EXHIBIT 10.21
LICENSE AGREEMENT CONFIDENTIAL
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This License Agreement (the "Agreement") is entered into as of this 1st day
of October, 1999 (the "Effective Date"), by and between Cadence Design Systems,
Inc., a Delaware corporation with offices at 000 Xxxxx Xxxx Xxxxxxx, Xxx Xxxx,
XX 00000 ("Cadence") and Numerical Technologies Inc., a California corporation
with offices at 00 Xxxx Xxxxxxxx Xxxxx, Xxx Xxxx, XX 00000-0000 ("NTI").
RECITAL
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WHEREAS, Cadence develops and markets electronic design automation ("EDA")
software tools for integrated circuit design and NTI develops and markets
software design tools for subwavelength integrated circuit technologies. Cadence
desires to incorporate into its products certain of NTI's software design tool
modules for subwavelength integrated circuit technologies subject to the terms
and conditions of this Agreement.
In consideration of the foregoing and the mutual promises contained herein,
Cadence and NTI agree as follows:
1. DEFINITIONS.
1.1 "Agent" of Cadence or NTI means, an individual or
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entity who is authorized to act for or in place of and to bind Cadence or NTI,
as the case may be, with respect to dealings or contractual obligations with
third parties.
1.2 "Affiliate" of Cadence or NTI means, respectively, any entity
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that controls, is controlled by, or is under common control with such party,
where "control" means ownership of fifty percent (50%) or more of the
outstanding voting securities of the entity in question or the power to
otherwise control the voting or affairs of such entity.
1.3 "Cadence Combined Products" shall mean the Cadence software
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products that are comprised of one or more Cadence Products and one or more NTI
Product Components.
1.4 "Cadence Products" shall mean the Cadence software products
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listed in Exhibit A attached hereto and any other commercially released place-
and-route, physical design, and physical verification family of products offered
by Cadence or any of its Affiliates (other than products of Avant!, Mentor
Graphics, or Synopsys, should Candence or any of its Affiliates merge with,
acquire, or be acquired by any of these three companies) primarily for the same
intended uses as the products listed in Exhibit A.
1.5 "Critical Error" shall mean (i) an Error that stops, prevents
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or hinders in a material and substantial way design work or production work;
(ii) an Error that causes design data corruption; or (iii) any other substantial
Error for which there is no reasonably acceptable work around.
1.6 "Derivative Work" shall mean a derivative work within the
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meaning of the U.S. copyright law.
Numerical Technologies - CADENCE
[***]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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1.7 "Documentation" shall mean the manuals and other documentation
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that NTI generally makes available with the NTI Product Components to end users.
1.8 "Error Corrections" shall mean any Error corrections, patches,
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and bug fixes prepared by or for NTI to any portion of the NTI Product
Components.
1.9 "Error" means any failure of an NTI Product Component to
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conform to its specifications or the applicable Documentation or to provide
consistent and accurate results.
1.10 "Initial Term" means the period beginning on the Effective Date
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and ending on December 31, 2002.
1.11 "Intellectual Property Rights" shall mean (by whatever name or
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term known or designated) copyrights, trade secrets, patents, and any other
intellectual and industrial property and proprietary rights (excluding
trademarks) including registrations, applications, renewals and extensions of
such rights.
1.12 "NTI Product Components" shall mean the NTI product components
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that are listed in Exhibit B attached hereto and all Updates thereto.
1.13 "Renewal Term" means the period beginning on January 1, 2003
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and ending on December 31, 2004.
1.14 "Update" shall mean any new release or version of the NTI
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Product Components or Cadence Products, as the case may be, that is designated
by a different version number (e.g., 2.0 instead of 1.0, or 2.1 instead of 2.0)
and, with respect to the NTI Product Components, any new software product that
(i) uses the same methodology as the NTI Product Components and (ii) is designed
primarily for the same intended uses as the NTI Product Components. Moreover,
for the purpose of clarification and avoidance of doubt, to the extent that NTI
or Cadence integrates the source code for the NTI Product Components or Cadence
Products or portions thereof, with additional source to make new NTI or Cadence
products (other than the NTI Product Components or Cadence Products), such
additional source code shall not constitute Updates but any improvements to the
source code for the NTI Product Components or Cadence Products shall constitute
Updates. Also, any source code created by or for NTI in the course of creating
customized interfaces between the NTI Product Components and third party
products as permitted under this Agreement will not constitute Updates.
2. DELIVERY OF NTI LICENSED TECHNOLOGY.
NTI shall deliver the NTI Product Components and the Documentation to
Cadence promptly after the Effective Date in a mutually acceptable format and
manner and at a mutually acceptable place and time.
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3. LICENSE GRANTS.
3.1 Software License to Cadence. NTI hereby grants to Cadence
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the following nonexclusive (subject to Section 4), worldwide licenses, under all
of NTI's Intellectual Property Rights in and to the NTI Product Components:
(a) to use, reproduce, perform and display the NTI Product
Components (in object code form only) for Cadence's internal purposes including
integration work (with Cadence Products only), testing, support, and
demonstrations,
(b) to use, reproduce, perform and display the NTI Product
Components with the Cadence Products (in object code form only) for the purpose
of providing Cadence design and methodology services to Cadence customers,
provided that Cadence may not provide optical proximity correction design
services using the NTI Product Components alone for Cadence customers not using
the Cadence Products for the product design at issue;
(c) to reproduce and distribute, and to make, have made,
offer for sale, import and sell, the NTI Product Components, in object code form
only, solely as incorporated or bundled with the Cadence Products and not on a
standalone basis; and
(d) to reproduce and distribute, and to make, have made,
offer for sale, import and sell, the NTI Product Components, in object code form
only, on a standalone basis only to those Cadence customers who, as of the
Effective Date, already have purchased a license for at least one (1) of the
Cadence Products ("Existing Customers"), solely for the purpose of allowing such
customers to use the NTI Product Components with Cadence Products.
Such licenses shall be subject to the restrictions set forth in Section
3.3. Cadence may sublicense the rights granted in this Section 3.1 only as
follows: (i) Cadence may sublicense the rights to use, reproduce and distribute
the NTI Product Components incorporated or bundled with the Cadence Products to
its distributors, resellers, OEM customers, VAR customer, and VAD customers; and
(ii) Cadence may sublicense the rights to use and reproduce the NTI Product
Components to its end-user customers, solely for the purpose of allowing such
end-user customers to use the NTI Product Components with Cadence Products.
3.2 Documentation License to Cadence. NTI grants to Cadence a
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nonexclusive (subject to Section 4), worldwide license, under all of NTI's
Intellectual Property Rights in and to the Documentation, to use, reproduce,
perform, display, distribute, and to make, have made, offer for sale, import and
sell the Documentation solely to the extent that the Documentation is to be used
in connection with the Cadence Combined Products or the NTI Product Components
on a stand-alone basis as permitted under Section 3.1(d) above. Cadence may
sublicense the right to reproduce and distribute the Documentation solely to the
extent that it is to be used in connection with the Cadence Combined Products
(or the NTI Product Components on a stand-alone basis as permitted under Section
3.1(d) above) to its distributors, resellers, OEM customers, VAR customers and
VAD customers.
