EXHIBIT 10.80
CADENCE DESIGN SYSTEMS, INC.
EMPLOYMENT AGREEMENT
WITH ▇▇▇▇▇ ▇▇▇▇▇▇
THIS AGREEMENT (this "Agreement") is made effective as of May 26, 2004
(the "Effective Date"), between CADENCE DESIGN SYSTEMS, INC., a Delaware
corporation (the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇ ("Executive").
WHEREAS, Executive is currently employed by the Company as Executive Vice
President, Worldwide Field Operations;
WHEREAS, Executive and ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc., a wholly-owned subsidiary
of the Company (the "Landlord"), have entered into that certain Residential
Lease dated as of March 1, 2003 (the "Residential Lease"); and
WHEREAS, the Company and Executive wish to enter into a formal employment
agreement on the terms and conditions as set forth herein.
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements set forth below, it is mutually agreed as follows:
1. TERM AND DUTIES.
1.1 EFFECTIVE DATE. The Company hereby employs Executive and Executive
hereby accepts employment pursuant to the terms and provisions of this Agreement
commencing on the Effective Date. Executive has been employed and shall continue
to be employed on an at will basis, meaning that either Executive or the Company
may terminate Executive's employment at any time, with or without Cause (as
defined in Section 4.2 hereof), in the manner specified herein.
1.2 SERVICES.
(a) Executive shall continue to have the title of Executive Vice
President, Worldwide Field Operations. Executive's duties will be assigned to
Executive by the Company's Chief Executive Officer ("CEO"), to whom Executive
will report at all
times during his employment (other than during any Transition Period described
in Exhibit B), unless Executive otherwise agrees in writing.
(b) Executive shall be required to comply with all applicable
company policies and procedures, as such shall be adopted, modified or otherwise
established by the Company from time to time.
1.3 SERVICES TO BE EXCLUSIVE. During his employment with the Company,
Executive agrees to devote his full productive time and best efforts to the
performance of Executive's duties hereunder. Executive further agrees, as a
condition to the performance by the Company of each and all of its obligations
hereunder, that so long as Executive is employed by the Company or receiving
compensation or any other consideration from the Company, he will not directly
or indirectly render services of any nature to, otherwise become employed by,
serve on the board of directors of, or otherwise participate or engage in any
other business without the CEO's prior written consent. Nothing herein contained
shall preclude Executive from (a) serving on the board of directors of up to two
other companies so long as such companies are not engaged in the "EDA industry"
(as that phrase is defined in Exhibit B), and (b) having outside personal
investments and involvement with appropriate community activities. With respect
to the activities described in the previous sentence, Executive may devote a
reasonable amount of time to such matters, provided that they shall in no manner
interfere with or derogate from Executive's work for the Company.
1.4 OFFICE. The Company shall maintain an office for Executive at the
Company's corporate headquarters, which currently are located in San Jose,
California.
2. COMPENSATION.
The Company shall pay to Executive, and Executive shall accept as full
consideration for the Services, compensation consisting of the following:
2.1 BASE SALARY. The Company shall pay Executive a base salary of Four
Hundred Fifty Thousand Dollars ($450,000) per year ("Base Salary"), payable in
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installments in accordance with the Company's customary payroll practices, less
such deductions and withholdings required by law or authorized by Executive. The
Board of Directors of the Company (the "Board") or the Compensation Committee of
the Board (the "Compensation Committee") shall review the amount of the Base
Salary from time to time, but no less frequently than annually.
2.2 BONUS. Executive shall participate in the Company's Senior Executive
Bonus Plan or its successor (the "Bonus Plan") at an annual target bonus of Six
Hundred Fifty Thousand Dollars ($650,000) (the "Target Bonus") pursuant to the
terms of such Bonus Plan (the criteria for earning a bonus thereunder are set
annually by the Compensation Committee). The Board or the Compensation Committee
shall review the amount of the Target Bonus from time to time, but no less
frequently than annually.
2.3 EQUITY GRANTS. Executive has previously been granted stock options
by the Company which remain in full force and effect in accordance with the
terms of the stock option agreements documenting such grants. Executive shall be
eligible to receive additional grants of either restricted stock or stock
options or both as the Compensation Committee may determine from time to time.
All stock options shall be granted at one hundred percent (100%) of the fair
market value of the Company's common stock on the date of grant. Any awards
shall vest in accordance with the Company's vesting policy for additional grants
to executive officers of the Company in effect on the date of the grant by the
Compensation Committee, and shall contain such other terms and conditions as
shall be set forth in the agreement documenting the grant.
2.4 INDEMNIFICATION. In the event Executive is made, or threatened to be
made, a party to any legal action or proceeding, whether civil or criminal, by
reason of the fact that Executive is or was a director or officer of the Company
or serves or served any other corporation or other person which is at least
fifty percent (50%) or more owned by the Company or controlled by the Company in
any capacity at the Company's
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request, Executive shall be indemnified by the Company, and the Company shall
pay Executive's related expenses when and as incurred, all to the fullest extent
not prohibited by law, as more fully described in that Indemnification Agreement
between the Company and Executive dated as of May 14, 2004, and attached hereto
as Exhibit A.
3. EXPENSES AND BENEFITS.
3.1 REASONABLE AND NECESSARY BUSINESS EXPENSES. In addition to the
compensation provided for in Section 2 hereof, the Company shall reimburse
Executive for all reasonable, customary and necessary expenses incurred in the
performance of Executive's duties hereunder. Executive shall first account for
such expenses by submitting a signed statement itemizing such expenses prepared
in accordance with the policy set by the Company for reimbursement of such
expenses. The amount, nature and extent of reimbursement for such expenses shall
always be subject to the control, supervision and direction of the CEO, Chief
Financial Officer and the Board, or such other persons as may be specified from
time to time by the CEO.
3.2 BENEFITS. During Executive's full-time employment with the Company,
pursuant to this Agreement:
(a) Executive shall be eligible to participate in the Company's
standard U.S. health insurance, life insurance and disability insurance plan, as
such plans may be modified from time to time;
(b) Executive shall be eligible to participate in the Company's
qualified and non-qualified retirement and other deferred compensation programs
pursuant to their terms, as such programs may be modified from time to time;
(c) In lieu of payments to the Cadence UK Employee Benefit Trust
2002, to provide funding for a private retirement plan for Executive, the
Company shall pay Executive, through fiscal 2005 (1) each month, an amount equal
to 0.833% of Executive's annual Base Salary, and (2) an amount equal to 10% of
any bonus paid to
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Executive at the time any bonus payments are made (even if the bonus for fiscal
2005 is paid in 2006);
(d) The Company shall provide Executive with cost of living
adjustment payments in the net amount (after deduction of all applicable taxes
and other withholdings) of $6,600 per month until the later of (i) the end of
the Transition Period defined in Exhibit B, or (ii) the termination of
Executive's full-time employment for any reason;
(e) The Company shall provide, at its cost, the legal and other
assistance necessary to process "green cards" (or other permanent resident
status) for Executive and the other members of Executive's immediate family, who
are eligible as derivative beneficiaries, as well as to address any other U.S.
