Exhibit 10.26
ASSET PURCHASE AGREEMENT
THIS AGREEMENT dated as of April 14, 1997, by and between Zycad
Corporation, a Delaware corporation ("ZYCAD") with offices at 00000 Xxxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 and IKOS Systems, Inc. a Delaware
corporation, ("IKOS") with offices at 00000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000.
WHEREAS, ZYCAD is engaged in the LightSpeed Logic Accelerator business;
WHEREAS, IKOS desires to purchase from ZYCAD, and ZYCAD desires to sell
to IKOS, all of the software and hardware event-driven simulation technology
related to the LightSpeed products ("Assets") and rights of ZYCAD related to
the Assets as provided by this Agreement, upon the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties hereby agree as follows:
ARTICLE I PURCHASE AND SALE OF ASSETS
SECTION 1.1 DESCRIPTION OF ASSETS TO BE ACQUIRED. Upon the terms and
subject to the conditions set forth in this Agreement, at the Closing (as
defined in Section 6.1), Zycad agrees to convey, sell, transfer, assign and
deliver to IKOS, and IKOS shall purchase from ZYCAD, all rights, title and
interest of ZYCAD at the Closing in and to the Assets. Assets include, but
are not limited to, Zycad's logic simulation customer list, all LightSpeed
specific product technology, and Zycad's library tools. Attached as Schedule
1 is a complete list of Assets. No ZYCAD liabilities are being assumed by
IKOS.
SECTION 1.2 EXCLUDED ASSETS It is agreed that notwithstanding the
foregoing, Assets shall not include (i) office furniture or supplies, (ii)
equipment used in connection with the Assets which are under lease such as
workstations, terminals, servers, tape drives, etc. (the "Equipment"), (iii)
XP, PXP and Zycad fault simulation products and future non-logic simulation
products or technology developed by Zycad, and (iv) current and future
non-logic simulation products or technologies developed by Zycad's GateField
Division, (v) current and future non-logic simulation products or
technologies developed by Zycad's Services Group, (vi) LightSpeed inventory,
(vii) third party software and hardware including SimWave and MME.
ARTICLE II PURCHASE PRICE
SECTION 2.1 CONSIDERATION. Upon the terms and subject to the
conditions contained in this Agreement, in consideration for the Assets and
the Covenant (as defined in Section 3.3) and in full payment therefor, Buyer
will pay the purchase price set forth in Section 2.2
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SECTION 2.2 AMOUNT. The purchase price ("Purchase Price") for the
Assets and the Covenant shall be as follows:
a) A cash payment in an amount equal to $5,000,000 payable on Closing
(as defined in Article VI).
SECTION 2.3 PAYMENT OF PURCHASE PRICE. $2,500,000 of the Purchase
Price shall be payable at the Closing by IKOS by wire transfer. $2,000,000
shall be payable by IKOS by wire transfer within three (3) days after receipt
of notice from Zycad of completion of twenty-five (25) Joint Sales Calls.
For purposes of this Agreement, a Joint Sales Call is a meeting with a
representative of a logic simulation customer of Zycad and an IKOS
representative and a Zycad representative. The balance of $500,000 shall be
payable by IKOS by wire transfer within three (3) days after receipt of
notice from Zycad of completion of an additional twenty-five (25) Joint Sales
Calls.
ARTICLE III TAXES
SECTION 3.1 TAXES. ZYCAD shall pay all sales, use and other transfer
taxes arising out of the purchase and sale of the Assets.
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.1 REPRESENTATIONS OF IKOS. IKOS represents to ZYCAD that:
a) ORGANIZATION. It is a corporation duly organized, validly existing
and in good standing under the laws of Delaware.
b) AUTHORIZATION. To the extent it is a party thereto, it has full
corporate power and authority to enter into this Agreement to perform its
obligations hereunder and thereunder, and to consummate the transactions
contemplated hereby and thereby. It has taken all necessary and appropriate
corporate and stockholder action with respect to the execution and delivery
of this Agreement, and with respect to IKOS, the Agreement constitutes a
valid and binding obligation enforceable in accordance with its terms except
as limited by applicable bankruptcy, insolvency, moratorium, reorganization
or other laws affecting creditors' rights and remedies generally.
c) CONSENTS. To the best of its knowledge, no consent, approval, order
or authorization of registration, qualification, designation, declaration or
filing with any federal, state, local or provincial governmental authority or
any third party is required in connection with the consummation of the
transactions contemplated hereunder.
