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EXHIBIT 10.7
GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
BY AND AMONG
CADENCE DESIGN SYSTEMS, INC.,
TALITY CORPORATION,
TALITY, LP
AND
CADENCE HOLDINGS, INC.
DATED AS OF
_________, 2000
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS....................................................... 2
Section 1.1 Action................................................ 2
Section 1.2 Assets................................................ 2
Section 1.3 Contracts............................................. 3
Section 1.4 Delayed Transfer Assets............................... 3
Section 1.5 Delayed Transfer Liabilities.......................... 3
Section 1.6 Excluded Assets....................................... 3
Section 1.7 Excluded Liabilities.................................. 4
Section 1.8 Foreign Transfer Agreement............................ 4
Section 1.9 Insurance Policies.................................... 4
Section 1.10 Insurance Proceeds.................................... 4
Section 1.11 Insured Tality Liabilities............................ 5
Section 1.12 Intellectual Property................................. 5
Section 1.13 Liabilities........................................... 5
Section 1.14 Security Interest..................................... 5
Section 1.15 Tality Assets......................................... 5
Section 1.16 Tality Balance Sheet.................................. 6
Section 1.17 Tality Contingent Liability........................... 6
Section 1.18 Tality Contracts...................................... 7
Section 1.19 Tality Liabilities.................................... 7
Section 1.20 Tality Special Gain................................... 8
Section 1.21 Taxes ............................................. 9
ARTICLE II CONTRIBUTION AND ASSUMPTION...................................... 9
Section 2.1 Contribution of Assets and Assumption of Liabilities.. 9
Section 2.2 Methods of Transfer and Assumption.................... 10
Section 2.3 Delayed Transfers..................................... 11
Section 2.4 Novation of Assumed Tality Liabilities................ 11
ARTICLE III LITIGATION...................................................... 12
Section 3.1 Allocation............................................ 12
Section 3.2 Cooperation........................................... 13
ARTICLE IV MISCELLANEOUS.................................................... 13
Section 4.1 Incorporation by Reference............................ 13
Section 4.2 Conflicting Agreements................................ 13
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GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is
entered into and effective as of ____, 2000 by and among Cadence Design Systems,
Inc., a Delaware corporation ("Cadence"), Tality Corporation, a Delaware
corporation ("Tality"), Tality, LP, a Delaware limited partnership (the
"Partnership"), and Cadence Holdings, Inc., a Delaware corporation ("Holdings").
Capitalized terms used herein and not defined elsewhere herein shall have the
meanings ascribed to them in Article I or in the Separation Agreement (as
defined below).
RECITALS
WHEREAS, Holdings currently owns approximately 98% of the issued and
outstanding shares of the capital stock of Tality;
WHEREAS, Tality is the sole general partner of, and owns both a general and
limited partnership interest in, the Partnership;
WHEREAS, 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 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, Tality and Holdings are parties to that certain Master
Separation Agreement dated as of July 14, 2000, as amended (the "Separation
Agreement"), pursuant to which Cadence, Tality, Holdings and the Partnership
have agreed, subject to certain conditions, to complete the legal separation of
the Tality Business from Cadence's other businesses and to have the Partnership
and its Subsidiaries operate the entire Tality Business; and;
WHEREAS, all conditions to the Separation have been satisfied or waived;
and
WHEREAS, Cadence, Tality, the Partnership and Holdings now desire to
execute and deliver this Assignment to effectuate the transfer of assets and
assumption of liabilities contemplated by the Separation Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.1 "Action" means any demand, action, suit, countersuit,
arbitration, inquiry, audit, proceeding or investigation by or before any
federal, state, local, foreign or international Governmental Authority or any
arbitration or mediation tribunal.
