installment payments specified in the Payment Schedule has been paid. The amount of each installment payment shall be determined by dividing (a) by (b): |
(a) |
equals the Account Balance as of the Valuation Date and
|
||
(b) | equals the remaining number of installment payments. |
8.9 | De Minimis Account Balance . Any provision in this Plan to the contrary notwithstanding, payment to a Participant or Beneficiary will be made in a single lump sum, provided (i) the payment results in the termination and liquidation of the entirety of the Participants interest under the Plan, including all similar arrangements, methods, programs or other arrangements with respect to which deferrals of compensation are treated as having been deferred under a single nonqualified deferred compensation plan under Treas. Reg. Section 1.409A-1(c)(2), and (ii) the payment is not greater than the applicable dollar amount under Code Section 402(g)(1)(B). | |
8.10 | Domestic Relations Order . Notwithstanding any benefit, Payment Schedule or other provision of this Plan regarding the time and form of payment, the Plan Administrator may pay all or a portion of a Participants Accounts to an alternate payee as specified under the terms of a domestic relations order (defined in Code Section 414(p)(1)(B)). If a time or form of payment is not specified in such order, payment will be made to such alternate payee(s) in a single lump sum as soon as is administratively practical following the Plan Administrators determination that the order meets the requirements of this Section 8.10. | |
8.11 | Payments to Avoid Nonallocation Year Under Section 409(p) . Notwithstanding any benefit, Payment Schedule or other provision of this Plan regarding the time and form of payment, payment will be made to prevent the occurrence of a nonallocation year (within |
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the meaning of Section 409(p)(3) of the Code in the plan year of an employee stock ownership plan next following the current plan year, provided that the amount paid may not exceed 125 percent of the minimum amount of payment necessary to avoid the occurrence of a nonallocation year). |
8.12 | Payment of Employment Taxes . The Plan Administrator may permit payment of (i) Federal Insurance Contributions Act (FICA) tax imposed on Deferrals and Company Contributions (ii) any related federal, state, local and foreign tax law withholding obligations arising in connection with payment of the FICA Amount (as defined under Treasury regulations), and (iii) to pay the additional income tax at the source on wages attributable to the pyramiding of wages and taxes as a result of payments under (i) and (ii). The total amount of the payment under this Section shall not exceed the FICA Amount and the income tax withholding related to the FICA Amount. | |
8.13 | Conflicts of Interest . The Plan Administrator may permit such acceleration of the time or schedule of a payment under the Plan, or a payment may be made under the Plan (i) to the extent necessary for any Federal officer or employee in the executive branch to comply with an ethics agreement with the Federal government, or (ii) to the extent necessary to avoid the violation of an applicable Federal, state, local or foreign ethics law or conflicts of interest law (including where such payment is reasonably necessary to permit the service provider to participate in activities in the normal course of his or her position in which the service provider would otherwise not be able to participate under an applicable rule). | |
8.14 | Permissible Payment Delays . The Company will delay any payment to a Participant upon the Companys reasonable anticipation of one or more of the following: |
(a) | The Companys income tax deduction with respect to such payment would be limited or eliminated by application of Code Section 162(m); provided that such payment will be made either at the earliest date on which the Company reasonably anticipates that the deduction will not be so limited or eliminated or the calendar year in which the Participant incurs a Separation from Service; or | ||
(b) | Making such payment would violate federal securities laws or other applicable law; provided that payment will be made at the earliest date which the Company anticipates that the making of the payment will not cause such violation, and subject to such other requirements as are specified under Code Section 409A. |
9.1 | Plan Administration . This Plan shall be administered by the Plan Administrator which shall have discretionary authority to make, amend, interpret and enforce all appropriate rules and regulations for the administration of this Plan and to utilize its discretion to decide or resolve any and all questions, including but not limited to eligibility for benefits |
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and interpretations of this Plan and its terms, as may arise in connection with the Plan. Claims for benefits shall be filed with the Plan Administrator and resolved in accordance with the claims procedures in Article XII. |
9.2 | Administration Upon Change in Control . Upon a Change in Control, the Committee, as constituted immediately prior to such Change in Control, shall continue to act as the Plan Administrator. The individual who was the Chief Executive Officer of the Company (or if such person is unable or unwilling to act, the next highest ranking officer) prior to the Change in Control shall have the authority (but shall not be obligated) to appoint an independent third party to act as the Plan Administrator in lieu of the Committee. | |
