EXCHANGE AGREEMENT
Exhibit 10.1
This Exchange Agreement (this “ Agreement”) is entered into by and between Diodes
Incorporated (the “ Company”) and Acqua Wellington Opportunity, Ltd (“ Holder” and,
collectively with the Company, the “ Parties”), effective as of June 9, 2009. The Company
and Holder hereby agree, covenant, represent and warrant as follows:
Article I. The Exchange
Section 1.01 Exchange of Shares for Notes.
The Company will issue 852,272 shares (the “ Shares”) of the Company’s common stock,
par value $0.66 2/3 per share, CUSIP 000000000 (the “ Common Stock”) in exchange for
$15,000,000 aggregate principal amount of the Company’s outstanding 2.25% Convertible Senior Notes
Due 2026, CUSIP 000000XX0 (the “ Notes”) held by Holder (the “ Exchange”) in the form
of beneficial interests in a global note held by the Depository Trust Company (“ DTC”).
Section 1.02 Delivery of Notes.
Upon the third trading day following the date of this Agreement (the “Closing”),
Holder shall electronically transfer the Notes to an account at DTC identified by the Company as
participant account number 2145.
Section 1.03 Issuance of Shares.
On Closing the Company shall deliver:
The Shares through DTC to the account identified below:
Bank of New York, New York
DTC 0901
A/C Investec Bank (UK) Ltd Irish Branch
A/C No. 179845
Agent Xxxx XX 00000
Institutional ID 26662
For further credit to: Acqua Wellington Opportunity, Ltd.
Contact: Xxxxxx Xxxxx 000 000 0 000 0000
Bank of New York, New York
DTC 0901
A/C Investec Bank (UK) Ltd Irish Branch
A/C No. 179845
Agent Xxxx XX 00000
Institutional ID 26662
For further credit to: Acqua Wellington Opportunity, Ltd.
Contact: Xxxxxx Xxxxx 000 000 0 000 0000
Section 1.04 Payment of Interest.
The Company and Holder agree that, except as expressly provided in this Section 1.04, the
issuance of Shares in the Exchange constitutes satisfaction in full of any and all amounts
(including without limitation principal, interest and any other fees) owed by the Company to Holder
in connection with the Notes. On Closing, the Company shall deliver to Holder $66,562.50 in cash
representing all accrued but unpaid interest on the Notes by wire transfer to the account
identified below:
Bank: Wachovia Bank, N.A.
00 Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX
ABA No.: 000000000
Account No.: 2000193009107
Acct Name: Investec Bank (UK) Ltd Irish Branch
Further Credit: Acqua Wellington Opportunity Ltd.
Account: 02BE201879401
00 Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX
ABA No.: 000000000
Account No.: 2000193009107
Acct Name: Investec Bank (UK) Ltd Irish Branch
Further Credit: Acqua Wellington Opportunity Ltd.
Account: 02BE201879401
Article II. Representations and Warranties
Section 2.01 Registration.
The Parties each hereby acknowledge that, subject to the accuracy of the representations of
the other Party in this Agreement, the Shares are being issued without registration under the
Securities Act of 1933, as amended (the “ Securities Act”), in reliance upon Section 3(a)(9)
thereof.
Section 2.02 Company Representations.
The Company hereby represents as follows:
(i) This Agreement has been duly and validly authorized, executed and delivered by the Company
and shall constitute the legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as such enforceability may be limited by general
principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation and other similar laws relating to, or affecting generally, the enforcement of
applicable creditors’ rights and remedies.
(ii) The execution, delivery and performance by the Company of this Agreement and the
consummation by the Company of the Exchange contemplated hereby will not (i) result in a violation
of the certificate of incorporation or bylaws of the Company, (ii) violate any material agreement
to which the Company is a party or by which the Company or any of its property or assets is bound,
or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws) applicable to the Company, except for such violations which
would not, individually or in the aggregate, reasonably be expected to have a material adverse
effect on the business, assets, properties or condition (financial or otherwise) of the Company or
on the ability of the Company to perform its obligations hereunder.
(iii) The execution, delivery and performance by the Company of this Agreement and the
consummation of the Exchange contemplated hereby require no order, license, consent, authorization
or approval of, or exemption by, or action by or in respect of, or notice to, or filing or
registration with, any governmental body, agency or official on the part of the Company.
(iv) The Shares will be, when issued in accordance with this Agreement, duly issued,
fully-paid, non-assessable and freely transferable under the Securities Act.
(v) Upon issuance thereof in accordance with the terms of this Agreement, the Shares shall not
constitute “restricted securities” as defined in Rule 144(a)(3) under the Securities Act, any
certificate(s) representing the Shares shall not bear any restrictive legend, and no “stop
transfer” or similar order shall be maintained against the Shares with the Company’s transfer
agent.
(vi) The Company has not paid and will not pay any commission or similar remuneration to any
person in connection with the solicitation or effectuation of the Exchange.
(vii) The Company has not engaged any broker, finder or other entity acting under the
authority of the Company or any of its affiliates that is entitled to any commission or other fee
in connection with the Exchange.
(viii) The Company has not provided to Holder any material information that has not been
publicly disclosed concerning the Company, its subsidiaries and affiliates, including, but not
limited to, the general business, plans and prospects of the Company, its subsidiaries and
affiliates as well as possible future financings and other transactions or changes in the Company’s
capital structure (the “Material Non-Public Information”) nor any other information which,
according to applicable law, rule or regulation, should have been disclosed publicly by the Company
but which has not been so disclosed, other than with respect to the transactions contemplated by
this Agreement. The Company acknowledges that Holder has not requested to be provided with any
Material Non-Public Information or any such other information referred to in the immediately
preceding sentence.
Section 2.03 Holder Representations.