Section 1.2 "Assets" means assets, properties and rights (including
goodwill), wherever located (including in the possession of vendors or other
third parties or elsewhere), whether real, personal or mixed, tangible,
intangible or contingent, in each case whether or not recorded or reflected or
required to be recorded or reflected on the books and records or financial
statements of any Person, including the following:
(i) all accounting and other books, records and files whether in
paper, microfilm, microfiche, computer tape or disc, magnetic tape or any other
form;
(ii) all apparatus, computers and other electronic data processing
equipment, automobiles, trucks, aircraft, rolling stock, vessels, motor vehicles
and other transportation equipment, special and general tools, test devices,
prototypes and models and other tangible personal property, but excluding
fixtures, machinery, equipment, furniture and office equipment;
(iii) all inventories, parts, raw materials, supplies, work-in-process
and finished goods and products;
(iv) all interests in real property of whatever nature, including
easements, whether as owner, mortgagee or holder of a Security Interest, lessor,
sublessor, lessee, sublessee or otherwise;
(v) all interests in any capital stock or other equity interests of
any Subsidiary or any other Person; all bonds, notes, debentures or other
securities issued by any Subsidiary or any other Person; all loans, advances or
other extensions of credit or capital contributions to any Subsidiary or any
other Person; and all other investments in securities of any Person;
(vi) all license agreements, leases of personal property, open
purchase orders for raw materials, supplies, parts or services, unfilled orders
for the manufacture and sale of products and other contracts, agreements or
commitments;
(vii) all deposits, letters of credit and performance and surety
bonds;
(viii) all written technical information, data, specifications,
research and development information, engineering drawings, operating and
maintenance manuals, and materials and analyses prepared by consultants and
other third parties;
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(ix) all Intellectual Property and licenses from third Persons
granting the right to use any Intellectual Property;
(x) all computer applications, programs and other software,
including operating software, network software, firmware, middleware, design
software, design tools, systems documentation and instructions;
(xi) all cost information, sales and pricing data, customer prospect
lists, supplier records, customer and supplier lists, customer and vendor data,
correspondence and lists, product literature, artwork, design, development and
manufacturing files, vendor and customer drawings, formulations and
specifications, quality records and reports and other books, records, studies,
surveys, reports, plans and documents;
(xii) all prepaid expenses, trade accounts and other accounts and
notes receivables;
(xiii) all rights under contracts or agreements, all claims or rights
against any Person arising from the ownership of any Asset, all rights in
connection with any bids or offers and all claims, choses in action or similar
rights, whether accrued or contingent;
(xiv) all rights under insurance policies and all rights in the nature
of insurance, indemnification or contribution;
(xv) all licenses, permits, approvals and authorizations which have
been issued by any Governmental Authority;
(xvi) cash or cash equivalents, bank accounts, lock boxes and other
deposit arrangements; and
(xvii) interest rate, currency, commodity or other swap, collar, cap
or other hedging or similar agreements or arrangements.
Section 1.3 "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 1.4 "Delayed Transfer Assets" means any Tality Assets that are
expressly provided in this Assignment, the Separation Agreement or any other
Ancillary Agreement to be transferred after the date of this Assignment.
Section 1.5 "Delayed Transfer Liabilities" means any Tality Liabilities
that are expressly provided in this Assignment, the Separation Agreement or any
other Ancillary Agreement to be transferred after the date of this Assignment.
Section 1.6 "Excluded Assets" means:
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(i) the Assets listed or described on Schedule 1.6(i);
(ii) all Assets of Cadence not reflected on the Tality Balance Sheet;
(iii) any cash or other Assets held by Cadence that would be
classified as "current assets," in accordance with U.S. generally accepted
accounting principles ("GAAP"); and
(iv) any other Assets that are not expressly contemplated by the
Separation Agreement, any Foreign Transfer Agreement, this Assignment or any
other Ancillary Agreement (or the Schedules hereto or thereto) as Assets of
Cadence or any other member of the Cadence Group to be transferred to the
Partnership or any other member of the Tality Group.
Section 1.7 "Excluded Liabilities" means:
(i) all Liabilities listed or described in Schedule 1.7(i);
(ii) all Liabilities of Cadence not reflected on the Tality Balance
Sheet;
(iii) all accounts payable and other Liabilities of Cadence that would
be classified as "current liabilities," other than deferred revenue and the
current portion of capital lease obligations, in accordance with U.S. GAAP;
(iv) all Insured Tality Liabilities; and
(v) all Liabilities that are expressly contemplated by this
Assignment, any Foreign Transfer Agreement, the Separation Agreement or any
other Ancillary Agreement (or the Schedules hereto or thereto) as Liabilities to
be retained or assumed by Cadence or any other member of the Cadence Group, and
all agreements and obligations of any member of the Cadence Group under the
Separation Agreement, this Assignment or any other Ancillary Agreement.
