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EXHIBIT 10.18
[CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION].
AMENDED AND RESTATED MASTER SEPARATION AGREEMENT
BY AND AMONG
CADENCE DESIGN SYSTEMS, INC.,
CADENCE HOLDINGS, INC.
TALITY, LP
AND
TALITY CORPORATION
DATED AS OF
_______, 2000
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS......................................................................2
Section 1.1 Affiliate.............................................................2
Section 1.2 Applicable Law........................................................2
Section 1.3 Business Day..........................................................2
Section 1.4 Cadence's Auditors....................................................2
Section 1.5 Cadence Group.........................................................2
Section 1.6 Class A Common Stock..................................................2
Section 1.7 Class B Common Stock..................................................2
Section 1.8 Class C Common Stock..................................................2
Section 1.9 Contracts.............................................................2
Section 1.10 Governmental Approvals................................................2
Section 1.11 Governmental Authority................................................2
Section 1.12 Information...........................................................3
Section 1.13 IPO Closing Date......................................................3
Section 1.14 Person ...............................................................3
Section 1.15 Subsidiary............................................................3
Section 1.16 Tality's Auditors.....................................................3
Section 1.17 Tality Group..........................................................3
Section 1.18 Third-Party Approvals.................................................3
ARTICLE II SEPARATION......................................................................3
Section 2.1 Separation Date.......................................................3
Section 2.2 Documents to Be Delivered by Cadence and Tality.......................4
Section 2.3 Governmental Approvals................................................5
Section 2.4 Third-Party Approvals.................................................5
Section 2.5 No Representations or Warranties......................................5
ARTICLE III THE IPO AND REGISTRATION RIGHTS................................................5
Section 3.1 Transactions Prior to the IPO.........................................5
Section 3.2 Cooperation...........................................................6
Section 3.3 Conditions Precedent to Consummation of the IPO.......................6
Section 3.4 Registration Rights...................................................7
ARTICLE IV COVENANTS AND OTHER MATTERS....................................................16
Section 4.1 Further Instruments..................................................16
Section 4.2 Agreement for Exchange of Information................................17
Section 4.3 Auditors and Audits; Annual and Quarterly Statements and Accounting..18
Section 4.4 Dispute Resolution...................................................20
Section 4.5 Non-Solicitation of Employees........................................21
Section 4.6 Employee Agreements..................................................21
Section 4.7 Government and Third Party Approvals.................................23
Section 4.8 Relationship with Scottish Enterprise................................23
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ARTICLE V MISCELLANEOUS...................................................................24
Section 5.1 Limitation of Liability..............................................24
Section 5.2 Entire Agreement.....................................................25
Section 5.3 Governing Law........................................................25
Section 5.4 Termination..........................................................25
Section 5.5 Notices..............................................................25
Section 5.6 Counterparts.........................................................26
Section 5.7 Binding Effect; Assignment...........................................26
Section 5.8 Severability.........................................................26
Section 5.9 Failure or Delay Not Waiver; Remedies Cumulative.....................26
Section 5.10 Amendment............................................................26
Section 5.11 Authority............................................................26
Section 5.12 Interpretation.......................................................27
Section 5.13 Conflicting Agreements...............................................27
Section 5.14 Payment of Expenses..................................................27
Section 5.15 Prior Agreement Superseded...........................................27
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AMENDED AND RESTATED MASTER SEPARATION AGREEMENT
THIS AMENDED AND RESTATED MASTER SEPARATION AGREEMENT (this "Agreement")
is entered into and effective as of ________, 2000, by and among Cadence Design
Systems, Inc., a Delaware corporation ("Cadence"), and Cadence Holdings, Inc., a
Delaware corporation and wholly owned subsidiary of Cadence ("Holdings" and,
together with Cadence, the "Cadence Parties"), on the one hand, and Tality
Corporation, a Delaware corporation ("Tality"), and Tality, LP, a Delaware
limited partnership (the "Partnership", and, together with Tality, the "Tality
Parties"), on the other hand. Capitalized terms used herein and not defined
elsewhere herein shall have the meanings ascribed to them in Article I.
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, Cadence, on behalf of Holdings, and Holdings have transferred
to the Partnership as a capital contribution, and the Partnership has acquired
through one or more Subsidiaries, certain assets, liabilities and other
obligations relating to the operation of the business of providing design
engineering services, and intellectual property in connection therewith, to
electronic equipment manufacturers, all as described in the Registration
Statement (the "Tality Business"), outside of the United States;
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 other assets and liabilities of Cadence and its
Subsidiaries associated with the Tality Business (the "Separation");
WHEREAS, Cadence, Holdings, the Partnership and Tality currently
contemplate that, immediately following the contribution of such assets to and
assumption of such liabilities by the Partnership, Tality shall commence an
initial public offering ("IPO") of its Class A Common Stock, par value $0.001
per share (the "Class A Common Stock"), pursuant to a registration statement on
Form S-1 promulgated by the Securities and Exchange Commission (the
"Registration Statement");
WHEREAS, Cadence, Holdings and Tality entered into that certain Master
Separation Agreement, dated as of July 14, 2000, which prior to the date hereof
has governed the matters described above (the "Prior Agreement");
WHEREAS, each of the parties now desires to amend and restate the Prior
Agreement in its entirety pursuant to Section 5.10 thereof; and
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WHEREAS, the parties intend for this Agreement to set forth the
principal arrangements between them regarding the Separation.
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
Section 1.1 "Affiliate" of any Person means any other Person that
controls, is controlled by, or is under common control with, such first Person.
As used herein, "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through ownership of voting securities or other interests, by
contract or otherwise.
Section 1.2 "Applicable Law" means all laws and regulations of
Governmental Authorities applicable to the transaction, property or Persons at
issue.
Section 1.3 "Business Day" means any day that is not a Saturday, a
Sunday or a day on which banks are required or permitted to be closed in the
State of California.
Section 1.4 "Cadence's Auditors" means Cadence's independent certified
public accountants from time to time.
Section 1.5 "Cadence Group" means Cadence and each of its Subsidiaries
(other than any member of the Tality Group) on and after the Separation Date.
"Section 1.6 "Class A Common Stock has the meaning set forth in the
recitals.
"Section 1.7 "Class B Common Stock means the Class B Common Stock, par
value $0.001 per share, of Tality.
"Section 1.8 "Class C Common Stock means the Class C Common Stock, par
value $0.001 per share, of Tality.
Section 1.9 "Contracts" means any contract, agreement, lease, license,
sales order, purchase order, instrument or other commitment that is binding on
any Person or any part of its property under Applicable Law.
Section 1.10 "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.
Section 1.11 "Governmental Authority" means any federal, state, local,
foreign or international court or government of competent jurisdiction, or any
political subdivision thereof,
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or any department, commission, board, bureau, agency, official or other
regulatory, administrative body of any such government of competent jurisdiction
or political subdivision thereof.
Section 1.12 "Information" means information, whether or not patentable
or copyrightable, in written, oral, electronic or other tangible or intangible
form, stored in any medium, including studies, reports, records, books,
contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models,
prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes,
computer programs or other software, marketing plans, customer names,
communications by or to attorneys (including attorney-client privileged
communications), memos and other materials prepared by attorneys or under their
direction (including attorney work product), and other technical, financial,
employee or business information or data.
Section 1.13 "IPO Closing Date" means the date on which the first
closing of the IPO occurs.
Section 1.14 "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 or a Governmental Authority.
Section 1.15 "Subsidiary" of any Person means any other Person of which
at least a majority of the securities or other interests having by their terms
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 (including by contract) by such first
Person. By way of example and not limitation, the Partnership shall be deemed to
be a Subsidiary of Tality.
Section 1.16 "Tality's Auditors" means the Tality Parties' independent
certified public accountants from time to time.
Section 1.17 "Tality Group" means Tality and each of its Subsidiaries on
and after the Separation Date.
"Section 1.18 "Third-Party Approvals means any notices, consents or
authorizations of third parties (other than Governmental Approvals) required to
consummate the Separation.