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3.3 Restrictions. Cadence shall not itself, or through any
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Affiliate, Agent or third party: (a) sell, lease, license or sublicense the NTI
Product Components or the Documentation (except as expressly permitted in
Section 3.1 and 3.2), (b) decompile, disassemble, reverse engineer or otherwise
attempt to derive source code from the NTI Product Components, in whole or in
part, except to the extent such restriction is prohibited by applicable law; (c)
modify or create Derivative Works from the NTI Product Components; or (d) use
the NTI Product Components to provide processing services to third parties
(except as expressly permitted under Section 3.1) or otherwise use the NTI
Product Components on a service bureau basis.
3.4 Copyright Notices. Cadence agrees that it will not remove any
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copyright notices, proprietary markings, trademarks or tradenames from the NTI
Product Components or Documentation.
3.5 Software License Terms. Cadence shall use its then-current
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standard form software license terms for marketing and licensing the NTI Product
Components under this Agreement. Cadence shall include in its standard form
software license terms warranty disclaimer and limitation of liability
provisions for the benefit of NTI. NTI agrees that Cadence may refer to NTI as a
"third party" in the standard form license terms.
3.6 Trademark License to Cadence. Cadence shall display NTI's
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trademarks and logos with any marketing, promotional or advertising literature
pertaining to the Cadence Combined Products. NTI grants to Cadence a
nonexclusive, worldwide license to use the NTI trade names, trademarks and logos
set forth in Exhibit C ("NTI's Trademarks") attached hereto during the term of
this Agreement solely in connection with the NTI Product Components as part of
the Cadence Combined Products, with the Documentation and in conjunction with
any other marketing, promotional or advertising literature pertaining to the
Cadence Combined Products. Cadence shall comply with any and all reasonable and
customary guidelines provided by NTI in writing concerning the use of NTI's
Trademarks. To enable NTI to monitor the use of NTI's Trademarks, Cadence shall
provide, as requested by NTI from time to time, samples of all items and
materials to which a NTI Trademark has been applied. Cadence shall obtain no
rights with respect to any of NTI's Trademarks, other than the rights set forth
herein. At NTI's written request, Cadence shall assign to NTI any such right,
title and interest exceeding the rights granted herein that it may obtain in
NTI's Trademarks and the associated goodwill. All goodwill arising out of any
uses of NTI's Trademarks will inure solely to the benefit of NTI.
3.7 ModelCal Distribution License. The license to the NTI Product
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Component referred to in Exhibit B as the ModelCal Software is subject to the
further license terms:
(a) Cadence agrees to list the ModelCal Software in its price
book as the "NTI Model Calibrator."
(b) Cadence agrees to put in place appropriate language and
controls to limit distribution of the ModelCal Software to single copy licenses
in conjunction with other licenses of the NTI Product Components under this
Agreement.
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(c) Cadence agrees to refer ModelCal Software customers
directly to NTI for purchases of additional ModelCal Software licenses.
(d) As between Cadence and NTI, NTI will provide any
maintenance, support, and consulting to end users of the ModelCal Software at
commercially reasonable prices. The ModelCal Software will be licensed to end
users either under Cadence's then-current standard form software license terms
in accordance with Section 3.5 or under a form of end user license agreement
supplied by NTI in which NTI is the licensor.
4. EXCLUSIVITY.
4.1 Limits on NTI's Activities. During the Initial Term of this
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Agreement and any Renewal Term hereunder, subject to Section 4.2:
(a) NTI shall not, directly or through any of its Affiliates
or Agents, license, distribute, or otherwise provide any of the NTI Product
Components to Avant!, Mentor Graphics, or Synopsys without the express prior
written consent of Cadence, which Cadence may grant or withhold in its sole
discretion;
(b) NTI shall not, directly or through any of its Affiliates
or Agents, develop, or assist any third party in developing, or otherwise
participate in the development of, interfaces between, or an integrated
solution consisting of (in whole or in part), any of the NTI Product
Components and any Avant!, Mentor Graphics, or Synopsys product;
(c) NTI shall not, directly or through any of its Affiliates
or Agents, participate in, or assist any third party with, any marketing or
sales activities with Avant! Mentor Graphics, or Synopsis or the marketing or
distribution of interfaces between, or an integrated solution consisting of (in
whole or in part), any of the NTI Product Components and any Avant!, Mentor
Graphics, or Synopsys product; and
(d) NTI shall include in all agreements with third parties in
which the third party is licensed to redistribute the NTI Product Components
(including OEM, reseller, and distribution agreements) a provision that the
third party's license to redistribute the NTI Product Components will
automatically terminate (subject to reasonable sell-off terms that allow the
licensee, for up to ninety (90) days after the date of termination, to fulfill
customer orders accepted before the date of termination) if (i) Avant!, Mentor
Graphics, or Synopsys enters into an agreement to merge with, acquire the
material assets of, or acquire thirty percent (30%) or more of the outstanding
capital stock of, or purchase all or substantially all of the assets of a
specific business unit of, the third party that is utilizing the NTI Product
Components, (ii) the third party enters into an agreement to acquire the
material assets of, or to merge with or acquire thirty percent (30%) or more of
the outstanding capital stock of, Avant!, Mentor Graphics, or Synopsys and the
resulting combined entity distributes an EDA product (other than the Cadence
Combined Products) that incorporates any of the NTI Product Components, or (iii)
such third party distributes or licenses the NTI Components or any product
incorporating the NTI Components to Avant!, Mentor Graphics or Synopsys.
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Permitted NTI Activities. Subject to Section 4.1, NTI shall have the right
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to license, distribute, OEM and sell the NTI Product Components to any third
party other than Avant!, Mentor Graphics, or Synopsys. Consistent with the
foregoing, NTI agrees that it will prohibit any third party who has the right to
distribute NTI Components from licensing or transmitting the NTI Components,
either on a stand-alone basis or as incorporated into any products, to Avant!,
Mentor Graphics, or Synopsys. Notwithstanding Section 4.1, if Cadence fails to
meet the Cadence Production Release Milestones set forth in Exhibit D, NTI shall
have the unrestricted right to enter into OEM or distribution license agreements
with Synposys for any or all of the NTI Product Components. NTI shall notify
Cadence in writing (a) if NTI believes that Cadence has failed to meet any of
the Cadence Production Release Milestones set forth in Exhibit D, and (b) within
two (2) business days after entering into such an agreement with Synopsys. If,
in response to any notice from NTI under clause (a) above, Cadence notifies NTI
in writing (within ten (10) days after receipt of NTI's notice) that Cadence
believes it has met the Cadence Production Release Milestones in question, the
parties will attempt to resolve the dispute in accordance with Section 13. NTI
will not enter into any OEM or distribution license agreement with Synopsys
until (i) it has given notice to Cadence as described in clause (a) above and
(ii) either Cadence has acknowledged in writing that it failed to meet one of
Cadence Production Release Milestones, or Cadence has failed to notify NTI
within ten (10) days as described above that Cadence believes it has met the
Cadence Production Release Milestones in question, or if Cadence does so notify
NTI, the dispute has been resolved in favor of NTI or the parties have been
unable to resolve the dispute in accordance with Section 13.