Section 1.8 "Foreign Transfer Agreement" means any of the agreement
identified on Schedule 1.8 relating to the transfer of certain Tality Assets and
the assumption of certain Tality Liabilities in connection with the operation of
the Tality Business outside of the United States.
Section 1.9 "Insurance Policies" means insurance policies pursuant to which
a Person makes a true risk transfer to an insurer.
Section 1.10 "Insurance Proceeds" means those monies:
(i) received by an insured from an insurance carrier; or
(ii) paid by an insurance carrier on behalf of the insured; from
Insurance Policies.
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Section 1.11 "Insured Tality Liabilities" means any Tality Liability to the
extent that (i) it is covered under the terms of Cadence's Insurance Policies in
effect prior to the Separation Date and (ii) neither Tality nor any of its
Subsidiaries is a named insured under, or otherwise entitled to the benefits of,
such Insurance Policies.
Section 1.12 "Intellectual Property" means all domestic and foreign patents
and patent applications, together with any continuations, continuations-in-part
or divisional applications thereof, and all patents issuing thereon (including
reissues, renewals and re-examinations of the foregoing); design patents,
invention disclosures; mask works; copyrights, and copyright applications and
registrations; Web addresses, trademarks, service marks, trade names, and trade
dress, in each case together with any applications and registrations therefor
and all appurtenant goodwill relating thereto; trade secrets, commercial and
technical information, know-how, proprietary or confidential information,
including engineering, production and other designs, notebooks, processes,
drawings, specifications, formulae, and technology; computer and electronic data
processing programs and software (object and source code), data bases and
documentation thereof; inventions (whether patented or not); registered designs,
certificates of invention and all other intellectual property under the laws of
any country throughout the world.
Section 1.13 "Liabilities" means all debts, liabilities, guarantees,
assurances, commitments and obligations, whether fixed, contingent or absolute,
asserted or unasserted, matured or unmatured, liquidated or unliquidated,
accrued or not accrued, known or unknown, due or to become due, whenever or
however arising (including whether arising out of any Contract or tort based on
negligence or strict liability) and whether or not the same would be required by
U.S. GAAP to be reflected in financial statements or disclosed in the notes
thereto.
Section 1.14 "Security Interest" means any mortgage, security interest,
pledge, lien, charge, claim, option, right to acquire, voting or other
restriction, right-of-way, covenant, condition, easement, encroachment,
restriction on transfer, or other encumbrance of any nature whatsoever.
Section 1.15 "Tality Assets" means (without duplication) the following
Assets (other than those Assets constituting Excluded Assets or as otherwise
provided for in any other Ancillary Agreement or other express agreement of the
parties):
(i) all Assets reflected on the Tality Balance Sheet, subject to any
dispositions of such Assets after the date of the Tality Balance Sheet;
(ii) all Assets that have been written off, expensed or fully
depreciated that, had they not been written off, expensed or fully depreciated,
would have been reflected on the Tality Balance Sheet in accordance with the
principles and accounting policies under which the Tality Balance Sheet was
prepared;
(iii) all Assets acquired by Cadence or any of its Subsidiaries after
the date of the Tality Balance Sheet that would be reflected on the consolidated
balance sheet of Tality as of the Separation Date if such consolidated balance
sheet was prepared using the same principles and accounting policies under which
the Tality Balance Sheet was prepared, including any business transaction
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processing that may occur on Cadence systems on behalf of Tality during the
period between separation date to initialization of the processing systems
required by Tality;
(iv) all Assets that are used solely by the Tality Business at the
Separation Date but are not reflected on the Tality Balance Sheet due to mistake
or omission (as determined by Cadence in its sole and absolute discretion);
(v) all Tality Special Gains;
(vi) all Tality Contracts;
(vii) to the extent permitted by Applicable Law and subject to the
Indemnification and Insurance Matters Agreement, all rights of any member of the
Tality Group under any of Cadence's Insurance Policies; and
(viii) all Assets that are expressly contemplated by this Assignment,
any Foreign Transfer Agreement, the Separation Agreement or any other Ancillary
Agreement (or Schedule 1.15(viii) or any other Schedule hereto or thereto) as
Assets to be transferred to the Partnership or any other member of the Tality
Group.