ARTICLE II
SEPARATION
Section 2.1 Separation Date. Unless otherwise expressly provided in this
Agreement, any Ancillary Agreement (as defined in Section 2.2), the Agreement of
Limited Partnership of the Partnership or any other agreement among the parties,
the effective time and date of each transfer of assets and property, assumption
of liability, license, undertaking or other agreement in connection with the
Separation shall be 12:00 a.m., Pacific Time, October 1, 2000, or such other
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date as may be fixed by the Board of Directors of Cadence or a duly authorized
officer of Cadence (the "Separation Date").
Section 2.2 Documents to Be Delivered by the Cadence Parties and the
Tality Parties. On the Separation Date, each of the parties shall duly execute
and deliver, or shall cause its appropriate Subsidiaries to duly execute and
deliver, to the other parties all of the following agreements, documents and
other instruments (collectively, together with all agreements and documents
contemplated by such agreements, the "Ancillary Agreements"):
(a) The General Assignment and Assumption Agreement in
substantially the form attached hereto as Exhibit A (the "Assignment
Agreement");
(b) The Master Intellectual Property Ownership and License
Agreement in substantially the form attached hereto as Exhibit B (the
"Master Intellectual Property Agreement");
(c) The Employee Matters Agreement in substantially the form
attached hereto as Exhibit C (the "Employee Matters Agreement");
(d) The Master Corporate Services Agreement in substantially the
form attached hereto as Exhibit D (the "Master Corporate Services
Agreement");
(e) The Real Estate Matters Agreement in substantially the form
attached hereto as Exhibit E (the "Real Estate Matters Agreement");
(f) The Master Confidentiality Agreement in substantially the
form attached hereto as Exhibit F (the "Master Confidentiality
Agreement");
(g) The Indemnification and Insurance Matters Agreement in
substantially the form attached hereto as Exhibit G (the
"Indemnification and Insurance Matters Agreement");
(h) The EDA Tools Agreement in substantially the form attached
hereto as Exhibit H (the "EDA Tools Agreement");
(i) The Joint Technology Development and Support Agreement in
substantially the form attached hereto as Exhibit I (the "Joint
Technology Support Agreement");
(j) The Joint Sales Agreement in substantially the form attached
hereto as Exhibit J (the "Joint Sales Agreement");
(k) The resignation of each individual who is an officer or
director of Cadence or any member of the Cadence Group, immediately
prior to the Separation Date, and who shall be an employee of any of the
Tality Parties from and after the Separation Date; and
(l) Such other agreements, documents or instruments as the
parties may agree are necessary or desirable in order to achieve the
purposes hereof.
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Section 2.3 Governmental Approvals. To the extent that the Separation
requires any Governmental Approvals, the parties shall use all commercially
reasonable efforts to obtain such Governmental Approvals on or prior to the
Separation Date.
Section 2.4 Third-Party Approvals. The parties shall use all
commercially reasonable efforts to obtain all Third-Party Approvals on or prior
to the Separation Date.
Section 2.5 No Representations or Warranties. Neither of the Cadence
Parties nor any other member of the Cadence Group makes, either in this
Agreement or any Ancillary Agreement, any representation as to, warranty of or
covenant with respect to:
(a) the value of any asset, property or other thing of value to
be transferred to the Partnership or any of its Subsidiaries;
(b) the kind, character, nature or extent of any liabilities to
be assumed by the Partnership or any of its Subsidiaries;
(c) the freedom from encumbrance of any asset, property or other
thing of value to be transferred to the Partnership or any of its
Subsidiaries;
(d) the absence of defenses or freedom from set-offs or
counterclaims with respect to any claim to be transferred to the
Partnership or any of its Subsidiaries; or
(e) the legal sufficiency of any assignment, document or
instrument delivered hereunder to convey title to any asset, property or
other thing of value upon its execution and delivery or filing.
Except as may be expressly set forth herein or in any Ancillary
Agreement, all assets, properties and other things of value to be transferred
to, and all liabilities to be assumed by, the Partnership or any of its
Subsidiaries shall be transferred or assumed, as applicable, "AS IS, WHERE IS,"
and the Partnership and its Subsidiaries shall bear the economic and legal risk
that any conveyance shall prove to be insufficient to vest in the Partnership
and its Subsidiaries good and marketable title, free and clear of any lien,
claim, equity or other encumbrance.
ARTICLE III
THE IPO AND REGISTRATION RIGHTS
Section 3.1 Transactions Prior to the IPO. Subject to the conditions set
forth in Section 3.3, each of the parties shall use all commercially reasonable
efforts to consummate the IPO. Such efforts shall include the following:
(a) Registration Statement. Tality shall file the Registration
Statement, and such amendments or supplements thereto as may be
necessary in order to cause the same to become and remain effective as
required by Applicable Law or by the managing underwriters for the IPO
(the "Underwriters"), including filing such amendments to the
Registration Statement as may be required by the underwriting agreement
to be entered
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into between Tality and the Underwriters (the "Underwriting Agreement"),
the Securities and Exchange Commission (the "Commission") or federal,
state or foreign securities laws. The parties shall also cooperate in
preparing, filing with the Commission and causing to become effective a
registration statement registering the Class A Common Stock under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
any registration statements or amendments thereof which are required to
reflect the establishment of, or amendments to, any employee benefit and
other plans necessary or appropriate in connection with the IPO, the
Separation or any of the other transactions contemplated by this
Agreement.
(b) Underwriting Agreement. Tality shall enter into the
Underwriting Agreement, in form and substance reasonably satisfactory to
Cadence and Tality, and shall comply with its obligations thereunder.
(c) Nasdaq Listing. Tality shall prepare, file and use all
commercially reasonable efforts to seek to make effective an application
for quotation of the Class A Common Stock issued in the IPO on the
Nasdaq National Market (the "Nasdaq"), subject to official notice of
issuance.
Section 3.2 Cooperation. Tality shall consult with, and cooperate in all
respects with, Cadence in connection with the pricing of the Class A Common
Stock to be offered in the IPO and shall, at Cadence's direction, promptly take
any and all actions necessary or desirable to consummate the IPO as contemplated
by the Registration Statement and the Underwriting Agreement.
Section 3.3 Conditions Precedent to Consummation of the IPO. The
obligations of the parties to use all commercially reasonable efforts to
consummate the IPO shall be conditioned on the satisfaction of all of the
following conditions:
(a) Registration Statement. The Registration Statement shall have
been declared effective by the Commission, and there shall not have been
issued or threatened any stop order with respect thereto which remains
in effect.
(b) Blue Sky. The actions and filings with regard to state
securities and blue sky laws of the United States (and any comparable
laws under any foreign jurisdictions) shall have been taken and, where
applicable, have become effective or been accepted.
(c) Nasdaq Listing. The Class A Common Stock to be issued in the
IPO shall have been accepted for quotation on the Nasdaq, upon official
notice of issuance.
(d) Underwriting Agreement. Tality shall have entered into the
Underwriting Agreement and all conditions to the obligations of Tality
and the Underwriters thereunder shall have been satisfied or waived.
(e) Common Stock Ownership. Cadence shall be satisfied in its
sole discretion that the Cadence Group shall own voting securities of
Tality having at least 80% of the voting rights of all Tality securities
outstanding immediately following the IPO Closing Date.
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(f) No Legal Restraints. No order, injunction or decree issued by
any Governmental Authority of competent jurisdiction or other legal
restraint or prohibition preventing the consummation of the Separation
or the IPO or any of the other transactions contemplated by this
Agreement shall be in effect or been threatened.
(g) Separation. The Separation Date shall have occurred.
(h) No Termination. This Agreement shall not have been
terminated.
Section 3.4 Registration Rights
(a) Definitions. For purposes of this Section 3.4 only:
(i) "Register", "Registered" and "Registration" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act of 1933, as amended, (the "Securities Act"),
and the declaration or ordering of effectiveness of such registration statement.
