Exhibit (d)(2)
[MENTOR GRAPHICS CORPORATION LETTERHEAD]
March 25, 2002
INNOVEDA, INC.
ATTN: XXXXXXX X. XXXXXX
CHAIRMAN AND CEO
CONFIDENTIAL
RE: EXCLUSIVITY AND CONFIDENTIALITY AGREEMENT
Ladies and Gentlemen:
This letter agreement, upon your execution and delivery of a copy hereof to
Mentor Graphics Corporation ("MENTOR"), shall constitute a binding commitment of
exclusivity and confidentiality in connection with the proposed acquisition of
all of the outstanding shares of Innoveda, Inc. ("INNOVEDA"), by Mentor or
Mentor's subsidiary (the "PROPOSED TRANSACTION"), as follows:
1. Exclusivity. Innoveda acknowledges that Xxxxxx will expend
substantial amounts of resources in negotiating towards a definitive agreement
regarding the Proposed Transaction (the "DEFINITIVE AGREEMENT"). In
consideration therefor, Innoveda hereby agrees that from the date of this letter
agreement until whichever is the earliest of (a) 11:59 p.m. (Pacific Time) on
April 23, 2002, (b) the date that the Definitive Agreement is fully executed and
becomes effective, or (c) the date on which Mentor shall deliver notice in
writing to Innoveda that the exclusivity provisions of this letter agreement are
terminated (such earliest date being termed the "EXPIRY DATE"), neither Innoveda
nor any of its directors, officers, employees, affiliates or other
representatives (collectively, "REPRESENTATIVES") will directly or indirectly:
(i) solicit, encourage, initiate, entertain, substantively review or participate
in any negotiations or discussions with respect to any offer or proposal (formal
or informal, oral, written or otherwise) to acquire all or any material part of
Innoveda, whether by purchase of assets, exclusive license, joint venture
formation, purchase of stock, business combination or otherwise, (ii) disclose
any information not customarily disclosed to any person concerning Innoveda and
which Innoveda believes would be used for the purposes of formulating any such
an offer or proposal, (iii) assist, cooperate with, facilitate or encourage any
person to make any offer or proposal to acquire all or any material part of
Innoveda (directly or indirectly), (iv) agree to, enter into a contract
regarding, approve, recommend or endorse any transaction involving the
acquisition of all or any material part of Innoveda (a "COMPETING PROPOSED
TRANSACTION"), or (v) authorize or permit any of Innoveda's Representatives to
take any such action. Notwithstanding anything to the contrary in this letter
agreement, a Competing Proposed Transaction shall not include, and Innoveda
shall have no restrictions with respect to, (y) any sale or disposition (whether
by asset sale, stock sale, sale of a subsidiary or subsidiaries, merger or
otherwise) of all or any portion of Innoveda's system level design business or
products and/or (z) the conduct by Innoveda of its business in the ordinary
course, including but not limited to the licensing of Innoveda's products to end
users and resellers. Through the Expiry Date, Innoveda shall notify Mentor
immediately if any proposal or offer (formal or informal, oral, written or
otherwise), or any material inquiry or contact with any person with respect
thereto, regarding a Competing Proposed Transaction is made after the date
hereof, such notice to include the identity of the
person proposing such Competing Proposed Transaction and the material terms
thereof, and shall keep Mentor apprised, on a current basis, of the status of
any such Competing Proposed Transaction and of any modifications to the terms
thereof; provided that this provision shall not in any way be deemed to limit
the obligations of Innoveda and its Representatives set forth in the second
sentence of this section. Innoveda immediately shall cease and cause to be
terminated all existing discussions or negotiations with any parties other than
Mentor conducted heretofore with respect to any Competing Proposed Transaction.
Subject to the exceptions set forth in clauses (y) and (z) above, through the
Expiry Date, Innoveda will not engage in any material transaction involving the
transfer or licensing of any intellectual property to a third party or the
issuance or exchange of Innoveda equity securities or securities convertible
into equity securities (other than routine awards of stock options and
restricted stock under Innoveda's existing stock plans and exercises of such
awards) or any material financing transaction without Mentor's advance written
consent.