Section 1.16 "Tality Balance Sheet" means the consolidated balance sheet
(including the notes thereto) of the Tality Business as of July 1, 2000 that is
included in the Registration Statement.
Section 1.17 "Tality Contingent Liability" means any Liability, other than
Liabilities for Taxes, of a member of the Cadence Group or the Tality Group that
is reflected on, or, were it not for the reasons noted in clause (ii) below,
would have been reflected on, the Tality Balance Sheet, whenever arising, to any
Person other than a member of the Cadence Group or the Tality Group, if and to
the extent that (i) such Liability arises out of the events, acts or omissions
occurring before the Separation Date and (ii) the existence or scope of the
obligation of a member of the Cadence Group or the Tality Group as of the
Separation Date with respect to such Liability was not acknowledged, fixed or
determined in any material respect, due to a dispute or other uncertainty as of
the Separation Date or as a result of the failure of such Liability to have been
discovered or asserted as of the Separation Date (it being understood that the
existence of a litigation or other reserve with respect to any Liability shall
not be sufficient for such Liability to be considered acknowledged, fixed or
determined). In the case of any Liability a portion of which arises out of
events, acts or omissions occurring prior to the Separation Date and a portion
of which arises out of events, acts or omissions occurring on or after the
Separation Date, only that portion that arises out of events, acts or omissions
occurring prior to the Separation Date shall be considered a Tality Contingent
Liability. For purposes of the foregoing, a Liability shall be deemed to have
arisen out of events, acts or omissions occurring prior to the Separation Date
if all the elements necessary for the assertion of a claim with respect to such
Liability shall have occurred on or prior to the Separation Date, such that the
claim, were it asserted in an Action on or prior to the Separation Date, would
not be dismissed by a court on ripeness or similar grounds. For purposes of
clarifying the foregoing, the parties agree that no Liability relating to,
arising out
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of or resulting from any obligation of any Person to perform the executory
portion of any contract or agreement existing as of the Separation Date, or to
satisfy any obligation accrued under any Plan (as defined in the Employee
Matters Agreement entered into by the parties as of the date hereof) as of the
Separation Date, shall be deemed to be a Tality Contingent Liability.
Section 1.18 "Tality Contracts" means the following contracts and
agreements to which Cadence or one of its Subsidiaries is a party or by which it
or any of its Assets is bound, whether or not in writing, except for any such
contract or agreement that is contemplated to be retained by Cadence or any
member of the Cadence Group pursuant to this Assignment or any other Ancillary
Agreement:
(i) any contract or agreement reflected on the Tality Balance sheet;
(ii) any contract or agreement entered into after July 1, 2000 and
designated by Cadence (subject to the consent of the Partnership, which shall
not be unreasonably withheld) as a Tality Contract;
(iii) any contract or agreement that is otherwise expressly
contemplated pursuant to this Assignment, any Foreign Transfer Agreement, the
Separation Agreement or any of the other Ancillary Agreements to be assigned to
the Partnership; and
(iv) any contract or agreement set forth on Schedule 1.18(iv).
