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[CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.]
EXHIBIT 10.19
ASSET PURCHASE AGREEMENT
BY AND AMONG
CADENCE DESIGN SYSTEMS, INC.,
CADENCE DESIGN SYSTEMS LIMITED
AND
SYMBIONICS GROUP LIMITED
DATED AS OF
___, 2000
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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 Limited, a company
organized under the laws of the United Kingdom ("Seller"), and Symbionics Group
Limited, a company organized under the laws of the United Kingdom ("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 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 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 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.
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"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, and regardless of whether
arising from or alleged to arise from negligence, recklessness, violation of
law, fraud or misrepresentation by any member of the Parent Group or any of
their respective directors, officers, employees or agents.
(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 Xxxxx Xxxxxx & Xxxxx (the "Valuation Expert"), to
determine the fair market
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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 the determination of the Valuation Expert that the
Purchase Price equal US$28,000,000 shall be final and binding on the parties.
The cost of the Valuation Expert shall be borne by Parent. Each party shall
provide to the Valuation Expert, without cost, such access to the books and
records in its possession pertaining to the Transferred Assets and Transferred
Liabilities as the Valuation Expert reasonably requests.
(b) Terms of Payment of Purchase Price.
(i) On the date hereof, Buyer shall pay to Seller the Purchase
Price. The payment of the Purchase Price may be made directly by Parent on
behalf of Buyer.
(ii) In the event of a final determination that, for applicable
income-tax purposes, the Purchase Price paid for the Purchased Assets hereunder
does not reflect the actual fair market value of the Purchased Assets or
otherwise is not an arm's-length price, the parties hereby agree that the
Purchase Price shall be adjusted to equal the amount so established by such
final determination (which the parties will endeavor to resolve through
competent authority proceedings if commercially feasible). Any increase in the
Purchase Price shall be paid to Seller by Buyer, and any decrease in the
Purchase Price shall be paid to Buyer by Seller; such amounts shall be paid no
later than thirty (30) days following the date that such final determination
becomes final, and shall be increased by interest from the date hereof through
the date of payment at the rate of 6.0%, compounded monthly, less any interest
theretofore paid under clause (iv) hereof by the party required to make the
payment under this clause (ii). If more than one taxing jurisdiction claims that
the fair market value of or arm's-length price for the Purchased Assets differs
from the Purchase Price previously paid hereunder, and such determinations
differ from each other and are not resolved through competent authority
proceedings, the payment required hereunder shall be based on the average of the
values as finally determined under the laws of each taxing jurisdiction.
(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.
(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.
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 shall cooperate
in good faith to effect the transfer or re-transfer of such assets, and/or the
assumption or re-assumption of
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such liabilities, to or by the appropriate party and shall not use the
determination that remedial actions need to be taken to alter the original
intent of the parties hereto with respect to the assets to be transferred to or
liabilities to be assumed by Buyer. Prior to any such transfer, the Person
receiving or possessing such asset shall hold such asset in trust 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 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).
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
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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 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.
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(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 VAT) liability in respect of the period up to the date
hereof and will permit Seller and Seller's servants, agents and professional
advisers 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 advisers to have access to and to take copies
of such records for such purpose.
Section 3.2 [CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH
THE COMMISSION.]
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Section 3.3 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 applicable law, to execute new agreements
regarding their employment status, proprietary information and inventions in a
form approved by the Buyer effective by the date hereof, and also to execute
such standard documents as are generally executed by employees leaving their
employment with Seller or Parent. In addition, nothing in this Agreement should
be construed to change the at-will status of the employment of any of the
employees of Parent, Seller or 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 Acknowledgment. Buyer acknowledges that (1) it is
acquiring the Transferred Assets on an as is, where is basis, (2) it shall,
without investigation, objection or requisition accept such title as Seller has
to the Transferred Assets, and (3) 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.
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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
Fax: (000) 000-0000
if to Buyer:
Symbionics Group Limited
0000 Xxxxx Xxxxxx, Xxxx. 0
Xxx Xxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
if to Seller:
Cadence Design Systems Limited
0000 Xxxxx Xxxxxx, Xxxx. 0
Xxx Xxxx, XX 00000
Attention: Xxxxxx de Vries
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.
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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.
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.
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Section 4.14 Transfer Taxes. Seller shall pay any and all sales, use,
transfer and other taxes (except for any stamp duties and value added taxes) in
the nature of transfer taxes arising from the transfers contemplated herein.
Section 4.15 Value Added Taxes.
(a) Subject to the provisions of this Section 4.15, the parties
intend that the provisions of Article 5 of the Value Added Tax (Special
Provisions) Order 1995 should apply to the sale hereunder and accordingly that
the sale hereby contemplated should be treated as neither a supply of goods nor
a supply of services for value added tax purposes.
(b) Seller warrants that it is registered for value added tax and
Buyer warrants that it is, or will as a result of the sale and purchase
hereunder become, a taxable person for value added tax purposes.
(c) The Purchase Price is exclusive of any value added tax properly
payable in respect thereof. If HM Customs & Excise shall determine in writing
after full disclosure of all material facts that value added tax is payable on
the whole or any part of the Purchase Price, any such value added tax shall be
paid by Buyer to Seller upon receipt of a valid value added tax invoice
complying with the provisions of Part III of the Value Added Tax (General)
Regulations 1995 and a copy of the determination by HM Customs & Excise and the
documents disclosing all material facts.
(d) Seller shall, following completion of its value added tax return
for the period in which the transfer and the sale and purchase of the Purchased
Assets hereunder takes place, deliver to Buyer all the records of the Purchased
Assets which for value added tax purposes are required by Section 49(1)(b) VAT
Act to be preserved by Buyer.
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WHEREFORE, the parties executed and delivered this Asset Purchase
Agreement as of the date first set forth above.
CADENCE DESIGN SYSTEMS LIMITED SYMBIONICS GROUP LIMITED
By: By:
--------------------------- -----------------------------
Name: Name:
------------------------- ----------------------------
Title: Title:
------------------------ ---------------------------
CADENCE DESIGN SYSTEMS, INC.
By:
---------------------------
Name:
------------------------
Title:
------------------------
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