immigration issues that may arise for Executive and his family during
Executive's employment with the Company, including during the Transition Period,
if applicable, described in the Executive Transition and Release Agreement, in
the form attached hereto as Exhibit B (the "Transition Agreement"). However,
this paragraph shall not be construed as a guarantee by the Company that the
Executive will be able to obtain a "green card";
(f) In the event Executive's employment with the Company is
terminated other than for Cause (as defined in Section 4.2 hereof) or if
Executive resigns his employment as a result of an event constituting a
Constructive Termination (as defined in Section 4.3 hereof), and Executive
relocates from the San Francisco Bay Area to the United Kingdom within twelve
(12) months after such termination of Executive's full-time employment, or such
other date agreed to in writing by the Company in its sole discretion, the
Company shall reimburse Executive for all reasonable, customary and necessary
moving and relocation expenses, including airfare for Executive's family,
incurred by Executive;
(g) The Company will cause the Landlord not to exercise its right
to terminate the Residential Lease, except upon Executive's default thereunder,
during
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Executive's full-time employment with the Company. If the Residential Lease
expires during Executive's employment with the Company, the Company will
negotiate in good faith to extend the term of the Residential Lease. In the
event Executive's employment with the Company is terminated other than for Cause
(as defined in Section 4.2 hereof) or if Executive resigns his employment as a
result of an event constituting Constructive Termination (as defined in Section
4.3 hereof), the Company will cause the Landlord not to exercise its right to
terminate the Residential Lease, except upon Executive's default thereunder,
such that Executive will remain a tenant until 12 months following the date upon
which Executive's employment is terminated other than for Cause or as a result
of a Constructive Termination;
(h) The Company shall, pursuant to its standard tax equalization
practices and subject to the limitation set forth below, pay such additional
amounts to Executive as may be necessary to cause Executive's overall income tax
expense with respect to his (a) base salary and cash bonus received, and
ordinary income from the exercise of stock options during the year ended
December 31, 2003, and (b) base salary and cash bonus received from the Company
during the calendar years ended December 31, 2004 and 2005, to be no greater
than what such income tax expense would have been with respect to such base
salary, cash bonus and, in the case of the year ended December 31, 2003,
ordinary income from the exercise of stock options, had Executive resided in the
United Kingdom for the entirety of each such year. The equalization payments
hereunder shall be determined by taking into account such factors as the Company
reasonably determines are relevant to the determination of Executive's overall
tax cost and tax cost applicable to base salary and cash bonus, and shall be
grossed up as necessary to take into account any taxes imposed on the amounts
paid pursuant to the preceding sentence. Notwithstanding anything in this
paragraph to the contrary, the amount payable by the Company to Executive
hereunder (not including any "gross up" payment pursuant to the preceding
sentence) with respect
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to each of the years ended December 31, 2004 and 2005 shall in no event exceed
the amount that would be payable with respect to such year if the aggregate tax
rate applicable to Executive for such year exceeded the aggregate tax rate that
would have been applicable to Executive had he been a resident of the United
Kingdom for the entirety of such year by no more than three percent (3%). In
addition to the foregoing, the Company shall pay to Executive, on an after-tax
basis, the following (1) any fines, penalties and interest incurred as a result
of a delay in filing caused, or incorrect information provided to Executive, by
the Company, and (2) the reasonable cost incurred by Executive to prepare his
income tax returns for the taxable year ended December 31, 2003, and, to the
extent related to items pertaining solely to his income from the Company, for
the taxable years ended December 31, 2004 and 2005.
3.3 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ ACT LOAN PROHIBITION. To the extent that any company
benefit, program, practice, arrangement, or any term of this Agreement would or
might otherwise result in the Company's extension of a credit arrangement to
Executive not permissible under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (a "Loan"), the
Company will use reasonable efforts to provide Executive with a substitute for
such Loan, which is lawful and of at least equal value. If this cannot be done,
or if doing so would be significantly more expensive to the Company than making
a Loan, then the Company need not make or maintain a Loan or provide a
substitute for it.
4. TERMINATION OF EMPLOYMENT.
4.1 GENERAL. Executive's employment by the Company under this Agreement
shall terminate immediately upon delivery to Executive of written notice of
termination by the Company, upon the Company's receipt of written notice of
termination by Executive within thirty (30) days before the specified effective
date of such termination, or upon Executive's death or Permanent Disability (as
defined in Section 4.4 hereof). In the event of such termination, except where
Executive is terminated for Cause (as defined in Section 4.2 hereof) or as the
result of a Permanent
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Disability or death, or where Executive voluntarily terminates his employment
other than a Constructive Termination (as defined in Section 4.3 hereof), and
upon execution by Executive at or about the effective date of such termination
of the Transition Agreement, in the form attached hereto as Exhibit B, the
Company shall provide Executive with the benefits as set forth in the Transition
Agreement.
4.2 DEFINITION OF CAUSE. For purposes of this Agreement, "Cause" shall
be deemed to mean: (1) Executive's gross misconduct or fraud in the performance
of his duties under this Agreement; (2) Executive's conviction or guilty plea or
plea of nolo contendere with respect to any felony or act of moral turpitude;
(3) Executive's engaging in any material act of theft or material
misappropriation of company property in connection with his employment; (4)
Executive's material breach of this Agreement, after written notice delivered to
Executive of such breach and failure to cure such breach, if curable, within
thirty (30) days following delivery of such notice;(5) Executive's material
breach of the Proprietary Information Agreement (as defined in Section 8
hereof); (6) Executive's material refusal to perform his assigned duties, and,
where such refusal is curable, if such refusal is not cured within thirty (30)
days following delivery of written notice thereof from the Company; or (7)
Executive's material breach of the Company's Code of Business Conduct as such
code may be revised from time to time.
4.3 CONSTRUCTIVE TERMINATION. Notwithstanding anything in this Section 4
to the contrary, Executive may, upon written notice to the Company, voluntarily
end his employment upon or within ninety (90) days following the occurrence of
an event constituting a Constructive Termination and be eligible to receive the
benefits set forth in the Transition Agreement in exchange for executing and
delivering that agreement in accordance with Section 9.3 hereof. For purposes of
this Agreement, "Constructive Termination" shall mean:
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(a) a material adverse change, without Executive's written
consent, in Executive's authority or duties causing Executive's position to be
of materially less stature or responsibility, after written notice delivered to
the Company of such change and the Company's failure to cure such change, if
curable, within thirty (30) days following delivery of such notice; or any
change, without Executive's written consent, to Executive's title or Executive's
reporting structure causing Executive to no longer report to the CEO of the
Company, after written notice delivered to the Company of such change and the
Company's failure to cure such change, if curable, within thirty (30) days
following delivery of such notice;
(b) a reduction, without Executive's written consent, in
Executive's Base Salary in effect on the Effective Date (or such higher level as
may be in effect in the future) by more than ten percent (10%) or a reduction in
Executive's stated Target Bonus in effect on the Effective Date (or such greater
Target Bonus amount as may be in effect in the future) under the Bonus Plan;
(c) a relocation of Executive's principal place of employment by
more than thirty (30) miles, unless Executive consents in writing to such
relocation;
(d) any material breach by the Company of any provision of this
Agreement, after written notice delivered to the Company of such breach and the
Company's failure to cure such breach, if curable, within thirty (30) days
following delivery of such notice;
(e) any failure by the Company to obtain the written assumption of
this Agreement by any successor to the Company.
4.4 PERMANENT DISABILITY. For purposes of this Agreement, "Permanent
Disability" shall mean any medically determinable physical or mental impairment
that renders Executive unable to perform effectively his duties under this
Agreement for a continuous period of not less than twelve (12) months.
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4.5 CHANGE IN CONTROL.
(a) Should there occur a Change in Control (as defined below) and
if within ninety (90) days prior to, or thirteen (13) months following, the
Change in Control either (i) Executive is terminated without Cause or (ii)
Executive resigns his employment as a result of an event constituting a
Constructive Termination, then, in exchange for signing the Transition
Agreement, Executive shall be entitled to all of the benefits set forth therein,
except that Section 4(b) of the Transition Agreement will be replaced by the
following provision: "all outstanding stock options granted and restricted stock
issued by the Company to the Executive prior to the Change in Control (as
defined in Section 4.5 of Executive's Employment Agreement) shall have their
vesting fully accelerated so as to be 100% vested as of the Effective Date of
this Agreement. This acceleration will have no effect on any other provisions of
the plans governing the stock options and restricted stock."
(b) For purposes of this Section 4.5, a Change in Control shall be
deemed to occur upon the consummation of any one of the following events:
(i) any "person" (as such term is used in sections 13(d) and
14(d) of the Exchange Act) becomes the "beneficial
owner" (as defined in Rule 13d-3 of the Exchange Act),
directly or indirectly, of securities of the Company
representing more than fifty percent (50%) of the total
voting power represented by the Company's then
outstanding voting securities;
(ii) except pursuant to the exception applicable to clause
(iii) below, a change in the composition of the Board
occurring within a two-year period, as a result of which
fewer than a majority of the directors are Incumbent
Directors "Incumbent Directors" means directors who
either (i) are directors of the Company as of the
Effective Date, or (ii) are elected, or
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nominated for election, to the Board with the
affirmative votes of at least a majority of the
Incumbent Directors at the time of such election or
nomination, but will not include an individual whose
election or nomination is in connection with an actual
or threatened proxy contest relating to the election of
directors to the Board);
(iii) the consummation of a merger or consolidation of the
Company with any other corporation, other than a merger
or consolidation in which the holders of the Company's
outstanding voting securities immediately prior to such
merger or consolidation receive, in exchange for their
voting securities of the Company in consummation of such
merger or consolidation, securities possessing at least
fifty percent (50%) of the total voting power
represented by the outstanding voting securities of the
surviving entity (or parent thereof) immediately after
such merger or consolidation; or
(iv) the consummation of the sale or disposition by the
Company of all or substantially all the Company's
assets.