d) BROKER FEES. It is not obligated to pay any fees or expenses of any
broker or finder in connection with the origin, negotiation or execution of
this Agreement or in connection with any of the transactions contemplated
hereby.
e) EXPENSES. Each of the parties' respective legal, financial adviser
and accounting fees, and their other expenses incurred in connection with the
proposed
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transaction shall be paid by each such party. Both parties represent that
there are no brokers or finders engaged by either party for services rendered
in connection with the proposed transaction and that no such fees shall be
paid by either party.
f) PERFORMANCE OF AGREEMENT. All covenants, conditions and other
obligations under this Agreement which are to be performed or complied with
by IKOS prior to the Closing shall have been fully performed and complied
with at or prior to the Closing, including the delivery of the Closing
Purchase Price and the instruments and documents in accordance with Section
6.2.
SECTION 4.2 REPRESENTATION OF ZYCAD. ZYCAD hereby represents and
warrants to IKOS that:
(a) CORPORATE ORGANIZATION OF ZYCAD. ZYCAD is a corporation duly
organized, validly existing and in good standing under the laws of Delaware,
and has all requisite power and authority to conduct the Business in the
places where such Business is now conducted.
(b) AUTHORIZATION OF ZYCAD. ZYCAD has full corporate power and
authority to enter into this Agreement and to perform its obligations
hereunder and thereunder, and to consummate the transactions contemplated
hereby and thereby, including, without limitation, the execution and delivery
of this Agreement, general conveyances, bills of sale, assignments, and other
documents and instruments evidencing the conveyance of the Assets delivered
in accordance with Section 6 hereunder (the "Closing Documents"). ZYCAD has
taken all necessary and appropriate corporate action with respect to the
execution and delivery of this Agreement and the Closing Documents. This
Agreement constitutes a valid and binding obligation of ZYCAD, enforceable in
accordance with their terms except as limited by applicable bankruptcy,
insolvency, moratorium, reorganization or other laws affecting creditors'
rights and remedies generally.
(c) BROKERS' AND FINDERS' FEES. ZYCAD is not obligated to pay any fees
or expenses of any broker or finder in connection with the origin,
negotiation or execution of this Agreement or in connection with any
transactions contemplated hereby.
(d) CUSTOMERS. ZYCAD has provided IKOS with a list which includes all
customers to which ZYCAD has supplied products relating to the Business
during the past fiscal year ("Logic Customers"). That Logic Customer list is
attached hereto as Schedule 2 and includes a 1997 forecast. ZYCAD has
furnished IKOS with complete and accurate descriptions of all current
agreements with such customers. ZYCAD is not aware of any event, happening
or fact which would lead it to believe that any of said customers will not
continue their current level of purchases after the Closing, except for Level
One and Cisco. IKOS may solicit these customers for logic simulation
immediately after Closing.
(e) TITLE TO PROPERTY. ZYCAD has good and marketable title to the
Assets, free and clear of all easements, mortgages, pledges, liens,
encumbrances, security interests, equities, charges, clouds and restrictions
of any nature whatsoever. By virtue of the
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deliveries made at the Closing, IKOS will obtain good and marketable title to
the Assets, free and clear of all easements, mortgages, pledges, liens,
encumbrances, security interests, charges, equities, clouds and restrictions
of any nature whatsoever.
(f) ASSETS. Except for the Excluded Assets, the Assets include all
intellectual property, inventory and all other property in which ZYCAD has
any right, title and interest with respect to the Business.
(g) PROPRIETARY RIGHTS. Except for the Excluded Technology, Schedule
1.1 sets forth all technology which The Technology includes all patent
rights, copyrights, trade secrets, information, proprietary rights and
processes necessary for the Business as now and proposed to be conducted
without any conflict with or infringement upon the rights of others. ZYCAD
is the sole owner of all right, title and interest in and to all such
technology free and clear of all liens, encumbrances, claims, rights of use
and restrictions whatsoever.
(h) COMPLIANCE WITH LAW. ZYCAD has complied and is in compliance with
all applicable federal, state and local laws, statutes, licensing
requirements, rules and regulations, and judicial or administrative decisions
applicable to the Business including without limitation all export control
laws. ZYCAD has been granted any and all licenses, permits (temporary and
otherwise), authorization and approvals from federal, state, local and
foreign government regulatory bodies necessary to carry on the Business as
currently conducted, all of which are currently valid and in full force and
effect. To the best of ZYCAD's knowledge, there is o order issued,
investigation or proceeding pending or threatened, or notice served with
respect to any violation of any law, ordinance, order, writ, decree, rule or
regulation issued by any federal, state, local or foreign court or
governmental agency or instrumentality applicable to the Business.