Notwithstanding Section 4.1, NTI will have the right to assist a particular
end user in integrating the NTI Product Components with any Avant!, Mentor
Graphics, or Synopsys product solely for such end user customer's internal use,
provided that neither NTI nor such end user customer markets such integration
services or markets or distributes any interfaces developed in connection with
such integration work. It is understood and agreed that it will not be
considered a breach of Section 4.1 by NTI if Avant!, Mentor Graphics, or
Synopsys gains access to the NTI Product Components through doing integration
work at a customer's facilities.
4.2 Limits on Cadence's Activities. During the Initial Term and any
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Renewal Term, Cadence shall not, directly or through any of its Affiliates or
Agents, license, distribute, or otherwise provide any of the NTI Product
Components to Avant!, Mentor Graphics, or Synopsys without the express prior
written consent of NTI, which NTI may grant or withhold in its sole discretion,
and Cadence shall not develop, or participate in the development of, interfaces
between, or an integrated solution consisting of (in whole or in part), any of
the NTI Product Components and any Avant!, Mentor Graphics, or Synopsys product.
Cadence shall not be restricted from
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developing, licensing, acquiring, marketing or distributing any technologies
which have substantially the same functionality as the NTI Product Components.
Cadence shall use commercially reasonable efforts to introduce and field the
Cadence Combined Products as the primary Cadence solution for design tools for
subwavelength integrated circuit technologies during the Initial Term. The
restrictions and obligations on Cadence in this Section 4.3 will apply only as
long as NTI has not materially breached its obligations under Sections 4.1 and
4.2.
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5. FEES.
5.1 Payment Amounts During Term. Subject to Section 5.4, Cadence
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shall pay NTI a license fee for license of the NTI Product Components
("License Fee") in the amount of [***] and shall pay NTI a fee for training
and support regarding the NTI Product Components ("Service Fee") in the amount
of [***] during the Initial Term. The License Fee shall be paid in accordance
with the schedule set forth in Exhibit E attached hereto and Section 5.3
below. The specific Service Fees to be paid are set forth in Exhibit F and
shall be paid in accordance with the schedule set forth in Exhibit F and
Section 5.3 below. Other than the fees described in this Section 5.1 and
Exhibit B, no other royalties or payments shall be payable by Cadence to NTI
for the license of the NTI Product Components during the Initial Term or, to
the extent that Cadence's rights under this Agreement survive the expiration
or termination of this Agreement, after such expiration or termination.
5.2 Payments Amounts During Renewal Period. If Cadence exercises
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its option to renew the term of this Agreement under Section 13.2 hereunder,
Cadence shall pay NTI an additional License Fee in the amount of [***] and an
additional Service Fee in the amount of [***] during the Renewal Term. The
License Fee shall be paid in accordance with the schedule set forth in Exhibit
E and the Service Fee shall be paid in accordance with a schedule to be
mutually agreed upon by the parties. Other than the fees described in this
Section 5.2 and Exhibit B, no other royalties or payments shall be payable by
Cadence to NTI for the license of the NTI Product Components during the
renewal term or, to the extent that Cadence's rights under this Agreement
survive the expiration or termination of this Agreement, after such expiration
or termination.
5.3 Payment Terms. Payments will be made as indicated on the Fee
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Payment Schedule on Exhibits E and F.
5.4 Reduced Fees. If during the Initial Term or any Renewal Term
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NTI executes a distributor or OEM agreement with [***] as permitted under
Section 4.2, beginning on the effective date of such agreement, the amount of
the License Fees payable thereafter by Cadence under this Section 5 during the
Initial Term and any Renewal Term shall be reduced by [***]. For the purpose of
clarification, in no event shall Cadence be entitled to any refund of License
Fees or Service Fees hereunder .
5.5 No Withholding. Cadence understands and agrees that, in the
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event of NTI's material breach of its training and support obligations, Cadence
shall not be entitled to withhold payment of License Fees hereunder.
6. PROPRIETARY RIGHTS.
6.1 Cadence Products. The parties agree that, as between the
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parties, Cadence retains all right, title and interest in and to the Cadence
Products and in all Intellectual Property Rights therein.
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[***]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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6.2 NTI Products. The parties agree that, as between the parties,
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NTI retains all right, title and interest in and to the NTI Product Components
and in all Intellectual Property Rights therein.
7. TRAINING AND SALES SUPPORT.
7.1 Training of Cadence Employees. NTI will provide the following
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training regarding the NTI Product Components to Cadence employees:
(a) Model Calibration Training: one (1), two (2) day class
employing two (2) NTI trainers, each quarter during the Initial Term and any
Renewal Term; and
(b) Product Training for NOPC, SiDRC and ImagIC: one (1), two
(2) day class employing two (2) NTI trainers, each quarter during the Initial
Term and any Renewal Term.
All training classes shall be provided at locations to be mutually agreed
upon by the parties. Any additional training shall be provided to Cadence by NTI
at an additional charge to be mutually agreed upon by the parties. For purposes
of this Section 7, "days" do not include travel time to or from locations where
NTI provides training or support pursuant to this Section 7.
7.2 Joint Sales Calls. Two (2) NTI employees shall participate with
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Cadence in sales calls for up to three (3) weeks per quarter, made to
prospective customers for the Cadence Combined Products during the Initial Term
and any Renewal Term.
7.3 Model Calibration Service. NTI shall make available two (2)
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specialists for a total of two (2) calendar days per quarter to support the
customer and/or Cadence to accomplish model calibration of processes and OPC
rule generation during the Initial Term and any Renewal Term.
7.4 Joint Marketing Efforts. NTI and Cadence agree to take
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reasonable commercial steps to coordinate their respective efforts to market the
NTI Product Components and to create joint marketing collateral regarding the
NTI Product Components and Cadence Combined Products.
7.5 Training of Cadence End Users. Cadence shall have the sole
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responsibility for conducting end-user training for the Cadence Combined
Products.
7.6 Cadence End User Support. Cadence shall be solely responsible
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for providing product technical support to all end-users of the Cadence Combined
Products.
8. UPDATES AND SUPPORT OF CADENCE.
8.1 Updates. During the term of this Agreement, NTI shall deliver to
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Cadence any Updates to the NTI Product Components that NTI has prepared upon
commercial release thereof. NTI agrees that it will not rename the NTI Product
Components in order to avoid providing Cadence with Updates that Cadence is
entitled to under this Section 8.1.