4.6 TERMINATION FOR CAUSE, ON ACCOUNT OF DEATH, PERMANENT DISABILITY, OR
VOLUNTARY TERMINATION. In the event Executive's employment is terminated for
Cause, or on account of death or Permanent Disability, or Executive voluntarily
terminates his employment with the Company, then Executive will be paid only,
(a) any earned but unpaid base salary and any outstanding expense reimbursements
submitted and approved pursuant to Section 3.1 hereof, and (b) other unpaid
vested amounts or benefits under Company compensation, incentive and benefit
plans, in each case as of the effective date of such termination.
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5. EXCISE TAX.
In the event that any benefits payable to Executive pursuant to the
Transition Agreement ("Termination Benefits") (i) constitute "parachute
payments" within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), or any comparable successor provisions, and (ii)
but for this Section 5 would be subject to the excise tax imposed by Section
4999 of the Code, or any comparable successor provisions (the "Excise Tax"),
then Executive's Termination Benefits hereunder shall be either (a) provided to
Executive in full, or (b) provided to Executive as to such lesser extent which
would result in no portion of such benefits being subject to the Excise Tax,
whichever of the foregoing amounts, when taking into account applicable federal,
state, local and foreign income and employment taxes, the Excise Tax, any other
applicable taxes, and the tax equalization described in paragraph 3.2(h),
results in the receipt by Executive, on an after-tax basis, of the greatest
amount of benefits, notwithstanding that all or some portion of such benefits
may be taxable under the Excise Tax. Unless the Company and Executive otherwise
agree in writing, any determination required under this Section 5 shall be made
in writing in good faith by a nationally recognized accounting firm selected by
the Company (the "Accountants"). In the event of a reduction of benefits
hereunder, Executive shall be given the choice of which benefits to reduce. If
Executive does not provide written identification to the Company of which
benefits he chooses to reduce within ten (10) days after written notice of the
Accountants' determination, and Executive has not disputed the Accountants'
determination, then the Company shall select the benefits to be reduced. For
purposes of making the calculations required by this Section 5, the Accountants
may make reasonable assumptions and approximations concerning applicable taxes
and may rely on reasonable, good faith interpretations concerning the
application of the Code, and other applicable legal authority. The Company and
Executive shall furnish to the Accountants such information and documents as the
Accountants may reasonably
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request in order to make a determination under this Section 5. The Company shall
bear all costs the Accountants may reasonably incur in connection with any
calculations contemplated by this Section 5.
If, notwithstanding any reduction described in this Section 5, the IRS
determines that Executive is liable for the Excise Tax as a result of the
receipt of any Termination Benefits, then Executive shall be obligated to pay
back to the Company, within thirty (30) days after a final IRS determination or
in the event that Executive challenges the final IRS determination, a final
judicial determination, a portion of the Termination Benefits equal to the
"Repayment Amount." The Repayment Amount shall be the smallest such amount, if
any, as shall be required to be paid to the Company so that Executive's net
after-tax proceeds with respect to the Termination Benefits (after taking into
account the payment of the Excise Tax and all other applicable taxes imposed on
such benefits) shall be maximized. The Repayment Amount shall be zero if a
Repayment Amount of more than zero would not result in Executive's net after-tax
proceeds with respect to the Termination Benefits being maximized. If the Excise
Tax is not eliminated pursuant to this paragraph, Executive shall pay the Excise
Tax.
Notwithstanding any other provision of this Section 5, if (1) there is a
reduction in the payment of the Termination Benefits as described in this
Section 5, (2) the IRS later determines that Executive is liable for the Excise
Tax, the payment of which would result in the maximization of Executive's net
after-tax proceeds (calculated as if Executive's benefits had not previously
been reduced), and (3) Executive pays the Excise Tax, then the Company shall pay
to Executive those Termination Benefits which were reduced pursuant to this
subsection as soon as administratively possible after Executive pays the Excise
Tax so that Executive's net after-tax proceeds with respect to the payment of
the Termination Benefits are maximized.
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6. DISPUTE RESOLUTION.
(a) Each of the parties expressly agrees that, to the extent permitted
by applicable law and to the extent that the enforceability of this Agreement is
not thereby impaired, any and all disputes, controversies or claims between
Executive and the Company arising under this Agreement (as opposed to the
Transition Agreement), except those arising under Section 6(d) hereof or under
the Proprietary Information Agreement (as defined in Section 8 hereof), shall be
determined exclusively by final and binding arbitration before a single
arbitrator in accordance with the JAMS Arbitration Rules and Procedures, or
successor rules then in effect, and that judgment upon the award of the
arbitrator may be rendered in any court of competent jurisdiction. This
includes, without limitation, any and all disputes, controversies, and/or claims
arising out of or concerning Executive's employment by the Company or the
termination of his employment or this Agreement, and includes, without
limitation, claims by Executive against directors, officers or employees of the
Company, whether arising under theories of liability or damages based on
contract, tort or statute, to the full extent permitted by law. As a material
part of this agreement to arbitrate claims, the parties expressly waive all
rights to a jury trial in court on all statutory or other claims. This Section 6
does not purport to limit either party's ability to recover any remedies
provided for by statute, including attorneys' fees.
(b) The arbitration shall be held in the San Jose, California
metropolitan area, and shall be administered by JAMS or, in the event JAMS does
not then conduct arbitration proceedings, a similarly reputable arbitration
administrator. Under such proceeding, the parties shall select a mutually
acceptable, neutral arbitrator from among the JAMS panel of arbitrators. Except
as provided herein, the Federal Arbitration Act shall govern the interpretation
and enforcement of such arbitration proceeding. The arbitrator shall apply the
substantive law (and the law of remedies, if applicable) of the State of
California, or federal law, if California law is preempted, and the arbitrator
is
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without jurisdiction to apply any different substantive law. The parties agree
that they will be allowed to engage in adequate discovery, the scope of which
will be determined by the arbitrator, consistent with the nature of the claims
in dispute. The arbitrator shall have the authority to entertain a motion to
dismiss and/or a motion for summary judgment by any party and shall apply the
standards governing such motions under the Federal Rules of Civil Procedure. The
arbitrator shall render an award that shall include a written statement of
opinion setting forth the arbitrator's findings of fact and conclusions of law.
Judgment upon the award may be entered in any court having jurisdiction thereof.
The parties intend this arbitration provision to be valid, enforceable,
irrevocable and construed as broadly as possible.
(c) The Company shall be responsible for payment of the arbitrator's
fees as well as all administrative fees associated with the arbitration. The
parties shall be responsible for their own attorneys' fees and costs (including
expert fees and costs), except that if any party prevails on a statutory claim
that entitles the prevailing party to a reasonable attorneys' fee (with or
without expert fees) as part of the costs, the arbitrator may award reasonable
attorneys' fees (with or without expert fees) to the prevailing party in accord
with such statute.
(d) The parties agree, however, that damages would be an inadequate
remedy for the Company in the event of a breach or threatened breach of Section
1.3 of this Agreement or any provision of the Proprietary Information Agreement
(as defined in Section 8 hereof). In the event of any such breach or threatened
breach, Cadence may, either with or without pursuing any potential damage
remedies, obtain from a court of competent jurisdiction, and enforce, an
injunction prohibiting Executive from violating Section 1.3 of this Agreement or
any provision of the Proprietary Information Agreement (as defined in Section 8
hereof) and requiring Executive to comply with the terms of those agreements.
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7. COOPERATION WITH THE COMPANY AFTER TERMINATION OF THE EMPLOYMENT PERIOD.
Following his termination of full-time employment for any reason (other
than death), Executive shall cooperate with the Company in all matters relating
to the winding up of his pending work on behalf of the Company and the orderly
transfer of any such pending work to other employees of the Company as may be
designated by the Company. Such cooperation shall be provided by Executive at
mutually-convenient times. Executive also agrees to participate as a witness in
any litigation or regulatory proceeding to which the Company is a party at the
request of the Company upon delivery to Executive of reasonable advance notice.
With respect to the cooperation/participation described in the preceding
sentences, the Company will reimburse Executive for all reasonable expenses
incurred by Executive in the course of such cooperation/participation.
Furthermore, Executive agrees to return to the Company all property of the
Company, including all hard and soft copies of records, documents, materials and
files relating to confidential, proprietary or sensitive company information in
his possession or control, as well as all other company-owned property in his
possession or control, at the time of the termination of his full-time
employment, except to the extent that retention of any of such property is
necessary or desirable or convenient in order to permit Executive to satisfy his
obligations under this Section 7 or under the Transition Agreement, after which
time Executive shall promptly return all such retained company property.
8. PROPRIETARY INFORMATION AGREEMENT.
Executive has executed and delivered to the Company an Employee
Proprietary Information and Inventions Agreement, in the form attached hereto as
Exhibit C (the "Proprietary Information Agreement").
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9. GENERAL.
