Exhibit 2.08
MASTER CONFIDENTIALITY AGREEMENT
BY AND AMONG
CADENCE DESIGN SYSTEM, INC.,
CADENCE HOLDINGS, INC.,
TALITY, LP
AND
TALITY CORPORATION
DATED AS OF
OCTOBER 4, 2000
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS..........................................................................................3
Section 1.1 Confidential Information...................................................................4
Section 1.2 Cadence Group..............................................................................4
Section 1.3 Confidentiality Period.....................................................................4
Section 1.4 Disclosing Party...........................................................................4
Section 1.5 Highly Confidential Information............................................................4
Section 1.6 Receiving Party............................................................................4
Section 1.7 Tality Group...............................................................................4
Section 1.8 Third Party................................................................................5
Section 1.9 Transaction Agreements.....................................................................5
ARTICLE II CONFIDENTIALITY.....................................................................................5
Section 2.1 Confidentiality and Non-Use Obligations....................................................5
Section 2.2 Preservation of Privileged Communications..................................................5
Section 2.3 Disclosure to Sublicensees.................................................................5
Section 2.4 Independent Contractors....................................................................5
Section 2.5 Residuals..................................................................................6
Section 2.6 Compelled Disclosure.......................................................................6
Section 2.7 No Restriction on Disclosing Party.........................................................6
Section 2.8 Third-Party Restrictions...................................................................6
Section 2.9 Competitor Controversies...................................................................6
ARTICLE III WARRANTY DISCLAIMER................................................................................7
Section 3.1 Warranty Disclaimer........................................................................7
Section 3.2 Indemnity..................................................................................7
ARTICLE IV CONFIDENTIALITY OF TRANSACTION AGREEMENTS...........................................................8
ARTICLE V TERM AND TERMINATION.................................................................................9
Section 5.1 Term.......................................................................................9
Section 5.2 Survival...................................................................................9
ARTICLE VI MISCELLANEOUS PROVISIONS............................................................................9
Section 6.1 Incorporation by Reference.................................................................9
Section 6.2 Export Restrictions........................................................................9
Section 6.3 No Implied Licenses........................................................................9
Section 6.4 Remedies...................................................................................9
Section 6.5 Binding Agreement; No Waiver...............................................................9
Section 6.6 Infringement Suits........................................................................10
Section 6.7 Conflicting Agreements....................................................................10
MASTER CONFIDENTIALITY AGREEMENT
THIS MASTER CONFIDENTIALITY AGREEMENT (this "AGREEMENT") is entered
into and effective as of October 4, 2000 by and among Cadence Design Systems,
Inc., a Delaware corporation ("CADENCE"), Cadence Holdings, Inc., a Delaware
corporation ("HOLDINGS"), Tality, LP, a Delaware limited partnership (the
"PARTNERSHIP"), and Tality Corporation, a Delaware corporation ("TALITY").
Capitalized terms used herein and not otherwise defined elsewhere herein shall
have the meanings ascribed to them in Article I or in the Separation Agreement
(as defined below).