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8.2 Back-Up Support and Error Corrections. During the term of this
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Agreement, NTI shall provide to Cadence back-up support for the NTI Product
Components as follows:
(a) Error Correction. NTI will use reasonable commercial
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efforts to provide an Update to correct any Errors in the NTI Product Components
reported by Cadence. Such efforts will include, as appropriate, (i) reviewing
the Error with Cadence, (ii) gathering additional information about the Error,
(iii) analyzing the Error to determine its cause, (iv) providing an Error
solution (which may be an Update or a workaround, if already known), and (v)
when required providing an Update that corrects the Error. When available,
Updates will be delivered promptly to Cadence at no additional cost. NTI will
provide Cadence with an estimate of how long it will take to correct the Errors
reported by Cadence (in accordance with Section 8.2(b)) and will keep Cadence
informed of the progress of the problem resolution.
(b) Error Classification and Response. Cadence and NTI will
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jointly classify Errors reported by Cadence as follows: "Fatal" means an Error
that prevents the product from performing any useful work; "Severe Impact" means
an Error that disables a major or essential function or functions (other than
Fatal Errors); "Degraded Operations" means an Error that disables one or more
non-essential functions; and "Minor" means all other Errors. NTI will use
reasonable commercial efforts to confirm receiving a report of an Error, provide
a workaround or temporary fix including Documentation changes, and provide an
Update correcting the Error as follows:
Severity Confirm Report Temporary Fix Update
Continued effort until
Fatal 1 business day corrected 6 days
Severe Impact 1 business day 5 business days 20 days
Degraded Operations 2 business day 15 business days 60 days
Minor 5 business day To be determined on a To be determined
case-by-case basis on a case-by-case
basis
NTI will provide to Cadence sufficient advance notice of any planned
Updates as soon as such plans are made by NTI so as to enable Cadence to adapt
its interfaces to the NTI Product Components in a timely manner.
9. RIGHT TO MATCH ACQUISITION OFFER.
9.1 Acquisition Offers. In the event that NTI receives a bona fide
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offer to acquire NTI from Synopsys, Mentor Graphics or Avant! (whether by
merger, stock exchange, sale of substantially all of the assets or other
business combination) pursuant to which the shareholders of NTI would hold less
than 50% of the voting equity securities of the successor or acquiring
corporation following such acquisition (an "Acquisition Offer"), and the Board
of Directors of NTI, after review of such Acquisition Offer, determines that it
is in the best interests of NTI's shareholders to accept such offer, then NTI
shall provide written notice of such determination (the "Acquisition Offer
Notice") to Cadence and Cadence shall, subject to the terms and conditions of
Sections 9.2 and 9.3 below, have the right to match or exceed such Acquisition
Offer as described below.
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9.2 Counter Acquisition Offer. The Acquisition Offer Notice shall
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set forth the principal financial and other terms of the Acquisition Offer.
Cadence shall have thirty (30) calendar days following receipt of the
Acquisition Offer Notice to respond with a counter Acquisition Offer. The Board
(excluding any Board representative of Cadence should any such representative
exist) shall review all Acquisition Offers received and shall, in its sole
discretion consistent with its fiduciary duties under law and with the advice of
its investment advisors, if any, determine which Acquisition Offer is in the
best interests of NTI and its shareholders (taking into account which
Acquisition Offer is financially superior, which has the greatest likelihood of
consummation and other factors. During this thirty (30) day period NTI shall not
(i) publicly endorse or comment upon any other Acquisition Offer and (ii) shall
not allow any other prospective purchaser to have access to NTI's records,
facilities, or personnel for the purpose of conducting a due diligence review.
9.3 Assignability. The right to match under this Section 9 is not
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assignable by Cadence without the prior written consent of NTI, except to
Affiliates of Cadence in connection with an assignment of this entire Agreement
as part of an internal restructuring or reorganization of Cadence not involving
any combination with any third party (other than third parties that either are
Affiliates of Cadence as of the Effective Date or are formed in connection with
such internal restructuring or reorganization).
9.4 Fiduciary Duties. Notwithstanding anything to the contrary
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above, the Board shall review all Acquisition Offers in compliance with its
fiduciary duties under law and any other applicable laws.
9.5 Remedies. NTI acknowledges that any breach of this Section 9 by
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NTI would cause irreparable harm to Cadence for which monetary damages would be
inadequate and, therefore, Cadence will be entitled to immediate injunctive
relief, without the requirement of posting bond, to prevent any continuing or
threatened breach of this Section 9 by NTI.
9.6 Termination. The rights and obligations under this Section 9
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shall terminate upon the earliest to occur of the events described in clauses
(i) or (ii) below (provided, in the case of clause (ii), that NTI shall have
complied with the provisions of this Section 9 prior to consummating the
transactions described in such clause (ii)). The events referred to above are:
(i) the closing of the initial public offering of NTI, and (ii) a sale of
substantially all of the assets of NTI or a merger or consolidation of NTI with
or into another corporation or entity pursuant to which the shareholders
immediately prior to such merger or consolidation hold less than fifty percent
(50%) of the voting equity securities of the surviving or acquiring entity
immediately following such merger or consolidation.
10. LIMITED WARRANTIES AND DISCLAIMER.
10.1 Limited Warranty for NTI Product Components. NTI warrants that,
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at the time of delivery to Cadence, the unmodified NTI Product Components will
be complete and functioning and that, for a period of eighteen (18) months from
the Effective Date or ninety (90) days
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from the date of the first commercial shipment of the NTI Product Components by
Cadence (whichever is shorter) (the "Warranty Period"), the NTI Product
Components under normal use will have no Critical Errors. NTI's entire liability
and Cadences exclusive remedy under this warranty will be, at NTI's option, to
use reasonable commercial efforts to attempt to correct any Critical Errors or
to replace the NTI Product Components with functionally equivalent software. If
NTI is unable to correct any Critical Error in the initial version of the NTI
Product Components delivered to Cadence under Section 2 of this Agreement within
sixty (60) days after such Critical Error is reported to NTI by Cadence, Cadence
will have the right to terminate this Agreement by written notice to NTI,
provided that Cadence reports such Critical Error within the Warranty Period.
10.2 Exclusions. The warranties under Section 10.1 will not extend
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to problems that result from: (i) Cadence's failure to implement all Updates to
the NTI Product Components issued to Cadence by NTI; (ii) any alterations of or
additions to the NTI Product Components performed by or at the direction of
parties other than NTI; (iii) misuse of the NTI Product Components; or (iv) use
of the NTI Product Components in conjunction with products not supplied or
approved by NTI.
10.3 Necessary Rights. NTI represents and warrants to Cadence that
----------------
NTI has all rights necessary to grant to Cadence the licenses granted to Cadence
in this Agreement.