9.1 WAIVER. Neither party shall, by mere lapse of time, without giving
notice or taking other action hereunder, be deemed to have waived any breach by
the other party of any of the provisions of this Agreement. Further, the waiver
by either party of a particular breach of this Agreement by the other shall
neither be construed as, nor constitute, a continuing waiver of such breach or
of other breaches of the same or any other provision of this Agreement.
9.2 SEVERABILITY. If for any reason a court of competent jurisdiction or
arbitrator finds any provision of this Agreement to be unenforceable, the
provision shall be deemed amended as necessary to conform to applicable laws or
regulations, or if it cannot be so amended without materially altering the
intention of the parties, the remainder of the Agreement shall continue in full
force and effect as if the offending provision were not contained herein.
9.3 NOTICES. All notices and other communications required or permitted
to be given under this Agreement shall be in writing and shall be considered
effective either (a) upon personal service or (b) upon delivery by facsimile and
depositing such notice in the U.S. Mail, postage prepaid, return receipt
requested and, if addressed to the Company, in care of the General Counsel at
the Company's principal corporate address, and, if addressed to Executive, at
his most recent address shown on the Company's corporate records or at any other
address which Executive may specify in any appropriate notice to the Company, or
(c) upon only depositing such notice in the U.S. Mail as described in clause (b)
of this paragraph.
9.4 COUNTERPARTS. This Agreement may be executed by facsimile and in any
number of counterparts, each of which shall be deemed an original and all of
which taken together constitutes one and the same instrument and in making proof
hereof it shall not be necessary to produce or account for more than one such
counterpart.
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9.5 ENTIRE AGREEMENT. The parties hereto acknowledge that each has read
this Agreement, understands it, and agrees to be bound by its terms. The parties
further agree that this Agreement, the exhibits to this Agreement, the
Residential Lease, any existing stock option agreements between the parties, and
the documents, plans and policies referred to in this Agreement (which are
hereby incorporated herein by reference) constitute the complete and exclusive
statement of the agreement between the parties and supersedes all proposals
(oral or written), understandings, agreements (including, but not limited to,
the Executive Retention Agreement signed by Executive on or about August 7,
2000), representations, conditions, covenants, and all other communications
between the parties relating to the subject matter hereof; provided, however,
that the Employee Invention and Confidential Information Agreement signed by
Executive on or about November 13,1995 and Executive's agreement, made prior to
the Effective Date of this Agreement, to abide by the Company's policies,
including but not limited to the Company's Employee Handbook, Sexual Harassment
Policy and Code of Business Conduct, remain in full force and effect and govern
Executive's conduct from the date of execution of such agreements until the
Effective Date of this Agreement.
9.6 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California, without regard to its conflict of laws principles.
9.7 ASSIGNMENT AND SUCCESSORS. The Company shall have the right to
assign its rights and obligations under this Agreement to an entity that,
directly or indirectly, acquires all or substantially all of the assets of the
Company. The rights and obligations of the Company under this Agreement shall
inure to the benefit and shall be binding upon the successors and assigns of the
Company. Executive shall not have any right to assign his obligations under this
Agreement and shall only be entitled to assign his rights under this Agreement
upon his death, solely to the extent permitted by this Agreement, or as
otherwise agreed to by the Company.
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9.8 AMENDMENTS. This Agreement, and the terms and conditions of the
matters addressed in this Agreement, may only be amended in writing executed
both by the Executive and the General Counsel or CEO of the Company.
9.9 TERMINATION AND SURVIVAL OF CERTAIN PROVISIONS. This Agreement shall
terminate upon the termination of Executive's full-time employment for any
reason; provided, however, that the following provisions of this Agreement shall
survive its termination: Executive's obligations under Section 7 hereof, the
Company's obligations to provide compensation earned through the termination of
the employment relationship under Sections 2 and 3 hereof, the Company's
obligations and Executive's obligations under Section 5 hereof, the Company's
obligations and Executive's obligations enumerated in the Transition Agreement,
if applicable, the Company's obligation to indemnify Executive pursuant to
Section 2.4 hereof and the referenced Indemnification Agreement, the dispute
resolution provisions of Section 6 hereof and, to the extent applicable, this
Section 9.
9.10 DEPARTMENT OF HOMELAND SECURITY VERIFICATION
REQUIREMENT. If Executive has not already done so, he will timely file all
documents required by the Department of Homeland Security to verify his identity
and his lawful employment in the United States. Notwithstanding any other
provision of this Agreement, if Executive fails to meet any such requirements
promptly after receiving a written request from the Company to do so, his
employment will terminate immediately upon notice from the Company and he will
not be entitled to any compensation from the Company of any type, other than
that compensation earned through his date of termination. The preceding sentence
shall not apply to any failure by Executive that results from circumstances
entirely outside Executive's control, including, but not limited to, any delay
in the issuance of immigration or other necessary paperwork to Executive by any
government agency.
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9.11 HEADINGS. The headings of the several sections and paragraphs of
this Agreement are inserted solely for the convenience of reference and are not
a part of and are not intended to govern, limit or aid in the construction of
any term or provision hereof.
9.12 TAXES AND OTHER WITHHOLDINGS. Notwithstanding any other provision of
this Agreement, the Company may withhold from amounts payable hereunder all
federal, state, local and foreign taxes and other amounts that are required to
be withheld by applicable laws or regulations, and the withholding of any amount
shall be treated as payment thereof for purposes of determining whether
Executive has been paid amounts to which he is entitled.
20
IN WITNESS WHEREOF, the parties have executed this Agreement on this 26th
day of May, 2004.
CADENCE DESIGN SYSTEMS, INC. EXECUTIVE
By: /s/ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------- --------------------------------
▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Sr. VP & General Counsel
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EXHIBIT A
INDEMNIFICATION AGREEMENT
INDEMNITY AGREEMENT
This Indemnity Agreement, dated as of May 14, 2004, is made by and between
Cadence Design Systems, Inc., a Delaware corporation (the "Company"), and ▇▇▇▇▇
▇▇▇▇▇▇, the Executive Vice President, Worldwide Field Operations of the Company
(the "Indemnitee").
RECITALS
A. The Company is aware that competent and experienced persons are
increasingly reluctant to serve as directors or officers of corporations unless
they are protected by comprehensive liability insurance or indemnification, due
to increased exposure to litigation costs and risks resulting from their service
to such corporations, and due to the fact that the exposure frequently bears no
reasonable relationship to the compensation of such directors and officers;
B. The statutes and judicial decisions regarding the duties of
directors and officers area often difficult to apply, ambiguous, or conflicting,
and therefore fail to provide such directors and officers with adequate,
reliable knowledge of legal risks to which they are exposed or information
regarding the proper course of action to take;
C. Plaintiffs often seek damages in such large amounts and the costs of
litigation may be so substantial (whether or not the case is meritorious), that
the defense and/or settlement of such litigation is often beyond the personal
resources of officers and directors;
D. The Company believes that it is unfair for its directors and
officers and the directors and officers of its subsidiaries to assume the risk
of large judgments and other expenses that may be incurred in cases in which the
director or officer received no personal profit and in cases where the director
or officer was not culpable;
E. The Company recognizes that the issues in controversy in litigation
against a director or officer of a corporation such as the Company or a
subsidiary of the Company are often related to the knowledge, motives and intent
of such director or officer, that he is usually the only witness with knowledge
of the essential facts and exculpating circumstances regarding such matters and
that the long period of time which usually elapses before the trial or other
disposition of such litigation often extends beyond the time that the director
or officer can reasonably recall such matters; and may extend beyond the normal
time for retirement for such director or officer with the result that he, after
retirement or in the event of his death, his spouse, heirs, executors or
administrators, may be faced with limited ability and undue hardship in
maintaining an adequate
defense, which may discourage such a director or officer from serving in that
position;
F. Based upon their experience as business managers, the Board of
Directors of the Company (the "Board") has concluded that, to retain and attract
individuals to serve as officers and directors of the Company and its
subsidiaries and to encourage such individuals to take the business risks
necessary for the success of the Company and its subsidiaries, it is necessary
for the Company to contractually indemnify its officers and directors and the
officers and directors of its subsidiaries in connection with claims against
such persons in connection with their service, and has further concluded that
the failure to provide such contractual indemnification could result in great
harm to the Company and its subsidiaries and the Company's shareholders;
G. The Company desires and has requested the Indemnitee to serve or
continue to serve as a director or officer of the Company and/or the
subsidiaries of the Company free from undue concern for claims for damages
arising out of or related to such services to the Company and/or the
subsidiaries of the Company; and
H. The Indemnitee is willing to serve, or to continue to serve, the
Company and/or the subsidiaries of the Company provided that he is furnished the
indemnity provided for herein.
