EXHIBIT (d)(1)
IKOS SYSTEMS, INC.
June 16, 2000
Mentor Graphics Corporation
0000 X.X. Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxx 00000-0000
CONFIDENTIALITY AGREEMENT
Ladies and Gentlemen:
In connection with your possible interest in an acquisition or other business
combination (the "Transaction") involving IKOS, Inc. (the "Company"), you have
requested that we or our representatives furnish you or your representatives
with certain information relating to the Company or the Transaction. All such
information (whether written, electronic or oral) furnished (whether before or
after the date hereof) by us or our directors, officers, employees, affiliates,
representatives (including, without limitation, financial advisors, attorneys
and accountants) or agents (collectively, "our Representatives") to you or your
directors, officers, employees, affiliates, representatives (including, without
limitation, financial advisors, attorneys and accountants) or agents or your
potential sources of financing for the Transaction (collectively, "your
Representatives") and all analyses, compilations, forecasts, studies or other
documents prepared by you or your Representatives in connection with your or
their review of, or your interest in, the Transaction which contain or reflect
any such information is hereinafter referred to as the "Information". The term
Information will not, however, include information which (i) is or becomes
publicly available other than as a result of a disclosure by you or your
Representatives, (ii) is developed independently by Recipient without use of the
Discloser's confidential information; or (iii) is or becomes available to you on
a nonconfidential basis from a source (other than us or our Representatives)
which, to the best of your knowledge after due inquiry, is not prohibited from
disclosing such information to you by a legal, contractual or fiduciary
obligation to us.
Accordingly, you hereby agree that:
1. You and your Representatives (i) will keep the Information
confidential and will not (except as permitted by paragraph 3 below),
without our prior written consent, disclose any Information in any
manner whatsoever, and (ii) will not use any Information other than in
connection with the Transaction; provided,
however, that you may reveal the Information to your Representatives
(a) who need to know the Information for the purpose of evaluating
the Transaction, (b) who are informed by you of the confidential
nature of the Information and (c) who agree to act in accordance with
the terms of this letter agreement. You will cause your
Representatives to observe the terms of this letter agreement, and
you will be responsible for any breach of this letter agreement by any
of your Representatives. The term of this agreement is five years.
2. Neither party will (except as permitted by paragraph 3 below),
without the other party's prior written consent, disclose to any
person the fact that the Information exists or has been made
available, that you are considering the Transaction or any other
transaction involving the Company, or that discussions or
negotiations are taking or have taken place concerning the
Transaction or involving the Company or any term, condition or other
fact relating to the Transaction or such discussions or negotiations,
including, without limitation, the status thereof.
3. In the event that you or any of your Representatives are requested
pursuant to, or required by, applicable law, regulation or legal
process to disclose any of the Information, you will notify us
promptly so that we may seek a protective order or other appropriate
remedy or, in our sole discretion, waive compliance with the terms
of this letter agreement. In the event that no such protective order
or other remedy is obtained, or that the Company waives compliance
with the terms of the letter agreement, you will furnish only that
portion of the Information which you are advised by counsel is
legally required and will exercise all reasonable efforts to obtain
reliable assurance that confidential treatment will be accorded the
Information.
4. If you determine not to proceed with the Transaction, you will
promptly inform the Company of that decision.
5. At any time upon the request of the Company or any of our
Representatives, and in any event upon your decision not to proceed
with a Transaction, you will either (i) promptly destroy all copies
of the written or electronic Information in your or your
Representatives' possession and confirm such destruction to us in
writing, or (ii) promptly deliver to the Company at your own expense
all copies of the written Information in your or your
Representatives' possession. Any oral Information will continue to be
subject to the terms of this letter agreement.
6. You acknowledge that neither we, nor our affiliates, nor our other
Representatives, nor any of our or their respective officers,
directors, employees, agents or controlling persons within the
meaning of Section 20 of the Securities Exchange Act of 1934, as
amended, makes any express or implied representation or warranty as
to the accuracy or completeness of the Information, and you agree
that no such person will have any liability relating to the
Information or for any errors therein or omissions therefrom. You
further agree that you are not entitled to rely on the accuracy or
completeness
of the Information and that you will be entitled to rely solely on
such representations and warranties as may be included in any
definitive agreement with respect to the Transaction, subject to such
limitations and restrictions as may be contained therein.
7. Each party agrees that, for a period of six months from the date of
this letter agreement, it will not, directly or indirectly, solicit
for employment any employee of the other party or any of its
subsidiaries with whom a party had contact or who became known to
that party in connection with the Transaction; provided, however,
that the foregoing provision will not prevent a party from employing
any such person who contacts the other party on his or her own
initiative without any direct or indirect solicitation by or
encouragement.
