SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Amendment No. 2
Under the Securities Exchange Act of 1934
Diodes Incorporated
-------------------
(Name of Issuer)
Common Stock, par value $0.66 2/3
---------------------------------
(Title of Class of Securities)
25443 10 1
----------
(CUSIP Number)
Avi D. Eden, Esq.
Vishay Intertechnology, Inc.
63 Lincoln Highway
Malvern, PA 19355
(610) 644-1300
--------------------------------------
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
with a copy to:
Abbe L. Dienstag, Esq.
Kramer, Levin, Naftalis & Frankel LLP
919 Third Avenue, New York, NY 10022
(212) 715-9100
May 31 , 2000
-------------
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f), or 13d-1(g) check the following
box: [ ]
Page 1 of 26 Pages
Amendment No. 2
Schedule 13D
This Amendment amends the Schedule 13D of Vishay Intertechnology, Inc.
("Vishay") dated July 23, 1997, as amended by Amendment No. 1 dated March 28,
2000 (as amended, the "Schedule 13D"), with respect to the Common Stock, par
value $0.66 2/3 (the "Common Stock"), of Diodes Incorporated (the "Company").
I. Item 4 of the Schedule 13D, "Purpose of Transaction," is amended by
adding the following:
"Pursuant to the terms of the Memorandum of Understanding previously filed
as Exhibit D to the Schedule 13D, on May 31, 2000 Vishay entered into a
definitive Stock Purchase Agreement (the "Stock Purchase Agreement") with the
Lite-On Group and LPSC. Pursuant to the Stock Purchase Agreement, Vishay shall
sell its 65% interest in LPSC to the Lite-On Group for consideration consisting
of (i) US$41,000,000 in cash, as adjusted, and (ii) the assignment to Vishay of
all of the Lite-On Group's right, title and interest in and to a Stock
Appreciation Right Certificate, dated as of July 17, 1997, granted by Vishay to
the Lite-On Group. It is anticipated that the closing of the sale will occur on
or about August 21, 2000.
A copy of the Stock Purchase Agreement between Vishay and the Lite-On
Group providing for the sale of Vishay's interest in LPSC is attached as Exhibit
F. The foregoing description of the transaction is qualified by reference to
this exhibit.
II. Item 6 of the Schedule 13D, "Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer," is amended by adding
the following:
"See Exhibit F for the text of the Stock Purchase Agreement."
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III. Item 7 of the Schedule 13D, "Material to be Filed as Exhibits," is
amended by adding the following Exhibit:
F. Stock Purchase Agreement, dated as of May 31, 2000
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SIGNATURE
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
Schedule 13D is true, complete and correct.
Dated: June 26, 2000
VISHAY INTERTECHNOLOGY, INC.
By: /s/ Richard N. Grubb
------------------------
Name: Richard N. Grubb
Title: Executive Vice President
and Chief Financial Officer
4
EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE
- ------- ----------- ----
F Stock Purchase Agreement, 6
dated as of May 31, 2000
5
EXHIBIT F
==============================================================================
STOCK PURCHASE AGREEMENT
AMONG
LITE-ON JV CORPORATION,
AS PURCHASER
AND
VISHAY INTERTECHNOLOGY, INC.,
AS SELLER
AND
LITE-ON POWER SEMICONDUCTOR CORPORATION
Dated as of May 31, 2000
==============================================================================
TABLE OF CONTENTS
Page
----
SECTION 1
PURCHASE AND SALE OF SHARES
1.1 Purchase and Sale of Shares......................................1
1.2 Purchase Consideration...........................................1
1.3 Relating to the SAR..............................................2
SECTION 2
REPRESENTATIONS AND WARRANTIES OF SELLER
2.1 Organization and Standing........................................2
2.2 Execution; Authority; Enforceability.............................2
2.3 Consents; Regulatory Approvals; No Conflicts.....................2
2.4 Capitalization...................................................3
2.5 Relating to the Shares...........................................3
2.6 Notice of Violations.............................................3
2.7 Vishay Conduct...................................................3
2.8 Tax Matters......................................................4
2.9 Litigation.......................................................4
2.10 Employment Matters...............................................4
2.11 Disclosure.......................................................5
SECTION 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
3.1 Organization and Standing........................................5
3.2 Execution; Authority; Enforceability.............................5
3.3 Consents; Regulatory Approvals; No Conflicts.....................5
3.4 Relating to the SAR..............................................5
SECTION 4
CONDUCT OF BUSINESS PRIOR TO CLOSING
4.1 Conduct of Business Prior to Closing.............................6
4.2 Financial Statements.............................................7
SECTION 5
CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
SECTION 6
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
SECTION 7
INDEMNIFICATION
7.1 Survival of Seller's Representations and Warranties..............8
7.2 Survival of Purchaser's Representations and Warranties...........8
7.3 Indemnification..................................................8