Upon such Change in Control, the Company may not remove the Plan Administrator, unless 2/3rds of the members of the Board of Directors of the Company and a majority of Participants and Beneficiaries with Account Balances consent to the removal and replacement Plan Administrator. Notwithstanding the foregoing, neither the Committee members nor the officer described above shall have authority to direct investment of trust assets under any rabbi trust described in Section 11.2. | ||
The Company shall, with respect to the Plan Administrator identified under this Section, (i) pay all reasonable expenses and fees of the Plan Administrator, (ii) indemnify the Plan Administrator (including individual Committee members) against any costs, expenses and liabilities including, without limitation, attorneys fees and expenses arising in connection with the performance of the Plan Administrator hereunder, except with respect to matters resulting from the Plan Administrators gross negligence or willful misconduct and (iii) supply full and timely information to the Plan Administrator on all matters related to the Plan, any rabbi trust, Participants, Beneficiaries and Accounts as the Plan Administrator may reasonably require. | ||
9.3 | Withholding . The Company shall have the right to withhold from any payment due under the Plan (or any amount deferred into the Plan) any taxes required by law to be withheld in respect of such payment (or Deferral). | |
9.4 | Indemnification . The Company shall indemnify and hold harmless each employee, officer, director, agent or organization, to whom or to which it delegated duties, responsibilities, and authority under the Plan or otherwise with respect to administration of the Plan, including, without limitation, the Plan Administrator, the Committee and their agents, against all claims, liabilities, fines and penalties, and all expenses reasonably incurred by or imposed upon him or it (including but not limited to reasonable attorney fees) which arise as a result of his or its actions or failure to act in connection with the operation and administration of the Plan to the extent lawfully allowable and to the extent that such claim, liability, fine, penalty, or expense is not paid for by liability insurance purchased or paid for by the Company. Notwithstanding the foregoing, the Company shall not indemnify any person or organization if his or its actions or failure to act are due to gross negligence or willful misconduct or for any such amount incurred through any settlement or compromise of any action unless the Company consents in writing to such settlement or compromise. |
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9.5 | Delegation of Authority . In the administration of this Plan, the Plan Administrator may, from time to time, employ agents and delegate to them such administrative duties as it sees fit, and may from time to time consult with legal counsel who shall be legal counsel to the Company. | |
9.6 | Binding Decisions or Actions . The decision or action of the Plan Administrator in respect of any question arising out of or in connection with the administration, interpretation and application of the Plan and the rules and regulations thereunder shall be final and conclusive and binding upon all persons having any interest in the Plan. |
10.1 | Amendment and Termination . The Company may at any time and from time to time amend the Plan or may terminate the Plan as provided in this Section 10.1. |
(a) | Amendments. The Company, by action taken by its Board of Directors, may amend or restate the Plan at any time, provided that any such amendment or restatement shall not reduce the vested Account Balances of any Participant accrued as of the date of any such amendment or restatement (as if the Participant had incurred a voluntary Separation from Service on such date) or reduce any rights of a Participant under the Plan or other Plan features with respect to Deferrals made prior to the date of any such amendment or restatement without the consent of the Participant. The Board of Directors may delegate to the Plan Administrator the authority to amend the Plan without the consent of the Board of Directors for the purpose of (i) conforming the Plan to the requirements of law, (ii) to facilitate administration, (iii) to clarify provisions based on the Plan Administrators interpretation of the document and (iv) to make such other amendments as the Board of Directors may authorize. | ||
(b) | Termination. The Company, by action taken by its Board of Directors , may terminate the Plan and pay Participants and Beneficiaries their Account Balances in a single lump sum at any time under the following conditions: |
(1) | Companys Discretion . The Company may terminate the Plan in its discretion, provided that (i) the termination and liquidation does not occur proximate to a downturn in the financial health of the Company; (ii) the Company terminates and liquidates all agreements, methods, programs and other arrangements sponsored by the Company that would be aggregated with any terminated and liquidated agreements, methods, programs and other arrangements under Treas. Reg. Section 1.409A-1(c) if the same Participant had deferrals of compensation under all of the agreements, methods, programs and other arrangements that are terminated and liquidated; (iii) no payments in liquidation of the Plan are |