Section 1.19 "Tality Liabilities" means (without duplication) the following
Liabilities (other than those Liabilities constituting Excluded Liabilities or
as otherwise provided for in any other Ancillary Agreement or other express
agreement of the parties):
(i) all Liabilities reflected on the Tality Balance Sheet, subject
to any discharge of such Liabilities subsequent to the date of the Tality
Balance Sheet;
(ii) all Liabilities of Cadence or its Subsidiaries that arise after
the date of the Tality Balance Sheet that would be reflected on the consolidated
balance sheet of Tality as of the Separation Date if such consolidated balance
sheet was prepared using the same principles and accounting policies under which
the Tality Balance Sheet was prepared;
(iii) all Liabilities that are related solely to the Tality Business
at the Separation Date but are not reflected on the Tality Balance Sheet due to
mistake or unintentional omission (as determined by Cadence in its sole and
absolute discretion);
(iv) all Tality Contingent Liabilities;
(v) all Liabilities (other than Liabilities for Taxes), whether
arising before, on or after the Separation Date, solely relating to, arising out
of or resulting from:
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(1) the operation of the Tality Business, as conducted at any
time prior to, on or after the Separation Date (including any Liability relating
to, arising out of or resulting from any act or failure to act by any director,
officer, employee, agent or representative (whether or not such act or failure
to act is or was within such Person's authority));
(2) the operation of any business conducted by any member of the
Tality Group at any time after the Separation Date (including any Liability
relating to, arising out of or resulting from any act or failure to act by any
director, officer, employee, agent or representative (whether or not such act or
failure to act is or was within such Person's authority)); or
(3) any Tality Assets;
(vi) all Liabilities relating to, arising out of or resulting from
any of the terminated, divested or discontinued businesses and operations listed
or described on Schedule 1.19(vi); and
(vii) all Liabilities that are expressly contemplated by this
Assignment, Schedule 1.19(vii), any Foreign Transfer Agreement, the Separation
Agreement or any other Ancillary Agreement (or the Schedules hereto or thereto)
as Liabilities to be assumed by the Partnership or any member of the Tality
Group, and all agreements, obligations and Liabilities of any member of the
Tality Group under this Assignment, any Foreign Transfer Agreement or any of the
Ancillary Agreements.
Section 1.20 "Tality Special Gain" means any claim or other right of a
member of the Cadence Group or the Tality Group that is reflected on, or, were
it not for the reasons noted in clause (ii) below, would have been reflected on,
the Tality Balance Sheet, whenever arising, against any Person other than a
member of the Cadence Group or the Tality Group, if and to the extent that (i)
such claim or right arises out of the events, acts or omissions occurring before
the Separation Date (based on then existing law) and (ii) the existence or scope
of the obligation of such other Person as of the Separation Date was not
acknowledged, fixed or determined in any material respect, due to a dispute or
other uncertainty as of the Separation Date or as a result of the failure of
such claim or other right to have been discovered or asserted as of the
Separation Date. A claim or right meeting the foregoing definition shall be
considered a Tality Special Gain regardless of whether there was any Action
pending, threatened or contemplated as of the Separation Date with respect
thereto. In the case of any claim or right a portion of which arises out of
events, acts or omissions occurring prior to the Separation Date and a portion
of which arises out of events, acts or omissions occurring on or after the
Separation Date, only that portion that arises out of events, acts or omissions
occurring prior to the Separation Date shall be considered a Tality Special
Gain. For purposes of the foregoing, a claim or right shall be deemed to have
accrued as of the Separation Date if all the elements of the claim necessary for
its assertion shall have occurred on or prior to the Separation Date, such that
the claim or right, were it asserted in an Action on or prior to the Separation
Date, would not be dismissed by a court on ripeness or similar grounds.
Notwithstanding the foregoing, none of (i) any Insurance
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Proceeds, (ii) any Excluded Assets, (iii) any reversal of any litigation or
other reserve, and (iv) any matters relating to Taxes shall be deemed to be a
Tality Special Gain.
Section 1.21 "Taxes" has the meaning set forth in the Indemnification and
Insurance Matters Agreement.
ARTICLE II
CONTRIBUTION AND ASSUMPTION
Section 2.1 Contribution of Assets and Assumption of Liabilities.
(a) Contribution of Assets. Cadence, on behalf of Holdings, and Holdings
hereby assign, transfer, convey and deliver (or shall cause each and every of
their applicable Subsidiaries to assign, transfer, convey and deliver) to the
Partnership, or, pursuant to Section 2.4, to any applicable Subsidiary of the
Partnership, and the Partnership hereby accepts from Cadence, Holdings or their
applicable Subsidiary, and agrees to cause its applicable Subsidiary to accept,
all of Cadence's, Holdings' and their applicable Subsidiaries' respective right,
title and interest in and to the Tality Assets, other than the Delayed Transfer
Assets; provided, however, that any Tality Assets that are specifically assigned
or transferred pursuant to another Ancillary Agreement or a Foreign Transfer
Agreement shall not be assigned or transferred pursuant to this Section 2.1(a).