10.4 No Viruses. NTI represents and warrants to Cadence that the NTI
----------
Product Components, as delivered by NTI to Cadence under this Agreement, will
not contain any computer software code, routines, or devices (other than as set
forth in the documentation accompanying such software or code) designed to
alter, disable, damage, erase, or impair the use of software or data without the
user's knowledge and consent, and that NTI will use commercially reasonable
efforts, including the use of commercially available virus detection software,
to ensure that the media on which the NTI Product Components are delivered to
Cadence do not contain any such code.
10.5 Year 2000 Compliance. During the Warranty Period, NTI warrants
--------------------
that the NTI Product Components will accurately process and handle (including
calculating, comparing and sequencing) date and time data from, into, and
between the twentieth and twenty-first centuries, and the years 1999 and 2000,
including leap year calculations, to the extent that other information
technology used in combination with the NTI Product Components properly exchange
date and time data with it. NTI's entire liability and Cadence's exclusive
remedy under this warranty will be, at NTI's option, to use reasonable
commercial efforts to attempt to correct any failure of the NTI Product
Components to be Year 2000 compliant as described above, unless such failure
also constitutes a Critical Error, in which case Cadence will also have the
remedies available under Section 10.1.
10.6 Exclusive Warranties. Except for the express warranties stated
--------------------
in Section 10 above, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER
EXPRESS, IMPLIED OR, STATUTORY AND BOTH PARTIES DISCLAIM ANY AND ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NTI
disclaims any warranty that the NTI Product Components delivered to Cadence
under this Agreement will be capable of productive use if not used with the
Cadence Products.
-11-
CONFIDENTIAL
11. INDEMNIFICATION AND LIMITATION OF LIABILITY.
Indemnification. NTI agrees, at its own expense, to defend or at its
---------------
option settle, any third party claim, suit or proceeding (collectively,
"Action") brought against Cadence to the extent such Action results from actual
or alleged infringement (whether direct, contributory, by inducement, or
otherwise) by the NTI Product Components of any U.S. patent, any patent issued
in Japan or any European Union country, or any copyright, trade secret,
trademark, or other Intellectual Property Right worldwide; provided, that NTI
shall have sole control of any such Action or settlement negotiations, and NTI
agrees to indemnify and hold Cadence harmless from, subject to the limitations
hereinafter set forth, any settlement amounts or final judgment entered against
Cadence on such issue in any such Action (regardless of characterization of
types of damage). Cadence will (i) notify NTI promptly in writing of such an
Action, (ii) give NTI sole control and authority to proceed as contemplated
herein, and (iii) give NTI proper and full information and assistance to settle
and/or defend any such Action. Failure by Cadence to notify NTI promptly in
writing of such an Action will relieve NTI of its obligations under this Section
11.1 only to the extent that NTI's ability to defend the Action is prejudiced by
such lack of notice. NTI further agrees to indemnify and hold Cadence harmless
for Cadence's reasonable costs and expenses (including reasonable attorneys'
fees) incurred in analyzing and tendering to NTI any such Action, provided that
Cadence fulfills its obligations under clauses (i), (ii) and (iii) of this
Section 11.1. In addition, in the event that NTI fails to assume the defense of
any such Action, and provided that Cadence has fulfilled its obligations under
clauses (i), (ii) and (iii) above, then Cadence may give NTI written notice of
such failure and an opportunity to cure such failure within thirty (30) business
days. In the event that NTI does not assume the defense of such Action within
such cure period, then NTI shall further be obligated to indemnify and hold
Cadence harmless for Cadence's reasonable costs and expenses (including
reasonable attorneys' fees) incurred in the defense or settlement of such
action.
If it is adjudicatively determined, or if NTI reasonably believes that the NTI
Product Components or any part thereof infringe any patent, copyright, trade
secret, trademark or other Intellectual Property Right of a third party, then
NTI may, and if the sale, distribution, or use of the NTI Product Components by
Cadence is, as a result, enjoined, then NTI shall, at its option and expense:
(a) procure for Cadence the rights under such patent, copyright, trade secret,
trademark or other Intellectual Property Right needed for Cadence to exercise
all of its rights under this Agreement with respect to the NTI Product
Components, or such part thereof; or (b) replace the NTI Product Components, or
parts thereof, with non-infringing suitable NTI products or parts with the same
functionality (or better) as the infringing NTI Product Components or parts; or
(c) suitably modify the NTI Product Components, or part thereof, to become non-
infringing and have the same functionality or better; or (d) if none of the
foregoing is feasible and Cadence's continued use and distribution of the
infringing NTI Product Component (or part thereof) has been finally enjoined,
accept return of such NTI Product Component, or part thereof, terminate
distribution or sale thereof, and pay to Cadence an amount equal to a portion of
the License Fees previously paid (and reduce the License Fees still to be paid
by an amount) commensurate with the value of such NTI Product Component (or part
thereof) compared to the value of all the NTI Product Components. NTI will not
be liable for any costs or expenses incurred without its prior written
authorization, or for any installation costs of replaced NTI products. Any
settlement that restricts Cadence's ability to continue using or distributing
any NTI Product Components in accordance with this Agreement will not be binding
on Cadence unless approved in writing by an authorized officer of Cadence (which
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CONFIDENTIAL
approval will not be unreasonably withheld). If any settlement restricts
Cadence's ability to continue using or distributing any NTI Product Components
in accordance with this Agreement, the parties will negotiate in good faith a
commensurate reduction in the License Fees.
11.1 Limitation of Liability. EXCEPT WITH RESPECT TO BREACH OF
-----------------------
SECTIONS 12 (CONFIDENTIALITY), 3 (LICENSE GRANTS), 4 (EXCLUSIVITY) AND 9 (RIGHT
TO MATCH ACQUISITION OFFER) AND EXCEPT WITH RESPECT TO LIABILITY UNDER SECTION
11.1 (INDEMNIFICATION), NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER
PARTY FOR LOST PROFITS OR BUSINESS OPPORTUNITIES, LOST DATA, OR ANY OTHER
INDIRECT, INCIDENTIAL, CONSEQUENTIAL, SPECIAL, OR RELIANCE DAMAGES, HOWEVER
CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE. THESE LIMITATIONS SHALL
APPLY REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY. NTI'S TOTAL, CUMULATIVE LIABILITY UNDER SECTION 11.1 FOR ANY AND ALL
CLAIMS OF INFRINGEMENT OF PATENTS ISSUED IN JAPAN OR ANY EUROPEAN UNION COUNTRY
WILL BE LIMITED TO THE AGGREGATE AMOUNT PAID BY CADENCE TO NTI UNDER THIS
AGREEMENT.
12. CONFIDENTIALITY.
12.1 Definition. The term "Confidential Information" shall mean any
----------
information disclosed by one party to the other party in connection with this
Agreement which is disclosed in writing, electronically, orally or by inspection
and which a party has a reasonable basis to believe is treated as confidential
by the other party.