(ii) "Registrable Securities" means (A) any Class A Common
Stock or Class C Common Stock issued or issuable upon conversion of Class B
Common Stock, or in exchange for Limited Partnership Units in the Partnership
originally issued to Cadence, Holdings or any other member of the Cadence Group
(the "LP Units"); (B) all shares of Class A Common Stock held by Cadence Group
members' officers or employees as of the date on which the Registration
Statement was first filed with the Commission; (C) any Class A Common Stock or
Class C Common Stock issued as (or issuable upon the conversion or exercise of
any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of the
securities described in (A) or (B) above; and (D) all other shares of Class A
Common Stock or Class C Common Stock hereafter acquired by members of the
Cadence Group. Notwithstanding the foregoing, "Registrable Securities" shall
exclude any Registrable Securities sold by a Person in a transaction in which
rights under this Section 4.4 are not assigned in accordance with this Agreement
or any Registrable Securities sold in a public offering, whether sold pursuant
to Rule 144 promulgated under the Securities Act, or in a registered offering,
or otherwise.
(iii) "Holder" means any Person owning of record
Registrable Securities (or any security convertible into or exchangeable for
Registrable Securities), that have not been sold in a public offering and any
permitted assignee of such Registrable Securities (or securities convertible
into or exchangeable into Registrable Securities) to whom rights under this
Section 3.4 have been duly assigned in accordance with this Agreement.
(iv) "Form S-3" means such form under the Securities Act
as is in effect on the date hereof, or any successor registration form under the
Securities Act subsequently adopted by the Commission, which permits inclusion
or incorporation of substantial information by reference to other documents
filed by Tality with the Commission.
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(b) Demand Registration.
(i) Request by Holders. If Tality shall, at any time after
the expiration of the 180-day "lock-up" period pursuant to the Underwriting
Agreement (the "Lock-Up Expiration Date"), receive a written request from
Cadence, Holdings or any subsequent Holder of LP Units originally issued to
Cadence, Holdings or any other member of the Cadence Group (or any Registrable
Securities issued in exchange therefor) holding at least ten percent (10%) of
the aggregate outstanding number of such LP Units that Tality file a
registration statement on form S-1 (or any successor form thereto) under the
Securities Act covering the registration of Registrable Securities pursuant to
this Section 3.4(b), then Tality shall, within ten (10) Business Days after the
receipt of such written request, give written notice of such request ("Request
Notice") to all Holders, and use its best efforts to effect, as soon as
practicable, the registration under the Securities Act of all Registrable
Securities that Holders request to be registered and included in such
registration by written notice given by such Holders to Tality within twenty
(20) days after receipt of the Request Notice, subject only to the limitations
of this Section 3.4(b); provided, however, that the Registrable Securities
requested by all Holders to be registered pursuant to such request must be at
least ten percent (10%) of all Registrable Securities then held by or issuable
to them; provided further, that Tality shall not be obligated to effect any such
registration if Tality has, within the six (6) month period preceding the date
of such request, already effected a registration under the Securities Act
pursuant to this Section 3.4(b) or Section 3.4(d), or in which the Holders had
an opportunity to participate pursuant to Section 3.4(c), other than a
registration from which the Registrable Securities of Holders have been excluded
(with respect to all or any portion of the Registrable Securities the Holders
requested be included in such registration) pursuant to Section 3.4(c)(i).
(ii) Underwriting. If the Holders initiating the
registration request under this Section 3.4(b) (the "Initiating Holders") intend
to distribute the Registrable Securities covered by their request by means of an
underwriting, then they shall so advise Tality as a part of their request made
pursuant to this Section 3.4(b)(i) and Tality shall include such information in
the Request Notice. In such event, the right of any Holder to include such
Holder's Registrable Securities in such registration shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the initiating Holders and such Holder) to
the extent provided herein. All Holders proposing to distribute their securities
through such underwriting shall enter into an underwriting agreement in
customary form with the managing underwriter or underwriters selected for such
underwriting by the Holders of a majority of the Registrable Securities being
registered and reasonably acceptable to Tality (including a market stand-off
agreement of up to 180 days if required by such underwriters). Notwithstanding
any other provision of this Section 3.4(b), if the underwriter(s) advise(s)
Tality in writing that marketing factors require a limitation of the number of
securities to be underwritten, then Tality shall so advise all Holders of
Registrable Securities which would otherwise be registered and underwritten
pursuant hereto, and the number of Registrable Securities that may be included
in the underwriting shall be reduced as required by the underwriter(s) and
allocated among the Holders of Registrable Securities on a pro rata basis
according to the number of Registrable Securities of each Holder requesting
registration (including the initiating Holders); provided, however, that the
number of Registrable Securities to be included in such underwriting and
registration shall not be reduced unless all other
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securities of Tality and the employees, officers and directors (who are not also
officers or directors of Cadence) of Tality (or any Subsidiary of Tality) are
first entirely excluded from the underwriting and registration. Any Registrable
Securities excluded and withdrawn from such underwriting shall be withdrawn from
the registration.
(iii) Maximum Number of Demand Registrations. Tality shall
be obligated to effect only three (3) such registrations pursuant to this
Section 3.4(b).
(iv) Deferral. Notwithstanding the foregoing, if Tality
shall furnish to Holders requesting the filing of a registration statement
pursuant to this Section 3.4(b), a certificate signed by the President or Chief
Executive Officer of Tality stating that in the good faith judgment of the Board
of Directors of Tality, it would be materially detrimental to Tality and its
stockholders for such registration statement to be filed, then Tality shall have
the right to defer such filing for a period of not more than ninety (90) days
after receipt of the request of the initiating Holders; provided, however, that
Tality may not utilize this right more than once in any twelve (12) month
period.
(v) Expenses. All expenses incurred in connection with any
registration pursuant to this Section 3.4(b), including all federal and "blue
sky" registration, filing and qualification fees, printer's and accounting fees,
and fees and disbursements of counsel for Tality and one counsel for the
Holders, reasonably acceptable to Tality (but excluding underwriters' discounts
and commissions relating to shares sold by the Holders), shall be borne by
Tality. Each Holder participating in a registration pursuant to this Section
3.4(b) shall bear such Holder's proportionate share (based on the total number
of shares sold in such registration other than for the account of Tality) of all
discounts, commissions or other amounts payable to underwriters or brokers in
connection with such offering by the Holders. Notwithstanding the foregoing,
Tality shall not be required to bear any expenses of any registration proceeding
begun pursuant to this Section 3.4(b) if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered, unless the Holders of a majority of the
Registrable Securities agree that such registration constitutes the use by the
Holders of one (1) demand registration pursuant to this Section 3.4(b) (in which
case such registration shall also constitute the use by all Holders of
Registrable Securities of one (l) such demand registration); provided further,
that if at the time of such withdrawal, the Holders have learned of a material
adverse change in the condition (financial or otherwise), business or prospects
of Tality not known to the Holders at the time of their request for such
registration and have withdrawn their request for registration with reasonable
promptness after learning of such material adverse change, then the Holders
shall not be required to pay any of such expenses and such registration shall
not constitute the use of a demand registration pursuant to this Section 3.4(b).
(c) Piggyback Registrations. Tality shall notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to filing any
registration statement under the Securities Act for purposes of effecting a
public offering of securities of Tality (including registration statements
relating to secondary offerings of securities of Tality, but excluding
registration statements relating to any registration under Section 3.4(b) or
Section 3.4(d) or to any employee benefit plan or a corporate reorganization)
and shall afford each such Holder an opportunity to include in such registration
statement all or any part of the Registrable Securities
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of such Holder. Each Holder desiring to include in any such registration
statement all or any part of such Holder's Registrable Securities shall within
twenty (20) days after receipt of the above-described notice from Tality, so
notify Tality in writing, and in such notice shall inform Tality of the number
of Registrable Securities such Holder wishes to include in such registration
statement. If a Holder decides not to include all of its Registrable Securities
in any registration statement thereafter filed by Tality, such Holder shall
nevertheless continue to have the right to include any of such Holder's
Registrable Securities in any subsequent registration statement or registration
statements as may be filed by Tality with respect to offerings of its
securities, all upon the terms and conditions set forth herein.