(b) Assumption of Liabilities. The Partnership hereby assumes and agrees
faithfully to perform and fulfill (or shall cause any applicable Subsidiary of
the Partnership to assume, perform and fulfill), all the Tality Liabilities owed
by Cadence, Holdings or their Subsidiaries, other than the Delayed Transfer
Liabilities, in accordance with their respective terms; provided, however, that
any Tality Liabilities that are specifically assumed pursuant to another
Ancillary Agreement or a Foreign Transfer Agreement shall not be assumed
pursuant to this Section 2.1(b). Thereafter, the Partnership shall be
responsible (or shall cause any applicable Subsidiary of the Partnership to be
responsible) for all Tality Liabilities held by Cadence, Holdings or their
Subsidiaries, regardless of when or where such 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 Liabilities are asserted
or determined (including any Tality Liabilities arising out of claims made by
Cadence's, Holdings', Tality's or the Partnership's respective directors,
officers, consultants, independent contractors, employees or agents against any
member of the Cadence Group or the Tality Group) 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 Cadence Group or the Tality Group or any
of their respective directors, officers, employees or agents.
(c) Delayed Transfer Assets and Liabilities. Each of the parties hereto
agrees that the Delayed Transfer Assets shall be assigned, transferred, conveyed
and delivered, and the Delayed Transfer Liabilities shall be assumed as set
forth on Schedule 2.1(c). Following such assignment, transfer, conveyance and
delivery of any Delayed Transfer Asset, or the assumption of any Delayed
Transfer Liability, the applicable Delayed Transfer Asset or Delayed Transfer
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Liability shall be treated for all purposes of this Assignment and the other
Ancillary Agreements as a Tality Asset or as a Tality Liability, as the case may
be.
Section 2.2 Methods of Transfer and Assumption.
(a) Terms of Certain Other Agreements Govern. Substantially concurrently
with this Assignment, the parties shall enter into the other Ancillary
Agreements that have not been entered into as of the date hereof. To the extent
that the transfer of any Tality Asset or the assumption of any Tality Liability
is expressly provided for by the terms of any other Ancillary Agreement or a
Foreign Transfer Agreement, the terms of such other Ancillary Agreement or
Foreign Transfer Agreement shall effect, and determine the manner of, the
transfer or assumption. It is the intent of the parties hereto that pursuant to
Section 2.1 the transfer and assumption of all other Tality Assets and Tality
Liabilities, other than Delayed Transfer Assets, Delayed Transfer Liabilities
and any other Tality Assets and Tality Liabilities heretofore transferred to the
Partnership, shall be made effective as of the Separation Date; provided,
however, that circumstances in various jurisdictions outside the United States
may require the transfer of certain Assets and the assumption of certain
Liabilities to occur in such other manner and at such other time as the parties
shall agree.
(b) Mistaken Allocations. In addition to those transfers and assumptions
accurately identified and designated by the parties to take place but which the
parties are not able to effect prior to the Separation Date, there may exist (i)
Assets that the parties discover were, contrary to the agreements between the
parties, by mistake or omission, transferred or not transferred, as the case may
be, to the Partnership (or its applicable Subsidiaries) or (ii) Liabilities that
the parties discover were, contrary to the agreements between the parties, by
mistake or omission, assumed or not assumed, as the case may be, by the
Partnership (or its applicable Subsidiaries). 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
with respect to the Assets to be transferred to or Liabilities to be assumed by
the Partnership (or its applicable Subsidiaries). Prior to any such transfer,
the Person receiving or possessing such Asset shall hold such Asset in trust for
the other Person. Each party 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.