Holder hereby represents as follows:
(i) It is the sole legal and beneficial owner of the Notes to be exchanged by Holder hereunder
and the delivery of the Notes in accordance with this Agreement will transfer ownership of the
Notes to the Company free and clear of any liens, claims, interests, charges or other encumbrances.
(ii) It has not previously sold, assigned, conveyed, transferred or otherwise disposed of, in
whole or in part, the Notes to be exchanged by Holder hereunder, nor has Holder entered into any
agreement to sell, assign, convey, transfer or otherwise dispose of, in whole or in part, such
Notes.
(iii) This Agreement has been duly and validly authorized, executed and delivered by Holder
and shall constitute the legal, valid and binding obligation of Holder enforceable against Holder
in accordance with its terms, except as such enforceability may be limited by general principles of
equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other
similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights
and remedies.
(iv) The execution, delivery and performance by Holder of this Agreement and the consummation
by Holder of the Exchange contemplated hereby will not (i) result in a violation of the
organizational documents of Holder or (ii) result in a violation of
any law, rule, regulation, order, judgment or decree (including federal and state securities
laws) applicable to Holder, except for such conflicts, defaults, rights or violations which would
not, individually or in the aggregate, reasonably be expected to have a material adverse effect on
the ability of Holder to perform its obligations hereunder.
(v) The execution, delivery and performance by Holder of this Agreement and the consummation
of the Exchange contemplated hereby require no order, license, consent, authorization or approval
of, or exemption by, or action by or in respect of, or notice to, or filing or registration with,
any governmental body, agency or official on the part of Holder.
(vi) Holder, together with its affiliates, (i) immediately after giving effect to the Exchange
and the issuance of the Shares, will not beneficially own in excess of 9.99% of the number of
shares of Common Stock outstanding, and (ii) has not and will not have beneficially owned in excess
of 9.99% of the number of shares of Common Stock outstanding at any time during the ninety (90) day
period ending on the date of the Closing. For purposes of the foregoing sentence, beneficial
ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of
1934.
(vii) The Notes do not constitute “restricted securities” as defined in Rule 144(a)(3) under
the Securities Act.
(viii) Holder has not engaged any broker, finder or other entity acting under the authority of
Holder or any of its affiliates that is entitled to any commission or other fee in connection with
the Exchange.
(ix) Holder has sufficient experience in business, financial and investment matters to be able
to evaluate the risks involved in, and to make an informed investment decision with respect to, the
Exchange and receipt of the Shares, and Holder acknowledges that (i) the Company makes no
representation regarding the value of the Notes or the Shares and (ii) Holder has independently and
without reliance upon the Company made its own analysis and decision to enter into the Exchange and
exchange the Notes for the Shares.
(x) Holder acquired the Notes as principal and not for the account of any other person.
Section 2.04 Conditions to Parties’ Obligations.
The obligations of each Party hereunder at the Closing are subject to the satisfaction of each
of the following conditions, provided that these conditions are for the sole benefit of such Party
and may be waived by such Party at any time in its sole discretion by providing the other Party
with prior written notice thereof:
(i) The other Party shall have executed this Agreement and delivered the same to such Party.
(ii) The representations and warranties of the other Party in this Agreement shall be true and
correct as of the date when made and as of the date of the Closing as though made at that time.
Article III. Miscellaneous
Section 3.01 Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State
of New York, without giving effect to the principles of conflicts of law whether of the State of
New York or any other jurisdiction. Each Party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan,
for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an inconvenient forum or that
the venue of such suit, action or proceeding is improper. Each Party hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such Party at the address for such notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY
HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
Section 3.02 Notices.
All communications in connection with this Agreement shall be in writing and shall be mailed
by first class mail, postage prepaid, or delivered by courier, personal delivery or confirmed
facsimile transmission.
Communications to the Company may be made to the following address, telephone and facsimile:
| Name: | Diodes Incorporated | ||
| Attention: | Xxxx X. Xxx | ||
| Address: | 00000 X. Xxxxxx Xxxxxxx Xxxxx 000 Xxxxxx, XX, 00000, XXX |
||
| Telephone: | 000 000 0000 | ||
| Facsimile: | 000 000 0000 |
Communications to the Holder may be made to the following address, telephone and facsimile:
| Name: | Xxxxxx Xxxxx | ||
| Address: | Folio House, Xxxxxx Xxxxx Xxxxxxx Drive X.X. Xxx 000, Xxxx Xxxx, Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxx, XX 0000 |
||
| Telephone: | 000 000 0000 | ||
| Facsimile: | 000 000 0000 |
Section 3.03 Amendment and Waiver.
This Agreement may be amended and the observance of any term of this Agreement may be waived,
provided that such amendment or waiver is made in writing and signed by both Parties.
Section 3.04 Severability.
In the event that any one or more of the provisions contained herein, or the application
thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
Section 3.05 Entire Agreement.
This Agreement constitutes the entire agreement among the parties pertaining to the exchange
of securities as contemplated herein and supersedes the Parties’ prior agreements, understandings,
negotiations and discussions, whether oral or written, on such matters.
Section 3.06 Fees and Expenses.
Except as otherwise set forth in this Agreement, each Party shall pay the fees and expenses of
its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by
such party incident to the negotiation, preparation, execution, delivery and performance of this
Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly executed on its behalf
as of the date first written above.
| COMPANY: DIODES INCORPORATED |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
| Title: | Chief Financial Officer, Secretary and Treasurer | |||
| |
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| HOLDER: ACQUA WELLINGTON OPPORTUNITY, LTD |
||||
| By: | /s/ Xxxxxxx X. XxXxx | |||
| Xxxxxxx X. XxXxx | ||||
| Title: | Corporate Secretary | |||
