Exhibit 2.11
ASSET PURCHASE AGREEMENT
BY AND AMONG
CADENCE DESIGN SYSTEMS, INC.,
CADENCE DESIGN SYSTEMS LIMITED
AND
SYMBIONICS LIMITED
DATED AS OF
OCTOBER 3, 2000
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "AGREEMENT") is entered into as of
and effective on October 3, 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
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.
(b) TERMS OF PAYMENT OF PURCHASE PRICE.
(i) On the date hereof, Buyer shall pay to
Seller the Purchase Price.
(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 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
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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 2.4(a), are
obtained, the transfer of the applicable asset shall be effected in accordance
with the terms of this Agreement.
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(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 RELATIONSHIP WITH SCOTTISH ENTERPRISE AND SCOTTISH
EXECUTIVE. As to the facilities owned by Seller located in Livingston, United
Kingdom, and the relationships between (i) Scottish Enterprise, on the one hand,
and Parent and Seller, on the other hand, and (ii) Scottish Executive, on the
one hand, and Parent and Seller, on the other hand, the parties agree as
follows:
(a) TRANSFER OF SCOTTISH ENTERPRISE CONTRACTUAL RIGHTS AND
OBLIGATIONS. Subject to the consent of Scottish Enterprise, and as
promptly as practicable after the receipt of such consent, Parent and
Seller shall transfer (or cause to be transferred) to Buyer, all of the
rights and interests, and Buyer shall assume the liabilities,
obligations and commitments, of Parent, Seller and their Subsidiaries
under that certain Master Agreement between Seller and Scottish
Enterprise dated March 24, 1998, as amended (the "MASTER AGREEMENT"),
and all the agreements related thereto (collectively, the "SERVICE
CONTRACT"); PROVIDED, HOWEVER, that (i) Seller shall retain its
obligations and continue to be bound by certain mutually agreed upon
provisions of the Master Agreement and by that certain Premises
Agreement between Seller and Scottish Enterprise dated March 24, 1998,
that certain Methodologies and Materials License between Seller and
Scottish Enterprise dated March 24, 1998, that certain Software Licence
between Seller and Scottish Enterprise dated March 24, 1998 and that
certain Beta Software Licence between Seller and Scottish Enterprise
dated March 24, 1998 (the "RETAINED OBLIGATIONS"); (ii) Buyer shall not
assume certain mutually agreed upon obligations included among the
Retained Obligations; and (iii) Parent shall retain its obligations and
continue to guaranty the performance of Buyer under the Service
Contract pursuant to that certain Guarantee by Parent in favor of
Scottish Enterprise dated March 24, 1998.
(b) TRANSFER OF SCOTTISH EXECUTIVE CONTRACTUAL RIGHTS AND
OBLIGATIONS. Subject to the consent of Scottish Executive, and as
promptly as practicable after the receipt of such consent, Seller and
Buyer shall agree upon their respective rights, interests, liabilities,
obligations and commitments under that certain Offer of Regional
Selective Assistance between Seller and the Scottish Office dated
December 5, 1997, as
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amended (the "RSA GRANT"); PROVIDED, HOWEVER, that such rights,
interests, liabilities, obligations and commitments shall include
compliance with the obligations of each party pursuant to Sections
3.2(c), (d), (e) and (f) below.
(c) CADENCE CAPITAL AND HEADCOUNT COMMITMENTS. Each of Seller
and Buyer shall meet or exceed its respective (i) capital expenditure
commitments in relation to the Service Contract, the RSA Grant and the
Xxxxxxxxxx facility set forth on SCHEDULE 3.2(a) and (ii) employee
commitments in relation to the Service Contract, the RSA Grant and the
Xxxxxxxxxx facility set forth on SCHEDULE 3.2(b).
(d) FACILITY ARRANGEMENT. Notwithstanding anything to the
contrary contained herein, Seller shall retain ownership of the
Xxxxxxxxxx facility and lease a certain portion of that space to Buyer
pursuant to mutually agreed upon terms. Buyer shall compensate Seller
for services related to its occupancy of the Xxxxxxxxxx facility
pursuant to mutually agreed upon terms.
