1
EXHIBIT 10.17
ASSET PURCHASE AGREEMENT
BY AND AMONG
CADENCE DESIGN SYSTEMS, INC.,
CADENCE DESIGN SYSTEMS (CANADA) LIMITED
AND
TALITY CANADA CORPORATION
DATED AS OF
__________, 2000
2
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into as of
and effective on __________, 2000 by and among Cadence Design Systems, Inc., a
Delaware corporation ("Parent"), Cadence Design Systems (Canada) Limited, a
company organized under the laws of the Province of Nova Scotia ("Seller"), and
Tality Canada Corporation, a company also organized under the laws of the
Province of Nova Scotia ("Buyer"). Capitalized terms used herein and not
otherwise defined elsewhere herein shall have the meanings ascribed to them in
Article I.
RECITALS
WHEREAS, Seller intends to sell and Buyer intends to purchase the shares
of Westport Technology Company ("Westport") and certain of Seller's assets
related to the business of providing design services for electronic devices,
electronic system components and electronic systems, and assume certain
liabilities related to such assets;
WHEREAS, the parties intend that, in exchange for consideration equal to
the Purchase Price (as defined below), Seller shall hereby transfer to Buyer on
the date hereof the shares of Westport and those assets set forth on Exhibit A
hereto (the "Transferred Assets") and Buyer shall hereby assume those
liabilities set forth on Exhibit B hereto (the "Transferred Liabilities",
together with the Transferred Assets, the "Purchased Assets"), as provided in
this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
"Buyer Group" means Buyer, the Partnership and any Subsidiary of the
Partnership.
"Governmental Approvals" means any notices, reports or other filings to
be made with, or any consents, registrations, approvals, permits or
authorizations to be obtained from, any Governmental Authority.
"Governmental Authority" means any federal, state, local, foreign or
international court or government, or any political subdivision thereof, or any
department, commission, board, bureau, agency, official or other regulatory,
administrative body of any such government or political subdivision thereof.
"Partnership" means Tality, LP, a Delaware limited partnership wholly
owned by Tality and one or more wholly owned Subsidiaries of Parent.
"Parent Group" means Parent and each Subsidiary and other affiliate of
Parent other than Buyer, the Partnership and Subsidiaries of the Partnership.
1
3
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a Governmental Authority.
"Subsidiary" of any Person means any other Person of which at least a
majority of the securities or interests having by the terms thereof ordinary
voting power to elect at least a majority of the board of directors or other
body performing similar functions with respect to such other Person is directly
or indirectly owned or controlled by such Person, or by any one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries.
"Tality" means Tality Corporation, a Delaware corporation and a
Subsidiary of Parent.
ARTICLE II
PURCHASE, TRANSFER AND ASSUMPTION
Section 2.1 Transfer of Assets and Assumption of Liabilities.
(a) Transfer of Assets. On the date hereof, Seller hereby
assigns, transfers, conveys and delivers to Buyer, and Buyer hereby accepts from
Seller, all of Seller's right, title and interest in and to the Transferred
Assets and the beneficial and economic ownership of the Transferred Assets.
Delivery of the Transferred Assets shall take place in situ and on and from the
date hereof the Seller shall let the Buyer into possession of the Transferred
Assets.
(b) Assumption of Liabilities. On the date hereof, Buyer hereby
assumes and agrees faithfully to perform and fulfill all the Transferred
Liabilities owed by Seller in accordance with their respective terms and shall
indemnify and hold harmless the Seller against the Transferred Liabilities and
all costs, claims, demands, liabilities and expenses in respect of the
Transferred Liabilities. Thereafter, Buyer shall be responsible for all
Transferred Liabilities owed by Seller, regardless of when or where such
Transferred Liabilities arose or arise, or whether the facts on which they are
based occurred prior to, on or after the date hereof, regardless of where or
against whom such Transferred Liabilities are asserted or determined or whether
asserted or determined prior to the date hereof.
(c) Except as may be expressly set forth herein, all assets,
properties and other things of value to be transferred to, and all liabilities
to be assumed by, Buyer are being transferred or assumed, as applicable, "AS IS,
WHERE IS," and Buyer shall bear the economic and legal risk that any conveyance
shall prove to be insufficient to vest in Buyer good and marketable title, free
and clear of any lien, claim, equity or other encumbrance.
