As filed with the Securities and Exchange Commission on September 16, 2011
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HIMAX TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
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Cayman Islands
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Not Applicable
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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No. 26, Zih Lian Road
Sinshih District, Tainan City 74148
Taiwan, Republic of China
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(Address of principal executive offices, including zip code)
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Himax Technologies, Inc. 2011 Long-Term Incentive Plan
(Full title of the plan)
Puglisi & Associates
850 Library Avenue, Suite 204
Newark, Delaware 19711
(302) 738-6680
(Name, address and telephone number, including area code, of agent for service)
Copy to:
James C. Lin, Esq.
Davis Polk & Wardwell LLP
c/o 18th Floor, The Hong Kong Club Building
3A Chater Road
Hong Kong
(852) 2533-3300
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer o |
Accelerated filer x |
| Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Title of securities to be registered
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Amount to be registered (1)
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Proposed maximum offering price
per share (2)
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Proposed maximum aggregate offering price (2)
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Amount of
registration fee (2)
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Ordinary shares, par value $0.3 per ordinary share
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20,000,000
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$0.62
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$12,400,000
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$1,439.64
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(1)
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Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers any additional securities that may be offered or issued pursuant to the anti-dilution adjustment provisions of the Himax Technologies, Inc. 2011 Long-Term Incentive Plan.
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(2)
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Pursuant to Rule 457(h) under the Securities Act, the proposed maximum offering price, per share and in the aggregate, and the registration fee for ordinary shares available for awards under the Himax Technologies, Inc. 2011 Long-Term Incentive Plan were determined upon the basis of one half of the average of the high price of $1.26 and the low price of $1.22 of the registrant’s American depositary shares, each of which represents two ordinary shares, reported on the Nasdaq Global Select Market on September 13, 2011, in accordance with Rule 457(c) under the Securities Act.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of the registration statement on Form S-8 (the “Registration Statement”) is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act and the introductory note to Part I of the Registration Statement. The documents containing the information specified in Part I will be delivered to the participants in the plan covered by this Registration Statement as required by Rule 428(b)(1). These documents, which include the statement of availability required by Item 2 of this Registration Statement, and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission (the “Commission”) by Himax Technologies, Inc. (the “Registrant”) are incorporated herein by reference.
(1) The Registrant’s annual report on Form 20-F for the fiscal year ended December 31, 2010 filed on May 20, 2011;
(2) The Registrant’s reports of foreign private issuer on Form 6-K filed on January 12, January 18, January 25, February 10, February 11, April 21, May 9, June 3, June 13, June 20, July 18 (two filings), August 10 and August 12, 2011; and
(3) The description of the Registrant’s ordinary shares contained in the Registrant’s registration statement on Form 8-A filed on March 20, 2006, as modified by any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered have been sold, or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein, or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Cayman Islands law does not limit the extent to which a company’s articles of association may provide for indemnification of officers and directors, except to the extent any such provision may be held by the Cayman Islands
courts to be contrary to public policy, such as to provide indemnification against civil fraud or the consequences or committing a crime. Our Third Amended and Restated Articles of Association provide for indemnification of officers and directors for losses, damages, costs and expenses incurred in their capacities as such provided that this indemnity does not extend to any matter in respect of any fraud or dishonesty which may attach to any of the said persons.
The Registrant maintains standard policies of insurance under which coverage is provided (a) to its directors and officers against loss arising from claims made by reason of breach of duty or other wrongful act and (b) to the Registrant with respect to payments which may be made by the Registrant to such officers and directors pursuant to the above indemnification provision or otherwise as a matter of law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index.
ITEM 9. REQUIRED UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; and
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Taipei, Taiwan, Republic of China, on September 16, 2011.
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HIMAX TECHNOLOGIES, INC.
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By:
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/s/ Jordan Wu
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Name: |
Jordan Wu
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Title: |
President and Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Jordan Wu and Dr. Biing-Seng Wu, and each of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to do any and all acts and things and execute, in the name of the undersigned, any and all instruments which said attorneys-in-fact and agents, or any of them, may deem necessary or advisable in order to enable Himax Technologies, Inc. to comply with the Securities Act of 1933, as amended (the “Securities Act”), and any requirements of the Securities and Exchange Commission (the “Commission”) in respect thereof, in connection with the filing with the Commission of this Registration Statement on Form S-8 under the Securities Act, including specifically but without limitation, power and authority to sign the name of the undersigned to such Registration Statement, and any amendments to such Registration Statement (including post-effective amendments), and to file the same with all exhibits thereto and other documents in connection therewith, with the Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with applicable state securities laws, and to file the same, together with other documents in connection therewith with the appropriate state securities authorities, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and to perform each and every act and thing requisite or necessary to be done in and about the premises, as fully and to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Jordan Wu
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President, Chief Executive Officer and Director
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September 16, 2011
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Jordan Wu
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(Principal Executive Officer)
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/s/ Jessica Pan
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Acting Chief Financial Officer
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September 16, 2011
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Jessica Pan
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(Principal Financial and Accounting Officer)
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/s/ Dr. Biing-Seng Wu
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Chairman of the Board
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September 16, 2011
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Dr. Biing-Seng Wu
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/s/ Tien-Jen Lin
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Director
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September 16, 2011
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Tien-Jen Lin
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/s/ Chih-Chung Tsai
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Director
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September 16, 2011
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Chih-Chung Tsai
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/s/ Dr. Chun-Yen Chang
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Director
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September 16, 2011
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Dr. Chun-Yen Chang
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/s/ Dr. Yan-Kuin Su
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Director
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September 16, 2011
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Dr. Yan-Kuin Su
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/s/ Yuan-Chuan Horng
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Director
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September 16, 2011
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Yuan-Chuan Horng
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SIGNATURE OF AUTHORIZED REPRESENTATIVE OF THE REGISTRANT
Pursuant to the Securities Act, the undersigned, the duly authorized representative in the United States of the Registrant, has signed this Registration Statement in Newark, Delaware, on September 16, 2011.
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PUGLISI & ASSOCIATES
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By:
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/s/ Donald Puglisi
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Name: |
Donald Puglisi
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Title: |
Managing Director
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EXHIBIT INDEX
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4.1
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Third Amended and Restated Memorandum and Articles of Association of the Registrant (incorporated herein by reference to Exhibit 1.1 to the Registrant’s annual report on Form 20-F filed on June 3, 2010).
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5.1
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Opinion of Conyers Dill & Pearman, Cayman Islands counsel to the Registrant, regarding the legality of the securities being registered.
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23.1
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Consent of KPMG, independent registered public accounting firm.
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23.2
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Consent of Conyers Dill & Pearman (included in Exhibit 5.1).
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24.1
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Power of Attorney (included on signature page hereof).
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99.1
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Himax Technologies, Inc. 2011 Long-Term Incentive Plan (incorporated herein by reference to Exhibit 99.3 to the Registrant’s report of foreign private issuer on Form 6-K filed on July 18, 2011).
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