Correspondence 0001171843-23-004245 from Himax Technologies, Inc. (HIMX) (CIK 0001342338) (HIMX)
Himax Technologies, Inc. (HIMX) (CIK 0001342338)
Date: June 29, 2023 · CIK: 0001342338 · Accession: 0001171843-23-004245
AI Filing Summary & Sentiment
File numbers found in text: 000-51847
Referenced dates: June 8, 2023
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June 29, 2023
Office of Manufacturing
Division of Corporation Finance
U.S. Securities and Exchange Commission
100 F Street, NE
Washington, D.C. 20549
Attention: Andi Carpenter, Anne McConnell
Re:
Himax Technologies, Inc.
Form 20-F for the Fiscal Year Ended December 31, 2022
Form 6-K filed on February 9, 2023
File No. 000-51847
Dear Andi Carpenter, Anne McConnell:
This letter sets forth the responses of Himax Technologies, Inc. (“Himax”
or the “Company”) to the comments (the “Comments”) the Company received from the staff (the “Staff”)
of the Securities and Exchange Commission (the “Commission”) in a letter dated June 8, 2023.
For your convenience, we have included herein the Comments in bold, and the Company’s responses
are set forth immediately below the Comments.
* * * *
Form 6-K filed on February 9, 2023
Exhibit 99.1, page 1
We note you present several non-IFRS financial measures that include an adjustment for cash
awards to employees during each period presented. It appears cash awards to employees are normal, recurring, cash operating expense necessary
to operate your business. Please more fully explain the nature and terms of your cash award program and explain why you believe adjusting
non-IFRS financial measures, for what appears to be cash compensation paid to current employees, is meaningful. Please specifically explain
why you believe the adjustments are appropriate and how you determined they comply with Regulation G and the guidance in Question 100.01
of the Division of Corporation Finance's Compliance & Disclosure Interpretations on Non-GAAP Financial Measures.
The Company respectfully submits that it believes that the adjustment of cash awards to employees
are in compliance with the requirement of not being misleading under Regulation G and the guidance in Question 100.01 of the Division
of Corporation Finance’s Compliance & Disclosure Interpretations on Non-GAAP Financial Measures because (i) the cash awards
to employees were not normal, recurring, cash operating expenses necessary to operate its business and (ii) such adjustment provides meaningful
information to investors.
Background of the Cash Awards to Employees
The Company respectfully submits that it awards annual bonus to employees at its discretion
based their performance and contribution to the Company. After the Company’s compensation committee determines the total annual
bonus amount for employees, the Company’s management will then determine at its discretion whether and how much such bonus will
be granted as restricted share units or cash. Each year, the Company collects preference information from its employees for the form of
their annual bonus and takes this into consideration in determining the proportion of their annual bonus to be granted in the form of
cash awards. In the past three years, the Company granted employee annual bonuses almost exclusively in the form of share-based compensation
in 2020, and the Company granted significant amount of employee’s annual bonuses as cash awards in 2021 and 2022 mainly because
of its strong performance and the feedback it received from some employees in how they would prefer to receive their annual bonuses.
Cash Awards to Employees were not Normal, Recurring, Cash Operating Expenses Necessary to
the Company’s Operations
The Company respectfully submits that it does not believe that the adjusted expense on cash
awards to employees is normal, recurring, cash operating expenses necessary to its operation. More specifically, given the way cash awards
are granted, the Company does not believe that this expense is a cash operating expense necessary to its operation. As described above,
the Company’s cash awards are made solely at the discretion of the Company’s management as part of employee’s annual
bonuses, if granted at all. The Company’s management determines the cash awards based on factors that vary from time to time, which
include, among other things, the performance of the Company, its cash level, expected operation results, compensation structure of comparable
companies in the industry as well as the preference for cash or other forms of awards indicated by the bonus recipients. Prior to each
grant of the cash awards, there is no obligation from the Company to its employees on how much the employee will receive as his or her
annual bonus and the proportion of the annual bonus that will be granted in the form of cash awards.
Adjustment on Cash Awards to Employees Provides Meaningful Information to Investors
The Company respectfully submits that it believes that non-IFRS measures after the adjustment
of cash award expenses provide meaningful information to investors. By removing the impact of cash awards which are discretionary and
similar in nature as share-based compensation, the Company believes that the non-IFRS measures it presented will enhance investors’
understanding of the Company’s true operating performance, thereby providing investors with enhanced comparability.
Given the cash award grants’ discretionary nature and the fact that they are subject to
many factors, including the preference of bonus recipients, which vary from year to year, the Company’s cash award expenses fluctuate
significantly and do not necessarily correlate to the Company’s true financial performance. For example, the cash award expenses
excluded in calculating the non-IFRS operating income in 2021 and 2022 amounted to US$8.3 million and US$27.7 million, respectively. This
is in comparison with the Company’s IFRS operating income of US$545.0 million and US$257.6 million in 2021 and 2022, respectively.
The significance of cash award expenses excluded in 2022 in comparison with the IFRS operating income also indicates that a measure that
adjusts for such expenses will provide investors information that is useful and may even be material for them to assess the Company’s
true financial performance.
In the few years leading up to 2021, the Company granted employee annual bonuses mostly in the
form of share-based compensation, and the share-based compensation being adjusted closely reflected the discretionary expenses associated
with the annual bonuses to employees. Therefore, given that the cash awards are granted to employees in the same context as share-based
compensation but only in a different form, the Company believes that it would provide consistent and useful information to investors by
adjusting the cash awards expense in 2021 and 2022.
***
If you have further questions or comments regarding, or require further information or clarification
of, any of the responses provided in this letter or if the Commission has any questions with respect to Himax’s Form 6-K filed on
February 9, 2023, please contact James C. Lin at +852 2533-3368 (james.lin@davispolk.com) of Davis Polk & Wardwell LLP.
Thank you for your time and attention.
Yours sincerely,
/s/ Jessica Pan
Name: Jessica Pan
Title: Chief Financial Officer
cc:
Mr. James C. Lin, Partner
Davis Polk & Wardwell LLP