(i) ABSENCE OF GOVERNMENTAL OR OTHER OBJECTION. There is no pending or
threatened lawsuit challenging the transaction by any body or agency of the
federal, state or local government or by any third party and the consummation
of the transaction has not been enjoined by a court of competent jurisdiction
as of the Closing.
SECTION 4.3 NON-COMPETITION
4.3.1. Commencing on the date of this Agreement and continuing for
a period of five (5) years thereafter, ZYCAD shall not directly or
indirectly, develop, market, or sell logic simulation products nor develop or
enhance ZYCAD's hardware based products for logic, nor integrate to any logic
simulation product including software except for Zycad's fault simulation
products provided that such product shall not be sold for logic simulation
and further provided that this integration does not enable the logic
capability of the Zycad accelerator; throughout the United States and the
world.
ARTICLE V CONFIDENTIALITY
SECTION 5.1 CONFIDENTIALITY. All proprietary information provided to
the other party shall be kept confidential pursuant to the terms of the
Nondisclosure Agreement signed
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between the parties on April 9, 1997. The parties agree to maintain the
confidentiality of the terms and conditions of this Agreement except to the
extent required by law; provided, however, the parties agree to issue a
mutually agreeable joint press release upon execution of this Agreement
announcing such execution. Each party will review and agree to the text of
any other public announcement related to this Agreement or the transactions
contemplated hereby prior to the release thereof. In addition, in the event
that Zycad shall determine that it is obligated to file this Agreement with
the Securities Exchange Commission (the "SEC"), Zycad shall so notify IKOS.
ARTICLE VI CLOSING
SECTION 6.1 TIME OF CLOSING. The closing for the transaction
contemplated by this Agreement shall be on April 14, 1997. The Closing shall
take place electronically or at such other place or date as may be agreed
upon from time to time in writing by IKOS and ZYCAD.
SECTION 6.2 DELIVERIES BY ZYCAD. At the Closing, ZYCAD shall deliver
to IKOS, all duly and properly executed, the following:
(a) A good and sufficient Xxxx of Sale, which shall be in form and
substance satisfactory to IKOS selling, delivering, transferring and
assigning to IKOS title to all of ZYCAD's right, title and interest to the
Assets, free and clear of all mortgages, pledges, liens, encumbrances,
security interests, equities, charges, clouds and restrictions of any nature
whatsoever, except as otherwise provided herein.
(b) An opinion of Xxxxxxx X. Xxxxx, general counsel to ZYCAD, dated the
date of the Closing, as to the following matters:
(i) ZYCAD is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, has all requisite
corporate power and authority to enter into the transactions contemplated
herein and in the Related Agreements.
(ii) This Agreement and other documents delivered at the Escrowed
Closing by ZYCAD have been duly executed and delivered by ZYCAD, and are
legally valid and binding obligations of ZYCAD, enforceable in accordance
with their terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditors;
rights generally, now or hereafter in effect, and except to the extent that
courts may not grant specific performance of contractual provisions involving
matters other than the payment of money;
(iii) All necessary corporate action has been taken by ZYCAD to
authorize the execution and delivery of this Agreement and the performance by
ZYCAD of its obligations and thereunder.
(iv) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated thereby have not, and will
not, result in a
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breach of or conflict with any of the terms, provisions and conditions of the
Certificate of Incorporation or Bylaws of ZYCAD, any applicable judicial or
administrative writ, decree or order of which such counsel has knowledge, or,
to the best of such counsel's knowledge, any deed, mortgage, indenture,
contract, agreement or instrument known to counsel to which ZYCAD is party or
by which it is bound;
(v) To the best of such counsel's knowledge, all Contracts are in
full force and effect and are valid, binding and enforceable in accordance
with their respective provisions, and ZYCAD is not in default nor has there
occurred an event or condition which, with the passage of time or giving of
notice (or both), would constitute a default with respect to the payment or
performance of any obligation thereunder; and no claim of such a default has
been asserted and there is no basis upon which such a claim could validly be
made except as set forth in Schedule 1.