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made within 12 months of the date the Company takes all necessary action to irrevocably terminate and liquidate the Plan other than payments that would be payable under the terms of the Plan if the action to terminate and liquidate the Plan had not occurred; (iv) all payments are made within 24 months of the date the Company takes all necessary action to irrevocably terminate and liquidate the Plan; and (v) the Company does not adopt a new plan that would be aggregated with any terminated and liquidated plan under Treas. Reg. Section l.409A-1(c) if the same Participant participated in both plans, at any time within three (3) years following the date the Company takes all necessary action to irrevocably terminate and liquidate the Plan. |
(2) | Change in Control . The Company may terminate the Plan within the thirty (30) days preceding or the twelve months following a Change in Control (as defined in Treas. Reg. Section 1.409A-3(i)(5)). For purposes of this paragraph, a Change in Control shall be defined as provided in Treas. Reg. Section 1.409A-3(i)(5). The Plan is considered terminated under this paragraph only if all substantially similar arrangements are terminated, and all participants under such arrangements are required to receive all amounts of compensation deferred under the terminated arrangements within twelve months of the termination of such arrangements. | ||
(3) | Dissolution; Bankruptcy Court Order . The Company may terminate the Plan within 12 months of a corporate dissolution taxed under Code Section 331, or with the approval of a bankruptcy court pursuant to 11 U.S.C. Section 503(b)(1)(A), provided that the vested Account Balances are included in Participants gross incomes in the latest of (i) the calendar year in which the Plan terminates; (ii) the calendar year in which the amount is no longer subject to a substantial risk of forfeiture, or (iii) the first calendar year in which the payment is administratively practicable. |
10.2 | Accounts Taxable Under Code Section 409A . The Plan is intended to constitute a plan of deferred compensation that meets the requirements for deferral of income taxation under Code Section 409A. The Plan Administrator, pursuant to its authority to interpret the Plan, may sever from the Plan or any Deferral Election any provision or exercise of a right that otherwise would result in a violation of Code Section 409A. If, after application of the preceding sentence, the Plan Administrator determines that a Participants Accounts are taxable or if such Participant receives a notice of deficiency from the Internal Revenue Service due to a violation of Code Section 409A, such Participant will receive payment from his or her Accounts in a single lump sum. The amount of the payment shall not exceed the lesser of (i) the Participants Account Balance or (ii) an amount equal to the amount of income included in taxable income as a result of such violation. Payment under this Section 10.2 shall be applied against the Participants Accounts and shall constitute fulfillment of the Companys payment obligation to such Participant under the Plan to the extent of any such payments. |
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11.1 | General Assets . Obligations established under the terms of the Plan may be satisfied from the general funds of the Company, an Affiliate, or a trust described in Section 11.2. No Participant, spouse or Beneficiary shall have any right, title or interest whatever in assets of the Company or an Affiliate. Nothing contained in this Plan, and no action taken pursuant to its provisions, shall create or be construed to create a trust of any kind, or a fiduciary relationship, between the Company or its Affiliates and any Employee, spouse, or Beneficiary. To the extent that any person acquires a right to receive payments from the Company hereunder, such rights are no greater than the right of an unsecured general creditor of the Company. | |
11.2 | Rabbi Trust . The Company or an Affiliate may, at its sole discretion, establish a grantor trust, commonly known as a rabbi trust, as a vehicle for accumulating assets to pay benefits under the Plan. Payments under the Plan may be paid from the general assets of the Company or from the assets of any such rabbi trust. Payment from any such source shall reduce the Companys obligation to the Participant or Beneficiary under the Plan. | |
If a rabbi trust is in existence upon the occurrence of a change in control, as defined in such trust, the Company shall, upon such change in control, and on each anniversary of the change in control, contribute in cash or liquid securities such amounts as are necessary so that the value of rabbi trust assets immediately after making the contributions equals or exceeds 125 percent of the total value of all Account Balances. |
12.1 | Filing a Claim . Any controversy or claim arising out of or relating to the Plan shall be filed in writing with the Plan Administrator which shall make all determinations concerning such claim. Any claim filed with the Plan Administrator and any decision by the Plan Administrator denying such claim shall be in writing and shall be delivered to the Participant or Beneficiary filing the claim (the Claimant). | |
12.2 | In General. Notice of a denial of benefits (other than Disability benefits) will be provided within ninety (90) days of the Plan Administrators receipt of the Claimants claim for benefits. If the Plan Administrator determines that it needs additional time to review the claim, the Plan Administrator will provide the Claimant with a notice of the extension before the end of the initial ninety (90) day period. The extension will not be more than ninety (90) days from the end of the initial ninety (90) day period and the notice of extension will explain the special circumstances that require the extension and the date by which the Plan Administrator expects to make a decision. |