7.4 Procedure for Indemnification....................................9
7.5 Remedies Cumulative..............................................9
7.6 Limitations and Indemnification..................................9
SECTION 8
CLOSING PROCEDURE
8.1 Closing.........................................................10
8.2 Obligations at Closing..........................................10
ii
SECTION 9
TERMINATION; CONFIDENTIALITY
9.1 Termination.....................................................10
9.2 Confidentiality.................................................11
SECTION 10
MISCELLANEOUS
10.1 Public Notice...................................................11
10.2 Entire Agreement................................................11
10.3 Taxes, Costs and Expenses.......................................11
10.4 Further Assurances..............................................11
10.5 Notices.........................................................11
10.6 Governing Law...................................................13
10.7 Disputes........................................................13
10.8 Assignment......................................................13
10.9 Amendment.......................................................13
10.10 Waiver..........................................................13
10.11 Severability....................................................13
10.12 Counterparts....................................................13
Exhibit A List of Subsidiaries
Exhibit B Form of Payment Guarantee
Exhibit C Form of Escrow Agreement
Schedule 2.3 Required Consents, Approvals, Filings, Registrations and Notices
Schedule 2.6 Vishay Representatives
iii
STOCK PURCHASE AGREEMENT
Agreement dated as of May 31, 2000 by and among Lite-On JV Corporation, a
Republic of China ("ROC") company (the "Purchaser"), Vishay Intertechnology,
Inc., a Delaware U.S.A. corporation (the "Seller"), and Lite-On Power
Semiconductor Corporation, a ROC company ("LPSC").
W I T N E S S E T H:
-------------------
WHEREAS, LPSC by itself and through the companies listed on Exhibit A
hereto (the "Subsidiaries" and collectively with LPSC, the "Company") is engaged
in the business of manufacturing, selling and distributing discrete power
semiconductor devices (the "Business");
WHEREAS, Seller is or, subject to certain government approvals, will be
the registered and beneficial owner of 65% of the issued and outstanding shares
of capital stock of LPSC (the "Shares"); and
WHEREAS, Purchaser desires to purchase from Seller, and Seller desires to
sell to Purchaser, the Shares on the terms and subject to the conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each of the parties
hereto, the parties, intending to be legally bound, do hereby covenant and agree
as follows:
SECTION 1
PURCHASE AND SALE OF SHARES
1.1 Purchase and Sale of Shares. Subject to this Agreement, on the Closing
Date (as defined in Section 8 below), Seller hereby agrees to sell and deliver
to Purchaser and, subject to Section 10.8, its designee(s), if any (the
"Purchaser Designees"), and Purchaser hereby agrees to purchase from Seller, the
Shares as follows: Seller shall sell and deliver such percentages of the Shares
to Purchaser and any Purchaser Designees as Purchaser shall specify. The Shares
shall be transferred free and clear of all liens, pledges, encumbrances and
claims of any nature whatsoever (collectively, "Encumbrances").
1.2 Purchase Consideration. In consideration of the sale and delivery of
the Shares, and in reliance upon the representations and warranties made herein
by Seller, Purchaser will, in full payment therefor, deliver or cause to be
delivered to Seller on the Closing Date the following:
(a) The sum of (i) US$41,000,000, less the taxes, costs and expenses
payable by Seller under Section 10.3 (the "Cash Component") plus (ii) interest
thereon, if any (the "Interest
Component"), calculated at LIBOR and accruing from and including 90 days after
the date hereof to but excluding the Closing Date, by wire transfer to the bank
account specified by Seller at least 48 hours prior to the Closing (as defined
in Section 8 below); provided, however, that such interest shall not accrue or
be payable if the Closing Date is delayed because of any failure by Seller to
perform its obligations hereunder. For purposes of this Agreement, "LIBOR" means
the rate per annum for six-month U.S. dollar deposits that appears on the
Telerate screen page 3750 (or such other page as may replace that page on that
service) as of 11:00 a.m. (London time) on the first day of the period for which
interest is to be calculated (or the first day thereafter when such rate
appears); provided that if such rate does not appear within 5 days of the
beginning of such period, LIBOR means the rate mutually agreed by the parties;
and
(b) The Stock Appreciation Right Certificate granted as of July 17,
1997 (the "SAR") by Seller to Lite-On JV Corporation, together with an
assignment (the "Assignment") of all of Purchaser's right, title and interest in
and to the SAR to Seller or its designee (the Cash Component, Interest
Component, SAR and Assignment, collectively, the "Purchase Consideration"). The
SAR shall be delivered free and clear of all Encumbrances, except any
Encumbrance imposed or asserted by Seller or any of its directors or officers.