(d) Such other separate instruments of sale, assignment or transfer
that IKOS may reasonably deem necessary or appropriate in order to perfect,
confirm or evidence in IKOS's title to all or any part of the Assets.
(e) Lien release for the Assets from Coast Business Credit.
ARTICLE VII POST CLOSING
SECTION 7.1 POST CLOSING OBLIGATIONS. ZYCAD shall deliver the
following documents to IKOS within a reasonable time after Closing:
(a) A UCC-2 Termination Statement for any UCC-2 filed against the
Assets, with proof of filing.
(b) An assignment of U.S. Patent No. 4,527,249 to IKOS with proof of
filing in the U.S. Patent and Trademark Office.
ARTICLE VIII INDEMNIFICATION
SECTION 8.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation conducted at any time with regard thereto
by or on behalf of either party, all representations, warranties, covenants
and agreements of each party in this Agreement shall survive the execution,
delivery and performance of this Agreement. All representations and
warranties of each party set forth in this Agreement shall be deemed to have
been made again by such party at and as of the Closing. The obligation of
indemnity provided herein with respect to all of its representations and
warranties set forth in Section 4.1 and such representations and warranties
shall terminate one (1) year after the Closing. The obligations of indemnity
provided herein with respect to the representations and warranties of ZYCAD
set forth in Section 4.2 and such representations and warranties shall
terminate one (1) year after the Closing.
SECTION 8.2 INDEMNIFICATION. ZYCAD hereby agrees to indemnify and hold
harmless IKOS against any and all losses, liabilities, damages, demands,
claims, suits,
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actions, judgments or causes of action, assessments, costs and expenses,
including, without limitation, interest, penalties, attorneys' fees, any and
all expenses incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation (collectively,
"Damages"), asserted against, resulting to, imposed upon, or incurred or
suffered by IKOS, directly or indirectly, as a result of or arising from an
any inaccuracy in or breach or nonfulfillment of any of the representations,
warranties, covenants or agreements made by ZYCAD in this Agreement or any
facts or circumstances constituting such an inaccuracy, breach or
nonfulfillment.
ARTICLE IX EMPLOYEES
SECTION 9.1 ZYCAD EMPLOYEES. IKOS has the right to solicit the
employment of only those RIF employees on the list previously furnished by
Zycad.
ARTICLE X NOTICE
SECTION 10.1 NOTICE. All notices and other communications required
or permitted under this Agreement shall be deemed to have been duly given and
made if in writing and if served either by personal delivery to the party for
whom intended or by being deposited, postage prepaid, certified or registered
mail, return receipt requested, in the United States mail bearing the address
shown in this Agreement for, or such other address as may be designated in
writing hereafter by, such party:
If to ZYCAD: Zycad Corporation
00000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
If to IKOS: IKOS Systems, Inc.
00000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
ARTICLE XI RIGHT OF FIRST REFUSAL
SECTION 11.1 FAULT BUSINESS. In the event that ZYCAD has an offer from
a third party to purchase ZYCAD's fault business ("Offer"), IKOS shall have a
right of first refusal to purchase ZYCAD's fault business upon the same terms
and conditions as set forth in the written Offer. IKOS shall have a period
of seven (7) days after receipt of the terms and conditions of the Offer to
exercise its right of first refusal by giving written notice back to ZYCAD;
and a reasonable period of time after the date of notice to ZYCAD to close
the purchase of ZYCAD's fault simulation business upon the same terms and
conditions as the Offer. In the event the closing of the Offer is not
completed within 120 days after the scheduled Closing date, this Right of
First Refusal shall be reinstated.
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ARTICLE XII CUSTOMER SUPPORT
SECTION 12.1 SUPPORT. ZYCAD shall have the right to continue the
support of its current Logic Simulation Customers.
SECTION 12.2 PRODUCT REPLACEMENT. For Level One and CISCO, ZYCAD shall
have the right to purchase IKOS products at IKOS' cost plus reasonable
support costs for the purpose of swapping LightSpeed products with IKOS
products. ZYCAD shall take no ownership in the IKOS products.
SECTION 12.3 REPORTS. For a period of two (2) years after Closing,
ZYCAD shall send a written report to IKOS' CFO every quarter setting forth
the names and addresses of any new PXP customers.