Section 2.2 Purchase Price; Terms of Payment.
(a) Determination of Purchase Price. Parent retained an
independent third party, Xxxxxxxx Xxxxxx Xxxxxx & Xxxxx (the "Valuation
Expert"), to determine the fair market value of the Purchased Assets as of the
date of this Agreement (the "Purchase Price"). The parties hereby agree that the
purchase price to be paid for the Purchased Assets shall equal the Purchase
Price as so determined by the Valuation Expert and that subject to subparagraph
2.2(b)(ii) below, the determination of the Valuation Expert that the Purchase
Price equals
2
4
US$9,000,000 shall be final and binding on the parties. The cost of the
Valuation Expert shall be borne by Parent.
(b) Terms of Payment of Purchase Price:
(i) On the date hereof, Buyer shall pay to Seller the
Purchase Price.
(ii) The parties hereto hereby express their intention that
the Purchased Assets are to be transferred at their fair market value. The basis
for the fair market value figure of the Purchased Assets is the valuation
referred to in paragraph 2.2(a). The parties recognize that the said fair market
value of the Purchased Assets may be determined to be higher or lower, as the
case may be, by the Canada Customs and Revenue Agency ("CCRA") than the Purchase
Price and in such event and to cover such case, the parties hereby agree as
follows:
(A) the Seller and Buyer may notify CCRA that each
of them is prepared to:
(1) have the fair market value figures used
in this Agreement reviewed by CCRA;
(2) take any and all requisite steps
hereunder to settle any resulting
increase or decrease in the fair market
value figures; and
(3) file a copy of this Agreement with CCRA,
if any when requested to do so by CCRA;
(B) the parties hereto will substitute CCRA's fair
market value figures for the fair market value
in this Agreement, and such substituted figure
shall be binding upon the parties hereto, unless
there is a valid objection to CCRA's substituted
figure;
(C) any increase or decrease to the fair market
value of the Purchased Assets as used in this
Agreement shall result in the payment or return
on a dollar for dollar basis of an increase in
or a reduction to the Purchase Price, by a
corresponding amount. Interest shall be payable
on any payment envisaged hereunder from the date
hereof through the date of payment at the rate
of 6.0% compounded monthly.
(iii) Amounts required to be paid hereunder shall be paid by
wire transfer to an account designated by Seller or Buyer, as the case may be,
or by such other method agreed upon by Buyer and Seller.
3
5
(iv) Amounts due but not paid within the time prescribed
hereunder for payment shall accrue interest from the time so prescribed to the
time of payment at the rate of 10% compounded monthly or, if lower, the maximum
rate permitted by applicable law.
(c) Taxes. In addition to the Purchase Price, the Buyer shall
pay to the Seller or to the appropriate taxing authority within the time limits
required by the applicable legislation all goods and services, sales, use,
consumption or transfer or other similar taxes to the extent required by any
federal, provincial or local legislation.
(d) Further Documents. The parties agree to execute and file all
such agreements, elections and other documents as may be necessary or advisable
in order that the transactions shall be completed on a tax-deferred basis in
accordance with the rules set out in subsection 167(1) of the Excise Tax Act
(Canada), if applicable.
(e) Allocation. The parties agree that the Purchase Price shall
be allocated among the Purchased Assets as set out on Schedule A.2, and for the
purposes of preparing financial statements and tax returns, the parties shall
use such allocation for all such purposes.
Section 2.3 Classification of Transferred Assets.
(a) Mistaken Allocations. There may exist (i) assets that the
parties discover were, contrary to the agreements between the parties, by
mistake or omission, included or not included, as the case may be, within the
Transferred Assets or (ii) liabilities that the parties discover were, contrary
to the agreements between the parties, by mistake or omission, included or not
included, within the Transferred Liabilities. The parties hereto acknowledge and
agree for greater certainty that any asset or liability transferred or assumed
in error is deemed not to form part of the Transferred Assets or Transferred
Liabilities and not to have been transferred to or assumed by the Buyer, and
shall be returned by the Buyer to the Seller. Any asset or liability forming
part of the Transferred Asset or Transferred Liability, as the case may be,
which was not conveyed to or assumed by the Buyer shall be conveyed or assumed
forthwith. The Person receiving or possessing such asset in error shall hold
such asset as bare trustee or nominee for the other Person. Each party shall
reimburse the other or make other financial adjustments (including cash
reserves) or other adjustments to remedy any mistakes or omissions relating to
any of the assets transferred hereby or any of the liabilities assumed hereby.