12.2 Obligation. Each party shall treat as confidential all
----------
Confidential Information received from the other party, shall not use such
Confidential Information except as expressly permitted under this Agreement, and
shall not disclose such Confidential Information to any third party without the
other party's prior written consent. Each party shall take reasonable measure to
prevent the disclosure and unauthorized use of Confidential Information of the
other party for a period from the time of disclosure until the later to occur of
(i) the date five (5) years after such disclosure, or (ii) the expiration or
termination of this Agreement.
12.3 Exceptions. Notwithstanding the above, the restrictions of this
----------
Section 12 shall not apply to information that:
(a) was independently developed by the receiving party
without any use of the Confidential Information of the other party and by
employees or other agents of (or independent contractors hired by) the receiving
party who have not been exposed to the Confidential Information as demonstrated
by written documentation;
(b) becomes known to the receiving party, without
restriction, from a third party without breach of this Agreement and who had a
right to disclose it;
-13-
CONFIDENTIAL
(c) was in the public domain at the time it was disclosed or
becomes in the public domain through no act or omission of the receiving party;
or
(d) was rightfully known to the receiving party, without
restriction, at the time of disclosure.
12.4 Government Order. If a receiving party is required under an
----------------
order or requirement of a court, administrative agency, or other governmental
body to disclose any Confidential Information, then such receiving party shall
provide prompt notice thereof to the other party and shall use its reasonable
commercial efforts to obtain a protective order or otherwise prevent public
disclosure of such information.
12.5 Residuals. This Section 12 is not intended to prevent the
---------
receiving party from using Residual Knowledge, subject to any valid patents and
copyrights of the disclosing party. "Residual Knowledge" means ideas, concepts,
know-how, or techniques related to the disclosing party's technology or general
skill, knowledge, talent and expertise that are retained in the unaided memories
of the receiving party's employees who have had access to the Confidential
Information of the disclosing party, but in no event including Confidential
Information relating to the source code of the NTI Product Components to the
extent that Cadence employees gain access to such source code under Section 15
of this Agreement. An employee's memory is considered unaided if the employee
has not intentionally memorized the Confidential Information for the purpose of
retaining and subsequently using or disclosing it.
13. DISPUTE RESOLUTION.
If NTI and Cadence are unable to resolve any dispute, controversy or claim
arising out of this Agreement between them, then, prior to exercising its right
to terminate under any provision of this Agreement or (in the case of a dispute
over whether Cadence has met the Production Release Milestones set forth in
Exhibit D) prior to NTI entering into an OEM or distribution agreement with
Synopsys as permitted under Section 4.2, either NTI or Cadence shall, by written
notice to the other, first have such dispute referred to a Senior Vice President
(or equivalent) of NTI and Cadence, for attempted resolution by good faith
negotiations within ten (10) business days after such notice is received. If not
resolved within such ten (10) business day period, the parties shall escalate
the dispute to their respective Chief Operating Officers (or equivalent) for
resolution within thirty (30) business days after expiration of the initial ten
(10) day period. Unless otherwise mutually agreed, the negotiations between the
designated officers shall be conducted by face-to-face meetings within ten (10)
business days and at mutually convenient times within the period stated above.
14. TERM AND TERMINATION.
14.1 Term. The term of this Agreement shall commence on the
----
Effective Date and, unless terminated earlier as provided under Section 14.3 or
renewed as provided under Section 14.2, shall expire at the end of the Initial
Term.
14.2 Option to Renew. Cadence shall have the option of renewing this
---------------
Agreement for the "Renewal Term" by giving NTI written notice of its intent to
exercise such option on or
-14-
CONFIDENTIAL
before March 31, 2002. In the event Cadence opts to extend this Agreement for
the Renewal Term, the Agreement shall continue in full force and effect for a
term of two (2) years from January 1, 2003 through December 31, 2004.
14.3 Termination for Breach. If either party (the "Breaching Party")
----------------------
materially breaches any term or condition of this Agreement, the other party
(the "Non-Breaching Party") may give written notice of such breach to the
Breaching Party. The Breaching Party will then have ten (10) days to notify the
Non-Breaching Party if the Breaching Party believes it has not materially
breached this Agreement, in which case the parties will attempt to resolve the
dispute in accordance with Section 13. If the Breaching Party acknowledges in
writing that it has materially breached this Agreement or fails to provide such
notice to the Non-Breaching Party within this ten (10) day period, or if the
parties are unable to resolve the dispute in accordance with Section 13, then
the Breaching Party will have thirty (30) days to cure the breach. If the
Breaching Party is unable to cure the breach within this thirty (30) day period,
the Non-Breaching Party may terminate this Agreement by written notice to the
Breaching Party at any time within thirty (30) days following the end of such
thirty (30) day period.
14.4 Effect of Termination. Except as otherwise specifically set
---------------------
forth in this Agreement, the following sections shall survive the expiration or
termination, for any reason, of this Agreement: 1 (Definitions), 10 (Limited
Warranties and Disclaimer), 11 (Indemnification and Limitation of Liability), 12
(Confidentiality), 16 (Assignment), and 17 (Miscellaneous). All other Sections
and all licenses hereunder shall terminate upon the expiration or termination,
for any reason, of this Agreement except as provided in Sections 14.5, 14.6,
14.7 and 15.3 below.
14.5 Rights Upon Cadence Breach. In the event of termination of the
--------------------------
Agreement by NTI for a material breach by Cadence, the following shall apply
regarding Cadence's right to continue to ship the NTI Product Components and
Upgrades thereto after such termination:
(a) Non-Intellectual Property or Payment Related Breach. If
---------------------------------------------------
the material breach by Cadence is not related to NTI's Intellectual Property
rights or NTI's right to receive fees under the Agreement, then after
termination Cadence shall only have the right to ship the then-current version
of the NTI Product Components available at the time of the breach as part of
Updates to the Cadence Combined Products to Cadence customers who, prior to
breach, already purchased the Cadence Combined Product.
(b) Intellectual Property or Payment Related Breach. If the
-----------------------------------------------
Cadence breach is a material breach relating to NTI's Intellectual Property
rights or NTI's right to receive fees under the Agreement, then Cadence shall
have no right to continue shipping any NTI Product Components under any
circumstances.
14.6 Rights Upon NTI Breach. In the event of a material breach by
----------------------
NTI, Cadence shall have the right to either:
(a) terminate this Agreement in accordance with Section 14.3
and have the same rights as provided under Section 3 for the remainder of the
Initial Term and the Renewal Term (if (i) the termination took place before the
time for Cadence to make its election regarding the
-15-
CONFIDENTIAL
Renewal Term, or (ii) if termination took place after Cadence has elected to
renew the Agreement), or just for the remainder of the Initial Term if the time
for election had passed prior to termination and Cadence had not elected to
extend the Agreement into the Renewal Term; provided, however that except as
provided in Section 14.6(b), Cadence shall pay NTI a reduced License Fee in the
amount of [***] of the original License Fee (including the License Fee owed
for the Renewal Term, if Cadence elects to preserve its rights for the Renewal
Term) owed under this Agreement (any such additional payments will be due in
accordance with the schedule in Exhibit E); or
(b) if the NTI breach was a material breach of Section 4,
terminate this Agreement in accordance with Section 14.3 and have the same
rights as provided under Section 3 with no further payments of the License Fee
whatsoever for the remainder of the Initial Term and the Renewal Term (if (i)
the termination took place before the time for Cadence to make its election
regarding the Renewal Term, or (ii) if termination took place after Cadence has
elected to renew the Agreement), or just for the remainder of the Initial Term
if the time for election had passed prior to termination and Cadence had not
elected to extend the Agreement into the Renewal Term.
