Exhibit 2.1
AMENDMENT AGREEMENT NO. 3 AND
WAIVER AGREEMENT NO. 1
with respect to
MASTER PURCHASE AGREEMENT, ASSET
PURCHASE AGREEMENT
AND STOCK PURCHASE
AGREEMENTS
This Amendment and Waiver Agreement
(this “ Amendment ”) is made as of the 30th day
of March, 2007 by and between Vishay Intertechnology, Inc. (“
Vishay ”), Siliconix inc. (“ Siliconix
”), V.I.E.C., Ltd. (“ VIEC ”), Vishay
Europe GmbH (“ Vishay Europe ”), Siliconix
Semiconductor, Inc., acting in its function ( hoedanigheid )
as managing partner ( beherend vennoot ) of the limited
partnership ( commanditaire vennootschap ) Siliconix
Technology C.V. (“ STCV ”), Vishay Americas,
Inc. (“Vishay Americas”), and Vishay Asia Logistics
Pte. Ltd. (“ Vishay Asia ”, and together with
Vishay, Siliconix, VIEC, Vishay Europe, STCV, and Vishay Americas
the “ Purchasers ”), on the one hand, and
International Rectifier Corporation (“ IRC ”),
International Rectifier Southeast Asia Pte, Ltd (“
IRSEA ”) and IR International Holdings China, Inc.
(“ IR China Holdings ”, and together with IRC
and IRSEA, the “ Sellers ”), on the other
hand. Reference is made to (i) the Master Purchase Agreement
dated as of November 8, 2006 (as amended through the date hereof,
the “ Master Purchase Agreement ”) by and
between Vishay and IRC, (ii) the Asset Purchase Agreement (as
defined in the Master Purchase Agreement) dated as of even date
with the Master Purchase Agreement and (iii) each of the Stock
Purchase Agreements (as defined in the Master Purchase Agreement)
dated as of even date with the Master Purchase Agreement (as
amended through the date hereof). Terms used but not defined
in this Amendment shall have the meanings ascribed to them in the
Master Purchase Agreement. Unless otherwise specified or the
context otherwise requires, references herein to a Disclosure
Schedule shall refer to the Disclosure Schedules of Seller and the
Seller Subsidiaries delivered by Seller to Purchaser on November 8,
2006.
RECITALS
WHEREAS, IRC and Vishay are parties
to the Master Purchase Agreement related to the sale of the PCS
Business;
WHEREAS, Asset Sellers and Asset
Purchaser are parties to the Asset Purchase Agreement related to
the sale of the PCS Business;
WHEREAS, Share Sellers and Stock
Purchasers are parties to the Stock Purchase Agreements related to
the sale of the PCS Business; and
WHEREAS, Sellers and Purchasers wish
to amend and/or provide waivers with respect to certain provisions
of the Master Purchase Agreement, the Asset Purchase Agreement and
the Stock Purchase Agreements as set forth more particularly in
this Amendment.
AGREEMENT
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
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I.
AMENDMENTS
1.
Master Purchase Agreement. In accordance with Section
13.5 of the Master Purchase Agreement, the Master Purchase
Agreement is hereby amended, as of the date thereof, as
follows:
(a)
Section 1.2 of the Master Purchase Agreement is amended by adding
the following text at the end of the first sentence
thereof:
“or as otherwise may be agreed
pursuant to Section 3(d) of the Tax Matters
Agreement”
(b)
Section 1.4(d) of the Master Purchase Agreement is hereby amended
by deleting the text thereof and inserting the following
text:
“Notwithstanding anything to
the contrary set forth in this Agreement, in addition to the
payment of the Purchase Price referred to in Section 1.2 and the
adjustments to the Purchase Price referred to in Section 1.4(c)
above, the Purchaser hereby agrees that on or as soon as
practicable after the Closing (and in no event more than 14
calendar days after the Closing), the Purchaser shall pay to
Sellers the amount of any cash of the Companies as of the Closing
Date (after giving effect to the repayment or settlement of any
amounts owed by the Companies to Seller or its Affiliates other
than the Companies and their Subsidiaries) by means of a wire
transfer of immediately available U.S. funds to one or more
accounts designated by Seller to Purchaser; provided ,
however , that, notwithstanding the foregoing, Purchaser may
retain (and shall not be obligated to pay to Seller) an aggregate
amount of cash of up to [***] held by the Companies as of the
Closing Date, of which (i) [***] will be transferred to [***] on or
prior to the Closing Date to pay any VAT liabilities referenced in
Schedule 2.7 of the Update, Amendment and Supplement to the
Disclosure Schedules to the [***] Purchase Agreement and the EMS
Purchase Agreement and (ii) [***] (the “ IR Profit Sharing
Amount ”) will be used by the Companies after the Closing
to pay any amounts due pursuant to profit sharing arrangements that
the Seller may, in its sole discretion, elect to make to certain
employees of the Companies for periods prior to the Closing;
provided , however , that Purchaser shall, and shall
cause the Companies to, return promptly to Seller any portion
of the IR Profit Sharing Amount which Seller has elected not to
make or which otherwise has not been used on or prior to October
31, 2007 and Seller shall not make any such allocation or
arrangements for which the Companies would be obligated after
October 31, 2007.
