AMENDMENT
Exhibit 2.2
AMENDMENT
THIS AMENDMENT is made and effective as of October 18, 2006, by and among Diodes Incorporated,
a Delaware corporation (“Diodes”), DII Taiwan Corporation Ltd., a Taiwan corporation
(“Buyer”), APD Semiconductor, Inc., a California corporation (“APD”), and APD
Semiconductor (Asia) Inc., a corporation formed under the laws of the Cayman Islands
(“APD-Asia”).
RECITALS
A. Buyer and APD are parties to that certain Asset Purchase Agreement of even date herewith
(the “Agreement”). All capitalized terms used in this Amendment, unless otherwise defined
in this Amendment, shall have the meaning set forth in the Agreement.
B. Each party hereto desires to amend the Agreement as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual covenants contained in this
Amendment, and for other good and valuable consideration the receipt and sufficiency of which
hereby is acknowledged, the parties agree as follows:
1. Valuation of Inventory, Accounts Receivable and Accounts Payable. Notwithstanding
anything to the contrary contained in Section 1.04(b) or Schedule 1.04(b) of the Agreement:
(i) Within seven (7) calendar days after the Closing Date, Buyer and APD shall (A) physically
count the Inventory, (B) value the Inventory in accordance with the methodology which has
heretofore been mutually agreed upon by Buyer and APD and (C) verify all Accounts Receivable and
Accounts Payable;
(ii) To the extent that any Accounts Receivable have not been collected by Buyer within sixty
(60) days after the Closing Date, such Accounts Receivable shall be valued at zero for purposes of
Section 1.04(b) of the Agreement;
(iii) On the date ninety-five (95) days after the Closing Date, Buyer shall pay to APD an
amount equal to all amounts collected by Buyer with respect to the Accounts Receivable during the
thirty (30) day period commencing on the sixty-first day after the Closing Date and ending on the
ninetieth day after the Closing Date;
(iv) On the date ninety-five (95) days after the Closing Date, Buyer shall transfer to APD any
Accounts Receivable outstanding on the Closing Date which have not been collected in full; and
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(v) Any penalty assessed with respect to an Account Payable as a result of Buyer’s failure to
timely pay any amount due with respect to such Account Payable shall be excluded from the value of
the Accounts Payable for purposes of Section 1.04(b) of the Agreement.
2. Parties.
(a) As used in the Agreement, the term “APD” shall mean APD and APD-Asia, and all subsidiaries
of either of them.
(b) Notwithstanding anything to the contrary contained in Section 8.06 of the Agreement, prior
to the Closing Date, Buyer shall assign and delegate to Diodes, and Diodes shall take and assume,
all of Buyer’s rights, duties, obligations and liabilities under the Agreement.
(c) APD-Asia hereby agrees to perform all the covenants and agreements of APD in the Agreement
and hereby represents and warrants to Buyer that the statements contained in Article II of the
Agreement are correct and complete as of the date of the Agreement and will be complete and correct
as of the Closing Date (as though made then and as though the Closing Date were substituted for the
date of the Agreement throughout such Article II), as fully as though APD-Asia were a party to the
Agreement and each reference in the Agreement to APD had expressly been to APD-Asia.
(d) The Shareholders shall not be required to execute and deliver the Agreement.
3. Financial Statements. Section 3.05(a) hereby is amended to read in full as
follows:
Schedule 3.05 contains a true and complete copy of the
unaudited consolidated balance sheet of APD as of August 31, 2006
(the “Financial Statements”). The Financial Statements (i)
are in accordance with the books and records of APD; (ii) disclose
all the assets and reflect or reserve all Liabilities of APD as of
the date thereof; (iii) present fairly the financial condition of
APD on a consolidated basis as of the date thereof; and (iv) have
been prepared on a consistent basis throughout the periods indicated
and in accordance with generally accepted accounting principles in
the United States or Taiwan, as the case may be, and APD’s normal
practices, except to the extent that the failure to comply with this
Section 3.05(a) would not have a Material Adverse Effect.
4. Environmental Matters. The term “Environmental Laws” shall be deemed to include
only the laws of the United States or any state or political subdivision thereof or any
Governmental Authority of any of the foregoing.
5. Earnout. As soon as reasonably practicable after the end of each quarter, Buyer
shall deliver to APD a schedule setting forth the net sales and average gross profit margin
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realized by Buyer during such quarter from the sale of each Covered Product. Buyer shall meet
and confer with APD concerning any such schedule at the request of APD. APD shall have the right,
at its own cost and expense, to audit such statements not more than once in any fiscal year by a
nationally recognized accounting firm. Such statements and any audit report with respect thereto
shall be deemed “Confidential Information” as defined in Section 6.04 of the Agreement.
6. Covenants Not to Compete.
(a) The term of the covenant not to compete set forth in Section 6.07(a) shall be reduced from
four years to two years.
(b) The words “or use” are hereby deleted from Section 6.07(c) of the Agreement.
(c) Section 6.07(d) of the Agreement is hereby deleted.
7. Name Change. Section 5.04 shall be amended and restated to read in full as
follows:
In addition to, and separate from, the Assets purchased under this
Agreement, APD grants to Buyer an exclusive right to use the names
“APD” and “APD Semiconductor” in the normal course of its business
for two years, including all sales and marketing activities related
to any Covered Products.
8. Miscellaneous.
(a) Except as expressly provided in this Amendment, the Agreement shall remain in full force
and effect. In the event of any conflict between the Agreement and this Amendment, the provisions
of this Amendment shall govern.
(b) This Amendment (i) shall be binding upon the parties hereto and their respective
successors, agents, representatives, assigns, officers, directors and employees; (ii) may not be
amended or modified except in writing; (iii) represents the entire understanding of the parties
with respect to the subject matter hereof; (iv) may be executed in separate counterparts, each of
which shall be deemed an original but all such counterparts shall together constitute one and the
same instrument; and (v) shall be governed by and construed in accordance with the laws of the
State of California applicable to contracts made and to be performed solely within that state.
(c) The obligations of each of the parties hereto under the Agreement and this Amendment shall
be subject to the approval of their respective Boards of Directors and shareholders.
(d) The Closing Date shall be October 31, 2006, unless otherwise agreed by the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the
date first set forth above.
| DIODES INCORPORATED, | ||||||
| a California corporation | ||||||
| By | /s/ Xxx-Xxxx Xx | |||||
| Xxx-Xxxx Lu, President | ||||||
| DII TAIWAN CORPORATION LTD., | ||||||
| a Taiwan corporation | ||||||
| By | /s/ Xxxxxx Xx | |||||
| Xxxxxx Xx, General Manager | ||||||
| APD SEMICONDUCTOR, INC., | ||||||
| a California corporation | ||||||
| By | /s/ Xxxxx Xxxx | |||||
| Xxxxx Xxxx, Director | ||||||
| APD SEMICONDUCTOR (ASIA) INC., | ||||||
| a Cayman Islands corporation | ||||||
| By | /s/ Xxxxx Xxxx | |||||
| Xxxxx Xxxx, Director | ||||||
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