AGREEMENT
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. DEFINITIONS.
(a) COVERED PERSON. For purposes of this Agreement, a "covered
person" shall include the Indemnitee and any heir, executor, administrator or
other legal representative of the Indemnitee following his death or incapacity.
(b) EXPENSES. For purposes of this Agreement, "expenses" includes
all direct and indirect costs of any type or nature whatsoever (including,
without limitation, all attorneys' fees and related disbursements and other
out-of-pocket costs) actually and reasonably incurred by the Indemnitee in
connection with either the investigation, defense or appeal of a proceeding or
establishing or enforcing a right to indemnification under this Agreement,
Section 145 or otherwise.
2
(c) PROCEEDING. For the purposes of this Agreement, "proceeding"
means any threatened, pending, or completed action, suit or other proceeding,
whether civil, criminal, administrative, investigative or any other type
whatsoever, and including any of the foregoing commenced by or on behalf of the
Company, derivatively or otherwise.
(d) SUBSIDIARY. For purposes of this Agreement, "subsidiary" means
any corporation of which more than 50% of the outstanding voting securities is
owned directly or indirectly by the Company, and one or more other subsidiaries,
or by one or more other subsidiaries.
2. AGREEMENT TO SERVE. The Indemnitee agrees to serve and/or continue
to serve the Company and/or its subsidiaries in his present capacity, so long as
he is duly appointed or elected or until such time as he tenders his resignation
in writing, provided, however, that nothing contained in this Agreement is
intended to create any right to continued employment by Indemnitee.
3. MAINTENANCE OF LIABILITY INSURANCE.
(a) The Company hereby covenants and agrees that, so long as the
Indemnitee shall continue to serve as an officer or director of the Company or
any of its subsidiaries, and thereafter so long as the Indemnitee shall be
subject to any possible proceeding by reason of such service, the Company,
subject to Section 3(b), shall use reasonable efforts to obtain and maintain in
full force and effect directors' and officers' liability insurance ("D&O
Insurance") in reasonable amounts from established and reputable insurers.
(b) Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain D&O Insurance if the Company determines in good
faith that such insurance is not reasonably available, the premium costs for
such insurance are disproportionate to the amount of coverage provided, the
coverage provided by such insurance is limited by exclusions so as to provide an
insufficient benefit, or the Indemnitee is covered by similar insurance
maintained by a subsidiary of the Company.
4. MANDATORY INDEMNIFICATION.
(a) RIGHT TO INDEMNIFICATION. In the event a covered person was or
is made a party or is threatened to be made a party to or is involved in any
proceeding, by reason of the fact that the Indemnitee is or was a director,
officer or employee of the Company (including any subsidiary or affiliate
thereof or any constituent corporation or any of the foregoing absorbed in any
merger) or is or was serving at the request of the Company (including such
subsidiary, affiliate or constituent corporation) as a director, officer or
employee
3
of another corporation, or of a partnership, joint venture, trust or other
entity, including service with respect to employee benefit plans, such person
shall be indemnified and held harmless by the Company to the fullest extent
permitted by applicable law, against all expenses, liability and loss
(including, without limitation, attorneys' fees, judgments, fines, ERISA excise
and other taxes and penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith. Such
indemnification shall continue after the Indemnitee has ceased to serve in such
capacity and shall inure to the benefit of his heirs, executors and
administrators; provided, however, that except for a proceeding pursuant to
Section 7, the Company shall indemnify any such person in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors of the Company.
(b) EXCEPTION FOR AMOUNTS COVERED BY INSURANCE. Notwithstanding
the foregoing, the Company shall not be obligated to indemnify a covered person
for expenses or liabilities of any type whatsoever (including, but not limited
to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) which have been paid directly to such person by D&O insurance.
(c) PARTIAL INDEMNIFICATION. If a covered person is entitled under
any provision of this Agreement to indemnification by the Company for some or a
portion of any expenses or liabilities of any type whatsoever (including, but
not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts
paid in settlement) incurred by him in the investigation, defense, settlement or
appeal of a proceeding but not entitled, however, to indemnification for all of
the total amount thereof, the Company shall nevertheless indemnify such person
for such total amount except as to the portion thereof to which the Indemnitee
is not entitled.
5. MANDATORY ADVANCEMENT OF EXPENSES. The Company shall pay all
expenses incurred by a covered person, or in defending any such proceeding as
they are incurred in advance of its final disposition; provided, however, that
if the Delaware General Corporations Law then so requires, the payment of such
expenses incurred in advance of the final disposition of such proceeding shall
be made only upon delivery to the Company of an undertaking, by or on behalf of
such covered person, to repay all amounts so advanced if it should be determined
ultimately that such person is not entitled to the payment of such expenses by
the Company.
6. NOTICE AND OTHER INDEMNIFICATION PROCEDURES.
(a) Promptly after receipt by a covered person of notice of the
commencement of or the threat of commencement of any proceeding, such
4
person shall, if such person believes that indemnification with respect thereto
may be sought from the Company under this Agreement, notify the Company of the
commencement or threat of commencement thereof.
(b) If, at the time of the receipt of a notice of the commencement
of a proceeding, the Company has D&O Insurance in effect, the Company shall give
prompt notice of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The Company
shall thereafter take all necessary or desirable action to cause such insurers
to pay, on behalf of the covered person, all amounts payable as a result of such
proceeding in accordance with the terms of such policies.
(c) In the event the Company shall be obligated to advance the
expenses for any proceeding against the covered person, the Company, if
appropriate, shall be entitled to assume the defense of such proceeding, with
counsel approved by the covered person (such approval not to be unreasonably
withheld), upon the delivery to the covered person of written notice of its
election so to do. After delivery of such notice, approval of such counsel by
the covered person and the retention of such counsel by the Company, the Company
will not be liable to the covered person under this Agreement for any fees of
counsel subsequently incurred by the covered person with respect to the same
proceeding, provided that (i) the covered person shall have the right to employ
separate counsel in any such proceeding at the covered person's expense; and
(ii) if (A) the employment of counsel by the covered person has been previously
authorized by the Company, (B) the covered person shall have reasonably
concluded that there may be a conflict of interest between the Company the
covered person in the conduct of any such defense of (C) the Company shall not,
in fact, have employed counsel to assume the defense of such proceeding, the
fees and expenses of the covered person's counsel shall be at the expense of the
Company.
7. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim for indemnification or
advancement of expenses hereunder is not paid in full by the Company within
sixty (60) days after a written claim has been received by the Company, except
in the case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty (20) days, the covered person may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim. If successful in whole or in part in any such suit, or in a suit brought
by the Company to recover and advancement of expenses pursuant to the terms of
an undertaking, the covered person shall be entitled to be paid also the expense
of prosecuting or defending such suit. In (i) any suit brought by a covered
person to enforce a right to indemnification hereunder (but not in a suit
brought by a covered person to enforce a right to an advancement of expenses) it
shall be a defense that indemnification is not permitted by applicable law, and
5
(ii) in any suit by the Company to recover an advancement of expenses pursuant
to the terms hereof, the Company shall be entitled to recover such expenses upon
a final adjudication that indemnification is not permitted by applicable law.
Neither the failure of the Company (including its Board of Directors,
independent legal counsel or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the covered
person is proper in the circumstances, nor an actual determination by the
Company (including its Board of Directors, independent legal counsel or its
stockholders) that indemnification is not proper, shall create a presumption
that the covered person is not entitled to indemnification or, in the case of
such a suit brought by a covered person, be a defense to such suit. In any suit
brought by a covered person to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Company to recover an advancement
of expenses pursuant to the terms of an undertaking, the burden of proving that
the covered person is not entitled to be indemnified, or to such advancement of
expenses, shall be on the Company.
8. LIMITATION OF ACTIONS AND RELEASE OF CLAIMS. No proceeding shall be
brought and no cause of action shall be asserted by or on behalf of the Company
or any subsidiary against the Indemnitee, his spouse, heirs, estate, executors
or administrators after the expiration of one year from the act or omission of
the Indemnitee upon which such proceeding is based; however, in a case where the
Indemnitee fraudulently conceals the facts underlying such cause of action, no
proceeding shall be brought and no cause of action shall be asserted after the
expiration of one year from the earlier of (i) the date the Company or any
subsidiary of the Company discovers such facts, or (ii) the date the Company of
any subsidiary of the Company could have discovered such facts by the exercise
of reasonable diligence. Any claim or cause of action of the Company or any
subsidiary of the Company, including claims predicated upon the negligent act or
omission of the Indemnitee, shall be extinguished and deemed released unless
asserted by filing of a legal action within such period. This Section 8 shall
not apply to any cause of action which has accrued on the date hereof and of
which the Indemnitee is aware on the date hereof, but as to which the Company
has no actual knowledge apart from the Indemnitee's knowledge.