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12.3 | Disability Benefits . Notice of denial of Disability benefits will be provided within forty-five (45) days of the Plan Administrators receipt of the Claimants claim for Disability benefits. If the Plan Administrator determines that it needs additional time to review the Disability claim, the Plan Administrator will provide the Claimant with a notice of the extension before the end of the initial forty-five (45) day period. If the Plan Administrator determines that a decision cannot be made within the first extension period due to matters beyond the control of the Plan Administrator, the time period for making a determination may be further extended for an additional thirty (30) days. If such an additional extension is necessary, the Plan Administrator shall notify the Claimant prior to the expiration of the initial thirty (30) day extension. Any notice of extension shall indicate the circumstances necessitating the extension of time, the date by which the Plan Administrator expects to furnish a notice of decision, the specific standards on which such entitlement to a benefit is based, the unresolved issues that prevent a decision on the claim and any additional information needed to resolve those issues. A Claimant will be provided a minimum of forty-five (45) days to submit any necessary additional information to the Plan Administrator. In the event that a thirty (30) day extension is necessary due to a Claimants failure to submit information necessary to decide a claim, the period for furnishing a notice of decision shall be tolled from the date on which the notice of the extension is sent to the Claimant until the earlier of the date the Claimant responds to the request for additional information or the response deadline. | |
12.4 | Contents of Notice . If a claim for benefits is completely or partially denied, notice of such denial shall be in writing and shall set forth the reasons for denial in plain language. The notice shall (i) cite the pertinent provisions of the Plan document and (ii) explain, where appropriate, how the Claimant can perfect the claim, including a description of any additional material or information necessary to complete the claim and why such material or information is necessary. The claim denial also shall include an explanation of the claims review procedures and the time limits applicable to such procedures, including a statement of the Claimants right to bring a civil action under Section 502(a) of ERISA following an adverse decision on review. In the case of a complete or partial denial of a Disability benefit claim, the notice shall provide a statement that the Plan Administrator will provide to the Claimant, upon request and free of charge, a copy of any internal rule, guideline, protocol, or other similar criterion that was relied upon in making the decision. | |
12.5 | Appeal of Denied Claims . A Claimant whose claim has been completely or partially denied shall be entitled to appeal the claim denial by filing a written appeal with a committee designated to hear such appeals (the Appeals Committee). A Claimant who timely requests a review of the denied claim (or his or her authorized representative) may review, upon request and free of charge, copies of all documents, records and other information relevant to the denial and may submit written comments, documents, records and other information relevant to the claim to the Appeals Committee. All written comments, documents, records, and other information shall be considered relevant if the information (i) was relied upon in making a benefits determination,(ii) was submitted, considered or generated in the course of making a benefits decision regardless of whether it was relied upon to make the decision, or (iii) demonstrates compliance with administrative processes and safeguards established for making benefit decisions. The |
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Appeals Committee may, in its sole discretion and if it deems appropriate or necessary, decide to hold a hearing with respect to the claim appeal. |
(a) | In General. Appeal of a denied benefits claim (other than a Disability benefits claim) must be filed in writing with the Appeals Committee no later than sixty (60) days after receipt of the written notification of such claim denial. The Appeals Committee shall make its decision regarding the merits of the denied claim within sixty (60) days following receipt of the appeal (or within one hundred and twenty (120) days after such receipt, in a case where there are special circumstances requiring extension of time for reviewing the appealed claim). If an extension of time for reviewing the appeal is required because of special circumstances, written notice of the extension shall be furnished to the Claimant prior to the commencement of the extension. The notice will indicate the special circumstances requiring the extension of time and the date by which the Appeals Committee expects to render the determination on review. The review will take into account comments, documents, records and other information submitted by the Claimant relating to the claim without regard to whether such information was submitted or considered in the initial benefit determination. | ||