(i) Underwriting. If a registration statement as to which
Tality gives notice under this Section 3.4(c) is for an underwritten offering,
then Tality shall so advise the Holders of Registrable Securities. In such
event, the right of any such Holder's Registrable Securities to be included in a
registration pursuant to this Section 3.4(c) shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their Registrable Securities through such
underwriting shall enter into an underwriting agreement in customary form with
the managing underwriter or underwriters selected for such underwriting
(including a market stand-off agreement of up to 180 days if required by such
underwriters). Notwithstanding any other provision of this Agreement, if the
managing underwriter(s) determine(s) in good faith that marketing factors
require a limitation of the number of shares to be underwritten, then the
managing underwriter(s) may exclude Registrable Securities from the registration
and the underwriting, and the number of shares that may be included in the
registration and the underwriting shall be allocated, first to Tality and,
second, to each of the Holders requesting inclusion of their Registrable
Securities in such registration statement on a pro rata basis based on the total
number of Registrable Securities of each such Holder; provided, however, that
the right of the underwriters to exclude Registrable Securities from the
registration and underwriting as described above shall be restricted so that (A)
the number of Registrable Securities included in any such registration is not
reduced below twenty-five percent (25%) of the aggregate number of Registrable
Securities for which inclusion has been requested; and (B) all shares that are
not Registrable Securities and are held by any other Person, including any
employee, officer or director (other than a director who is also an officer or
director of Cadence) of Tality (or any Subsidiary of Tality) shall first be
excluded from such registration and underwriting before any Registrable
Securities are so excluded. If any Holder disapproves of the terms of any such
underwriting, such Holder may elect to withdraw therefrom by written notice to
Tality and the underwriter(s), delivered at least ten (10) Business Days prior
to the effective date of the registration statement. Any Registrable Securities
excluded or withdrawn from such underwriting shall be excluded and withdrawn
from the registration. For any Holder that is a partnership, the Holder and the
partners and retired partners of such Holder, or the estates and family members
of any such partners and retired partners and any trusts for the benefit of any
of the foregoing Persons, and for any Holder that is a corporation, the Holder
and all corporations that are affiliates of such Holder, shall be deemed to be a
single "Holder," and any pro rata reduction with respect to such "Holder" shall
be based upon the aggregate amount of shares carrying registration rights owned
by all entities and individuals included in such "Holder," as defined in this
sentence.
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(ii) Expenses. All expenses incurred in connection with a
registration pursuant to this Section 3.4(c), including fees and disbursements
of one counsel for the Holders, reasonably acceptable to Tality (but excluding
underwriters' and brokers' discounts and commissions relating to shares sold by
the Holders), including all federal and "blue sky" registration, filing and
qualification fees, printers' and accounting fees, and fees and disbursements of
counsel for Tality, shall be borne by Tality.
(iii) Not Demand Registration. Registration pursuant to
this Section 3.4(c) shall not be deemed to be a demand registration pursuant to
Section 3.4(b) above. Except as otherwise provided herein, there shall be no
limit on the number of times the Holders may request registration of Registrable
Securities under this Section 3.4(c).
(d) Form S-3 Registration. In case Tality shall, at any time
after the Lock-Up Expiration Date, receive a written request from Cadence,
Holdings or any subsequent Holder of LP Units originally issued to Cadence,
Holdings or any other member of the Cadence Group (or any Registrable Securities
issued in exchange therefor) holding at least ten percent (10%) of the aggregate
outstanding number of such LP Units that Tality effect a registration on Form
S-3, and any related qualification or compliance with respect to all or a part
of the Registrable Securities owned by such Holder or Holders, then Tality
shall:
(i) Notice. Promptly give written notice of the proposed
registration and the Holder's or Holders' request therefor, and any related
qualification or compliance, to all other Holders of Registrable Securities; and
(ii) Registration. As soon as practicable, effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within twenty (20) days after Tality provides the notice
contemplated by Section 3.4(d)(i); provided, however, that Tality shall not be
obligated to effect any such registration, qualification or compliance pursuant
to this Section 3.4(d):
(A) if Form S-3 is not available to Tality for such
offering by the Holders;
(B) if the Holders, together with the holders of
any other securities of Tality entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any) at an
aggregate price to the public of less than $5,000,000;
(C) if Tality shall furnish to the Holders a
certificate signed by the President or Chief Executive Officer of Tality stating
that in the good faith judgment of the Board of Directors of Tality, it would be
materially detrimental to Tality and its stockholders for such Form S-3
Registration to be effected at such time, in which event Tality shall have the
right to defer the filing of the Form S-3 registration statement no more than
once during any twelve month period for a period of not more than ninety (90)
days after receipt of the request of the Holder or Holders under this Section
3.4(d);
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(D) if Tality has, within the six (6) month period
preceding the date of such request, already effected a registration under the
Securities Act other than a registration from which the Registrable Securities
of Holders have been excluded (with respect to all or any portion of the
Registrable Securities the Holders requested be included in such registration)
pursuant to Section 3.4(c)(i); or
(E) in any particular jurisdiction in which Tality
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance.
(iii) Expenses. Tality shall pay all expenses incurred in
connection with each registration requested pursuant to this Section 3.4(d),
including federal and "blue sky" registration, filing and qualification fees,
printers' and accounting fees and fees and disbursements of counsel, including
one counsel for the Holders, reasonably acceptable to Tality, but excluding
underwriters' or brokers' discounts and commissions relating to shares sold by
the Holders.
(iv) Not Demand Registration. Form S-3 registrations shall
not be deemed to be demand registrations as described in Section 3.4(b) above.
Except as otherwise provided herein, there shall be no limit on the number of
times the Holders may request registration of Registrable Securities under this
Section 3.4(d).
(e) Obligations of Tality. Whenever required to effect the
registration of any Registrable Securities under this Agreement Tality shall, as
expeditiously as reasonably possible:
(i) Registration Statement. Prepare and file with the
Commission a registration statement with respect to such Registrable Securities
and use its best efforts to cause such registration statement to become
effective; provided, however, that Tality shall not be required to keep any such
registration statement effective for more than ninety (90) days.
(ii) Amendments and Supplements. Prepare and file with the
Commission such amendments and supplements to such registration statement and
the prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement.
(iii) Prospectuses. Furnish to the Holders whose
Registrable Securities are requested to be included in the registration such
number of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as they may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by them that are included in such registration.
(iv) Blue Sky. Use its best efforts to register and
qualify the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders, provided that Tality shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions.
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(v) Underwriting. In the event of any underwritten public
offering, enter into and perform its obligations under an underwriting agreement
in usual and customary form, with the managing underwriter(s) of such offering.
Each Holder participating in such underwriting shall also enter into and perform
its obligations under such an agreement.
(vi) Notification. Notify each Holder of Registrable
Securities covered by such registration statement at any time when a prospectus
relating thereto is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
(vii) Opinion and Comfort Letter. Furnish, at the request
of any Holder requesting registration of Registrable Securities, on the date
that such Registrable Securities are delivered to the underwriters for sale, if
such securities are being sold through underwriters, or, if such securities are
not being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (A) an opinion, dated as of
such date, of the counsel representing Tality for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering and reasonably satisfactory to a majority in
interest of the Holders requesting registration, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities and
(B) a "comfort" letter dated as of such date, from the independent certified
public accountants of Tality, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering and reasonably satisfactory to a majority in interest of the
Holders requesting registration, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities.
(f) Furnish Information. It shall be a condition precedent to the
obligations of Tality to take any action pursuant to Section 3.4(b), (c) or (d)
that the selling Holders shall furnish to Tality such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities as shall be reasonably required to timely effect
the Registration of their Registrable Securities.