In any case of termination under this Agreement, after such termination NTI will
have no obligation under this Agreement to provide Updates to Cadence.
14.7 Rights upon Expiration. Upon the expiration of the Renewal Term
----------------------
(or, if none, the Initial Term), Cadence shall only have the right to ship the
then-current version of the NTI Product Components available at the time of such
expiration to the Cadence Combined Products to Cadence customers who, prior to
such expiration, already purchased the Cadence Combined Product; provided that,
Cadence shall only be permitted to continue such shipments until the end of life
of the release of the Cadence Combined Products which were being shipped at the
time of the expiration.
14.8 Return of Materials. Upon the expiration or termination of this
-------------------
Agreement for any reason, and except for copies of such items as may be
reasonably required by NTI to exercise any surviving rights or fulfill any
surviving obligations, NTI shall promptly (i) return to Cadence the originals
and all copies (in tangible form or stored in storage or memory devices) of all
Cadence Materials, all Confidential Information of Cadence and all other
material provided hereunder by Cadence in NTI's possession or control; and (ii)
provide Cadence with a written statement certifying that it has complied with
the foregoing obligations. Upon the termination of this Agreement for any
reason, and except for such items as may be reasonably required by Cadence to
exercise any surviving rights or fulfill any surviving obligations, Cadence
shall promptly (a) return to NTI the originals and all copies (in tangible form
or stored in storage or memory devices) of all Confidential Information of NTI
and all other material provided hereunder by NTI in Cadence's possession or
control; and (b) provide NTI with a written statement certifying that it has
complied with the foregoing obligations.
14.9 Remedies Cumulative. If Cadence elects to terminate this
-------------------
Agreement due to a material breach by NTI, such termination will be Cadence's
sole and exclusive remedy for such breach. Except as specifically set forth in
this Agreement, termination shall be in addition to all other legal or equitable
remedies available to either party.
-16-
[***]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
CONFIDENTIAL
15. ESCROW.
15.1 Escrow Account. Within ninety (90) days of the Effective Date
--------------
of this Agreement, NTI agrees to place and maintain current in an escrow account
with an escrow agent in California selected by Cadence and reasonably acceptable
to NTI a complete copy of the source code for the NTI Product Components
hereunder and any Updates and related documentation thereto that Cadence is
licensed to use hereunder (collectively "Source Code"). Cadence shall have the
right at any time to contact the escrow agent for the purpose of confirming that
the Source Code is in the escrow account and verifying the instructions to the
escrow agent to release the Source Code under the circumstances specified in
Section 14.2 below. Cadence shall bear all fees, expenses and other charges of
the escrow agent to open and maintain such escrow account.
15.2 Release. The escrow agreement between Cadence, NTI and the
-------
escrow agent will provide that, if NTI (or its successors or assigns)
liquidates, makes general assignment for the benefit of creditors, or ceases
doing business as a going concern, or if NTI ceases to support the NTI Product
Components or commits a material and ongoing breach of its support obligations
under Section 8.2 above that is not cured within thirty (30) days of written
notice from Cadence, then, upon notice thereof by Cadence to NTI and the escrow
agent, the escrow agent shall deliver the Source Code to Cadence. If NTI
disputes Cadence's right to the Source Code, the matter shall be referred to
arbitration or a court of jurisdiction.
15.3 License. NTI hereby grants to Cadence a nonexclusive right to
-------
use, reproduce, and modify such Source Code solely to correct Errors in the NTI
Product Components, to maintain the compatibility of the NTI Product Components
with the Cadence Products and third party software used in conjunction with the
NTI Product Components, and to provide minor functionality enhancements to the
NTI Product Components consistent with the enhancements being made to the
Cadence Products. The object code derived from the Source Code so modified shall
be deemed to be NTI Product Components hereunder and subject to the same rights
and restrictions on use, reproduction, and disclosure that are contained in this
Agreement with respect to the NTI Product Components. Cadence shall not
distribute, sell or sublicense the Source Code. The Source Code shall be subject
to the confidentiality provisions set forth in this Agreement in Section 12. In
addition, Cadence shall restrict disclosure of the Source Code to those within
its organization who need to use it for the purposes set forth above, and shall
keep it in a secure, locked location when not in use. NTI shall retain all
right, title and interest in and to the Source Code. The license granted in this
Section shall survive termination of the Agreement in accordance with Section 14
if the escrow provisions were triggered prior to termination or expiration of
the Agreement, but Cadence may not trigger the escrow provisions post-
termination or expiration.
16. ASSIGNMENT.
Neither party may, by operation of law or otherwise, assign any of its
rights or delegate any of its obligations under this Agreement without the prior
express written consent of the other party. Notwithstanding the foregoing,
either party may assign all (but not part) of its rights and delegate all (but
not part) of its obligations under this Agreement to a third party as part of
any acquisition of such assigning party by such third party, provided that
notice of and details concerning such proposed assignment and delegation is
given to the non-assigning party, and Cadence may assign this
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CONFIDENTIAL
Agreement to any of its Affiliates; provided that, in no event, may Cadence
assign its rights or delegate duties under this Agreement to any third party
which Cadence has engaged or is working with to develop, license, acquire,
market or distribute any technologies which have substantially the same
functionality as the NTI Product Components as is permitted under Section 4.2 of
this Agreement. Subject to the foregoing, this Agreement will bind and inure to
the benefit of the parties, their respective successors and permitted assigns.
Any permitted assignment under this Section 16 shall be subject to the assignee
agreeing in writing to be bound by all the terms and conditions of this
Agreement.
17. MISCELLANEOUS.
17.1 Waivers. No waiver of any provision of this Agreement shall be
-------
effective unless in writing and signed by the party to be charged. No failure or
delay by either party in exercising any right, power, or remedy under this
Agreement, except as specifically provided herein, shall operate as a waiver of
any such right, power or remedy.
17.2 No Limitation. Use of the word "including" is meant to be
-------------
illustrative only and not limiting.
17.3 Descriptive Headings. The descriptive headings herein are
--------------------
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
17.4 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of California without
application of any choice of law principles. All disputes under this Agreement
shall be brought in the courts located in Santa Xxxxx County, California.
17.5 Independent Contractors. The parties are independent
-----------------------
contractors. Neither party shall be deemed to be an employee, agent, partner or
legal representative of the other for any purpose and neither shall have any
right, power or authority to create any obligation or responsibility on behalf
of the other.