1.3 Relating to the SAR. The parties hereto agree that the redemption
value of the SAR on January 24, 2000 was approximately $47,000,000. On that
date, Seller had the option to redeem the SAR upon its exercise using Seller's
common stock, cash or partly in cash and partly in common stock, in accordance
with the terms of the SAR.
SECTION 2
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser that:
2.1 Organization and Standing. Seller is a corporation duly incorporated
and organized and is validly existing and in good standing under the laws of the
State of Delaware and has all necessary corporate power, authority and capacity
to enter into this Agreement and to perform its obligations hereunder.
2.2 Execution; Authority; Enforceability. This Agreement has been duly and
validly authorized, executed and delivered by Seller. This Agreement constitutes
the legal, valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally or to general principles of equity. Seller
has the absolute and unrestricted right, power, authority and capacity to
execute and deliver, and to perform its obligations under, this Agreement.
2.3 Consents; Regulatory Approvals; No Conflicts. Except as set forth in
Schedule 2.3, no approvals, filings or registrations of or with any governmental
authority, notices to any party or other consents are required to be made or
obtained prior to the consummation of the transactions contemplated hereby.
After giving effect to the information set forth in Schedule 2.3, the execution
and delivery of this Agreement by Seller, the consummation of the
2
transactions contemplated hereby and the fulfillment by Seller of the terms,
conditions and provisions hereof do not and will not, directly or indirectly:
(a) conflict with or violate or result in the default of, or give
rise to or accelerate, any obligations of Seller under: (i) any law applicable
to Seller, (ii) any court or governmental agency order applicable to Seller, or
give any such body the right to terminate or modify any approval or consent held
by Seller, (iii) the constituent documents of Seller and (iv) the provisions of
any material contract to which Seller is a party or by which it or any of its
assets or properties is bound;
(b) result in the creation or imposition of any material
Encumbrance on the assets or properties owned, leased or operated by the
Company or on the Shares; or
(c) cause Purchaser to become subject to, or to become liable for
the payment of, any taxes imposed by any governmental authority or agency of the
United States or any state thereof solely by reason of Purchaser's execution,
delivery and performance of this Agreement or the consummation of any
transaction hereunder.
2.4 Capitalization. To Seller's knowledge, since July 17, 1997 (the
"Original Purchase Date"), there has not been issued any (a) securities
convertible into or exchangeable or exercisable for any shares of the capital
stock of LPSC or any Subsidiary or (b) subscriptions, options, warrants, calls,
preemptive rights or other rights to purchase or subscribe for or otherwise
acquire capital stock of LPSC or any Subsidiary.
2.5 Relating to the Shares. On the Closing Date, Seller will be the record
and beneficial owner of and will have good and marketable title to the Shares.
Upon consummation of the transactions contemplated hereby, immediately after
Closing Purchaser and any Purchaser Designees will have valid title to the
Shares free and clear of any Encumbrance. The Shares represent all of Seller's
interest in LPSC.
2.6 Notice of Violations. None of the individuals listed in Schedule 2.6,
in his capacity as an employee, officer, director or supervisor of the Company
(all such individuals in any such capacity, collectively, the "Vishay
Representatives"), has received any notice of violation of any regulation,
ordinance or other law which is applicable and material to the Business,
operations, properties or assets of the Company, except as made known in writing
prior to the date hereof to any director, officer or employee of the Company
other than a Vishay Representative.
2.7 Vishay Conduct. Since the Original Purchase Date, none of the Vishay
Representatives has directed or caused the Company to take any action or to omit
to take any action without the knowledge of any director, officer or employee of
the Company other than a Vishay Representative, including without limiting the
generality of the foregoing:
(a) incur any material liabilities except as disclosed in the
latest financial statements of the Company;
3
(b) give or agree to give, or be a party to or bound by, any
guarantee of indebtedness, indemnity, bond, suretyship or other support of or
for any entity other than the Company;
(c) create or suffer to exist any Encumbrance on any asset or
property of the Company;
(d) sell, license, transfer, assign or convey any material patents,
patent applications, patent licenses, trademarks, trademark registrations, and
applications therefor, certification marks, distinctive markings, service marks,
service names, trade names, brand names, labels, business names, copyrights and
copyright registrations, and applications therefor, exploitation arrangements,
inventions and industrial designs or other marks wholly or partially owned or
held by the Company or used in the Business; or
(e) enter into any contract which (i) involves payments or receipts
by the Company of an amount requiring the approval of its applicable board of
directors or (ii) restricts the freedom of the Company to carry on the Business,
including any contract which contains covenants by the Company not to compete in
any line of business with any other person, other than the Joint Venture
Agreement (as defined in Section 5 below).