(g) Indemnification. In the event any Registrable Securities are
included in a registration statement under Section 3.4(b), (c) or (d):
(i) By Tality. To the extent permitted by Applicable Law,
Tality shall indemnify and hold harmless each Holder, the partners, officers and
directors of each Holder, any underwriter (as determined in the Securities Act)
for such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Securities Act or the Exchange Act, as amended,
against any losses, claims, damages or liabilities (joint or several) to which
they may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively, a "Violation"):
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(A) any untrue statement or alleged untrue
statement of a material fact contained in such registration
statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements
thereto;
(B) the omission or alleged omission to state
therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading, or
(C) any violation or alleged violation by Tality of
the Securities Act, the Exchange Act, any federal or state
securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any federal or state
securities law in connection with the offering covered by such
registration statement;
and Tality shall reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection 3.4(g)(i) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of Tality (which consent
shall not be unreasonably withheld or delayed), nor shall Tality be liable in
any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by such Holder, partner, officer,
director, underwriter or controlling person of such Holder.
(ii) By Selling Holders. To the extent permitted by
Applicable Law, each selling Holder shall indemnify and hold harmless Tality,
each of its directors, each of its officers who have signed the registration
statement, each person, if any, who controls Tality within the meaning of the
Securities Act, any underwriter and any other Holder selling securities under
such registration statement or any of such other Holder's partners, directors or
officers or any person who controls such Holder within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages or
liabilities (joint or several) to which Tality or any such director, officer,
controlling person, underwriter or other such Holder, partner or director,
officer or controlling person of such other Holder may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise out
of or are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration; and each such Holder shall reimburse any legal or other
expenses reasonably incurred by Tality or any such director, officer,
controlling person, underwriter or other Holder, partner, officer, director or
controlling person of such other Holder in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this subsection 3.4(g)(ii) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the Holder
(which consent shall not be unreasonably withheld
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or delayed); and provided further, that the total amounts payable in indemnity
by a Holder under this Section 3.4(g)(ii) in respect of any Violation shall not
exceed the net proceeds received by such Holder in the registered offering out
of which such Violation arises.
(iii) Notice. Promptly after receipt by an indemnified
party under this Section 3.4(g) of notice of the commencement of any action
(including any action by a Governmental Authority), such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section 3.4(g), deliver to the indemnifying party a written
notice of the commencement thereof and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to an actual or potential conflict
of interests between such indemnified party and any other party represented by
such counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall relieve such indemnifying party of liability to the indemnified
party under this Section 3.4(g) to the extent (but only to the extent) the
indemnifying party is materially prejudiced as a result thereof, but the
omission so to deliver written notice to the indemnified party shall not relieve
it of any liability that it may have to any indemnified party otherwise than
under this Section 3.4(g).
(iv) Defect Eliminated in Final Prospectus. The foregoing
indemnity agreements of Tality and the Holders are subject to the condition
that, insofar as they relate to any Violation made in a preliminary prospectus
but eliminated or remedied in the amended prospectus on file with the Commission
at the time the registration statement in question becomes effective or the
amended prospectus filed with the Commission pursuant to Commission Rule 424(b)
(the "Final Prospectus"), such indemnity agreement shall not inure to the
benefit of any Person if a copy of the Final Prospectus was timely furnished to
the indemnified party and was not furnished to the Person asserting the loss,
liability, claim or damage at or prior to the time such action is required by
the Securities Act.
(v) Contribution. In order to provide for just and
equitable contribution to joint liability under the Securities Act in any case
in which either (A) any Holder exercising rights under this Agreement, or any
controlling person of any such Holder, makes a claim for indemnification
pursuant to this Section 3.4(g) but it is judicially determined (by the entry of
a final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 3.4(g) provides for indemnification in such case, or (B)
contribution under the Securities Act may be required on the part of any such
selling Holder or any such controlling person in circumstances for which
indemnification is provided under this Section 3.4(g); then, and in each such
case, Tality and such Holder shall contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after contribution from
others) in such proportion so that such Holder is responsible for the portion
represented by the percentage that the public
19
offering price of its Registrable Securities offered by and sold under the
registration statement bears to the public offering price of all securities
offered by and sold under such registration statement, and Tality and other
selling Holders are responsible for the remaining portion; provided, however,
that, in any such case: (1) no such Holder shall be required to contribute any
amount in excess of the public offering price of all such Registrable Securities
offered and sold by such Holder pursuant to such registration statement; and (2)
no Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
or entity who was not guilty of such fraudulent misrepresentation.
(vi) Survival. The obligations of Tality and Holders under
this Section 3.4(g) shall survive until the fifth anniversary of the completion
of any offering of Registrable Securities in a registration statement,
regardless of the expiration of any statutes of limitation or extensions of such
statutes.
(h) Termination of Tality's Obligations. Tality shall have no
obligations pursuant to Sections 3.4(b) through (d) with respect to any
Registrable Securities proposed to be sold by a Holder in a registration
pursuant to Section 3.4(b), (c) or (d) more than seven (7) years after the
Separation Date, or, if, in the opinion of independent counsel to Tality (and
acceptable to the Holders), all such Registrable Securities proposed to be sold
by a Holder may then be sold under Rule 144 in one transaction without exceeding
the volume limitations thereunder.
(i) No Registration Rights to Third Parties. Without the prior
written consent of Cadence, Tality covenants and agrees that it shall not grant,
or cause or permit to be created, for the benefit of any Person any registration
rights of any kind (whether similar to the demand, "piggyback" or Form S-3
registration rights described in this Section 3.4 or otherwise) relating to any
equity securities of Tality, other than rights that are subordinate in right to
those granted hereunder.
ARTICLE IV
COVENANTS AND OTHER MATTERS
Section 4.1 Further Instruments. At the request either of the Tality
Parties, and without further consideration, the Cadence Parties shall execute
and deliver, and shall cause all other members of the Cadence Group to execute
and deliver, to the Partnership and its Subsidiaries such other instruments of
transfer, conveyance, assignment, substitution and confirmation and take such
action as either of the Tality Parties may reasonably deem necessary in order to
effectively transfer, convey and assign to the Partnership and its Subsidiaries
and confirm the Partnership's and its Subsidiaries' title to all of the assets
and rights contemplated to be transferred to the Partnership and its
Subsidiaries pursuant to this Agreement and the Ancillary Agreements to put the
Partnership and its Subsidiaries in actual possession and operating control
thereof and to permit the Partnership and its Subsidiaries to exercise all
rights with respect thereto (including rights under contracts and other
arrangements as to which the consent of any third party to the transfer thereof
shall not have previously been obtained). At the request of either of the
Cadence Parties and without further consideration, the Tality Parties shall
execute and deliver, and shall cause all other members of the Tality Group to
execute and deliver, to Cadence and its Subsidiaries all instruments,
assumptions, novations, undertakings, substitutions or other documents and take
such other action as Cadence may reasonably deem
20
necessary in order to have the Partnership fully and unconditionally assume and
discharge the liabilities contemplated to be assumed by the Partnership and its
Subsidiaries under this Agreement and the Ancillary Agreements and to relieve
each member of the Cadence Group of any liability or obligation with respect
thereto and evidence the same to third parties. Neither the Cadence Parties nor
the Tality Parties shall be obligated, in connection with the foregoing, to
expend money other than reasonable out-of-pocket expenses, attorneys' fees and
disbursements and recording or similar fees. Furthermore, each party hereto, at
the request of the other party, shall execute and deliver such other instruments
and do and perform such other acts and things as may be necessary or desirable
for effecting completely the consummation of the transactions contemplated by
this Agreement and the Ancillary Agreements.
Section 4.2 Agreement for Exchange of Information.
(a) Generally. Each of the parties agrees to provide, or cause to
be provided, to any of the other parties, at any time before or after
the Separation Date, as soon as reasonably practicable after written
request therefor, any Information in the possession or under the control
of such party that the requesting party reasonably needs (i) to comply
with reporting, disclosure, filing or other requirements imposed on the
requesting party (including under applicable securities laws) by a
Governmental Authority having jurisdiction over the requesting party;
(ii) for use in any other judicial, regulatory, administrative or other
proceeding, or in order to satisfy audit, accounting, claims,
regulatory, litigation or other similar requirements; (iii) to comply
with its obligations under this Agreement or any Ancillary Agreement; or
(iv) in connection with the ongoing businesses of the Cadence Parties or
the Tality Parties, as the case may be; provided, however, that if a
party determines that providing its Information to the other parties
could be commercially detrimental to such party, violate any law or
agreement, or waive any attorney-client privilege, the parties shall
take all reasonable measures to permit its compliance with such
disclosure obligation in a manner that avoids any such harm or
consequence.