(b) | Disability Benefits. Appeal of a denied Disability benefits claim must be filed in writing with the Committee no later than one hundred eighty (180) days after receipt of the written notification of such claim denial. The review shall be conducted by the Appeals Committee (exclusive of the person who made the initial adverse decision or such persons subordinate). In reviewing the appeal, the Appeals Committee shall (i) not afford deference to the initial denial of the claim, (ii) consult a medical professional who has appropriate training and experience in the field of medicine relating to the Claimants disability and who was neither consulted as part of the initial denial nor is the subordinate of such individual and (iii) identify the medical or vocational experts whose advice was obtained with respect to the initial benefit denial, without regard to whether the advice was relied upon in making the decision. The Appeals Committee shall make its decision regarding the merits of the denied claim within forty-five (45) days following receipt of the appeal (or within ninety (90) days after such receipt, in a case where there are special circumstances requiring extension of time for reviewing the appealed claim). If an extension of time for reviewing the appeal is required because of special circumstances, written notice of the extension shall be furnished to the Claimant prior to the commencement of the extension. The notice will indicate the special circumstances requiring the extension of time and the date by which the Appeals Committee expects to render the determination on review. Following its review of any additional information submitted by the Claimant, the Appeals Committee shall render a decision on its review of the denied claim. | ||
(c) | Contents of Notice. If a benefits claim is completely or partially denied on review, notice of such denial shall be in writing and shall set forth the reasons for denial in plain language. |
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(1) | The decision on review shall set forth (i) the specific reason or reasons for the denial, (ii) specific references to the pertinent Plan provisions on which the denial is based, (iii) a statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to and copies of all documents, records, or other information relevant (as defined above) to the Claimants claim, and (iv) a statement describing any voluntary appeal procedures offered by the plan and a statement of the Claimants right to bring an action under Section 502(a) of ERISA. | ||
(2) | For the denial of a Disability benefit, the notice will also include a statement that the Appeals Committee will provide, upon request and free of charge, (i) any internal rule, guideline, protocol or other similar criterion relied upon in making the decision, (ii) any medical opinion relied upon to make the decision and (iii) the required statement under Section 2560.503-1(j)(5)(iii) of the Department of Labor regulations. |
(d) | Claims Appeals Upon Change in Control. Upon a Change in Control, the Appeals Committee, as constituted immediately prior to such Change in Control, shall continue to act as the Appeals Committee. Upon such Change in Control, the Company may not remove any member of the Appeals Committee, but may replace resigning members if 2/3rds of the members of the Board of Directors of the Company and a majority of Participants and Beneficiaries with Account Balances consent to the replacement. | ||
The Appeals Committee shall have the exclusive authority at the appeals stage to interpret the terms of the Plan and resolve appeals under the Claims Procedure. | |||
The Company shall, with respect to the Plan Administrator identified under this Section, (i) pay all reasonable expenses and fees of the Appeals Committee, (ii) indemnify the Appeals Committee (including individual committee members) against any costs, expenses and liabilities including, without limitation, attorneys fees and expenses arising in connection with the performance of the Appeals Committee hereunder, except with respect to matters resulting from the Appeals Committees gross negligence or willful misconduct and (iii) supply full and timely information to the Appeals Committee on all matters related to the Plan, any rabbi trust, Participants, Beneficiaries and Accounts as the Appeals Committee may reasonably require. |
12.6 | Legal Action . A Claimant may not bring any legal action, including commencement of any arbitration, relating to a claim for benefits under the Plan unless and until the Claimant has followed the claims procedures under the Plan and exhausted his or her administrative remedies under such claims procedures. | |
If a Participant or Beneficiary prevails in a legal proceeding brought under the Plan to enforce the rights of such Participant or any other similarly situated Participant or |
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Beneficiary, in whole or in part, the Company shall reimburse such Participant or Beneficiary for all legal costs, expenses, attorneys fees and such other liabilities incurred as a result of such proceedings. If the legal proceeding is brought in connection with a Change in Control, or a change in control as defined in a rabbi trust described in Section 11.2, the Participant or Beneficiary may file a claim directly with the trustee for reimbursement of such costs, expenses and fees. For purposes of the preceding sentence, the amount of the claim shall be treated as if it were an addition to the Participants or Beneficiarys Account Balance and will be included in determining the Companys trust funding obligation under Section 11.2. |
12.7 | Discretion of Committee. All interpretations, determinations and decisions of the Appeals Committee with respect to any claim shall be made in its sole discretion, and shall be final and conclusive. | |
12.8 | Arbitration . |