ARTICLE XIII IKOS FAULT CUSTOMERS
SECTION 13.1 FAULT CUSTOMERS. IKOS agrees to provide ZYCAD at Closing
with a list of IKOS' fault customers with names, addresses and contact
information. ZYCAD will not solicit these customers for a period of three
(3) months after Closing.
XXXXXXX 00.0 XXXXXXXXXX. XXXX agrees not to sell its fault simulation
products to any new customers.
ARTICLE XIV ENTIRE AGREEMENT
SECTION 14.1 ENTIRE AGREEMENT. This Agreement, the exhibits and
schedules hereto, and the documents referred to herein embody the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof, and supersede all prior and contemporaneous agreements and
understandings, oral or written, relative to said subject matter, except that
the Nondisclosure Agreement signed by the parties on April 9, 1997 shall
survive as an independent agreement.
SECTION 14.2 BINDING EFFECT; ASSIGNMENT. This Agreement and the
various rights and obligations arising hereunder shall inure to the benefit
of and be binding upon ZYCAD, its successors and permitted assigns, and IKOS
and their successors and permitted assigns. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be transferred or
assigned (by operation of law or otherwise) by either of the parties hereto
without the prior written consent of the other party. This Agreement shall
be binding upon any purchaser of ZYCAD's verification business.
SECTION 14.3 CAPTIONS. The Article and Section headings of this
Agreement are inserted for convenience only and shall not constitute a part
of this Agreement in construing or interpreting any provision hereof.
SECTION 14.4 EXPENSES OF TRANSACTION; TAXES. ZYCAD and IKOS shall
each pay their own respective costs and expenses incurred in connection with
this Agreement, and the transactions contemplated hereby.
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SECTION 14.5 WAIVER; CONSENT. This Agreement may not be changed,
amended, terminated, augmented, rescinded or discharged (other than by
performance), in whole or in part, except by a writing executed by the
parties hereto, and no waiver of any of the provisions or conditions of this
Agreement or any of the rights of a party hereto shall be effective or
binding unless such waiver shall be in writing and signed by the party
claimed to have given consented thereto. Except to the extent that a party
hereto may have otherwise agreed in writing, no waiver by that party of any
condition of this Agreement or breach hereunder or thereunder shall be deemed
to be a waiver of any other condition or subsequent or prior breach of the
same or any other obligation or representation by the other party, nor shall
any forbearance by the first party to seek a remedy for any noncompliance or
breach by the other party be deemed to be a waiver by the first party of its
rights and remedies with respect to such noncompliance or breach.
SECTION 14.6 NO THIRD-PARTY BENEFICIARIES. Except as otherwise
expressly provided for in this Agreement, nothing herein, expressed or
implied, is intended or shall be construed to confer upon or give to any
person, firm, corporation or legal entity, other than the parties hereto, any
rights, remedies or other benefits under or by reason of this Agreement.
SECTION 14.7 COUNTERPARTS. This Agreement may be executed
simultaneously in multiple counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
SECTION 14.8 GENDER. Whenever the context requires, words used in
the singular shall be construed to mean or include the plural and vice versa,
and pronouns of any gender shall be deemed to include and designate the
masculine, feminine or neuter gender.
SECTION 14.9 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms.
SECTION 14.10 REMEDIES OF IKOS. ZYCAD agrees that the Assets are
unique and not otherwise readily available to IKOS. Accordingly, ZYCAD
acknowledges that, in addition to all other remedies to which IKOS is
entitled, IKOS shall have the right to enforce the terms of this Agreement by
a decree of specific performance, provided IKOS is not in material default
hereunder.
SECTION 14.11 GOVERNING LAW. This Agreement shall in all respects be
construed in accordance with and governed by the laws of the State of
California, as applied to contracts entered into and to be performed solely
within the state, solely between residents of the state.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
IKOS SYSTEMS, INC.
By:
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Title:
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ZYCAD CORPORATION
By:
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Title:
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SCHEDULE 1
Assets
1. LightSpeed Logic Simulation Software and Hardware technology owned by
ZYCAD consisting of the following:
a) All intellectual property
b) U.S. Patent No. 4,527,249
c) Design Schematics
d) Design Data Base
e) Documentation
f) Software Source Code
2. LightSpeed and Speedview trademarks
3. PXP and XP Library Tools, excluding the Fintronic software.
4. ZYCAD Logic Customer list (as defined in Section 4.2(d))
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SCHEDULE 2
Zycad's Logic Customer List
1. Logic Customer List
CUSTOMER NAME LOCATION
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