(b) Internal Accounting Controls; Financial Information. After
the Separation Date, each party shall (i) maintain in effect at its own
cost and expense adequate systems and controls for its business to the
extent necessary to enable the other parties to satisfy their reporting,
accounting, audit and other obligations; and (ii) provide, or cause to
be provided, to the other parties and their Subsidiaries in such form as
requested and at no charge to the requesting party, all financial and
other data and information as the requesting party determines necessary
or advisable in order to prepare its financial statements and reports or
filings with any Governmental Authority.
(c) Ownership of Information. Any Information owned by a party
that is provided to a requesting party pursuant to this Section 4.2
shall remain the property of the providing party. Unless specifically
set forth herein, nothing contained in this Agreement shall be construed
as granting or conferring ownership or license rights in any such
Information or varying an attorney-client or other privilege applicable
to such Information.
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(d) Limitation of Liability. No member of either the Cadence
Group or the Tality Group shall have any liability to a member of the
Tality Group or Cadence Group, respectively, in the event that any
Information exchanged or provided pursuant to this Section 4.2 is found
to be incomplete or inaccurate, in the absence of gross negligence or
willful misconduct by the party providing such Information.
(e) Other Agreements Providing for Exchange of Information. The
rights and obligations granted under this Section 4.2 are subject to any
specific limitations, qualifications or additional provisions on the
sharing, exchange or confidential treatment of Information set forth in
this Agreement and any Ancillary Agreement, including the Master
Confidentiality Agreement.
(f) Production of Witnesses; Records; Cooperation. After the
Separation Date, except in the case of a legal or other proceeding by a
party hereto against another party hereto (which shall be governed by
such discovery rules as may be applicable under Section 4.4 or
otherwise), each party hereto shall use all commercially reasonable
efforts to make available to the other parties, upon written request,
the former, current and future directors, officers, employees, other
personnel and agents of such party as witnesses and any books, records
or other documents within its control or which it otherwise has the
ability to make available, to the extent that any such person (giving
consideration to business demands of such directors, officers,
employees, other personnel and agents) or books, records or other
documents may reasonably be required in connection with any legal,
administrative or other proceeding in which the requesting party may
from time to time be involved, regardless of whether any such legal,
administrative or other proceeding is a matter with respect to which
indemnification may be sought hereunder. The requesting party shall bear
all costs and expenses in connection therewith.
Section 4.3 Auditors and Audits; Annual and Quarterly Statements and
Accounting. For so long as Cadence is required in accordance with United States
generally accepted accounting principles to consolidate Tality's results of
operations and financial position:
(a) Selection of Auditors. The Tality Parties shall ensure that
the Tality Auditors are the same as the Cadence Auditors.
(b) Fiscal Year. The Tality Parties shall ensure that their
fiscal years for financial, accounting and federal, state and local
income tax purposes shall be the same as Cadence's fiscal year.
(c) Date of Auditors' Opinion and Quarterly Reviews. The Tality
Parties shall use all commercially reasonable efforts to enable and
cause the Tality Auditors to complete their audit such that they shall
date their opinion on Tality's audited annual financial statements on
the same date that the Cadence Auditors date their opinion on Cadence's
audited annual financial statements, and to enable Cadence to meet its
timetable for the printing, filing and public dissemination of Cadence's
annual financial statements. The Tality Parties shall use all
commercially reasonable efforts to enable and cause the Tality Auditors
to complete their quarterly review procedures such that they
22
shall provide clearance on Tality's quarterly financial statements on
the same date that Cadence's Auditors provide clearance on Cadence's
quarterly financial statements.
(d) Annual, Quarterly and Other Financial Statements. The Tality
Parties shall provide to Cadence on a timely basis all Information that
Cadence requests to meet its schedule for the preparation, printing,
filing and public dissemination of Cadence's annual, quarterly and other
financial statements. Without limiting the generality of the foregoing,
the Tality Parties shall provide all required financial Information with
respect to the Tality Parties and their Subsidiaries to the Tality
Auditors in a sufficient and reasonable time and in sufficient detail to
permit the Tality Auditors to take all steps and perform all reviews
necessary to provide sufficient assistance to the Cadence Auditors with
respect to financial Information to be included or contained in
Cadence's annual, quarterly and other financial statements. Similarly,
the Cadence Parties shall provide to Tality on a timely basis all
financial Information that Tality reasonably requires to meet its
schedule for the preparation, printing, filing and public dissemination
of Tality's annual and quarterly financial statements. Without limiting
the generality of the foregoing, the Cadence Parties shall provide all
required financial Information with respect to the Cadence Parties and
their Subsidiaries to the Cadence Auditors in a sufficient and
reasonable time and in sufficient detail to permit the Cadence Auditors
to take all steps and perform all reviews necessary to provide
sufficient assistance to the Tality Auditors with respect to Information
to be included or contained in Tality's annual and quarterly financial
statements.
(e) Identity of Personnel Performing the Annual Audit and
Quarterly Reviews. The Tality Parties shall authorize the Tality
Auditors to make available to the Cadence Auditors both the personnel
who performed or shall perform the annual audits and quarterly reviews
of Tality and work papers related to the annual audits and quarterly
reviews of Tality, in all cases within a reasonable time prior to the
Tality Auditors' opinion date, so that the Cadence Auditors are able to
perform the procedures they consider necessary to take responsibility
for the work of the Tality Auditors as it relates to the Cadence
Auditors' report on Cadence's financial statements, all within
sufficient time to enable Cadence to meet its timetable for the
printing, filing and public dissemination of Cadence's annual and
quarterly statements. Similarly, the Cadence Parties shall authorize the
Cadence Auditors to make available to the Tality Auditors both the
personnel who performed or shall perform the annual audits and quarterly
reviews of Cadence and work papers related to the annual audits and
quarterly reviews of Cadence, in all cases within a reasonable time
prior to the Cadence Auditors' opinion date, so that the Tality Auditors
are able to perform the procedures they consider necessary to take
responsibility for the work of the Cadence Auditors as it relates to the
Tality Auditors' report on Tality's statements, all within sufficient
time to enable Tality to meet its timetable for the printing, filing and
public dissemination of Tality's annual and quarterly financial
statements.
(f) Access to Books and Records. The Tality Parties shall, as
requested by Cadence, provide Cadence's internal auditors and their
designees access to the Tality Parties' and their Subsidiaries' books
and records so that Cadence may conduct reasonable audits relating to
the financial statements provided by Tality pursuant hereto
23
as well as to the internal accounting controls and operations of Tality
and its Subsidiaries. Similarly, the Cadence Parties shall provide
Tality's internal auditors and their designees access to the Cadence
Parties' and their Subsidiaries' books and records so that Tality may
conduct reasonable audits relating to the financial statements provided
by Cadence pursuant hereto as well as to the internal accounting
controls and operations of Cadence and its Subsidiaries.
(g) Notice of Change in Accounting Principles. The Tality Parties
shall provide Cadence with as much prior notice as reasonably
practicable (but in no event less than 30 days notice) of any proposed
determination of, or any significant changes in, its accounting
estimates, principles or methods from those in effect on the Separation
Date. The Tality Parties shall consult with Cadence and, if requested by
Cadence, the Tality Parties shall consult with the Cadence Auditors with
respect to any such proposed determination or change.
Section 4.4 Dispute Resolution.