17.6 Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given when delivered in
person, by telecopy with answer back, by express or overnight mail delivered by
a nationally recognized air courier (delivery charges prepaid), or by registered
or certified mail (postage prepaid, return receipt requested) to the respective
parties at their addresses set forth on the first page of this Agreement or to
such other address as the party to whom notice is given may have previously
furnished to the others in writing in the manner set forth above. Any notice or
communication so delivered shall be deemed effective on delivery or when
delivery is refused. Any notice or communication to Cadence shall be addressed
to the attention of the General Counsel.
17.7 Severability. If any provision of this Agreement is held by a
------------
court of competent jurisdiction to be contrary to law, such provision shall be
changed and interpreted so as to
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CONFIDENTIAL
best accomplish the objectives of the original provision to the fullest extent
allowed by law and the remaining provisions of this Agreement shall remain in
full force and effect.
17.8 Entire Agreement. This Agreement, including all Exhibits
----------------
attached hereto, constitutes the final, complete and exclusive agreement between
the parties with respect to the subject matter hereof, and supersedes any prior
or contemporaneous agreement.
17.9 Amendment. No change or amendment will be made to this
---------
Agreement except by an instrument in writing signed on behalf of each of the
parties hereto.
17.10 Exhibits. Each Exhibit attached to this Agreement is deemed a
--------
part of this Agreement and incorporated herein wherever reference to it is made.
17.11 No Implied Licenses. No licenses are to be implied from any
-------------------
term of this Agreement other than the licenses expressly granted herein.
17.12 Counterparts. This Agreement may be executed in counterparts,
------------
each of which will be deemed an original.
IN WITNESS WHEREOF, the parties have caused this License Agreement to be
signed by their duly authorized representatives.
NUMERICAL TECHNOLOGIES, INC. CADENCE DESIGN SYSTEMS, INC.
By: /s/ Xxxxxxxx X. Xxxx By: /s/ Xxxxxxx Xxxxxx
-------------------- ------------------
Name: Xxxxxxxx X. Xxxx Name: Xxxxxxx Xxxxxx
---------------- --------------
Title: President & CEO Title: Chief Financial Officer
--------------- -----------------------
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CONFIDENTIAL
EXHIBIT A: CADENCE PRODUCTS
Assura(TM) physical verification products: Consisting of DRC, LVS, RCX, and SI
(signal integrity) tools for both batch and interactive physical verification,
extraction and analysis.
Virtuoso(TM) physical design products: Consisting of products for custom
physical design, layout editing, and layout compaction.
Envisia cell-based design products: Consisting of products providing placement,
routing, interconnect parasitic extraction, timing and delay analysis
capabilities for digital, cell-based design.
CONFIDENTIAL
EXHIBIT B: NTI PRODUCT COMPONENTS
Silicon Design Rule Check (SiDRC), Version 1.0: Silicon vs. Layout verification
software engine, in the form of binary shared libraries, that uses lithography
simulation to locate and flag areas of an integrated circuit layout design that
produce projected wafer patters outside the specified tolerance. This engine is
accompanied with a C header-file that allows the user to call the engine's API.
This will also include ModelGen (as described below), a complete mathematical
description of the semi-empirical component model, and description of the model
data file format.
ImagIC, Version 1.1: Software engine, in the form of binary code and the scripts
needed to link Virtuoso Layout Editor with NTI's simulation engines, that
generates real-time wafer image from layout data using lithography simulation.
This will also include ModelGen.
NumeriTech Optical Proximity Correction Tool (NOPC), Version 1.0: Rules-based
and simulation-based Optical Proximity Correction software engine, in the form
of binary shared libraries, that applies corrections based on the OPC rules (or
model information for the Simulation-based engine) to compensate for the
subwavelength lithographic effects. This engine is accompanied with a C
header-file that allows the user to call the engine's API.
NumeriTech Optical Proximity Correction GUI (NOPC-GUI), Version 3.1: Graphical
User Interface software, in the form of a binary application, that allows for
viewing and modifying OPC rules, as well as adding constraints and usage
options. This software will save the input from the user and will create a
command file, in TCL format, that will drive the operations of NOPC engine.
RuleGen, Version 1.3: Software, in the form of a binary application, that
automatically creates OPC rules from the calibrated optical/lithography process
models.
ModelGen, Version __: Software, in the form of a binary application, that
automatically creates a Model file from optical/lithography process models. The
Model file is read by several applications (e.g., Imagic and SiDRC).
ModelCalibrator, Version 2.1: Software, in the form of a binary
application, that inputs of results of test-chip measurements based on which it
then calibrates the optical/lithography process models used by NTI tools and
components.
CONFIDENTIAL
EXHIBIT C: TRADEMARKS
NTI Trademarks: Registered Trademark: Virtual Stepper (R)
Corporate Trademarks: Numerical Technologies (TM), Inc.
NumeriTech (TM)
The Numerical Technologies logo.
Product Trademarks:
iN-Phase
TROPiC
N-Abled
SiVL
ImagIC
SiDRC
SiImage
Rule-Gen
Model-Gen
NOPC
IC Workbench
CONFIDENTIAL
EXHIBIT D: CADENCE PRODUCTION RELEASE MILESTONES
Production Release Milestone #1
-------------------------------
[***]
Production Released deadline by: June 30, 2000
Production Release Number: [***]
Production Release Milestone #2
-------------------------------
[***]
Production Released deadline by: July 31, 2000
Production Release Number: [***]
[***]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
CONFIDENTIAL
EXHIBIT E: LICENSE FEES PAYMENT SCHEDULE
Fees During Initial Term
------------------------
1999
----
upon execution
of the Agreement [***]
2000
----
January 3 [***]
April 3 [***]
July 3 [***]
October 2 [***]
2001
----
January 2 [***]
April 2 [***]
July 2 [***]
October 1 [***]
2002
----
January 2 [***]
April 1 [***]
July 1 [***]
October 1 [***]
Total Fees
During Initial Term: [***]
Fees During Renewal Term
2003
----
January 2 [***]
April 1 [***]
July 1 [***]
October 1 [***]
2004
----
January 2 [***]
April 1 [***]
July 1 [***]
October 1 [***]
Total Fees
During Renewal Term: [***]
[***]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
DRAFT 12/15/99
EXHIBIT F: SERVICE FEES
Service Fee Payment Schedule
----------------------------
1999
----
Upon
execution of
the Agreement [***]
2000
----
January 3 [***]
April 3 [***]
July 3 [***]
October 2 [***]
2001
----
January 2 [***]
April 2 [***]
July 2 [***]
October 1 [***]
2002
----
January 2 [***]
April 1 [***]
July 1 [***]
October 1 [***]
Total Fees During Initial Term:
Fees During Renewal Term
2003 [***]
----
2004 [***]
----
Total Fees During Renewal Term: [***]
[***]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