RECITALS
WHEREAS, Holdings currently owns approximately 98% of the issued and
outstanding shares of the capital stock of Tality;
WHEREAS, Tality is the sole general partner of, and owns both a general
and limited partnership interest in, the Partnership;
WHEREAS, each of the Boards of Directors of Cadence, Tality and
Holdings determined that it would be appropriate and desirable for Cadence to
transfer (or cause to be transferred) to the Partnership, on behalf of Holdings,
and for the Partnership to receive and assume, directly or indirectly, as a
contribution from Holdings, certain assets and liabilities of Cadence associated
with the Tality Business;
WHEREAS, Cadence, Tality and Holdings are parties to that certain
Master Separation Agreement, dated as of July 14, 2000, as amended or restated
(the "SEPARATION AGREEMENT"), pursuant to which Cadence, Tality, Holdings and
the Partnership have agreed, subject to certain conditions, to the legal
separation of the Tality Business from Cadence's other businesses and to have
the Partnership and its Subsidiaries own and operate the entire Tality Business;
and
WHEREAS, all conditions to the Separation have been satisfied or
waived, and Cadence, Holdings, the Partnership and Tality now desire to execute
and deliver this Agreement to provide for the protection of their Confidential
Information.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following capitalized terms shall
have the meanings assigned to them below:
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Section 1.1 "CONFIDENTIAL INFORMATION" means all information concerning
the business of the Disclosing Party conveyed to the Receiving Party orally or
in tangible form (including by electronic transmission) that (i) is identified
as being "Confidential" at the time of disclosure; (ii) is marked as
"Confidential," or with a similar legend; or (iii) which, due to the
circumstances surrounding its disclosure or its nature or sensitivity,
reasonably should have been understood by the Receiving Party as intended to be
treated as confidential. Confidential Information of Third Parties that is known
to, in the possession of or acquired by a Receiving Party pursuant to a
relationship with the Disclosing Party shall be deemed the Disclosing Party's
Confidential Information for purposes hereof. Notwithstanding the foregoing,
Confidential Information shall not include information that: (i) was in the
Receiving Party's possession before receipt from the Disclosing Party and was
obtained from a source other than the Disclosing Party and other than through
the existing relationship of the Disclosing Party and the Receiving Party before
the Separation Date; (ii) is or becomes a matter of public knowledge through no
breach by the Receiving Party of this Agreement or any other Transaction
Agreement; (iii) is rightfully received by the Receiving Party from a Third
Party without a duty of confidentiality to the Disclosing Party; or (iv) is
independently conceived of or developed by the Receiving Party.
Section 1.2 "CADENCE GROUP" means Cadence and each of its Subsidiaries
(other than any member of the Tality Group) immediately after the date hereof,
and each Person that becomes a Subsidiary of Cadence after the date hereof
(other than any member of the Tality Group).
Section 1.3 "CONFIDENTIALITY PERIOD" means, (i) with respect to
Confidential Information that is not Highly Confidential Information, five (5)
years, and (ii) with respect to Highly Confidential Information, in perpetuity.
Section 1.4 "DISCLOSING PARTY" means the party (including any member of
the Cadence Group, in the case of Cadence or Holdings, or the Tality Group, in
the case of Tality or the Partnership) owning or disclosing the relevant
Confidential Information.
Section 1.5 "HIGHLY CONFIDENTIAL INFORMATION" means Confidential
Information that is (i) source code for products that are commercially released
or for which substantial steps have been taken towards commercialization; (ii)
other Confidential Information which (x) if conveyed in written form, is marked
"HIGHLY CONFIDENTIAL" by the Disclosing Party; or (y) if conveyed in oral form,
is promptly followed by a written notice designating such information as "HIGHLY
CONFIDENTIAL"; and (iii) as to Confidential Information disclosed prior to the
Separation Date, any information which the Receiving Party reasonably should
understand to constitute a "trade secret", as defined under California Civil
Code Section 3426.1, of the Disclosing Party.
Section 1.6 "RECEIVING PARTY" means the non-owning party or recipient
(including any member of the Cadence Group, in the case of Cadence or Holdings,
or the Tality Group, in the case of Tality or the Partnership) of the relevant
Confidential Information.
Section 1.7 "TALITY GROUP" means Tality and each of its Subsidiaries
immediately after the date hereof and each Person that becomes a Subsidiary of
Tality after the date hereof.
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Section 1.8 "THIRD PARTY" means a Person other than a member of the
Cadence Group or the Tality Group.
Section 1.9 "TRANSACTION AGREEMENTS" mean the Separation Agreement and
the Ancillary Agreements collectively.