(a) | Prior to Change in Control. If, prior to a Change in Control, any claim or controversy between the Company and a Participant or Beneficiary is not resolved through the claims procedure set forth in Article XII, such claim shall be submitted to and resolved exclusively by expedited binding arbitration by a single arbitrator. Arbitration shall be conducted in accordance with the following procedures: |
i. | The complaining party shall promptly send written notice to the other party identifying the matter in dispute and the proposed remedy. Following the giving of such notice, the parties shall meet and attempt in good faith to resolve the matter. In the event the parties are unable to resolve the matter within twenty one (21) days, the parties shall meet and attempt in good faith to select a single arbitrator acceptable to both parties. If a single arbitrator is not selected by mutual consent within ten (10) Business Days following the giving of the written notice of dispute, an arbitrator shall be selected from a list of nine persons each of whom shall be an attorney who is either engaged in the active practice of law or recognized arbitrator and who, in either event, is experienced in serving as an arbitrator in disputes between employers and employees, which list shall be provided by the main office of either JAMS, the American Arbitration Associate (AAA) or the Federal Mediation and Conciliation Service. If, within three Business Days of the parties receipt of such list, the parties are unable to agree on an arbitrator from the list, then the parties shall each strike names alternatively from the list, with the first to strike being determined by the flip of a coin. After each party has had four strikes, the remaining name on the list shall be the arbitrator. If such person is unable to serve for any reason, the parties shall repeat this process until an arbitrator is selected. |
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ii. | Unless the parties agree otherwise, within sixty (60) days of the selection of the arbitrator, a hearing shall be conducted before such arbitrator at a time and a place agreed upon by the parties. In the event the parties are unable to agree upon the time or place of the arbitration, the time and place shall be designated by the arbitrator after consultation with the parties. Within thirty (30) days of the conclusion of the arbitration hearing, the arbitrator shall issue an award, accompanied by a written decision explaining the basis for the arbitrators award. | ||
iii. | In any arbitration hereunder, the Company shall pay all administrative fees of the arbitration and all fees of the arbitrator, except that the Participant or Beneficiary may, if he/she/it wishes, pay up to one-half of those amounts. Each party shall pay its own attorneys fees, costs, and expenses, unless the arbitrator orders otherwise. The prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled, to the extent permitted by law, to reimbursement from the other party for all of the prevailing partys costs (including but not limited to the arbitrators compensation), expenses, and attorneys fees. The arbitrator shall have no authority to add to or to modify this Plan, shall apply all applicable law, and shall have no lesser and no greater remedial authority than would a court of law resolving the same claim or controversy. The arbitrator shall have no authority to add to or to modify this Plan, shall apply all applicable law, and shall have no lesser and no greater remedial authority than would a court of law resolving the same claim or controversy. The arbitrator shall, upon an appropriate motion, dismiss any claim without an evidentiary hearing if the party bringing the motion establishes that it would be entitled to summary judgment if the matter had been pursued in court litigation. | ||
The parties shall be entitled to discovery as follows: Each party may take no more than three depositions. Company may depose the Participant or Beneficiary plus two other witnesses, and Participant or Beneficiary may depose the Company, pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, plus two other witnesses. Each party may make such reasonable document discovery requests as are allowed in the discretion of the arbitrator. | |||
iv. | The decision of the arbitrator shall be final, binding, and non-appealable, and may be enforced as a final judgment in any court of competent jurisdiction. | ||
v. | This arbitration provision of the Plan shall extend to claims against any parent, subsidiary, or affiliate of each party, and, when acting within such capacity, any officer, director, shareholder, Participant, Beneficiary, or agent of any party, or of any of the above, and shall apply as well to |
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claims arising out of state and federal statutes and local ordinances as well as to claims arising under the common law or under this Plan. |
vi. | Notwithstanding the foregoing, and unless otherwise agreed between the parties, either party may apply to a court for provisional relief, including a temporary restraining order or preliminary injunction, on the ground that the arbitration award to which the applicant may be entitled may be rendered ineffectual without provisional relief. | ||
vii. | Any arbitration hereunder shall be conducted in accordance with the Federal Arbitration Act: provided, however, that, in the event of any inconsistency between the rules and procedures of the Act and the terms of this Plan, the terms of this Plan shall prevail. | ||