(c) Documents Relating to Other Transfers of Assets and Assumption of
Liabilities. In furtherance of the assignment, transfer and conveyance of Tality
Assets and the assumption of Tality Liabilities set forth in Sections 2.2(a) and
(b) and certain other Ancillary Agreements, simultaneously with the execution
and delivery hereof or as promptly as practicable thereafter, (i) Cadence, on
behalf of Holdings, and Holdings shall execute and deliver, and shall cause
their respective Subsidiaries to execute and deliver, such bills of sale, stock
powers, certificates of title, assignments of contracts and other instruments of
transfer, conveyance and assignment as and to the extent necessary to evidence
the transfer, conveyance and assignment of all of Cadence's, Holdings' and their
respective Subsidiaries' right, title and interest in and to the Tality Assets
to the Partnership (or its applicable Subsidiaries) effected by this Assignment;
and (ii) the Partnership shall, or shall cause its Subsidiaries to, execute and
deliver such assumptions of contracts and other instruments of assumption as and
to the extent necessary to evidence the
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valid and effective assumption of the Tality Liabilities by the Partnership (or
its applicable Subsidiaries) effected by this Assignment.
(d) Reconciliation of Accounts Receivable. Within thirty (30) days after
the end of Cadence's first full fiscal year to be completed subsequent to the
Separation Date (the "Reconciliation Date"), Cadence, on behalf of Holdings,
shall deliver to the Partnership a written reconciliation of the actual amounts
collected prior to such date in respect of the accounts receivable included on
the Tality Balance Sheet ("Collected Amounts"). If the Collected Amounts exceed
the accounts receivable net of any reserves for doubtful accounts included on
the Tality Balance Sheet, Holdings or Cadence, on behalf of Holdings, shall
transfer the difference in immediately available funds to the Partnership no
later than thirty (30) days after the Reconciliation Date. If the Collected
Amounts are less than the accounts receivable net of any reserves for doubtful
accounts included on the Tality Balance Sheet, the Partnership shall transfer
the difference in immediately available funds to Holdings no later than thirty
(30) days after the Reconciliation Date.
Section 2.3 Delayed Transfers.
(a) Transfers Not Consummated Prior to Separation Date. If the transfer,
assignment or novation of any Assets (other than Delayed Transfer Assets)
intended to be transferred or assigned hereunder is not consummated prior to or
on the Separation Date, whether pursuant to Section 4.7 of the Separation
Agreement 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 Tality Assets (or such
Excluded Assets, as the case may be), including possession, use, risk of loss,
potential for gain, and dominion, control and command over such Assets, are to
inure from and after the Separation Date to the Tality Group (or the Cadence
Group, 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
such Asset pursuant to Section 4.7 of the Separation Agreement, are obtained or
such other reason for the delay no longer exists, the transfer of the Asset
shall be effected in accordance with the terms of this Assignment and/or such
other applicable Ancillary Agreement.
(b) Expenses. The Person retaining an Asset (other than Delayed Transfer
Assets) 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 2.4 Novation of Assumed Tality Liabilities.
(a) Reasonable Commercial Efforts. Each of the parties, at the request of
either Cadence or Holdings, on the one hand, or the Partnership or Tality, on
the other, shall use
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all commercially reasonable efforts to obtain, or to cause to be obtained, any
consent, substitution, approval or amendment required to novate (including with
respect to any federal government contract) or assign all rights and obligations
under agreements, leases, licenses and other obligations or Liabilities of any
nature whatsoever that constitute Tality Liabilities or to obtain in writing the
unconditional release of all parties to such arrangements other than any member
of the Tality Group, so that, in any such case, Tality and its Subsidiaries
shall be solely responsible for such Liabilities; provided, however, that none
of the parties or 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 the parties are unable to obtain, or
to cause to be obtained, any such required consent, approval, release,
substitution or amendment, the applicable member of the Cadence Group shall
continue to be bound by such agreements, leases, licenses and other obligations
and, unless prohibited by law or the terms thereof (except to the extent
expressly set forth in this Assignment, the Separation Agreement or any other
Ancillary Agreement), the Partnership shall, as agent or subcontractor for
Cadence, Holdings 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 Cadence, Holdings or such other Person, as
the case may be, thereunder from and after the date hereof. Cadence shall, on
behalf of Holdings, or Holdings shall, without further consideration, pay and
remit, or cause to be paid or remitted, to the Partnership or its appropriate
Subsidiary promptly all money, rights and other consideration received by it or
any member of the Cadence Group in respect of such performance (unless any such
consideration is an Excluded Asset). 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, Cadence, on behalf of Holdings, or Holdings shall thereafter
assign, or cause to be assigned, all its rights, obligations and other
Liabilities thereunder or any rights or obligations of any member of the Cadence
Group to the Partnership (or its appropriate Subsidiary) without payment of
further consideration and the Partnership (or its appropriate Subsidiary) shall,
without the payment of any further consideration, assume such rights and
obligations.