2.8 Tax Matters. Except through the actions of any director, officer or
employee of the Company other than a Vishay Representative, none of the Vishay
Representatives has caused the Company to:
(a) grant any power of attorney with respect to any matter
relating to taxes which is currently in force;
(b) become a party to any agreement providing for the allocation,
sharing or indemnification of taxes;
(c) request any waivers or extensions of time, relating to the
filing of any tax return; and
(d) give any waivers or comparable consents to the application of
the statute of limitations to any taxes or tax returns.
2.9 Litigation. There is no suit, action, dispute, civil or criminal
litigation, arbitration, legal, administrative or other proceeding or
governmental investigation, including appeals and applications for review, in
progress, pending or, to Seller's knowledge, threatened against or relating to
the transactions contemplated by this Agreement or any Vishay Representative
which, if adversely determined, would have a material adverse effect on the
business, assets, liabilities, condition (financial or otherwise), prospects,
results of operations or operations of the Company.
2.10 Employment Matters. The consummation of the transactions contemplated
by this Agreement will not (or will not upon termination of employment within a
fixed period of time following such consummation): (a) entitle any Vishay
Representative to severance pay, unemployment compensation or any other payment,
or (b) accelerate the time of payment or
4
vesting or increase the amount of payment with respect to any compensation due
to such person, in each case for which Purchaser or the Company may be liable or
responsible.
2.11 Disclosure. The representations and warranties by Seller contained in
this Agreement do not contain or will not, as of the Closing Date, contain any
untrue statement of a material fact, or to Seller's knowledge do not omit or
will not, as of the Closing Date, omit to state any fact which to Seller's
knowledge is material, required to be stated herein or necessary in order to
make the statements herein, in light of the circumstances under which they were
made, not misleading.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller that:
3.1 Organization and Standing. It is a company duly formed and organized
and is validly existing under the laws of the ROC and has all necessary
corporate power, authority and capacity to enter into this Agreement and to
perform its obligations hereunder.
3.2 Execution; Authority; Enforceability. This Agreement has been duly and
validly executed and delivered by Purchaser and constitutes a legal, valid and
binding obligation of Purchaser enforceable against Purchaser in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other similar laws relating to or affecting creditors'
rights generally or to general principles of equity.
3.3 Consents; Regulatory Approvals; No Conflicts. Except as set forth in
Schedule 2.3, no approvals, filings or registrations of or with any governmental
authority, notices to any party or other consents are required to be made or
obtained prior to the consummation of the transactions contemplated hereby.
After giving effect to the information set forth in Schedule 2.3, the execution
and delivery of this Agreement by Purchaser, the consummation of the
transactions contemplated hereby and the fulfillment by Purchaser of the terms,
conditions and provisions hereof does not and will not, directly or indirectly
conflict with or violate or result in the default of, or give rise to or
accelerate, any obligations of Purchaser under: (a) any law applicable to
Purchaser, (b) any court or governmental agency order applicable to Purchaser,
(c) the constituent documents of Purchaser or (d) the provisions of any material
contract to which Purchaser is a party or by which it is bound.
3.4 Relating to the SAR. Upon consummation of the transactions
contemplated hereby, on the Closing Date the SAR will be delivered free and
clear of all Encumbrances, except any Encumbrance imposed or asserted by Seller
or any of its directors or officers.
5
SECTION 4
CONDUCT OF BUSINESS PRIOR TO CLOSING
4.1 Conduct of Business Prior to Closing. (a) Prior to the Closing, the
Company shall conduct the Business in accordance with, and the management and
affairs of the Company shall be subject to, the directions of Purchaser. Seller
shall vote the Shares, execute such documents, cause to be taken such other
action and cause to be done such other things as Purchaser may request in good
faith in order to give effect to the foregoing sentence. Without limiting the
generality of the foregoing, upon the later to occur of (i) the delivery to
Seller of a standby letter of credit issued by Citibank, N.A., Taipei Branch or
another mutually agreed financial institution for the benefit of Seller,
substantially in the form of Exhibit B hereto (the "Payment Guarantee") and (ii)
the delivery of the SAR to an escrow agent, which will hold the SAR pending the
Closing, pursuant to an escrow agreement substantially in the form of Exhibit C
hereto (the "Escrow Agreement"), Seller shall promptly do all things necessary
or desirable to cause all supervisors and members of the boards of directors of
the Company selected or nominated by Seller to be replaced by nominees
designated by Purchaser; provided, however, that if Closing has not taken place
by December 31, 2000, Purchaser shall promptly cause such supervisor and
director positions to be filled by nominees of Seller. Prior to Closing, all
actions taken by Seller or Purchaser in relationship to the Company shall be on
a commercial arm's length basis.
(b) Seller or Purchaser shall give Purchaser or Seller, as the case
may be, prompt written notice of any material change in any of the information
contained in their representations and warranties made pursuant to this
Agreement.