(a) Negotiation/Mediation. If a dispute, controversy or claim (a
"Dispute") arises between the parties or any of their Subsidiaries
relating to the interpretation or performance of this Agreement or any
Ancillary Agreement, or any grounds for the termination hereof, duly
authorized officers or employees of each party shall meet to attempt in
good faith to negotiate a resolution of the Dispute prior to pursuing
other available remedies. The date of receipt of written notice of a
Dispute given by either of the Tality Parties to either of the Cadence
Parties, or vice versa, with a request for a meeting between the parties
shall be referred to herein as the "Dispute Resolution Commencement
Date." Discussions and correspondence relating to trying to resolve such
Dispute shall be treated as confidential information developed for the
purpose of settlement and shall be exempt from discovery or production
and shall not be admissible in court or any arbitration proceeding. If
the parties are unable to resolve the Dispute within thirty (30) days
after the Dispute Resolution Commencement Date, and any of the parties
wishes to pursue its rights relating to such Dispute, then the Dispute
shall be mediated by a mutually acceptable mediator appointed pursuant
to the mediation rules of JAMS/Endispute within thirty (30) days after
written notice by one party to the other demanding non-binding
mediation. No party may unreasonably withhold consent to the selection
of a mediator or the location of the mediation. The Cadence Parties and
the Tality Parties shall share the costs of the mediation equally
between them, except that each party shall bear its own costs and
expenses, including attorneys' fees and expenses, witness fees and
expenses, travel expenses, and preparation costs. The parties may also
agree to replace mediation with some other form of non-binding or
binding alternative dispute resolution ("ADR").
(b) Arbitration. Any Dispute which the parties cannot resolve
through mediation within ninety (90) days after the Dispute Resolution
Commencement Date, unless otherwise mutually agreed in writing, shall be
submitted to final and binding arbitration under the then current
Commercial Arbitration Rules of the American Arbitration Association
(the "AAA"), by one (1) arbitrator in Santa Xxxxx County, California.
Such arbitrator shall be selected by the mutual agreement of the parties
or,
24
failing such agreement, shall be selected according to the aforesaid AAA
rules. The arbitrator shall be instructed to prepare and deliver a
written, reasoned opinion stating his decision within thirty (30) days
of the completion of the arbitration. The prevailing party in such
arbitration shall be entitled to expenses, including costs and
reasonable attorneys' and other professional fees, incurred in
connection with the arbitration (but excluding any costs and fees
associated with prior negotiation or mediation). The decision of the
arbitrator shall be final and non-appealable and may be enforced in any
court of competent jurisdiction. The use of any ADR procedures shall not
be construed under the doctrine of laches, waiver or estoppel to
adversely affect the rights of any party.
(c) Exceptions. Any Dispute regarding any of the following
matters is not required to be negotiated, mediated or arbitrated prior
to seeking relief from a court of competent jurisdiction: breach of any
obligation of confidentiality; or any other claim where interim relief
from the court is sought to prevent serious and irreparable injury to
one of the parties or to others. However, the parties to the Dispute
shall make a good faith effort to negotiate and mediate such Dispute,
according to the above procedures, while such court action is pending.
(d) Continuity of Service and Performance. Unless otherwise
agreed in writing, the parties shall continue to provide service and
honor all other commitments under this Agreement and each Ancillary
Agreement during the course of dispute resolution pursuant to the
provisions of this Section 4.4 with respect to all matters not subject
to any particular Dispute.
Section 4.5 Non-Solicitation of Employees. For a period of one (1) year
following the Separation Date, the Tality Parties agree (and shall cause their
Subsidiaries) not to solicit or recruit or hire employees of any member of the
Cadence Group, without the prior consent of Cadence's Senior Vice President of
Human Resources (or his or her designee). Notwithstanding the foregoing, this
prohibition on solicitation, recruitment or hiring shall not apply to actions
taken by any member of the Tality Group either (a) solely as a result of an
employee's affirmative response to a general recruitment effort carried out
through a public solicitation or (b) as a result of an employee's initiative.
Section 4.6 Employee Agreements. As used in this Section 4.6, "Employee
Agreement" means the Employee Proprietary Information and Inventions Agreement
and corresponding agreements in foreign countries executed by each employee of
Cadence or any of its Subsidiaries.
(a) Survival of Employee Agreement Obligations and Cadence's
Common Law Rights. The Employee Agreements of all Cadence employees
transferring to Tality or one of its Subsidiaries as of the Separation
Date shall remain in full force and effect according to their terms;
provided, however, that none of the following acts committed by former
Cadence employees within the scope of their employment with Tality or
one of its Subsidiaries shall constitute a breach of such Employee
Agreements: (i) the use or disclosure of Confidential Information (as
that term is defined in the former Cadence employee's Employee
Agreement) for or on behalf of Tality or one of its Subsidiaries, if
such disclosure is consistent with the rights granted to Tality and its
Subsidiaries and
25
restrictions imposed on Tality and its Subsidiaries under this Agreement
or any Ancillary Agreement; (ii) the disclosure and assignment to Tality
or one of its Subsidiaries of rights in proprietary developments
authored or conceived by the former Cadence employee after the
Separation Date and resulting from the use of, or based upon
intellectual property (whether patented or not) which is retained by
Cadence, provided that in no event shall such disclosure and assignment
be regarded as assigning or licensing the underlying intellectual
property to Tality or one of its Subsidiaries; (iii) the rendering of
any services, directly or indirectly, to Tality or one of its
Subsidiaries to the extent such services are consistent with the
assignment or license of rights granted to Tality and the restrictions
imposed on Tality and its Subsidiaries under this Agreement, any
Ancillary Agreement or any other agreement between the parties; and (iv)
solicitation of the employees of one party by the other party prior to
the Separation Date (so long as such solicitation does not violate
Section 4.5). Further, Cadence retains any rights it has under statute
or common law with respect to actions by its former employees to the
extent such actions are inconsistent with the rights granted to Tality
and restrictions imposed on Tality under this Agreement or any Ancillary
Agreement.
(b) Assignment, Cooperation for Compliance and Enforcement. To
the extent permissible under Applicable Law, the following shall apply:
(i) Cadence retains all rights under the Employee
Agreements of all former Cadence employees necessary to permit
Cadence to protect the rights and interests of Cadence, but
hereby transfers and assigns to Tality and its Subsidiaries its
rights under the Employee Agreements of all former Cadence
employees to the extent required to permit Tality to enjoin,
restrain, recover damages from or obtain specific performance of
the Employee Agreements or obtain other remedies against any
employee who breaches his/her Employee Agreement; provided,
however, that if such partial transfer and assignment is not
permissible under Applicable Law, Cadence shall be deemed to have
transferred and assigned all such rights.
(ii) Each of Cadence and Tality agrees, at its own cost
and expense, to cooperate with the other as follows: (A) Tality
shall advise Cadence of: (1) any violation(s) of the Employee
Agreement by former Cadence employees, and (2) any violation(s)
of the Tality Employee Agreement which affect Cadence's rights;
and (B) Cadence shall advise Tality of any violations of the
Employee Agreement by current or former Cadence employees which
affect Tality's rights; provided, however, that the foregoing
obligations shall only apply to violations which become known to
an attorney within the legal department of the party obligated to
provide notice thereof.
(iii) Tality may enforce all rights transferred and
assigned to it under this Agreement relating to the Employee
Agreements. In addition, if Cadence has retained any rights under
the Employee Agreements, Tality shall, if requested by Cadence,
enforce the Employee Agreements of former Cadence employees to
the extent necessary to reasonably protect the interests of any
member of the Cadence Group; provided, however, that Tality shall
not commence any legal action
26
relating thereto without first consulting with Cadence's General
Counsel (or his/her designee). If Tality, in seeking to enforce
any Employee Agreement, notifies Cadence that it requires, or
desires, Cadence to join in such action, then Cadence shall do
so. In addition, if Cadence commences or becomes a party to any
action to enforce a Employee Agreement of a former Cadence
employee, Cadence shall, whether or not it becomes a party to the
action, cooperate with Tality by making available its files and
employees who have information or knowledge relevant to the
dispute, subject to appropriate measures to protect the
confidentiality of any proprietary or confidential information
that may be disclosed in the course of such cooperation or action
and subject to any relevant privacy laws and regulations. Any
such action shall be conducted at the expense of Tality and
Cadence and Tality shall agree on a case by case basis on
compensation, if any, of Cadence for the value of the time of
Cadence employees as reasonably required in connection with the
action.