(b) Documents Relating to Other Transfers of Assets and
Assumption of Liabilities. In furtherance of the assignment, transfer and
conveyance of the Transferred Assets and the assumption of the Transferred
Liabilities, simultaneously with the execution and delivery hereof or as
promptly as practicable thereafter, (i) Seller shall execute and deliver such
instruments of transfer, conveyance and assignment as and to the extent
necessary to evidence the transfer, conveyance and assignment of all of Seller's
right, title and interest in and to the Transferred Assets to Buyer; and (ii)
Buyer shall execute and deliver to Seller such assumptions of contracts and
other instruments of assumption as and to the extent necessary to evidence the
valid and effective assumption of the Transferred Liabilities by Buyer. Buyer
and Seller shall also cooperate to evidence the retention by Seller of any
Excluded Assets (as defined in Exhibit A).
4
6
Section 2.4 Governmental Approvals and Third-Party Approvals.
(a) Transfer In Violation of Laws or Contracts. If and to the
extent that the valid, complete and perfected transfer or assignment to Buyer of
any of the Purchased Assets would be a violation of applicable laws or require
any third-party approval or Governmental Approval, then, unless the parties
shall otherwise determine, the transfer or assignment to or from the Buyer, as
the case may be, of such Transferred Assets shall be automatically deemed
deferred and any such purported transfer or assignment shall be null and void
until such time as all legal impediments are removed and/or such third-party
approval or Governmental Approvals have been obtained. Notwithstanding the
foregoing, such asset shall still be considered a Transferred Asset for purposes
of determining whether any liability is a Transferred Liability; provided,
however, that if such third-party approvals or Governmental Approvals have not
been obtained within six months after the date hereof, the parties shall use
their reasonable commercial efforts to achieve an alternative solution in
accordance with the parties' intentions.
(b) Transfers Not Consummated as of the Date Hereof. If the
transfer or assignment of any assets intended to be transferred or assigned
hereunder is not consummated prior to or on the date hereof, whether as a result
of the provisions of Section 2.4(a) or for any other reason, then the Person
retaining such asset shall thereafter hold such asset for the use and benefit,
insofar as reasonably possible, of the Person entitled thereto (at the expense
of the Person entitled thereto). In addition, the Person retaining such asset
shall take such other actions as may be reasonably requested by the Person to
whom such asset is to be transferred in order to place such Person, insofar as
reasonably possible, in the same position as if such asset had been transferred
as contemplated hereby and so that all the benefits and burdens relating to such
Transferred Assets, including possession, use, risk of loss, potential for gain,
and dominion, control and command over such assets, are to inure from and after
the date hereof to the Buyer (or the Seller, as the case may be). If and when
the third-party approvals and/or Governmental Approvals, the absence of which
caused the deferral of transfer of any asset pursuant to Section 2.4(a), are
obtained, the transfer of the applicable asset shall be effected in accordance
with the terms of this Agreement.
(c) Expenses. The Person retaining an asset due to the deferral
of the transfer of such asset shall not be obligated, in connection with the
foregoing, to expend any money unless the necessary funds are advanced by the
Person entitled to the asset, other than reasonable out-of-pocket expenses,
attorneys' fees and recording or similar fees, all of which shall be promptly
reimbursed by the Person entitled to such asset.
Section 2.5 Novation of Assumed Liabilities.
(a) Reasonable Commercial Efforts. Each of Seller and Buyer, at
the request of the other, shall use all commercially reasonable efforts to
obtain, or to cause to be obtained, any consent, substitution, approval or
amendment required to novate all rights and obligations under agreements,
leases, licenses and other obligations or liabilities of any nature whatsoever
that constitute Transferred Liabilities or to obtain in writing the
unconditional release of all parties to such arrangements other than Buyer, so
that, in any such case, Buyer and its Subsidiaries shall be solely responsible
for such liabilities; provided, however, that none of Seller, Buyer and their
respective Subsidiaries shall be obligated to pay any consideration
5
7
therefor to any third party from whom such consents, approvals, substitutions
and amendments are requested.