9. NON-EXCLUSIVITY. The provisions for indemnification and advancement
of expenses set forth in this Agreement shall not be deemed exclusive of any
other rights which the Indemnitee or any covered person may have under any
provision of law, the Company's Certificate of Incorporation or Bylaws, the vote
of the Company's shareholders or disinterested directors, other agreements, or
otherwise, both as to action in his official capacity and to action in another
capacity while occupying his position as an officer, director or employee of the
Company, and the Indemnitee's right hereunder shall continue after the
6
Indemnitee has ceased to so act and shall inure to the benefit of any heir,
executor, administrator or other legal representative of the Indemnitee.
10. INTERPRETATION OF AGREEMENT. It is understood that the parties
hereto intend this Agreement to be interpreted and enforced so as to provide
indemnification to the Indemnitee to the fullest extent now or hereafter
permitted by law.
11. SEVERABILITY. If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable for any reason whatsoever, (i)
the validity, legality and enforceability of the remaining provisions of the
Agreement (including, without limitation, all portions of any paragraphs of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby, and (ii) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, all
portions of any paragraphs of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to Section 10
hereof.
12. MODIFICATION AND WAIVER. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
13. SUCCESSORS AND ASSIGNS. The terms of this Agreement shall bind, and
shall inure to the benefit of, the successors and assigns of the parties hereto.
14. NOTICE. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i)
delivered by hand and receipted for by the party addressee or (ii) if mailed by
certified or registered mail with postage prepaid, on the third business day
after the mailing date. Addresses for notice to either party are as shown on the
signature page of this Agreement, or as subsequently modified by written notice.
15. GOVERNING LAW. This Agreement shall be governed exclusively by and
construed according to the laws of the State of Delaware, as applied to
contracts between Delaware residents entered into and to be performed entirely
with Delaware.
16. CONSENT TO JURISDICTION. The Company and the Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of
7
Delaware for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement.
17. GENDER. Use of the masculine pronoun shall be deemed to include
usage of the feminine pronoun where appropriate.
The parties hereto have entered into this Indemnity Agreement effective as
of the date first above written.
CADENCE DESIGN SYSTEMS, INC.
By: /s/ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Its: Sr. V.P. and General Counsel
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇. ▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
INDEMNITEE
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Address:
DOCUMENT 3
8
EXHIBIT B
EXECUTIVE TRANSITION AND RELEASE AGREEMENT
EXECUTIVE TRANSITION AND RELEASE AGREEMENT
This Executive Transition and Release Agreement (this "Agreement") is
entered into between ▇▇▇▇▇ Busbhy ("Executive") and Cadence Design Systems, Inc.
("Cadence" or the "Company").
1. TRANSITION COMMENCEMENT DATE. As of <> (the
"Transition Commencement Date"), Executive will no longer hold the position of
Executive Vice President, Worldwide Field Operations and will be relieved of all
of Executive's authority and responsibilities in that position. Executive will
be paid all accrued salary for his services as Executive Vice President,
Worldwide Field Operations to the Transition Commencement Date by not later than
the following regular payroll date. Following the Transition Commencement Date,
Executive will no longer participate in Cadence's medical, dental, and vision
insurance plans (unless Executive elects to continue coverage pursuant to
COBRA), and will not be eligible for a bonus for any services rendered after
that date.
2. TRANSITION PERIOD. The period from the Transition Commencement Date
to the date when Executive's employment with Cadence terminates (the
"Termination Date") is called the "Transition Period" in this Agreement.
Executive's Termination Date will be the earliest to occur of:
a. the date on which Executive resigns from all employment with
Cadence;
b. the date on which Cadence terminates Executive's employment
due to a breach by Executive of Executive's duties or
obligations under this Agreement; and
c. One year from the Transition Commencement Date.
3. DUTIES AND OBLIGATIONS DURING THE TRANSITION PERIOD AND AFTERWARDS.
a. During the Transition Period, Executive will assume the
position of <>. In this position, Executive will render
those services requested by Cadence's <> on an
as-needed basis. Executive's time rendering those services is not expected to
exceed twenty (20) hours per week but is expected to consume twenty (20) hours
per month.
b. As a Cadence Executive Vice President, as well as other
positions Executive may have held with Cadence, Executive has obtained extensive
and valuable knowledge and information concerning Cadence's business (including
confidential information relating to Cadence and its operations, intellectual
property assets, contracts, customers, personnel, plans, marketing plans,
research and development plans and prospects). Executive acknowledges and agrees
that it would be virtually impossible for Executive to work as an employee,
consultant or advisor in the electronic design automation ("EDA") industry (as
defined below) without inevitably disclosing confidential and proprietary
information belonging to Cadence. Accordingly, during the
Transition Period, Executive will not, directly or indirectly, provide services,
whether as an employee, consultant, independent contractor, agent, sole
proprietor, partner, joint venture, corporate officer or director, on behalf of
any corporation, limited liability company, partnership, or other entity or
person that (i) is engaged in the EDA industry, (ii) directly competes against
Cadence or any of its existing or future affiliates in the EDA industry anywhere
in the world, or (iii) produces, markets, distributes or sells any products,
directly or indirectly through intermediaries, that are competitive with EDA
industry products produced, marketed, sold or distributed by Cadence. As used in
this paragraph, the term "EDA industry" means the research, design or
development of electronic design automation software, electronic design
verification, emulation hardware and related products, such products containing
hardware, software and both hardware and/or software products, designs or
solutions for, and all intellectual property embodied in the foregoing, or in
commercial electronic design and/or maintenance services, such services
including all intellectual property embodied in the foregoing. If Executive
receives an offer of employment or consulting from any person or entity during
the Transition Period, then Executive must first obtain written approval, which
will not be unreasonably withheld, from Cadence's Chief Executive Officer
("CEO") or General Counsel before accepting said offer.
c. During the Transition Period, Executive will be prohibited, to
the full extent allowed by applicable law, and except with the written advance
approval of Cadence's CEO (or his successor(s)), from voluntarily or
involuntarily, for any reason whatsoever, directly or indirectly, individually
or on behalf of persons or entities not now parties to this Agreement: (i)
encouraging, inducing, attempting to induce, soliciting or attempting to solicit
for employment, contractor or consulting opportunities anyone who is employed at
that time, or was employed during the previous one year, by Cadence or any
Cadence affiliate; (ii) interfering or attempting to interfere with the
relationship or prospective relationship of Cadence or any Cadence affiliate
with any former, present or future client, customer, joint venture partner, or
financial backer of Cadence or any Cadence affiliate; or (iii) soliciting,
diverting or accepting business, in any line or area of business engaged in by
Cadence or any Cadence affiliate, from any former or present client, customer or
joint venture partner of Cadence or any Cadence affiliate (other than on behalf
of Cadence), except that Executive may solicit or accept business, in a line of
business engaged in by Cadence or a Cadence affiliate, from a former or present
client, if and only if Executive had previously provided consulting services in
such line of business, to such client, prior to ever being employed by Cadence,
but in no event may Executive violate paragraph 3(b) hereof. The restrictions
contained in subparagraph (i) of this paragraph shall also be in effect for a
period of one year following the Termination Date. This paragraph 3(c) does not
alter any of the obligations the Executive may have under the Employee
Proprietary Information Agreement, dated as of May 14, 2004.
d. Executive will fully cooperate with Cadence in all matters
relating to his employment, including the winding up of work performed in
Executive's prior position and the orderly transition of such work to other
Cadence employees.
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e. Executive will not make any statement, written or oral, that
disparages Cadence or any of its affiliates, or any of Cadence's or its
affiliates' products, services, policies, business practices, employees,
executives, officers, or directors. Similarly, Cadence agrees to instruct its
executive officers and members of the Company's Board of Directors not to make
any statement, written or oral, that disparages Executive. The restrictions
described in this paragraph shall not apply to any truthful statements made in
response to a subpoena or other compulsory legal process.
f. Notwithstanding paragraph 10 hereof, the parties agree that
damages would be an inadequate remedy for Cadence in the event of a breach or
threatened breach by Executive of paragraph 3(b) or 3(c), or for Cadence or
Executive in the event of a breach or threatened breach of paragraph 3(e). In
the event of any such breach or threatened breach, the non-breaching party may,
either with or without pursuing any potential damage remedies, obtain from a
court of competent jurisdiction, and enforce, an injunction prohibiting the
other party from violating this Agreement and requiring the other party to
comply with the terms of this Agreement.