viii. | If any of the provisions of this Section 12.8 are determined to be unlawful or otherwise unenforceable, in the whole part, such determination shall not affect the validity of the remainder of this Section 12.8, and this Section 12.8 shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible and to insure that the resolution of all conflicts between the parties, including those arising out of statutory claims, shall be resolved by neutral, binding arbitration. If a court should find that the provisions of this Section 12.8 are not absolutely binding, then the parties intend any arbitration decision and award to be fully admissible in evidence in any subsequent action, given great weight by any finder of fact and treated as determinative to the maximum extent permitted by law. | ||
ix. | The parties do not agree to arbitrate any putative class action or any other representative action. The parties agree to arbitrate only the claims(s) of a single Participant or Beneficiary. |
(b) | Upon Change in Control. If, upon the occurrence of a Change in Control, any dispute, controversy or claim arises between a Participant or Beneficiary and the Company out of or relating to or concerning the provisions of the Plan, such dispute, controversy or claim shall be finally settled by a court of competent jurisdiction which, notwithstanding any other provision of the Plan, shall apply a de novo standard of review to any determination made by the Company, the Board or the Appeals Committee. |
13.1 | Anti-assignment Rule . No interest of any Participant, spouse or Beneficiary under this Plan and no benefit payable hereunder shall be assigned as security for a loan, and any such purported assignment shall be null, void and of no effect, nor shall any such interest or any such benefit be subject in any manner, either voluntarily or involuntarily, to |
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anticipation, sale, transfer, assignment or encumbrance by or through any Participant, spouse or Beneficiary. |
13.2 | No Legal or Equitable Rights or Interest . No Participant or other person shall have any legal or equitable rights or interest in this Plan that are not expressly granted in this Plan. Participation in this Plan does not give any person any right to be retained in the service of the Company or any of its subsidiaries or affiliated companies. The right and power of the Company to dismiss or discharge an Employee is expressly reserved. Notwithstanding the provisions of Section 10.2, the Company makes no representations or warranties as to the tax consequences to a Participant or a Participants beneficiaries resulting from a deferral of income pursuant to the Plan. | |
13.3 | No Employment Contract . Nothing contained herein shall be construed to constitute a contract of employment between an Employee and the Company or any of its subsidiaries or affiliated companies. | |
13.4 | Notice . Any notice or filing required or permitted to be delivered to the Plan Administrator under this Plan shall be delivered in writing, in person, or through such electronic means as is established by the Plan Administrator. Notice shall be deemed given as of the date of delivery or, if delivery is made by mail, as of the date shown on the postmark on the receipt for registration or certification. Written transmission shall be sent by certified mail to: |
Any notice or filing required or permitted to be given to a Participant under this Plan shall be sufficient if in writing or hand-delivered, or sent by mail to the last known address of the Participant. | ||
13.5 | Headings . The headings of Sections are included solely for convenience of reference, and if there is any conflict between such headings and the text of this Plan, the text shall control. | |
13.6 | Invalid or Unenforceable Provisions . If any provision of this Plan shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions hereof and the Plan Administrator may elect in its sole discretion to construe such invalid or unenforceable provisions in a manner that conforms to applicable law or as if such provisions, to the extent invalid or unenforceable, had not been included. | |
13.7 | Governing Law . To the extent not preempted by ERISA, the laws of the State of California shall govern the construction and administration of the Plan. |
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By:
|
(Print Name) | |||
Its:
|
(Title) |
(Signature) |
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(1) | Compensation shall mean Directors fees, which may include annual fees, meeting fees and such other Compensation as is paid to the Directors for services performed in such capacity. | |
(2) | Director means a member of the Board of Directors of the Company. | |
(3) | Eligible Employee shall mean a Director of the Companys Board of Directors. | |
(4) | Separation Payments under the Payment Schedule definition shall mean (a) a single lump sum or (b) substantially equal installment payments paid over a period of two (2) to fifteen (15) years. | |
(5) | Separation from Service shall mean the first day in which the Director is no longer performing services for the Company in the capacity of a Director or other independent contractor, either due to resignation or removal. | |
(6) | Section 3.1 is modified to read as follows: A Director becomes an Eligible Employee upon commencement of services as a Director. | |
(7) | Section 3.2 is modified to read as follows: A Director shall remain a Participant eligible to defer Compensation until such time as he or she incurs a Separation from Service. | |
(8) | Directors are eligible for benefits described in Sections 8.1 (Separation from Service), 8.2 (Specified Date Accounts), 8.4 (death) 8.6 (Change in Control) and 8.10 (Domestic Relations Orders). |
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Subsidiary Name | Location | |
|
||
Diodes Taiwan Incorporated
|
Taiwan | |
Shanghai Kai Hong Electronics Co., Ltd.