8. You agree that, for a period of six months from the date of this
Confidentiality Agreement, neither you nor any of your affiliates
will, without the prior written consent of the Company or the
Company's Board of Directors: (i) acquire, offer to acquire, or agree
to acquire, directly or indirectly, by purchase or otherwise, any
voting securities or direct or indirect rights to acquire any voting
securities of the Company or any subsidiary thereof, or of any
successor corporation; (ii) make, or in any way participate in,
directly or indirectly, any "solicitation" of "proxies" (as such
terms are used in the Rules of the Securities and Exchange
Commission) to vote, or seek to advise or influence any person or
entity with respect to the voting of, any voting securities of the
Company; (iii) make any public announcement with respect to, or
submit a proposal for, or offer of any extraordinary transaction
involving the Company or its securities or assets; (iv) form, join or
in any way participate in a "group" (as defined in Section 13(d)(3)
of the Securities Exchange Act of 1934, as amended) in connection
with any of the foregoing; provided, however, that the provisions of
this paragraph 8 shall not apply if during the six month effective
period of this paragraph the Company shall voluntarily join with any
other entity in any of the activities listed in clauses (i), (ii),
(iii) or (iv) above, or if another entity shall announce an intent to
acquire Company or engage in either of the activities listed in
clauses (ii) or (iii) above. You will promptly advise the Company of
any inquiry or proposal made to it with respect to any of the
foregoing.
9. You acknowledge and agree that (a) we and our Representatives are
free to conduct the process leading up to a possible Transaction as
we and our Representatives, in our sole discretion, determine
(including, without limitation, by negotiating with any prospective
buyer and entering into a preliminary or definitive agreement without
prior notice to you or any other person). (b) we reserve the right,
in our sole discretion, to change the procedures relating to our
consideration of the Transaction at any time without prior notice to
you or any other person, to reject any and all proposals made by you
or any of your Representatives with regard to the Transaction, and to
terminate discussions and negotiations with you at any time and for
any
reason, and (c) unless and until written definitive agreement concerning
the Transaction has been executed, neither we nor any of our
Representatives will have any liability to you with respect to the
Transaction, whether by virtue of this letter agreement, any other
written or oral expression with respect to the Transaction, whether by
virtue of this letter agreement, any other written or oral expression
with respect to the Transaction or otherwise.
10. You acknowledge that remedies at law may be inadequate to protect us
against any actual or threatened breach of this letter agreement by you
or by your Representatives, and, without prejudice to any other rights
and remedies otherwise available to us, you agree that Company may seek
the granting of injunctive relief in our favor without proof of actual
damages. In the event of litigation relating to this letter agreement,
if a court of competent jurisdiction reaches a final, nonappealable
decision, then the prevailing party shall reimburse the other party for
its costs and expenses (including, without limitation, legal fees and
expenses) incurred in connection with all such litigation.
11. You are aware, and you will advise your Representatives who are informed
of the matters that are the subject of this letter agreement, of the
restrictions imposed by the United States securities laws on the
purchase or sale of securities by any person who has received material,
non-public information from the issuer of such securities and on the
communication of such information to any other person when it is
reasonably foreseeable that such other person is likely to purchase or
sell such securities in reliance upon such information.
12. You agree that no failure or delay by us in exercising any right, power
or privilege hereunder will operate as a waiver thereof, nor will any
single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any right, power or privilege
hereunder.
13. This letter agreement will be governed by and construed in accordance
with the laws of the State of California applicable to contracts
between residents of that State and executed in and to be performed in
that State.
14. This letter agreement contains the entire agreement between you and us
concerning the confidentiality of the Information, and no modifications
of this letter agreement or waiver of the terms and conditions hereof
will be binding upon you or us, unless approved in writing by each of
you and us.
Please confirm your agreement with the foregoing by signing and returning to the
undersigned the duplicate copy of this letter enclosed herewith.
Sincerely,
IKOS, Inc.
By: /s/ XXXXX XXXXXXX
--------------------------
Name: Xxxxx Xxxxxxx
-------------------------
Title: VP Business Development
------------------------
Accepted and Agreed as of the date
first written above:
MENTOR GRAPHICS CORPORATION
By: /s/ Xxxx Xxxxx
---------------------------
Name: VP & Gen. Counsel
-------------------------
Title: 6/19/2000
------------------------