4. TRANSITION COMPENSATION AND BENEFITS. In consideration and
compensation for Executive's services during the Transition Period, Cadence will
provide the following to Executive:
a. a monthly salary of $2,000 less applicable tax withholdings
and deductions, payable in accordance with Cadence's regular
payroll schedule;
b. continued vesting of stock options and restricted stock
granted to Executive prior to the Termination Date, provided
that Executive has executed all necessary stock option and
restricted stock agreements on or before<>, and
with the understanding that upon Executive's Termination Date,
all vested options may be exercised in accordance with the
applicable stock option agreement, any unvested options will
expire, and any unvested restricted stock will be forfeited;
and
c. if Executive elects to continue coverage under Cadence's
medical, dental, and vision insurance plans pursuant to COBRA
following the Transition Commencement Date, Cadence will pay
Executive's COBRA premiums during the Transition Period.
Except as so provided, Executive will receive no other compensation or benefits
from Cadence in consideration of Executive's services during the Transition
Period.
5. FIRST TERMINATION PAYMENT AND BENEFITS. Provided that Executive does
not resign from employment with Cadence and Cadence does not terminate
Executive's employment with Cadence due to a breach by Executive of Executive's
duties under this Agreement, and in consideration for Executive's acceptance of
this Agreement and
3
Executive's further execution and delivery of a Release of Claims in the form of
Attachment 1 hereto, Cadence will provide to Executive within ten business days
after the Effective Date (as defined in paragraph 9 hereof) of this Agreement
and after Executive has returned to the Company all hard and soft copies of
records, documents, materials and files relating to confidential, proprietary or
sensitive company information in his possession or control, as well as all other
company-owned property, the following termination payment to which Executive
would not otherwise be entitled:
a. a lump-sum payment of one year's base salary at Executive's
highest annual base salary rate in effect during Executive's
employment as Executive Vice President, Worldwide Field
Operations, less applicable tax deductions and withholdings.
Provided, however, should this payment be made in fiscal 2005,
then it shall be increased by 10%.
6. SECOND TERMINATION PAYMENT AND BENEFITS. Provided that Executive
does not resign from employment with Cadence and Cadence does not terminate
Executive's employment with Cadence due to a breach by Executive of Executive's
duties under this Agreement, upon the Termination Date, and in consideration for
Executive's acceptance of this Agreement and Executive's further execution of a
Release of Claims in the form of Attachment 2 to this Agreement, Cadence will
provide to Executive within ten business days after the expiration of the
revocation period of the Release of Claims (as defined in that document) the
following termination payment to which Executive would not otherwise be
entitled:
a. a lump-sum payment of one year's target bonus at Executive's
highest target bonus rate in effect during Executive's
employment as Executive Vice President, Worldwide Field
Operations, less applicable tax deductions and withholdings.
Provided, however, should this payment be made in fiscal 2005,
then it shall be increased by 10%.
7. GENERAL RELEASE OF CLAIMS.
a. Executive hereby irrevocably, fully and finally releases
Cadence, its parent, subsidiaries, affiliates, directors, officers, agents and
employees ("Releasees") from all causes of action, claims, suits, demands or
other obligations or liabilities, whether known or unknown, suspected or
unsuspected, that Executive ever had or now has as of the time that Executive
signs this Agreement which relate to his hiring, his employment with the
Company, the termination of his employment with the Company and claims asserted
in shareholder derivative actions or shareholder class actions against the
Company and its officers and Board of Directors, to the extent those derivative
or class actions relate to the period during Executive's employment with the
Company. The claims released include, but are not limited to, any claims arising
from or related to Executive's employment with Cadence, such as claims arising
under (as amended) Title VII of the Civil Rights Act of 1964, the Civil Rights
Act of 1991, the Age Discrimination in Employment Act of 1974, the Americans
with Disabilities Act, the Equal Pay Act, the Fair Labor Standards Act, the
California Fair Employment and Housing Act, the California Labor Code, the
Employee Retirement Income and Security
4
Act of 1974 (except for any vested right Executive has to benefits under an
ERISA plan), the state and federal Worker Adjustment and Retraining Notification
Act, and the California Business and Professions Code; any other local, state,
federal, or foreign law governing employment; and the common law of contract and
tort. In no event, however, shall any claims, causes of action, suits, demands
or other obligations or liabilities be released pursuant to the foregoing if and
to the extent they relate to:
i. any amounts or benefits to which Executive is or becomes
entitled to pursuant to the provisions of this Agreement or pursuant to the
provisions designated in Section 9.9 of the Employment Agreement to survive the
termination of Executive's full-time employment;
ii. claims for workers' compensation benefits under any of
the Company's workers' compensation insurance policies or funds;
iii. claims related to Executive's COBRA rights; and
iv. any rights that Executive has or may have to be
indemnified by Cadence pursuant to any contract, statute, or common law
principle.
b. Executive represents and warrants that he has not filed any
claim, charge or complaint against any of the Releasees.
c. Executive acknowledges that the payments provided in this
Agreement constitute adequate consideration for the release set forth in this
paragraph 7.
d. Executive intends that this release of claims cover all
claims, whether or not known to Executive. Executive further recognizes the risk
that, subsequent to the execution of this Agreement, Executive may incur loss,
damage or injury which Executive attributes to the claims encompassed by this
release. Executive expressly assumes this risk by signing this Agreement and
voluntarily and specifically waives any rights conferred by California Civil
Code section 1542 which provides as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor which if known by him must have
materially affected his settlement with the debtor.
e. Executive represents and warrants that there has been no
assignment or other transfer of any interest in any claim by Executive that is
covered by this release.
8. REVIEW OF AGREEMENT; REVOCATION OF ACCEPTANCE. Executive has been
given at least 21 days in which to review and consider this Agreement, although
Executive is free to accept this Agreement anytime within that 21-day period.
Executive is advised to consult with an attorney about the Agreement. If
Executive accepts this Agreement, Executive will have an additional 7 days from
the date that Executive signs
5
this Agreement to revoke that acceptance, which Executive may effect by means of
a written notice sent to the CEO or General Counsel. If this 7-day period
expires without a timely revocation, this Agreement will become final and
effective on the eighth day following the date of Executive's signature, which
eighth day will be the "Effective Date" of this Agreement.
9. ARBITRATION. Subject to paragraph 3(f) hereof, all claims, disputes,
questions, or controversies arising out of or relating to this Agreement,
including without limitation the construction or application of any of the
terms, provisions, or conditions of this Agreement, will be resolved exclusively
in final and binding arbitration in accordance with the Arbitration Rules and
Procedures, or successor rules then in effect, of Judicial Arbitration &
Mediation Services, Inc. ("JAMS"). The arbitration will be held in the San Jose,
California, metropolitan area, and will be conducted and administered by JAMS
or, in the event JAMS does not then conduct arbitration proceedings, a similarly
reputable arbitration administrator. Executive and Cadence will select a
mutually acceptable, neutral arbitrator from among the JAMS panel of
arbitrators. Except as provided by this Agreement, the Federal Arbitration Act
will govern the administration of the arbitration proceedings. The arbitrator
will apply the substantive law (and the law of remedies, if applicable) of the
State of California, or federal law, as applicable, and the arbitrator is
without jurisdiction to apply any different substantive law. Executive and
Cadence will each be allowed to engage in adequate discovery, the scope of which
will be determined by the arbitrator consistent with the nature of the claim[s]
in dispute. The arbitrator will have the authority to entertain a motion to
dismiss and/or a motion for summary judgment by any party and will apply the
standards governing such motions under the Federal Rules of Civil Procedure. The
arbitrator will render a written award and supporting opinion that will set
forth the arbitrator's findings of fact and conclusions of law. Judgment upon
the award may be entered in any court of competent jurisdiction. Cadence will
pay the arbitrator's fees, as well as all administrative fees, associated with
the arbitration. Each party will be responsible for paying its own attorneys'
fees and costs (including expert witness fees and costs, if any). However, in
the event a party prevails at arbitration on a statutory claim that entitles the
prevailing party to reasonable attorneys' fees as part of the costs, then the
arbitrator may award those fees to the prevailing party in accordance with that
statute.
10. NO ADMISSION OF LIABILITY. Nothing in this Agreement will constitute
or be construed in any way as an admission of any liability or wrongdoing
whatsoever by Cadence or Executive.