2. Confidentiality. From the date hereof and until a Definitive
Agreement regarding the Proposed Transaction has been executed by the parties
hereto and publicly announced, except as may be otherwise required by applicable
law, rule, regulation, stock market requirement or judicial or administrative
proceeding or authority, each party will keep the existence and terms of the
Proposed Transaction strictly confidential and will restrict all information
about the Proposed Transaction to those employees, directors and other agents
(including financial advisors, counsel and accountants) directly involved in the
negotiations, or who otherwise have a legitimate need to know about the Proposed
Transaction in order for such person to evaluate or implement the transaction,
and who have agreed that they will treat such information as confidential or are
otherwise obligated to do so. If a Definitive Agreement is not executed for any
reason, the parties and their respective agents will keep the existence and
terms of the Proposed Transaction strictly confidential except as and then only
to the extent otherwise required by applicable law, rule, regulation, stock
market requirement or judicial or administrative proceeding or authority.
3. General. The parties hereby agree to negotiate in good faith to
achieve a Definitive Agreement for the Proposed Transaction based upon the
non-binding terms set forth in the draft Term Sheet of even date herewith (the
"TERM SHEET"); provided that Mentor may terminate such negotiations at any time
for any reason or no reason and that Innoveda may terminate such negotiations at
any time after April 20, 2002 and for any reason or no reason. However, until
and unless a Definitive Agreement regarding the Proposed Transaction has been
executed by the parties hereto, neither party hereto shall be under any legal
obligation or have any liability to the other party of any nature whatsoever
with respect to the Proposed Transaction, by virtue of this letter agreement or
otherwise, other than with respect to the exclusivity, confidentiality and other
matters specifically set forth in this letter agreement. In addition, absent
breach of this letter agreement neither party will be in any way responsible for
the other party's costs or expenses (including fees and expenses of professional
advisers and representatives) incurred in the negotiations relating to the
Proposed Transaction.
4. Injunctive Relief; Waiver. Without prejudice to the rights and
remedies otherwise available to either party, each party shall be entitled to
equitable relief by way of injunction or otherwise if the other party or any of
its Representatives breach or threaten to breach any of the provisions of this
letter agreement. It is further understood and agreed that no failure or delay
by Mentor or Innoveda in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
right, power or privilege hereunder.
5. Governing Law. This letter agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to its principles or rules regarding conflicts of laws, other than such
principles directing application of Delaware law. Each party hereby consents and
agrees to the exclusive jurisdiction and venue of the federal and state courts
located within Delaware for the institution and resolution of any action or
proceeding of any kind or nature with respect to or arising out of this letter
agreement.
6. Entire Agreement. This letter agreement contains the entire agreement
between the parties hereto concerning the matters addressed herein, and
supersedes all prior oral or written agreements, understandings, representations
and warranties, and courses of conduct and dealing between the parties relating
to the Proposed Transaction. No modification of this letter agreement or waiver
of the terms and conditions hereof shall be binding upon either party hereto,
unless approved in writing by such party. Notwithstanding the foregoing, the
Non-Disclosure Agreement dated as of October 5, 2001 previously entered into by
the parties shall remain in full force and effect in accordance with its terms.
In the event of a conflict between the terms of that Non-Disclosure Agreement
and those of this letter agreement, this letter agreement shall prevail.
7. Counterparts. This letter agreement may be executed in two or more
counterparts, each of which will be deemed to be an original copy hereof and all
of which, when taken together, will be deemed to constitute one and the same
instrument.
Please confirm your agreement with the foregoing by signing a duplicate copy of
this letter where indicated below and returning the same to the undersigned by
fax, with the signed original following by mail.
Sincerely yours,
MENTOR GRAPHICS CORPORATION,
AN OREGON CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Its: President
ACCEPTED AND AGREED TO AS OF THE
DATE FIRST WRITTEN ABOVE:
INNOVEDA, INC.
A DELAWARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Xxx: Chairman and CEO