(e) SUBSIDIES. After the Separation Date as defined under that
certain Master Separation Agreement, dated July 14, 2000, by and among,
Parent, Tality and Cadence Holdings, Inc., as amended (the "SEPARATION
AGREEMENT"), if subsidy payments received prior to the Separation Date
by members of the Parent Group pursuant to the Service Contract or the
RSA Grant must be refunded, the Parent Group shall be responsible for
contributing 95% of any such payments and the Buyer Group shall
contribute the remaining 5%. All subsidy payments received after the
Separation Date by any member of the Parent Group or the Buyer Group or
any of their respective Subsidiaries pursuant to the Service Contract
or the RSA Grant ("POST-SEPARATION SUBSIDY"), and any obligation to
refund any Post-Separation Subsidy (a "POST-SEPARATION SUBSIDY
CLAWBACK"), shall be shared between the Parent Group and the Buyer
Group based upon Seller's and Buyer's respective pro rata portion of
(i) (A) the additional full time equivalent positions ("FTEs")
considered for the subsidy determination during the relevant period
under the Service Contract and the RSA Grant, multiplied by (B) five
hundred thousand dollars ($500,000), four hundred thousand dollars
($400,000), three hundred thousand dollars ($300,000), two hundred
thousand dollars ($200,000) or one hundred thousand dollars ($100,000)
for subsidies based on the additional FTE's provided in 2000, 2001,
2002, 2003 or 2004, respectively; plus (ii) the additional capital
expenditures considered for the subsidy determination during the
relevant period under the Service Contract and the RSA Grant (each
party's respective "SUBSIDY ALLOCATION", in the case of a
Post-Separation Subsidy, or "CLAWBACK ALLOCATION", in the case of a
Post-Separation Subsidy Clawback). The Parent Group's and the Buyer
Group's "NET ALLOCATION" shall equal the Parent Group's or the Buyer
Group's respective Subsidy Allocation less its Clawback Allocation, if
any. If any Post-Separation Subsidy is reduced or a Post-Separation
Subsidy Clawback occurs due to the failure of either Seller or Buyer to
achieve the commitments set forth on SCHEDULE 3.2(a) or SCHEDULE
3.2(b), the Parent Group or the Buyer Group, respectively, shall be
liable to the other for the difference between the Net Allocation
actually received by the other party and the Net Allocation the other
party would have received had both Seller and Buyer satisfied in full
their respective commitments under SCHEDULE 3.2(a) or SCHEDULE 3.2(b),
as applicable.
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(f) COOPERATION AND SUPPORT. Parent and Seller shall cooperate
with Buyer in good faith to assist in the management and administration
of Buyer's obligations under the Service Contract and the RSA Grant.
(g) MODIFICATION REQUIRED BY LAW. The parties agree to modify
this Section 3.2 to the extent required to comply with applicable law.
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.
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Section 4.4 GOVERNING LAW. This Agreement shall be construed in
accordance with and all disputes hereunder shall be governed by the laws of the
State of Delaware, excluding its conflict of law rules. In the event of a
dispute the resolution of which is not otherwise addressed herein, such dispute
shall be resolved in accordance with the provisions of EXHIBIT C hereto.
Section 4.5 NOTICES. Notices, offers, requests or other communications
required or permitted to be given by either party pursuant to the terms of this
Agreement shall be given in writing to the respective parties to the following
addresses:
if to Parent:
Cadence Design Systems, Inc.
0000 Xxxxx Xxxxxx, Xxxx. 0
Xxx Xxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
if to Buyer:
Symbionics 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
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any rights or remedies of any nature whatsoever under or by reason of this
Agreement. Neither Buyer nor Seller may assign this Agreement or any rights or
obligations hereunder, without the prior written consent of the other party and
Parent, and any such assignment shall be void.
Section 4.8 SEVERABILITY. If any term or other provision of this
Agreement or any Ancillary Agreement, or any of the Exhibits and Schedules
attached hereto is determined by a court, administrative agency or arbitrator to
be invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any of the parties. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the fullest
extent possible.
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.
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Section 4.13 PAYMENT OF EXPENSES. Each of Buyer and Seller shall be
responsible for its own costs and expenses.
Section 4.14 TRANSFER TAXES. Seller shall pay any and all sales, use,
transfer and other taxes (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 LIMITED
By: /s/X.X. Xxxxx XxXxxxxxx By:/s/Xxxxx X. Xxxx
Name: X.X. Xxxxx XxXxxxxxx Name: Xxxxx X. Xxxx
Title: Director Title: Senior Vice President,
Chief Financial Officer
CADENCE DESIGN SYSTEMS, INC.
By:/s/Xxxxxxx Xxxxxx
Name:Xxxxxxx Xxxxxx
Title:Senior Vice President, Chief Financial
Officer
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