(c) Purchaser and Seller shall have full access to all properties,
documents, contracts, books and records of the Company. The Company shall
furnish Purchaser and Seller with copies of such documents and contracts and
with such information with respect to the Business, the Company's assets and
properties and the affairs of the Company as Purchaser or Seller, as the case
may be, may from time to time reasonably request.
(d) Each party hereto shall use its best commercial efforts to
render its representations and warranties in this Agreement accurate as of the
Closing Date, and shall refrain from taking any action that would render any of
such representations and warranties inaccurate as of the Closing Date. Each
party acknowledges that it has no knowledge, information or belief that any
representation or warranty made by any other party hereto is not true and
correct as of the date of this Agreement or that such representation or warranty
will not be true and correct on the Closing Date.
(e) Subject to the terms and conditions herein provided, each of the
parties hereto agrees to use their respective best commercial efforts to take,
or cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws or otherwise to consummate
and make effective the transactions contemplated by this Agreement.
6
4.2 Financial Statements. Purchaser and Seller shall cooperate to cause
LPSC to prepare consolidated financial statements as at, and for the six-month
period ended on, June 30, 2000. Such financial statements shall be audited and
prepared in accordance with generally accepted accounting principles,
consistently applied; provided that such financial statements may be subject to
normal year-end adjustments.
SECTION 5
CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
Purchaser's obligations hereunder are subject, at the option of Purchaser,
to the fulfillment of each of the following conditions at or prior to the
Closing, and Seller shall exert its best commercial efforts to cause such
conditions to be fulfilled:
(a) All representations and warranties of Seller shall be true and
correct when made and shall be deemed to have been made again at and as of the
Closing Date, and shall then be true and correct in all material respects.
(b) All covenants, agreements and obligations required by the terms
of this Agreement to be performed by Seller at or before the Closing, including
but not limited to delivery of the Shares free and clear of all Encumbrances and
the payment of the taxes, costs and expenses payable by Seller under Section
10.3, shall have been duly and properly performed in all material respects.
(c) There shall be delivered to Purchaser a certificate executed by
the President, or another duly authorized officer of Seller, and Secretary of
Seller, dated the date of the Closing, certifying that the conditions set forth
in paragraphs (a) and (b) of this Section 5 have been fulfilled.
(d) The parties shall have received all consents necessary to
consummate the transactions contemplated hereby.
(e) A letter agreement (the "Termination Letter") between Seller (on
behalf of itself and the shareholders of LPSC affiliated with Seller) and
Purchaser shall have been duly executed and delivered and shall have become
effective, which letter agreement terminates the Joint Venture Agreement dated
April 25, 1997 between Seller and Purchaser, as amended by Amendment No. 1
thereto dated as of July 17, 1997 (the "Joint Venture Agreement"), pursuant to
Section 9.1 thereof.
SECTION 6
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
Seller's obligations hereunder are subject, at the option of Seller, to
the fulfillment of each of the following conditions at or prior to the Closing,
and Purchaser shall exert its best commercial efforts to cause such conditions
to be fulfilled:
7
(a) All representations and warranties of Purchaser shall be true
and correct when made and shall be deemed to have been made again at and as of
the Closing Date, and shall then be true and correct in all material respects.
All covenants, agreements and obligations required by the terms
of this Agreement to be performed by Purchaser at or before the Closing shall
have been duly and properly performed in all material respects.
(c) There shall be delivered to Seller a certificate executed by the
President and Secretary, or other duly authorized officers, of Purchaser, dated
the Closing Date, certifying that the conditions set forth in paragraphs (a) and
(b) of this Section 6 have been fulfilled.
(d) The parties shall have received all consents necessary to
consummate the transactions contemplated hereby.
(e) The Termination Letter shall have been duly executed and
delivered and shall have become effective.
SECTION 7
INDEMNIFICATION
7.1 Survival of Seller's Representations and Warranties. The
representations and warranties of Seller contained in this Agreement shall
survive the Closing for the benefit of Purchaser until the first anniversary of
the Closing Date.
7.2 Survival of Purchaser's Representations and Warranties. The
representations and warranties of Purchaser contained in this Agreement shall
survive the Closing for the benefit of Seller until the first anniversary of the
Closing Date.