ARTICLE II
CONFIDENTIALITY
Section 2.1 CONFIDENTIALITY AND NON-USE OBLIGATIONS. During the
Confidentiality Period, the Receiving Party shall (i) maintain the
confidentiality of the Confidential Information of the Disclosing Party by using
the same degree of care, but no less than a reasonable degree of care, to
prevent the unauthorized use, dissemination or publication of such Confidential
Information as the Receiving Party uses to protect its own confidential
information of a like nature; (ii) not use such Confidential Information in
violation of any use restriction in any Transaction Agreement; and (iii) without
the prior written consent of the Disclosing Party (which consent may be withheld
in its sole and absolute discretion), not disclose or otherwise make available
such Confidential Information to any Third Party, except as expressly permitted
by this Agreement, in any other Transaction Agreement or in any other written
agreement entered into by the parties. Each party hereto agrees to notify the
other parties in writing immediately upon becoming aware of any prohibited
disclosure or misuse or misappropriation of Confidential Information by any of
its officers, directors, employees, consultants and agents.
Section 2.2 PRESERVATION OF PRIVILEGED COMMUNICATIONS. In the event of
any claim, controversy, dispute or litigation, or other proceeding in which the
parties hereto conclude they have a common interest, provided that in such
circumstances there exists a good faith basis to conclude that an
attorney-client privilege may exist in respect to attorney-client communications
undertake pursuant to the joint defense or joint prosecution of such claim or
controversy, then, in respect of such attorney-client communications, and for
the related purpose of preserving confidentiality or immunity from discovery of
"attorney work product" materials, the parties shall cooperate as is necessary
to give effect to and preserve the existence of such privilege(s) and
immunities, and shall maintain the confidentiality of communications for such
purposes.
Section 2.3 DISCLOSURE TO SUBLICENSEES. The Receiving Party has the
right to disclose to its sublicensees permitted under a Transaction Agreement
any of the Disclosing Party's Confidential Information that comprises a part of
the Disclosing Party's intellectual property that the Receiving Party is
expressly permitted to sublicense to its permitted licensees under such
Transaction Agreement, subject to the sublicensee's agreement in writing to
confidentiality and non-use terms at least as protective of the Disclosing Party
as the provisions of this Agreement.
Section 2.4 INDEPENDENT CONTRACTORS. The Receiving Party has the right
to disclose to any independent contractors, such as a contract manufacturer or
foundry, for example, that have been engaged by the Receiving Party to assist in
the development, enhancement and support of the Receiving Party's intellectual
property, solely for the benefit of the Receiving Party, as permitted under any
Transaction Agreement, portions of the Confidential Information as reasonably
necessary in the exercise of the Receiving Party's "have made" rights under any
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Transaction Agreement, subject to agreement of the independent contractor, in
writing, to accept confidentiality and non-use terms at least as protective of
the Disclosing Party as the provisions of this Agreement; PROVIDED, HOWEVER,
that, absent the express written consent of the Disclosing Party, the Receiving
Party shall make no disclosures to independent contractors that are direct
competitors of the Disclosing Party.
Section 2.5 RESIDUALS. Subject to the confidentiality restrictions
imposed hereby, the Receiving Party may use Residuals for any purpose
whatsoever, including, use in the development, manufacture, marketing,
licensing, sale and maintenance of any of its products or services; in each case
without the payment of any royalty or other fee or charge; PROVIDED, HOWEVER,
that the right to use Residuals does not confer upon the Receiving Party a
license under any patents, copyrights, mask work rights or other similar
intellectual property rights of the Disclosing Party. For purposes hereof, the
term "RESIDUALS" means any concepts, ideas or techniques of general application
that are embodied in the Disclosing Party's Confidential Information which are
retained in the unaided memory of the Receiving Party's employees who have had
access to such Confidential Information pursuant to the terms hereof. An
employee's memory is unaided if the employee has not intentionally memorized the
Confidential Information for the purpose of retaining and subsequently using or
disclosing such Confidential Information. No party shall have the right or
authority to restrict the position or job to which an employee of the other
party is assigned by reason of the employee's knowledge of Confidential
Information of any other party.