(b) Inability to Obtain Novation. If Seller or Buyer is unable
to obtain, or to cause to be obtained, any such required novation, consent,
approval, release, substitution or amendment, the applicable Person shall
continue to be bound by such agreements, leases, licenses and other obligations
and, unless not permitted by law or the terms thereof (except to the extent
expressly set forth in this Agreement), Buyer shall, as agent or subcontractor
for Seller or such other Person, as the case may be, pay, perform and discharge
fully, or cause to be paid, transferred or discharged all the obligations or
other liabilities of Seller or such other Person, as the case may be, thereunder
from and after the date hereof. Seller shall, without further consideration, pay
and remit, or cause to be paid or remitted, to Buyer or its appropriate
Subsidiary promptly all money, rights and other consideration received by it or
any other member of Parent Group in respect of such performance. If and when any
such consent, approval, release, substitution or amendment shall be obtained or
such agreement, lease, license or other rights or obligations shall otherwise
become assignable or able to be novated, Seller shall thereafter assign, or
cause to be assigned, all its rights, obligations and other liabilities
thereunder to Buyer without payment of further consideration and Buyer shall,
without the payment of any further consideration, assume such rights and
obligations.
ARTICLE III
OTHER COVENANTS
Section 3.1 Retention of Records; Cooperation.
(a) Buyer will for the maximum period required by law keep
safely and in reasonable condition all such books, records and documents and
other things relating to the Purchased Assets as Seller shall transfer or cause
to be transferred to Buyer and shall afford Seller reasonable access to such
books and records for so long as shall be necessary to enable Seller to deal
with its taxation (including GST and retail sales tax) liability in respect of
the period up to the date hereof and will permit Seller and Seller's servants,
agents and professional advisors to have access to and to take copies of such
records for such purpose.
(b) Seller will for the maximum period required by law keep
safely and in reasonable condition any books, records and documents and other
things retained by Seller relating to the Purchased Assets and shall afford
Buyer reasonable access to such books and records for so long as shall be
necessary to enable Buyer properly to carry on the Business and will permit
Buyer and Buyer's servants, agents and professional advisors to have access to
and to take copies of such records for such purpose.
Section 3.2 Terms of Buyer Employment. Subject to Section 4.6 of
the Separation Agreement, all basic terms and conditions of employment for
employees of Parent or Seller, who are transferred to the Buyer pursuant to this
Agreement, including, without limitation, their pay and benefits in the
aggregate, shall, to the extent legally and practicably possible, remain
substantially the same as the terms and conditions that were in place when the
employees were employed by Seller or Parent. Notwithstanding the foregoing, all
employees of Seller or Parent transferred to Buyer hereunder shall be required,
to the extent permissible under
6
8
applicable law, to execute new agreements regarding their employment status,
proprietary information and inventions in a form approved by the Buyer by the
date hereof, and also to execute such standard documents as are generally
executed by employees leaving their employment with Seller or Parent. For
greater certainty, any and all severance liability shall be and form part of the
Transferred Liabilities, whether or not an employee of Seller agrees to become
an employee of Buyer.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Limitation of Liability. In no event shall any party
hereunder be liable to another party, for any special, consequential, indirect,
incidental or punitive damages or lost profits, however caused and on any theory
of liability (including negligence) arising in any way out of this agreement or
any ancillary agreement, whether or not such party has been advised of the
possibility of such damages.
Section 4.2 Buyer Acknowledgement. Buyer acknowledges that (a) it is
acquiring the Transferred Assets on an as is, where is basis, (b) it shall,
without investigation, objection or requisition accept such title as Seller has
to the Transferred Assets, and (c) accordingly, save as expressly set out in
this Agreement, no representations, warranties or other assurances of any kind
are given by or on behalf of Seller and on which Buyer may rely in entering into
this Agreement and on other statement, promise or forecast made by or on behalf
of Seller may form the basis of, or be pleaded in connection with, any claim by
Buyer under or in connection with this Agreement.
Section 4.3 Entire Agreement. This Agreement and the Exhibits and
Schedules referenced or attached hereto, constitute the entire agreement between
the parties with respect to the subject matter hereof and thereof and shall
supersede all prior written and oral and all contemporaneous oral agreements and
understandings with respect to the subject matter hereof and thereof.