11. INTEGRATED AGREEMENT. This Agreement is intended by the parties to
be a complete and final expression of their rights and duties respecting the
subject matter of this Agreement. Except as expressly provided herein, nothing
in this Agreement is intended to negate Executive's agreement to abide by
Cadence's policies while serving as a Cadence employee, including but not
limited to Cadence's Employee Handbook, Sexual Harassment Policy and Code of
Business Conduct, or Executive's continuing obligations under Executive's
Employee Proprietary Information and Inventions Agreement, or any other
agreement governing the disclosure and/or use of proprietary
6
information, which Executive signed while working with Cadence or its
predecessors; nor to waive any of Executive's obligations under state and
federal trade secret laws.
12. FULL SATISFACTION OF COMPENSATION OBLIGATIONS; ADEQUATE
CONSIDERATION. Executive agrees that the payments and benefits described herein,
together with any payments or benefits to which Executive is or may become
entitled to pursuant to the provisions of the Employment Agreement that survive
the termination of Executive's full-time employment pursuant to Section 9.9 of
the Employment Agreement, are in full satisfaction of all obligations of Cadence
to Executive arising out of or in connection with Executive's employment through
the Transition Termination Date, including, without limitation, all
compensation, salary, bonuses, reimbursement of expenses, and benefits.
13. TAXES AND OTHER WITHHOLDINGS. Notwithstanding any other provision of
this Agreement, the Company may withhold from amounts payable hereunder all
federal, state, local and foreign taxes and other amounts that are required to
be withheld by applicable laws or regulations, and the withholding of any amount
shall be treated as payment thereof for purposes of determining whether
Executive has been paid amounts to which he is entitled.
14. WAIVER. Neither party shall, by mere lapse of time, without giving
notice or taking other action hereunder, be deemed to have waived any breach by
the other party of any of the provisions of this Agreement. Further, the waiver
by either party of a particular breach of this Agreement by the other shall
neither be construed as, nor constitute, a continuing waiver of such breach or
of other breaches of the same or any other provision of this Agreement.
15. MODIFICATION. This Agreement may not be modified unless such
modification is embodied in writing, signed by the party against whom the
modification is to be enforced.
16. ASSIGNMENT AND SUCCESSORS. Cadence shall have the right to assign
its rights and obligations under this Agreement to an entity that, directly or
indirectly, acquires all or substantially all of the assets of Cadence. The
rights and obligations of Cadence under this Agreement shall inure to the
benefit and shall be binding upon the successors and assigns of Cadence.
Executive shall not have any right to assign his obligations under this
Agreement and shall only be entitled to assign his rights under this Agreement
upon his death, solely to the extent permitted by this Agreement, or as
otherwise agreed to by Cadence.
17. SEVERABILITY. In the event that any part of this Agreement is found
to be void or unenforceable, all other provisions of the Agreement will remain
in full force and effect.
18. GOVERNING LAW. This Agreement will be governed and enforced in
accordance with the laws of the State of California, without regard to its
conflict of laws principles.
7
EXECUTION OF AGREEMENT
The parties execute this Agreement to evidence their acceptance of it.
Dated: ____________________________. Dated: _____________________.
▇▇▇▇▇ ▇▇▇▇▇▇ CADENCE DESIGN SYSTEMS, INC.
____________________________________ By: ______________________________
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8
ATTACHMENT 1
RELEASE OF CLAIMS
1. For valuable consideration, I irrevocably, fully and finally
release Cadence, its parent, subsidiaries, affiliates, directors, officers,
agents and employees ("Releasees") from all causes of action, claims, suits,
demands or other obligations or liabilities, whether known or unknown, suspected
or unsuspected, that I ever had or now have as of the time that I sign this
Agreement which relate to my hiring, my employment with the Company, the
termination of my employment with the Company and claims asserted in shareholder
derivative actions or shareholder class actions against the Company and its
officers and Board of Directors, to the extent those derivative or class actions
relate to the period during my employment with the Company. The claims released
include, but are not limited to, any claims arising from or related to
Executive's employment with Cadence, such as claims arising under (as amended)
Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act of 1974, the Americans with Disabilities Act,
the Equal Pay Act, the Fair Labor Standards Act, the California Fair Employment
and Housing Act, the California Labor Code, the Employee Retirement Income and
Security Act of 1974 (except for any vested right Executive has to benefits
under an ERISA plan), the state and federal Worker Adjustment and Retraining
Notification Act, and the California Business and Professions Code; any other
local, state, federal, or foreign law governing employment; and the common law
of contract and tort. This Release is not intended to, and does not, encompass
any right to compensation or benefits that I have under my Executive Transition
and Release Agreement with Cadence. In no event, however, shall any claims,
causes of action, suits, demands or other obligations or liabilities be released
pursuant to the foregoing if and to the extent they relate to:
i. any amounts or benefits to which I am or become entitled
to pursuant to the provisions of this Agreement or pursuant to the provisions
designated in Section 9.9 of the Employment Agreement to survive the termination
of my full-time employment;
ii. claims for workers' compensation benefits under any of
the Company's workers' compensation insurance policies or funds;
iii. claims related to my COBRA rights; and
iv. any rights that I have or may have to be indemnified by
Cadence pursuant to any contract, statute, or common law principle.
2. I intend that this Release cover all claims, whether or not known to
me. I further recognize the risk that, subsequent to the execution of this
Agreement, I may incur loss, damage or injury which I attribute to the claims
encompassed by this Release. I expressly assume this risk by signing this
Release and voluntarily and specifically waive any rights conferred by
California Civil Code section 1542 which provides as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor which if known by him must have
materially affected his settlement with the debtor.
3. I represent and warrant that there has been no assignment or other
transfer of any interest in any claim by me that is covered by this Release.
4. I acknowledge that Cadence has given me 21 days in which to consider
this Release and advised me to consult an attorney about it. I further
acknowledge that once I execute this Release, I will have an additional 7 days
in which to revoke my acceptance of this Release by means of a written notice of
revocation given to ______________. This Release will not be final and effective
until the expiration of this revocation period.
Dated: _______________________________. __________________________________
Print Name
__________________________________
Sign Name
10
ATTACHMENT 2
RELEASE OF CLAIMS
1. 1. For valuable consideration, I irrevocably, fully and
finally release Cadence, its parent, subsidiaries, affiliates, directors,
officers, agents and employees ("Releasees") from all causes of action, claims,
suits, demands or other obligations or liabilities, whether known or unknown,
suspected or unsuspected, that I ever had or now have as of the time that I sign
this Agreement which relate to my hiring, my employment with the Company, the
termination of my employment with the Company and claims asserted in shareholder
derivative actions or shareholder class actions against the Company and its
officers and Board of Directors, to the extent those derivative or class actions
relate to the period during my employment with the Company. The claims released
include, but are not limited to, any claims arising from or related to
Executive's employment with Cadence, such as claims arising under (as amended)
Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act of 1974, the Americans with Disabilities Act,
the Equal Pay Act, the Fair Labor Standards Act, the California Fair Employment
and Housing Act, the California Labor Code, the Employee Retirement Income and
Security Act of 1974 (except for any vested right Executive has to benefits
under an ERISA plan), the state and federal Worker Adjustment and Retraining
Notification Act, and the California Business and Professions Code; any other
local, state, federal, or foreign law governing employment; and the common law
of contract and tort. This Release is not intended to, and does not, encompass
any right to compensation or benefits that I have under my Executive Transition
and Release Agreement with Cadence. In no event, however, shall any claims,
causes of action, suits, demands or other obligations or liabilities be released
pursuant to the foregoing if and to the extent they relate to:
i. any amounts or benefits to which I am or become entitled
to pursuant to the provisions of this Agreement or pursuant to the provisions
designated in Section 9.9 of the Employment Agreement to survive the termination
of my full-time employment;
ii. claims for workers' compensation benefits under any of
the Company's workers' compensation insurance policies or funds;
iii. claims related to my COBRA rights; and
iv. any rights that I have or may have to be indemnified by
Cadence pursuant to any contract, statute, or common law principle.
2. I intend that this Release cover all claims, whether or not known to
me. I further recognize the risk that, subsequent to the execution of this
Agreement, I may incur loss, damage or injury which I attribute to the claims
encompassed by this Release. I expressly assume this risk by signing this
Release and voluntarily and specifically waive any rights conferred by
California Civil Code section 1542 which provides as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor which if known by him must have
materially affected his settlement with the debtor.
3. I represent and warrant that there has been no assignment or other
transfer of any interest in any claim by me that is covered by this Release.
4. I acknowledge that Cadence has given me 21 days in which to consider
this Release and advised me to consult an attorney about it. I further
acknowledge that once I execute this Release, I will have an additional 7 days
in which to revoke my acceptance of this Release by means of a written notice of
revocation given to ______________. This Release will not be final and effective
until the expiration of this revocation period.
Dated: _____________________________. ______________________________
Print Name
______________________________
Sign Name
12
EXHIBIT C
EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT