Exhibit (d)(6)
NON-COMPETE AGREEMENT
This Non-Compete Agreement (this "Non-Compete Agreement"), dated as of
April 23, 2002, is entered into by Mentor Graphics Corporation, an Oregon
corporation ("Mentor"), Indiana Merger Corporation, a Delaware corporation and
wholly-owned subsidiary of Mentor ("Merger Sub"), Innoveda, Inc., a Delaware
corporation ("Innoveda"), and _________________, an individual (the
"Principal").
RECITALS
A. The Principal is a shareholder and employee of Innoveda. Innoveda has
been engaged primarily in the business of designing and manufacturing electronic
design automation ("EDA") software (the "Innoveda Business").
B. Mentor is engaged primarily in the business of designing and
manufacturing EDA software and hardware, embedded software and cable harness
design software (the "Mentor Business").
C. Concurrently with the execution and delivery hereof, Mentor, Merger
Sub and Innoveda are entering into an Agreement and Plan of Merger dated as of
April 23, 2002 (the "Merger Agreement") pursuant to which Merger Sub will
acquire all of the outstanding shares of common stock of Innoveda and will be
merged with and into Innoveda with Innoveda continuing as the surviving
corporation and a wholly-owned subsidiary of Mentor.
D. The Principal acknowledges and agrees that the Principal has
technical expertise associated with the Innoveda Business. In addition, the
Principal has valuable business contacts with clients and potential clients of
the Innoveda Business. Furthermore, the Principal's reputation and goodwill are
an integral part of the success of the Innoveda Business throughout the areas
where the Innoveda Business is conducted. If the Principal deprives Mentor,
Merger Sub or Innoveda of any of the Principal's goodwill, or in any manner uses
Innoveda's or the Principal's reputation and goodwill in competition with
Mentor, Merger Sub or Innoveda, Mentor, Merger Sub and Innoveda will be deprived
of the benefits each has bargained for pursuant to this Non-Compete Agreement
and the Merger Agreement. Because the Principal has the ability to compete with
Innoveda in the operation of the Innoveda Business and with Mentor in the
operation of the Mentor Business, Mentor, Merger Sub and Innoveda desire that
the Principal enter into this Non-Compete Agreement. But for the Principal's
entering into this Non-Compete Agreement, Mentor, Merger Sub and Innoveda would
not have entered into the Merger Agreement.
E. The Principal has obtained the advice of its own counsel (and not
Innoveda's nor Mentor's nor Merger Sub's) in connection with negotiating and
executing this Non-Compete Agreement.
AGREEMENT
NOW THEREFORE, as a material inducement to Mentor and Merger Sub and
Innoveda to enter into the Merger Agreement, the parties hereby agree as
follows:
1. Defined Terms. Capitalized terms used herein without definition shall
have the meanings ascribed to them in the Merger Agreement.
2. Covenant Not To Compete. For a period from the date hereof to a date
that is eighteen (18) months from the later to occur of (i) the Effective Time
and (ii) the date of termination or expiration of Principal's employment with
Innoveda (the "Non-Competition Period"), the Principal shall not, unless acting
with Mentor's prior written consent (which consent may be withheld in Mentor's
sole and absolute discretion), directly or indirectly, own, manage, join,
operate or control, or participate in the ownership, management, operation or
control of, or be engaged as a director, officer, employer, employee, partner,
consultant or independent contractor with, or permit the Principal's name to be
used by or in connection with, any profit or non-profit business or organization
which directly or indirectly competes with (a) the Innoveda Business conducted
immediately prior to the Effective Time, (b) the Innoveda Business or the Mentor
Business as conducted during the term of the Principal's employment by Innoveda
through the date of termination of such employment of the Principal or (c) the
Innoveda Business or the Mentor Business as known by the Principal prior to the
date of termination of such employment to be or proposed to be conducted by
Innoveda, Merger Sub or Mentor prior to the end of the Non-Competition Period,
provided, however, that with respect to any Embedded Software Business (as
defined below), such Non-Competition Period shall be only twelve (12) months.
For purposes of this Section 2, "Embedded Software Business" shall mean any
profit or non-profit business or organization which directly or indirectly
competes with the Innoveda Business or Mentor Business in the development,
manufacture or sale of real-time operating systems, debuggers or compilers,
regardless of whether as such organization's primary business or as a division
thereof; provided, however, that if the Embedded Software Business is not the
primary business of such organization, the Principal may be employed by such
organization in a division of such organization that does not participate in the
Embedded Software Business. The territory in which such non-compete provisions
shall be effective shall be each and every state in the United States and
country in the world in which the Innoveda Business or the Mentor Business is
conducted. The foregoing shall not, however, prohibit the Principal from making
passive investments in less than 1% of the outstanding equity securities in any
entity listed for trading on a national stock exchange or quoted on any
nationally recognized automated quotation system.
3. Covenant Not to Hire. Except for any person who has been
involuntarily terminated by Innoveda, Mentor or Merger Sub or has not been
employed by Innoveda, Mentor or Merger Sub within nine months from the date of
the proposed hire of such person by Principal, during the Non-Competition Period
the Principal shall not hire, as director, officer,
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employer, employee, partner, consultant, independent contractor or otherwise,
any person who during the term of the Principal's employment by Innoveda or
Mentor was employed by Mentor, Merger Sub or Innoveda or any affiliate thereof.