(iv) Cadence and Tality understand and acknowledge that
matters relating to the making, performance, enforcement,
assignment and termination of employee agreements are typically
governed by the laws and regulations of the national, federal,
state or local governmental unit where an employee resides, or
where an employee's services are rendered, and that such laws and
regulations may supersede or limit the applicability or
enforceability of this Section 4.6. In such circumstances,
Cadence and Tality agree to take action with respect to the
employee agreements that best accomplishes the parties'
objectives as set forth in this Section 4.6 and that is
consistent with applicable law.
Section 4.7 Government and Third Party Approvals. If and to the extent
that the valid, complete and perfected transfer, assignment or novation of any
asset or liability pursuant to the Assignment Agreement would be a violation of
Applicable Law or require any Third-Party Approval or Governmental Approval in
connection with the Separation or the IPO, then, unless Cadence shall otherwise
determine, the transfer or assignment to, or novation by, the Tality Group, as
the case may be, of such assets or liabilities shall be automatically deemed
deferred and any such purported transfer, assignment or novation shall be null
and void until such time as all such Third-Party Approvals or Governmental
Approvals have been obtained. Notwithstanding the foregoing, any asset allocated
to the Partnership the transfer of which is so delayed shall still be considered
an asset of the Partnership for purposes of determining whether any associated
liability is a liability of the Partnership; provided, however, that if such
Third-Party Approvals or Governmental Approvals have not been obtained within
six months after the Separation Date, the parties shall use all commercially
reasonable efforts to achieve an alternative solution in accordance with the
parties' intentions. Tality shall (and it shall cause its Subsidiaries to)
reimburse Cadence for all additional costs and expenses incurred by Cadence or
any other member of the Cadence Group in connection with the performance of its
obligations under this Section 4.7.
Section 4.8 [CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH
THE COMMISSION.]
27
ARTICLE V
MISCELLANEOUS
Section 5.1 Limitation of Liability. IN NO EVENT SHALL ANY MEMBER OF THE
CADENCE GROUP OR TALITY GROUP BE LIABLE TO ANY MEMBER OF THE TALITY GROUP OR
CADENCE GROUP, RESPECTIVELY, 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
(OTHER THAN AS SET FORTH IN ARTICLE III) OR ANY ANCILLARY AGREEMENT, WHETHER OR
NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED,
HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT EACH PARTY'S
INDEMNIFICATION OBLIGATIONS FOR LIABILITIES AS SET FORTH IN THE INDEMNIFICATION
AND INSURANCE MATTERS AGREEMENT.
28
Section 5.2 Entire Agreement. This Agreement, the Ancillary Agreements
and the Exhibits and Schedules referenced or attached hereto and thereto,
constitute the entire agreement among the parties with respect to the subject
matter hereof and thereof and shall supersede all prior written and oral and all
contemporaneous oral agreements and understandings with respect to the subject
matter hereof and thereof.
Section 5.3 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. The Superior Court of
Santa Xxxxx County and/or the United States District Court for the Northern
District of California shall have jurisdiction and venue over all Disputes
between the parties that are permitted to be brought in a court of law pursuant
to Section 4.4.
Section 5.4 Termination. This Agreement and all Ancillary Agreements may
be terminated at any time prior to the IPO Closing Date by and in the sole
discretion of Cadence without the approval or consent of Tality. This Agreement
may be terminated at any time after the IPO Closing Date by mutual consent of
Cadence and Tality. In the event of termination pursuant to this Section 5.4, no
party shall have any liability of any kind to the other party.
Section 5.5 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 the Cadence Parties:
Cadence Design Systems, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx 0
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: X.X. Xxxxx XxXxxxxxx, General Counsel
Fax: (000) 000-0000
if to the Tality Parties:
Tality Corporation
0000 Xxxxx Xxxxxx
Xxxxxxxx 0
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Chief Financial Officer
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 receipt and three (3)
days from the date of postmark.
29
Section 5.6 Counterparts. This Agreement and each of the Ancillary
Agreements, and the Exhibits and Schedules hereto and thereto, and the other
documents referred to herein or therein, 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 5.7 Binding Effect; Assignment. This Agreement and each
Ancillary Agreement shall inure to the benefit of and be binding upon the
parties hereto and thereto and their respective legal representatives and
successors, and nothing in this Agreement or any Ancillary Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies of
any nature whatsoever under or by reason of this Agreement. No party may assign
this Agreement or any rights or obligations hereunder, without the prior written
consent of Cadence, in the case of the Tality Parties, or Tality, in the case of
the Cadence Parties (except in connection with a merger, consolidation or sale
of all or substantially all of the party's assets), and any such attempted
assignment shall be void and in violation hereof.
Section 5.8 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 party. 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 5.9 Failure or Delay Not Waiver; Remedies Cumulative. No failure
or delay on the part of either 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 any Ancillary Agreement, or the Exhibits or Schedules
attached hereto or thereto are cumulative to, and not exclusive of, any rights
or remedies otherwise available.
Section 5.10 Amendment. No modification or amendment shall be made to
this Agreement or any Ancillary Agreement, or the Exhibits or Schedules attached
hereto or thereto, except by an instrument in writing signed on behalf of each
of the parties to such agreement.
Section 5.11 Authority. Each of the parties hereto and each of the
Ancillary Agreements represents to the other that (a) it has the corporate or
other requisite power and authority to execute, deliver and perform this
Agreement or such Ancillary Agreement, as the case may be; (b) the execution,
delivery and performance of this Agreement and each of the Ancillary Agreements
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 each of the
Ancillary Agreements; and (d) this Agreement and each of the Ancillary
Agreements is a legal, valid and binding obligation, enforceable against it in
accordance with its terms subject to
30
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and general equity principles.
Section 5.12 Interpretation. The headings contained in this Agreement
and each of the Ancillary Agreements, in any Exhibit or Schedule hereto and in
the table of contents to this Agreement and each of the Ancillary Agreements are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement or such Ancillary Agreement. Any capitalized
term used in any Exhibit or Schedule hereto or to any Ancillary Agreement but
not otherwise defined therein, shall have the meaning assigned to such term in
this Agreement or such Ancillary Agreement, as the case may be. When a reference
is made in this Agreement or any Ancillary 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 or such Ancillary Agreement, as the case
may be, unless otherwise indicated. All Exhibits and Schedules hereto and to
each Ancillary Agreement are incorporated into and made a part of this Agreement
and the applicable Ancillary Agreement, respectively. The terms "including" and
"include" employed in this Agreement or any Ancillary Agreement (including any
of the Exhibits and Schedules incorporated into and made a part of this
Agreement or any such Ancillary Agreement) mean "including, without limitation,"
and "includes, without limitation," respectively.
Section 5.13 Conflicting Agreements. In the event of any irreconcilable
conflict between this Agreement and any Ancillary Agreement or other agreement
executed in connection herewith, the provisions of such Ancillary Agreement
shall prevail to the extent that they specifically address the subject matter of
the conflict.
Section 5.14 Payment of Expenses. Except as otherwise provided in this
Agreement or any of the Ancillary Agreements or any other agreement related to
the IPO, all costs and expenses of the parties hereto in connection with the
Separation and the IPO (including underwriting discounts and commissions) shall
be allocated between the Tality Parties and the Cadence Parties as determined by
Cadence in its sole and absolute discretion.
Section 5.15 Prior Agreement Superseded. This Agreement supersedes and
replaces in its entirety the Prior Agreement, which shall no longer be of any
force or effect.
31
WHEREFORE, the parties have executed and delivered this Amended and
Restated Master Separation Agreement effective as of the date first set forth
above.
CADENCE DESIGN SYSTEMS, INC. TALITY, LP
By: By: TALITY CORPORATION,
--------------------------------- AS GENERAL PARTNER
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President, By:
Chief Financial Officer --------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: President and Chief
Executive Officer
CADENCE HOLDINGS, INC. TALITY CORPORATION
By: By:
--------------------------------- -------------------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxxxx X. Xxxxxxxxxx
Title: Treasurer Title: President and Chief
Executive Officer