7.3 Indemnification. Seller on the one hand and Purchaser on the other
(each, an "Indemnifying Party") hereby agree to defend, indemnify and hold
harmless the other party (each, an "Indemnified Party") from and against any
actual damage, liability, loss, cost or expense (including reasonable attorneys'
fees) ("Costs") incurred by the Indemnified Party resulting from or arising out
of:
(a) any failure by an Indemnifying Party to perform its covenants or
obligations as set forth in this Agreement or in any agreement, certificate or
instrument delivered pursuant to this Agreement;
(b) any inaccuracy in or breach of any of the representations or
warranties of an Indemnifying Party contained in this Agreement; and
(c) any and all actions, suits, litigations, arbitrations,
proceedings, investigations, claims or liabilities of whatever nature arising
out of any of the foregoing;
provided that, in respect of (b) above, the Indemnified Party did not have
actual knowledge on the date hereof or the Closing Date, as the case may be,
that the representation or warranty was
8
not true and correct in all material respects; and provided, further, that as a
defense to any claim for Costs by Purchaser under this Section, Seller shall be
entitled to rely on any applicable representation or warranty of the sellers set
forth in the Stock Purchase Agreement dated as of April 25, 1997 (the "Original
Stock Purchase Agreement") among LPSC, Silitek Corporation, Lite-On Technology
Corporation, Dyna Investment Co., Ltd., Lite-On Inc., other shareholders
identified therein and Seller, to the extent such representation or warranty
survived the closing thereunder in accordance with the terms of the Original
Stock Purchase Agreement.
7.4 Procedure for Indemnification. Each party which may request
indemnification under this Agreement agrees to give the party from which it may
request indemnification prompt notice of any event, or any written claim by a
third party of which it obtains knowledge, which could give rise to any Costs as
to which it may request indemnification under this Agreement, but the failure to
give such prompt notice shall not affect such party's rights hereunder except to
the extent the other party was materially and adversely prejudiced thereby. In
connection with any such third party claim, if the Indemnifying Party shall have
acknowledged in writing its obligation to indemnify in respect of such claim,
the Indemnifying Party may select counsel to direct the defense of such third
party claim, which counsel shall be reasonably satisfactory to the Indemnified
Party, and the Indemnified Party, at the expense of the Indemnifying Party, will
cooperate with the Indemnifying Party in determining the validity of any such
claim and in the defense thereof. The Indemnified Party may, at its expense,
participate in the defense of such third party claim. The Indemnified Party
shall have the right to employ counsel to represent the Indemnified Party at the
Indemnifying Party's expense if (a) the Indemnifying Party has failed to
promptly assume the defense of such third party claim and employ counsel or (b)
in the reasonable judgment of the Indemnified Party or its counsel, a conflict
of interest between the Indemnified Party and the Indemnifying Party exists with
respect to such third party claim. The Indemnifying Party shall not settle any
such claim without the consent of the Indemnified Party if any relief, other
than the payment of money damages, would be granted by such settlement or if
such settlement does not include the unconditional release of the Indemnified
Party. In the event that an Indemnifying Party is required to make any payment
under this Section 7, the Indemnifying Party shall promptly pay to the
Indemnified Party the amount so determined.
7.5 Remedies Cumulative. Subject to the limitations of Section 7.6, the
remedies provided in this Section 7 shall be cumulative and shall not preclude
the assertion by any party to this Agreement of any other rights or the seeking
of any other remedies against the other parties to this Agreement.
7.6 Limitations and Indemnification. No indemnity shall be payable
hereunder by Seller until the aggregate amount of all Costs suffered or incurred
by Purchaser exceeds US$1,000,000 and Seller shall be liable for such Costs in
excess of US$1,000,000. No indemnity shall be payable hereunder by Purchaser
until the aggregate amount of all Costs suffered or incurred by Seller exceeds
US$1,000,000 and Purchaser shall be liable for such Costs in excess of
US$1,000,000; provided that this limitation shall not apply to the failure of
Purchaser to deliver the Cash Component and, if any, the Interest Component at
Closing pursuant to Section 1.2. The amount that Seller shall be obligated to
pay to Purchaser and that Purchaser shall be obligated to pay to Seller under
this Section 7 shall not exceed US$41,000,000, respectively; provided, however,
that the limits set forth in this Section 7.6 shall not apply to breaches of
Sections 2.2, 2.5, 3.2, 3.4 and 8.2.
9
SECTION 8
CLOSING PROCEDURE
8.1 Closing. The closing of the transactions contemplated hereby (the
"Closing") shall take place at 10:00 a.m., local time, on the 21st day of
August, 2000, at the office of Silitek Corporation, Taipei, Republic of China,
or such other time and place as the parties may agree upon or such other time as
adjusted as set forth below (the "Closing Date"). In the event Purchaser or
Seller is entitled not to close on the scheduled date because a condition to its
obligation to close set forth in Section 5 or 6, respectively, has not been met
(or waived by the party entitled to waive it), such party may postpone the
Closing, from time to time, by giving at least three days prior notice to the
other party, until the condition has been met (which all parties will use their
best commercial efforts to cause to happen); provided, however, that if
Purchaser is entitled not to close because Purchaser or any Purchaser Designee
would not obtain valid title to the Shares as a result of a delay in obtaining
or completing ROC governmental approvals or registrations, Purchaser may
postpone the Closing to a date after the expiration of the Payment Guarantee and
until such approvals and registrations are obtained or completed if and only if
reasonable assurance of payment of the Cash Component and Interest Component is
given to Seller. Without limiting the manner of such assurance, such reasonable
assurance shall be deemed given if Purchaser delivers to Seller a letter of
credit or payment guarantee for such amounts and with other terms substantially
similar to the Payment Guarantee.
