This Exchange
Agreement (this “ Agreement ”) is entered into
by and between Diodes Incorporated (the “ Company
”) and [REDACTED] (“ Holder ” and,
collectively with the Company, the “ Parties ”),
effective as of September 28, 2009. The Company and Holder
hereby agree, covenant, represent and warrant as
follows:
Section 1.01 Exchange of Shares for
Notes .
The Company will
issue 976,424 shares (the “ Shares ”) of the
Company’s common stock, par value $0.66
2 / 3
per share, CUSIP 254543101 (the
“ Common Stock ”) in exchange for $19,837,000
aggregate principal amount of the Company’s outstanding 2.25%
Convertible Senior Notes Due 2026, CUSIP 254543AA9 (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
.
On the same date
as 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:
[REDACTED]
DTC [REDACTED]
For further credit to: [REDACTED]
Contact: [REDACTED]
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 $219,446.81 in cash representing
all accrued but unpaid interest on the Notes by wire transfer to
the account identified below:
Bank: Citibank,
N.A.
111 Wall Street
New York, NY 10043
ABA No.: 021000089
Account No.: [REDACTED]
Acct Name: [REDACTED]
Further Credit: [REDACTED]
ATTN: [REDACTED]
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 in
accordance with 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 I
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