Section 2.6 COMPELLED DISCLOSURE. If the Receiving Party believes that
it is required by Applicable Law or is under threat of being compelled by a
court or other Governmental Authority to disclose Confidential Information of
the Disclosing Party, it shall (i) give the Disclosing Party prompt written
notice so that the Disclosing Party may, at its sole expense, take steps to
oppose such disclosure or obtain a protective order or its equivalent in respect
of such disclosure; (ii) cooperate with the Disclosing Party in its attempts to
oppose such disclosure; and (iii) take all reasonable steps, consistent with any
order of a Governmental Authority requiring such disclosure, to disclose only so
much Confidential Information as is specifically required to be disclosed by
such order.
Section 2.7 NO RESTRICTION ON DISCLOSING PARTY. Nothing in this
Agreement shall restrict a Disclosing Party from using, disclosing or
disseminating in any way its own Confidential Information.
Section 2.8 THIRD-PARTY RESTRICTIONS. Nothing in this Agreement
supersedes any restriction imposed by Third Parties on their Confidential
Information, and there is no obligation on a Disclosing Party to conform Third
Party agreements to the terms of this Agreement.
Section 2.9 COMPETITOR CONTROVERSIES. Notwithstanding any other
provision of this Article II, the Parties acknowledge that inappropriate
disclosure of Confidential Information could cause material competitive injury
of a nature not readily definable or susceptible to correction or redress.
Accordingly, Cadence, for itself and as agent for all members of the Cadence
Group, and Tality, for itself and as agent for all members of the Tality Group,
agree to certain special measures intended to recognize the competitive concerns
of the other Party in respect to matters in controversy as may come into being
between Third Parties and either a
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member of the Cadence Group or a member of the Tality Group. When either a
member of the Cadence Group or a member of the Tality Group receives notice of
the assertion of a claim by a Person who is a Third Party or of the commencement
by any such Third Party of any Action (collectively, a "THIRD PARTY CLAIM"), or
where either Cadence or Tality commences an Action against a Third Party ("THIRD
PARTY ACTION") (and, together with "Third Party Claim," a "COMPETITOR
CONTROVERSY"), and where the Person making such Third Party Claim, or against
whom such Third Party Action is brought, is, or reasonably should be understood
to be, a direct competitor of either Cadence or Tality (or member of their
respective Groups), then Cadence or Tality (as applicable) shall promptly and in
writing notify the other Party of the existence and general nature of the Third
Party Claim or Third Party Action. Within five (5) Business Days thereafter, the
Party to whom such notice was given (the "UNINVOLVED PARTY") may request
assurance from the other Party (the "INVOLVED PARTY") that the Confidential
Information of the Uninvolved Party will not, as a consequence of the Competitor
Controversy, or otherwise, be at risk of misuse by the Third Party, and the
Involved Party shall provide such assurance as it can within five (5) Business
Days after receipt of such request. Should the Uninvolved Party thereafter not
be satisfied, in its sole discretion, with the assurance given, then the
Uninvolved Party may demand, and the Involved Party must comply, that the
Involved Party (i) cease immediately to provide any further Confidential
Information to the Third Party involved in the Competitor Controversy; (ii)
immediately seek to recover, as is reasonably possible, any Confidential
Information of the Uninvolved Party that was or is believed to be in the
possession of such Third Party; and (iii) suspend or revoke, except to the
extent precluded by prior agreement, any sublicenses to have, make or use the
Technology of the Uninvolved Party, and the Involved Party shall not disclose
any additional Confidential Information of the Uninvolved Party, or enter into
any new sublicense of or otherwise provide access to or afford any rights in the
Technology of the Uninvolved Party, to or for the benefit of the Third Party,
until such time that the Uninvolved Party receives the written consent of the
Involved Party.