8.2 Obligations at Closing. (a) At the Closing, Seller shall deliver to
Purchaser: (i) any required consents in form and substance reasonably
satisfactory to Purchaser, (ii) certificates representing the Shares, duly
endorsed or accompanied by proper instruments of transfer in form reasonably
satisfactory to Purchaser, (iii) such other good and sufficient instruments of
conveyance, assignment and transfer, in form and substance reasonably
satisfactory to Purchaser and its counsel, as shall be effective to transfer to
Purchaser and any Purchaser Designees all of Seller's beneficial right, title
and interest in and to the Shares, and (iv) incumbency and officers'
certificates and all other documents required to be delivered on or before the
Closing by Seller to Purchaser under the provisions of this Agreement (to the
extent not previously delivered) or as may otherwise be reasonably requested by
Purchaser in connection herewith.
(b) At the Closing, Purchaser shall deliver, or cause to be
delivered, to Seller: (i) the Purchase Consideration in accordance with Section
1.2 and (ii) all other documents required to be delivered on or before the
Closing by Purchaser to Seller hereunder (to the extent not previously
delivered) or as may otherwise be reasonably required by Seller in connection
herewith.
SECTION 9
TERMINATION; CONFIDENTIALITY
9.1 Termination. (a) This Agreement may be terminated and the transactions
contemplated hereby may be abandoned prior to the Closing by the mutual consent
of Purchaser and Seller.
10
(b) In the event of the termination and abandonment of this
Agreement pursuant to this Section 9.1, this Agreement shall forthwith become
void and have no effect, without any liability on the part of any party hereto
or its affiliates, directors, officers or shareholders.
9.2 Confidentiality. Each party hereto shall maintain in confidence, and
shall cause their directors, officers, employees, agents, advisors and
affiliates (other than parties hereto) to maintain in confidence, any written,
oral or other information obtained in confidence from another party in
connection with the Company or the transactions contemplated hereby, unless (a)
such information becomes publicly available through no fault of such party, (b)
the use of such information is necessary in making any filing with any
governmental authority, or obtaining any consent or approval, required for the
consummation of the transactions contemplated hereby or (c) the furnishing or
use of such information is required by legal proceedings.
SECTION 10
MISCELLANEOUS
10.1 Public Notice. Except as may be required by law, all public notices
to third parties and all other publicity concerning the transactions
contemplated by this Agreement shall be jointly planned and coordinated by
Seller and Purchaser.
10.2 Entire Agreement. This Agreement (including the Schedules and
Exhibits hereto), the Assignment, the Escrow Agreement and the Payment
Guarantee, if any, constitute the entire agreement between the parties and
supersede all prior understandings and communications between the parties.
10.3 Taxes, Costs and Expenses. Purchaser on the one hand and Seller on
the other shall be responsible for and bear all of its own internal costs and
the fees and expenses of its external advisers in connection with this Agreement
and the transactions contemplated hereby. Any taxes, costs or expenses arising
from (i) the transfer of the Shares, including without limitation applicable
stamp duties, transfer taxes and the like, and (ii) the return, transfer,
assignment, exercise and/or conveyance of the SAR and/or its proceeds, shall be
the sole responsibility of Seller; provided, however, that for Purchaser's and
the Purchaser Designees' income tax liability in ROC, an aggregate of
US$47,000,000 shall be excluded in the calculation of any income or gain arising
from the SAR.
10.4 Further Assurances. The parties shall do all such things and provide
all such reasonable assurances as may be required to consummate the transactions
contemplated hereby, and each party shall provide such further documents or
instruments required by any other party as may be reasonably necessary or
desirable to effect the purpose of this Agreement and carry out its provisions,
whether prior to or following the Closing.
10.5 Notices. Any notice which is required to be given by any party to
another party shall be in writing and (a) delivered personally, (b) sent by
prepaid courier service or (c) sent by telecopier, e-mail or other similar means
of electronic communication, to the parties at their following respective
address:
11
For Purchaser:
Silitek Corporation
12F, 25, Sec. 1, Tung Hwa S. Road
Taipei, Taiwan, Republic of China
Attention: Mr. Raymond Soong, Mr. David Lin
Telecopier: (886) 2 2577 5960
E-mail: raymonds@liteon.com.tw
with a copy to:
Winthrop Stimson, Putnam & Roberts
6 Battery Road, #38-01B
Singapore 049909
Attention: Jing-Kai Syz
Telecopier: (65) 227-4711
E-mail: syzj@winstim.com
For Seller:
Vishay Intertechnology, Inc.