|
China | |
Diodes FabTech Incorporated
|
Missouri | |
Diodes Hong Kong Limited
|
Hong Kong | |
Shanghai Kai Hong Technology Co., Ltd.
|
China | |
Anachip Corporation
|
Taiwan | |
Diodes International B.V.
|
Netherlands | |
Diodes Hong Kong Holding Company Limited
|
Hong Kong | |
Diodes Germany GmbH
|
Germany* | |
Diodes United Kingdom Limited
|
United Kingdom* | |
Diodes Korea Incorporated
|
Korea | |
Diodes France SARL
|
France | |
Diodes Zetex Hong Kong Limited
|
Hong Kong | |
Diodes Investment Company
|
Delaware | |
Diodes Holding UK Limited
|
United Kingdom | |
Diodes Zetex Semiconductors Limited
|
United Kingdom | |
Diodes Zetex Neuhaus GmbH
|
Germany | |
Diodes Zetex GmbH
|
Germany | |
Zetex Inc.
|
New York | |
Diodes Zetex (Asia) Limited
|
Hong Kong | |
Diodes Zetex UK Limited
|
China | |
Diodes Zetex Limited
|
Hong Kong | |
Diodes Zetex Asia Pacific Limited
|
Hong Kong* | |
Diodex Zetex Asia Pacific Ventures Limited
|
Hong Kong* | |
Diodes Chinatex Limited
|
Hong Kong* | |
Diodes Zetex Procurement AP Limited
|
Hong Kong* | |
Diodes Torus Network Products Limited
|
United Kingdom* | |
Diodes Knaves Beech Securities Limited
|
United Kingdom* | |
Diodes Seal Semiconductors Limited
|
United Kingdom* | |
Diodes Fast Analog Solutions Limited
|
United Kingdom* | |
Diodes Zetex Investment Limited
|
United Kingdom* | |
Telemetrix Share Scheme Trustees Limited
|
United Kingdom* | |
Diodes Telemetrix Investments Limited
|
United Kingdom* | |
Diodes Telemetrix Securities Limited
|
United Kingdom* | |
Diodes Westward Technology Limited
|
United Kingdom* |
* | Dormant subsidiary |
-126-
| Registration Statement on Form S-8 (No. 333-78716) pertaining to the Incentive Bonus Plan and 1993 Non-Qualified Stock Option Plan of Diodes Incorporated; | ||
| Registration Statements on Form S-8 (Nos. 333-106775 and 333-124809) pertaining to the 2001 Omnibus Equity Incentive Plan of Diodes Incorporated; and | ||
| Registration Statement on Form S-3 (No. 333-137803) pertaining to convertible senior notes and common stock issuable by Diodes Incorporated. |
/s/ Moss Adams LLP | ||||
-127-
/s/ Keh-Shew Lu | ||||
Keh-Shew Lu | ||||
Chief Executive Officer
Date: February 26, 2009 |
-128-
/s/ Carl C. Wertz | ||||
Carl C. Wertz | ||||
Chief Financial Officer
Date: February 26, 2009 |
-129-
Very truly yours,
|
||||
/s/ Keh-Shew Lu | ||||
Keh-Shew Lu | ||||
Chief Executive Officer
Date: February 26, 2009 |
||||
-130-
Very truly yours,
|
||||
/s/ Carl C. Wertz | ||||
Carl C. Wertz | ||||
Chief Financial Officer
Date: February 26, 2009 |
||||
-131-