ARTICLE III
WARRANTY DISCLAIMER
Section 3.1 WARRANTY DISCLAIMER. EACH PARTY ACKNOWLEDGES AND AGREES
THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN "AS IS, WHERE IS" BASIS AND
THAT NO PARTY NOR ANY OF ITS SUBSIDIARIES HAS MADE OR WILL MAKE ANY
REPRESENTATION OR WARRANTY WITH RESPECT THERETO WHATSOEVER, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ENFORCEABILITY OR
NON-INFRINGEMENT.
Section 3.2 INDEMNITY. The Receiving Party agrees and acknowledges that
it assumes all risks associated with any use by the Receiving Party of any
Confidential Information conveyed to the Receiving Party by the Disclosing
Party. The Receiving Party agrees to indemnify and hold harmless the Disclosing
Party and the Disclosing Party's Affiliates from and against any damages,
losses, liabilities, costs, and expenses (including reasonable attorneys' fees
and disbursements) resulting from any claim, action or proceeding by a Third
Party arising out of or relating to the use of such Confidential Information by
the Receiving Party, including any claim, action or proceeding brought against
the Disclosing Party or any Affiliate thereof based on an allegation that the
use of such Confidential Information by the Receiving Party (a) violates,
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infringes, misappropriates or otherwise wrongfully exploits any patent,
copyright, trade secret or other intellectual property right of any Third Party
or (b) breaches or violates any contractual or other obligation owing to such
Third Party. In respect of such Third Party claims, the procedures for defense,
settlement and indemnification shall be as set forth in Section 2.6 of the
Indemnification and Insurance Matters Agreement which is an Ancillary Agreement
to the Separation Agreement.
ARTICLE IV
CONFIDENTIALITY OF TRANSACTION AGREEMENTS
Each party agrees that those terms and conditions of the Transaction
Agreements for which, in the case of documents filed as exhibits to the
Registration Statement of Tality, "Confidential Treatment" is requested of and
received from the Commission, or, in the case of other Transaction Agreements,
are marked as "Confidential," shall be treated as Confidential Information and
that neither party shall disclose such terms or conditions to any Third Party
without the prior written consent of the other party (which consent may be
withheld in its sole and absolute discretion); PROVIDED, HOWEVER, that each
party may disclose such terms and conditions of such agreements marked as
confidential:
(a) subject to Section 2.2, to legal counsel, accountants and
other professional advisors; PROVIDED, HOWEVER, that the recipient is under a
legal or contractual obligation to maintain confidentiality;
(b) subject to Section 2.6, as required by any Governmental
Authority, or as otherwise required by Applicable Law;
(c) to banks, investors and other financing sources and the
advisors of such parties; PROVIDED, HOWEVER, that the recipient is under a legal
or contractual obligation to maintain confidentiality;
(d) in connection with the enforcement of this Agreement or any
other Transaction Agreement; PROVIDED, HOWEVER, that the parties shall take all
reasonable steps to cause the sealing of relevant court files and take or cause
to be taken other similar actions in such enforcement proceedings consistent
with maintaining the confidentiality of the Confidential Information hereunder;
or
(e) in connection with an actual or prospective merger,
acquisition, divestiture or similar transaction; PROVIDED, HOWEVER, that the
Receiving Party, when seeking to make such disclosure, shall first secure the
informed and written consent of the Disclosing Party, such consent not to be
unreasonably withheld or delayed (it being understood that it is not
"unreasonable" for consent to be denied where disclosure is proposed to a direct
competitor of the party from whom consent is sought).
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ARTICLE V
TERM AND TERMINATION
Section 5.1 TERM. This Agreement shall remain in full force and effect
unless and until terminated by the mutual written agreement of the parties.