63 Lincoln Highway
Malvern, PA 19355
Attention: Avi D. Eden, Esq.
Telecopier: (610) 296-0657
E-mail: Avi.Eden@Vishay.com
with a copy to:
Lee and Li
7th Floor
201, Tun Hua N. Road
Taipei 105
Taiwan R.O.C.
Attention: Mr. L. H. Ho, Mr. C.V. Chen
Telecopier: (886) 2 2713 3966
E-mail: attorneys@leeandli.com
For LPSC:
Lite-On Power Semiconductor Corporation
No. 28-1 Wu Shin Street
Ta Wu Lung Industry Zone
Keelung, Taiwan, Republic of China
Attention: Mr. Raymond Soong, Mr. M. K. Lu
Telecopier: (886) 2 2577 5960
E-mail: raymonds@liteon.com.tw
12
Any such notice so given shall be deemed conclusively to have been given upon
receipt.
10.6 Governing Law. This Agreement and the rights, obligations and
relations of the parties shall be governed by and construed in accordance with
the laws of the State of New York, U.S.A. (but without giving effect to the
conflict of laws rules thereto).
10.7 Disputes. Any dispute or controversy arising with respect to a claim
of indemnification hereunder, including, without limitation, any dispute
concerning the scope of this arbitration clause, shall be settled by arbitration
in the Hong Kong Special Administrative Region in accordance with the rules of
the International Chamber of Commerce. Judgment upon the award rendered by the
arbitrators shall be final, conclusive and binding on the parties and may be
entered in and enforced to the fullest extent of the law by any court having
jurisdiction thereof, and the parties hereby consent to the jurisdiction of the
New York courts and the Republic of China courts for this purpose.
10.8 Assignment. Neither this Agreement nor any rights or obligations
hereunder shall be assignable by any party without the prior written consent of
each of the other parties, except that Purchaser may assign its rights and
obligations hereunder to any direct or indirect wholly-owned subsidiary if and
only if there would be no increased expense (whether for taxes, costs or
expenses) to Seller, but such assignment shall not release Purchaser from its
obligations hereunder. This Agreement shall enure to the benefit of and be
binding upon the respective heirs, executors, administrators, successors and
permitted assigns of the parties.
10.9 Amendment. This Agreement may be amended only by written agreement of
the parties. Each party acknowledges that it shall have no right to rely upon
any amendment, promise, modification, statement or representation made or
occurring subsequent to the execution of this Agreement unless the same is in
writing and executed by the parties.
10.10 Waiver. No waiver by a party of any provision hereof, in whole or in
part, shall operate as a waiver of any other provision hereof. The exercise by
any party of any of its rights under this Agreement shall not preclude or
prejudice such party from exercising any other right it may have under this
Agreement, irrespective of any previous action or proceeding taken by it
hereunder.
10.11 Severability. If any provision of this Agreement is invalid or
unenforceable, such provision shall be severed and the remainder of this
Agreement shall be unaffected thereby and shall continue to be valid and
enforceable to the fullest extent permitted by law.
10.12 Counterparts. This Agreement may be executed by the parties in
separate counterparts (by original or facsimile signature) each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument.
13
IN WITNESS WHEREOF, the parties have hereunto duly executed this Agreement
on the date first above written.
LITE-ON JV CORPORATION
By /s/ Raymond Soong
----------------------------
Name: Raymond Soong
Title: Chairman
VISHAY INTERTECHNOLOGY, INC.
By /s/ Avi D. Eden
----------------------------
Name: Avi D. Eden
Title: Vice Chairman
LITE-ON POWER SEMICONDUCTOR CORPORATION
By /s/ Raymond Soong
----------------------------
Name: Raymond Soong
Title: Chairman
Schedule 2.3
Required Consents, Approvals, Filings, Registrations and Notices
1. Filing on Schedule 13D or 13G with the U.S. Securities and Exchange
Commission in respect of the beneficial shareholding in Diodes, Inc.
2. Approval of the foreign investment application for transferring the Shares
to Purchaser and the Purchaser Designees filed by Seller
3. Notice given by Seller to the Securities and Futures Commission of ROC
according to Article 22-1 of the Securities Exchange Law
14
Schedule 2.6
Vishay Representatives
----------------------
Dr. Felix Zandman
Mr. Avi D. Eden
Mr. Richard N. Grubb
Mr. Mark Segall
Mr. Chris Tan
Dr. Gerald Paul
Mr. William Clancy
Exhibit A
List of Subsidiaries
--------------------
Shanghai Seefull Electronic Co., Ltd.
FabTech Inc.
Diodes, Inc.
Fine Mind Ltd.
Lite-On Power Semiconductor (Hong Kong) Corporation
Shanghai KaiHong Electronic Co., Ltd.
Diodes Taiwan Corporation Ltd.