4. No Disparagement. During the Non-Competition Period, the Principal
will not, and will use reasonable efforts to ensure that the Principal's
attorneys, agents or other representatives do not, take any action or make or
publish any statement, whether oral or written, which disparages in any way,
directly or indirectly, Innoveda, Merger Sub or Mentor or any of the present or
former employees or directors of Innoveda, Merger Sub or Mentor.
5. Severability of Provisions. If any covenant set forth in this
Non-Compete Agreement is determined by any court to be unenforceable by reason
of its extending for too great a period of time or over too great a geographic
area, or by reason of its being too extensive in any other respect, such
covenant shall be interpreted to extend only for the longest period of time and
over the greatest geographic area, and to otherwise have the broadest
application, as shall be enforceable. The invalidity or unenforceability of any
particular provision of this Non-Compete Agreement shall not affect the other
provisions hereof, which shall continue in full force and effect. Without
limiting the foregoing, the covenants contained herein shall be construed as
separate covenants, covering their respective subject matters, with respect to
each of the separate cities, counties and states of the United States, and each
other country, and political subdivision thereof, in which Innoveda or Mentor
transacts any business
6. Effectiveness. This Non-Compete Agreement shall only become effective
at the Effective Time.
7. Notices. Unless otherwise provided herein, any notice, request,
instruction or other document to be given hereunder by any party to the other
shall be in writing and delivered in person or by courier, telegraphed, telexed
or by facsimile transmission or mailed by registered or certified mail, postage
prepaid, return receipt requested (such mailed notice to be effective on the
date of such receipt is acknowledged), as follows:
If to Mentor, Merger Sub or Innoveda:
Mentor Graphics Corporation
0000 X.X. Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxx 00000-0000
Attention: General Counsel
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
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Attn: Xxxxxxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Principal:
____________________________
____________________________
Telephone:__________________
Fax:________________________
With a copy to:
____________________________
____________________________
____________________________
____________________________
Any party may, from time to time, designate any other address to which
any such notice to it, him or her shall be sent. Any such notice shall be deemed
to have been delivered upon receipt.
7. Incorporation of Recitals. The Recitals to this Non-Compete Agreement
are incorporated fully herein and shall be treated as an integral part of this
Non-Compete Agreement.
8. Entire Agreement; Amendments and Waivers. This Non-Compete Agreement
constitutes the complete, final and exclusive statement of the agreement among
the parties pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties. No amendment, supplement, modification, rescission or
waiver of this Non-Compete Agreement shall be binding unless executed in writing
by the parties. No waiver of any of the provisions of this Non-Compete Agreement
shall be deemed or shall constitute a continuing waiver unless otherwise
expressly provided. The parties expressly acknowledge that they have not relied
upon any prior agreements, understandings, negotiations and discussions, whether
oral or written.
9. Assignment. The Principal agrees that Mentor, Merger Sub or Innoveda
may assign their respective rights and obligations under this Non-Compete
Agreement to any successor-in-interest. Except as expressly provided in this
paragraph, no party may assign its rights and obligations under this Non-Compete
Agreement; and any attempt to do so shall be
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void. Subject to the foregoing, the rights and obligations of the parties under
this Non-Compete Agreement shall inure to the benefit of and be binding upon
their respective successors and assigns.
10. Injunctive Relief; Costs. The Principal agrees that (a) the
provisions of Sections 2, 3 and 4 are reasonable and necessary to protect the
legitimate interests of Mentor, Merger Sub and Innoveda, and (b) any violation
of Sections 2 or 3 will result in irreparable injury to Mentor, Merger Sub and
Innoveda, the exact amount of which will be difficult to ascertain, and that the
remedies at law for any such violation would not be reasonable or adequate
compensation to Mentor, Merger Sub and Innoveda for such a violation.
Accordingly, the Principal agrees that if the Principal violates the provisions
of Section 2 or 3, Mentor, Merger Sub or Innoveda shall be entitled to specific
performance and injunctive relief, without posting bond or other security, and
without the necessity of proving actual damages, in addition to any other remedy
which may be available at law or in equity, including consequential damages.
If the Principal shall fail to perform any of the Principal's
obligations under this Non-Compete Agreement, the parties hereby agree that all
reasonable fees and expenses, including reasonable attorneys' fees, which may be
incurred by Mentor, Merger Sub or Innoveda in enforcing this Non-Compete
Agreement and incurred by the Principal in defending against such enforcement,
shall be paid by the prevailing party.
11. Choice of Law. This Non-Compete Agreement shall be construed,
interpreted and the rights of the parties determined in accordance with the laws
of the Commonwealth of Massachusetts, as applied to agreements among
Massachusetts residents entered into and wholly to be performed within the
Commonwealth of Massachusetts (without reference to any choice of law rules that
would require the application of the laws of any other jurisdiction).
12. Captions. All Section titles or captions contained in this
Non-Compete Agreement are for convenience only and shall not be deemed as part
of this Non-Compete Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete
Agreement as of the day and year first above written.
MENTOR GRAPHICS CORPORATION
By:
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Name:
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Title:
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INDIANA MERGER CORPORATION
By:
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Name:
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Title:
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INNOVEDA, INC.
By:
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Name:
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Title:
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PRINCIPAL
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, an individual
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