ARTICLE III
LITIGATION
Section 3.1 Allocation.
(a) Litigation to Be Transferred to Tality. Notwithstanding any contrary
provisions in the Indemnification and Insurance Matters Agreement, on the
Separation Date, the responsibilities for management of the litigation
identified on Schedule 3.1(a), as such Schedule is updated by Cadence and
delivered to the Partnership immediately prior to the Separation (the
"Litigation Schedule"), shall be transferred in their entirety from Cadence, on
behalf of Holdings, Holdings or their respective Subsidiaries to the Partnership
or its applicable Subsidiaries. From and after the Separation Date, the
Partnership shall manage the defense of such litigation and shall cause its
applicable Subsidiaries to do the same. Cadence and its Subsidiaries must first
obtain the prior consent of the Partnership or its applicable Subsidiary for any
action taken subsequent to the Separation Date in connection with the litigation
identified in the Litigation
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Schedule, which consent cannot be unreasonably withheld or delayed. All other
matters relating to such litigation, including any indemnification for such
claims, shall be governed by the provisions of the Indemnification and Insurance
Matters Agreement.
(b) Litigation to be Defended by Cadence at the Partnership's Expense.
Notwithstanding any contrary provisions in the Indemnification and Insurance
Matters Agreement, Cadence, on behalf of Holdings, and Holdings shall defend,
and shall cause their applicable Subsidiaries to defend, the litigation
identified in the Litigation Schedule that is not delivered by Cadence, on
behalf of Holdings, Holdings or their applicable Subsidiaries, to the
Partnership on the Separation Date. All other matters relating to such
litigation, including indemnification for such claims, shall be governed by the
provisions of the Indemnification and Insurance Matters Agreement.
Section 3.2 Cooperation. The parties and their respective Subsidiaries
shall cooperate with each other in the defense of any litigation covered under
this Article III and afford to each other reasonable access upon reasonable
advance notice to witnesses and Information (other than Information protected
from disclosure by applicable privileges) that is reasonably required to defend
this litigation. The foregoing agreement to cooperate includes an obligation to
provide access to qualified assistance to provide information, witnesses and
documents to respond to discovery requests in specific lawsuits. In such cases,
cooperation shall be timely so that the party responding to discovery may meet
all court-imposed deadlines. The party requesting information shall reimburse
the party providing information consistent with the terms of Section 4.2 of the
Separation Agreement. The obligations set forth in this paragraph are more
clearly defined in Section 4.2 of the Separation Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Incorporation by Reference. Sections 4.4 and 4.7 and all of the
provisions of Article V of the Separation Agreement (except for Sections 5.13
and 5.15 thereof) are incorporated into and made a part of this Agreement, as if
fully set forth herein.
Section 4.2 Conflicting Agreements. In the event of any irreconcilable
conflict between this Agreement and the Separation Agreement, any Foreign
Transfer Agreement, any other Ancillary Agreement or other agreement executed in
connection herewith or therewith, the provisions of such other agreement shall
prevail to the extent that they specifically address the subject matter of the
conflict.
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WHEREFORE, the parties have executed and delivered this General Assignment
and Assumption Agreement effective as of the date first set forth above.
CADENCE DESIGN SYSTEMS, INC. TALITY, LP
By: By: TALITY CORPORATION,
----------------------------------- AS GENERAL PARTNER
Name: By:
--------------------------------- ---------------------------------
Title: Name:
-------------------------------- -------------------------------
Title:
------------------------------
CADENCE HOLDINGS, INC. TALITY CORPORATION
By: By:
----------------------------------- -------------------------------------
Name: Name:
--------------------------------- -----------------------------------
Title: Title:
-------------------------------- ----------------------------------
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