Section 4.4 Governing Law. This Agreement shall be construed in
accordance with and all disputes hereunder shall be governed by the laws of the
State of Delaware, excluding its conflict of law rules. In the event of a
dispute the resolution of which is not otherwise addressed herein, such dispute
shall be resolved in accordance with the provisions of Exhibit C hereto.
Section 4.5 Notices. Notices, offers, requests or other communications
required or permitted to be given by either party pursuant to the terms of this
Agreement shall be given in writing to the respective parties to the following
addresses:
if to Parent:
Cadence Design Systems, Inc.
0000 Xxxxx Xxxxxx, Xxxx. 0
Xxx Xxxx, XX 00000
Attention: General Counsel
7
9
Fax: (000) 000-0000
if to Buyer:
Tality Canada Corporation
0000 Xxxxx Xxxxxx, Xxxx. 0
Xxx Xxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
if to Seller:
Cadence Design Systems (Canada) Limited
0000 Xxxxx Xxxxxx, Xxxx. 0
Xxx Xxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified U.S. mail, return receipt requested. All other notices may
also be sent by fax, confirmed by first class mail. All notices shall be deemed
to have been given and received on the earlier of actual delivery or three (3)
days from the date of postmark.
Section 4.6 Counterparts. This Agreement and the Exhibits and Schedules
hereto, and the other documents referred to herein, may be executed in
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
Section 4.7 Binding Effect; Assignment. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective legal
representatives and successors, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies of
any nature whatsoever under or by reason of this Agreement. Neither Buyer nor
Seller may assign this Agreement or any rights or obligations hereunder, without
the prior written consent of the other party and Parent, and any such assignment
shall be void.
Section 4.8 Severability. If any term or other provision of this
Agreement or any Ancillary Agreement, or any of the Exhibits and Schedules
attached hereto is determined by a court, administrative agency or arbitrator to
be invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any of the parties. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the fullest
extent possible.
8
10
Section 4.9 Failure or Delay Not Waiver; Remedies Cumulative. No failure
or delay on the part of any party hereto in the exercise of any right hereunder
shall impair such right or be construed to be a waiver of, or acquiescence in,
any breach of any representation, warranty or agreement herein, nor shall any
single or partial exercise of any such right preclude other or further exercise
thereof or of any other right. All rights and remedies existing under this
Agreement, or the Exhibits or Schedules attached hereto are cumulative to, and
not exclusive of, any rights or remedies otherwise available.
Section 4.10 Amendment. No modification or amendment shall be made to
this Agreement, or the Exhibits or Schedules attached hereto, except by an
instrument in writing signed on behalf of each of the parties to such agreement.
Section 4.11 Authority. Each of the parties hereto represents to the
others that (a) it has the corporate or other requisite power and authority to
execute, deliver and perform this Agreement; (b) the execution, delivery and
performance of this Agreement by it have been duly authorized by all necessary
corporate or other actions; (c) it has duly and validly executed and delivered
this Agreement; and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general equity principles.
Section 4.12 Interpretation. The headings contained in this Agreement,
in any Exhibit or Schedule hereto and in the table of contents to this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Any capitalized term used in any Exhibit or
Schedule hereto but not otherwise defined therein, shall have the meaning
assigned to such term in this Agreement. When a reference is made in this
Agreement to an Article or a Section, Exhibit or Schedule, such reference shall
be to an Article or Section of, or an Exhibit or Schedule to, this Agreement, as
the case may be, unless otherwise indicated. All Exhibits and Schedules hereto
are incorporated into and made a part of this Agreement. The terms "including"
and "include" employed in this Agreement (including any of the Exhibits and
Schedules incorporated into and made a part of this Agreement) mean "including,
without limitation," and "includes, without limitation," respectively.
Section 4.13 Payment of Expenses. Each of Buyer and Seller shall be
responsible for its own costs and expenses.
Section 4.14 Transfer Taxes. Seller shall pay any and all sales, use,
transfer and other taxes in the nature of transfer taxes arising from the
transfers contemplated herein.
9
11
WHEREFORE, the parties executed and delivered this Asset Purchase
Agreement as of the date first set forth above.
CADENCE DESIGN SYSTEMS (CANADA) TALITY CANADA CORPORATION
LIMITED
By: By:
--------------------------------- -----------------------------------
Name: Name:
------------------------------- ---------------------------------
Title: Title:
------------------------------ --------------------------------
CADENCE DESIGN SYSTEMS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
10