(c)
The first sentence of Section 1.5 of the Master Purchase Agreement
is hereby amended by deleting the text thereof and inserting the
following text:
[***] Certain information on this
page has been omitted and filed separately with the Securities and
Exchange Commission. Confidential treatment has been requested with
respect to the omitted portions.
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“The Closing will take place
at the offices of International Rectifier Corporation, 233 Kansas
Street, El Segundo, California 90245, or at such other place as
Purchaser and Seller mutually agree, and will be effective as of
11:59 P.M. local time, on the Closing Date.”
(d)
Section 4.4(i) of the Master Purchase Agreement is hereby amended
by deleting the word “Company” that appears as the last
word in the parenthetical and substituting in its place the word
“Seller”.
(e)
Section 6.9 of the Master Purchase Agreement is hereby amended by
deleting the text thereof and inserting the following
text:
“Seller shall have executed
and delivered a Transition Services Agreement, a Transition Product
Services Agreement, a Transition Buy Back Die Supply Agreement and
a Transition IGBT/Auto Die Supply Agreement, each in a form
mutually agreeable to Purchaser and Seller (collectively, the
“ Transition Services Agreements
”).”
(f)
Section 6.18 of the Master Purchase Agreement is hereby amended in
its entirety as follows:
“Except as set forth in
Schedule 6.18, Seller shall have caused to be repaid all
Indebtedness of the Companies and their Subsidiaries, if any (other
than Indebtedness between the Companies or any Subsidiary thereof);
provided , however , Seller shall not be required to
repay or to cause to be repaid any accounts payable of the
Companies and their Subsidiaries existing on or prior to the
Closing in favor of Seller or its Affiliates (other than the
Companies and their Subsidiaries) to the extent that there is
sufficient cash held by the Companies and their Subsidiaries as of
the Closing Date to pay such accounts payable; provided ,
further , that, subject to Section 10.1(a)(xiii) hereof, the
Companies shall repay (and the Purchaser shall cause to be repaid)
promptly after the Closing any such accounts payable existing on or
prior to the Closing in favor of Seller or its Affiliates (other
than the Companies and their Subsidiaries) out of cash held by the
Companies and their Subsidiaries as of the Closing
Date.”
(g)
Subject to Section 3(l) of this Amendment, Section 10.1(a) of the
Master Purchase Agreement is hereby amended by adding the following
after item (ix) thereof:
“(x)
the matters identified on Schedule 2.7 of the Update, Amendment and
Supplement to Disclosure Schedule to the Germany Purchase Agreement
and the EMS Purchase Agreement; provided that Purchaser
shall cooperate with Seller, and shall provide such information and
assistance relating to such matters, as may be reasonably necessary
for the payment of any VAT and other obligations, or any
claim for refund, relating thereto;
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(xi)
any claim for damages brought by a third party claimant or any
demand of a Governmental Authority (“Governmental
Directive”) to investigate, perform any response action
and/or remediate as required by any applicable Environmental Law
(as defined in the Stock Purchase Agreements) any pre-existing
contamination in any surface or subsurface environmental media, to
the extent such third party claim or Governmental Directive (i)
[***], and (ii) results from operations at the [***] prior to the
Closing; provided that, upon receipt of any Governmental
Directive or third party claim, Purchaser shall promptly provide
Seller with notice and a copy of said Governmental Directive or
third party claim and with copies of all written communications
between Purchaser or its Affiliates and the third party claimant or
Governmental Authority issuing the Governmental Directive or
otherwise asserting a Claim Notice or exercising jurisdiction over
the investigation, response action and/or remediation; and
provided , further , that, at Seller’s
election, which election Seller shall make within 60 days of the
date of Notice to Seller, Seller shall have the right in accordance
with Section 10.4 to control any such investigation, response
action and/or remediation, and all communications or negotiations
with any third party claimant or Governmental Authority exercising
jurisdiction over the investigation, response action and/or
remediation; and provided , further , that Seller
shall have no indemnification obligations under this Section
10.1(a)(xi) to the extent any Losses result from (A) any
investigation, sampling or testing performed by Purchase