Section 5.2 SURVIVAL. Article VI and, with respect to Confidential
Information acquired or disclosed prior to the date of termination, Articles II,
III and IV shall survive any termination of this Agreement.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1 INCORPORATION BY REFERENCE. Section 4.4 and all of the
provisions of Article V (except for Section 5.13) of the Separation Agreement
are incorporated into and made a part of this Agreement, as if fully set forth
herein.
Section 6.2 EXPORT RESTRICTIONS. Each party to this Agreement
acknowledges its obligations to control access to and disclosure of technical
data under the U.S. export laws and regulations and agrees to adhere to such
laws and regulations and to obtain, as and when required, any license(s) or
permits as may be required with respect to the transfer, disclosure or sale of
any information as may be subject to such laws and regulations.
Section 6.3 NO IMPLIED LICENSES. Nothing contained in this Agreement
shall be construed as conferring any rights by implication, estoppel or
otherwise, under any intellectual property right, other than the rights
expressly granted in this Agreement with respect to Confidential Information.
This Agreement imposes no obligation on any party hereto to furnish or disclose
to any other party any technical or other information. The right to use
Confidential Information or to a make a permitted disclosure of it under this
Agreement does not constitute a license under any patents, copyrights, mask work
rights or other similar intellectual property rights of the Disclosing Party.
Section 6.4 REMEDIES. Each Receiving Party acknowledges and agrees that
the Confidential Information of the Disclosing Party constitutes valuable trade
secrets of the Disclosing Party, and that any violation or threatened violation
of this Agreement will cause the Disclosing Party irreparable harm for which its
remedies at law will be inadequate. Therefore, the Receiving Party agrees that
the Disclosing Party shall have the right, in addition to any other remedies, to
obtain the issuance of an EX PARTE restraining order or injunction in any court
having the capacity to grant such relief to protect trade secrets and restrain
any breach or threatened breach or continuing violation of the Receiving Party's
obligations hereunder.
Section 6.5 BINDING AGREEMENT; NO WAIVER. This Agreement shall be
binding upon and for the benefit of the undersigned parties, their successors
and assigns; PROVIDED, HOWEVER, that Confidential Information may not be
transferred or assigned without the prior written consent of the Disclosing
Party, which consent may be withheld in the Disclosing Party's sole
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discretion. Failure to enforce any provision of this Agreement by a party shall
not constitute a waiver of any term hereof by such party.
Section 6.6 INFRINGEMENT SUITS. None of the parties hereto shall have
any obligation hereunder to institute any action or suit against Third Parties
for misappropriation of any of its Confidential Information or to defend any
action or suit brought by a Third Party that alleges infringement of any
intellectual property rights by the Receiving Party's authorized use of the
Disclosing Party's Confidential Information.
Section 6.7 CONFLICTING AGREEMENTS. In the event of any irreconcilable
conflict between this Agreement and the Separation Agreement, any other
Ancillary Agreement or other agreement executed in connection herewith or
therewith, the provisions of such other agreement shall prevail to the extent
that they specifically address the subject matter of the conflict.
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WHEREFORE, the parties hereto have executed and delivered this
Agreement effective as of the date first set forth above.
CADENCE DESIGN SYSTEMS, INC. TALITY, LP
By: /s/X.X. Xxxxx XxXxxxxxx By: TALITY CORPORATION,
----------------------------- AS GENERAL PARTNER
Name: X. X. Xxxxx XxXxxxxxx By: /s/Xxxxx X. Xxxx
Title: Senior Vice President and General ----------------------------
Counsel Name: Xxxxx X. Xxxx
Title: Senior Vice President,
Chief Financial Officer
CADENCE HOLDINGS, INC. TALITY CORPORATION
By: /s/X.X. Xxxxx XxXxxxxxx By: /s/Xxxxx X. Xxxx
----------------------------- --------------------------------
Name: X.X. Xxxxx XxXxxxxxx Name: Xxxxx X. Xxxx
Title: Secretary Title: Senior Vice President,
Chief Financial Officer
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