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EXHIBIT 2.17
GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
BY AND BETWEEN
TALITY, LP
AND
NEW TALITY CORPORATION
DATED AS OF
JUNE 2, 2001
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EXHIBIT 2.17
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS......................................................................1
Section 1.1 Action................................................................1
Section 1.2 Applicable Law........................................................1
Section 1.3 Assets................................................................1
Section 1.4 Contracts.............................................................3
Section 1.5 Excluded Assets.......................................................3
Section 1.6 Excluded Liabilities..................................................3
Section 1.7 Governmental Authority................................................3
Section 1.8 Information...........................................................3
Section 1.9 Insurance Policies....................................................4
Section 1.10 Insurance Proceeds....................................................4
Section 1.11 Insured Partnership Liabilities.......................................4
Section 1.12 Intellectual Property.................................................4
Section 1.13 Liabilities...........................................................4
Section 1.14 Partnership Assets....................................................4
Section 1.15 Partnership Balance Sheet.............................................5
Section 1.16 Partnership Business..................................................5
Section 1.17 Partnership Contingent Liability......................................5
Section 1.18 Partnership Contracts.................................................6
Section 1.19 Partnership Liabilities...............................................6
Section 1.20 Partnership Special Gain..............................................7
Section 1.21 Person................................................................8
Section 1.22 Security Interest.....................................................8
Section 1.23 Subsidiary............................................................8
Section 1.24 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....................................9
Section 2.3 Novation of Assumed Partnership Liabilities..........................10
ARTICLE III LITIGATION....................................................................11
Section 3.1 Allocation...........................................................11
Section 3.2 Cooperation..........................................................11
ARTICLE IV MISCELLANEOUS..................................................................12
Section 4.1 Incorporation by Reference...........................................12
Section 4.2 Conflicting Agreements...............................................12
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EXHIBIT 2.17
GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is
entered into and effective as of June 2, 2001 by and between Tality, LP, a
Delaware limited partnership (the "Partnership"), and New Tality Corporation, a
Delaware corporation ("New Tality"). Capitalized terms used herein and not
defined elsewhere herein shall have the meanings ascribed to them in Article I.
RECITALS
WHEREAS, New Tality is a newly formed corporation, with no assets or
liabilities as of the date hereof; and
WHEREAS, the Board of Directors of New Tality and the partners of the
Partnership have each determined that it would be appropriate and desirable for
the Partnership to transfer (or cause to be transferred) to New Tality, and for
New Tality to receive and assume certain assets and liabilities in exchange for
100% of the stock of New Tality, on the terms and subject to the conditions set
forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 "Action" means any demand, action, suit, counter suit,
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 "Applicable Law"" means all laws and regulations of
Governmental Authorities applicable to the transaction, property or Persons at
issue.
Section 1.3 "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;
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(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 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;
(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;
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(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 1.4 "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 1.5 "Excluded Assets" means:
(i) All equity interests in Subsidiaries of Tality, LP not
incorporated in the United States.
(ii) All receivables and loans owed to Tality, LP by all
Subsidiaries; and
(ii) cash held by the Partnership up to an aggregate amount of
$8,266,194.
Section 1.6 "Excluded Liabilities" means:
(i) Any liabilities, solely relating to, arising out of or
resulting from the Excluded Assets; and
[(ii) all Insured Partnership Liabilities.]
Section 1.7 "Governmental Authority" means any federal, state, local,
foreign or international court or government of competent jurisdiction, or any
political subdivision thereof, or any department, commission, board, bureau,
agency, official or other regulatory, administrative body of any such government
of competent jurisdiction or political subdivision thereof.
Section 1.8 "Information" means information, whether or not patentable
or copyrightable, in written, oral, electronic or other tangible or intangible
form, stored in any medium, including studies, reports, records, books,
contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models,
prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes,
computer programs or other software, marketing plans, customer names,
communications by or to attorneys (including attorney-client privileged
communications), memos and other materials prepared by attorneys or under their
direction (including attorney work product) and other technical, financial,
employee or business information or data.
Section 1.9 "Insurance Policies" means insurance policies pursuant to
which a Person makes a true risk transfer to an insurer.
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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.
Section 1.11 "Insured Partnership Liabilities" means any Partnership
Liability to the extent that it is covered under the terms of Cadence Design
Systems, Inc.'s ("Cadence") Insurance Policies in effect prior to the date
hereof for which Partnership or any of its Subsidiaries are 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 "Partnership Assets" means (without duplication) the
following Assets (other than those Assets constituting Excluded Assets):
(i) all Assets reflected on the Partnership Balance Sheet,
subject to any dispositions of such Assets after the date of the
Partnership 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 Partnership Balance Sheet
in accordance with the principles and accounting policies under which
the Partnership Balance Sheet was prepared;
(iii) all Assets acquired by the Partnership after the date of
the Partnership Balance Sheet that would be reflected on the
consolidated balance sheet date hereof if such consolidated balance
sheet was prepared using the same
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principles and accounting policies under which the Partnership Balance
Sheet was prepared.
(iv) all Assets that are used solely by the Partnership Business
as of the date hereof but are not reflected on the Partnership Balance
Sheet due to mistake or omission (as determined by Partnership in its
sole and absolute discretion);
(v) all Partnership Special Gains;
(vi) all Partnership Contracts; and
(vii) to the extent permitted by Applicable Law, all rights of
the Partnership under any of Cadence's Insurance Policies or
Partnerships' Insurance Policies.
Section 1.15 "Partnership Balance Sheet" means the consolidated balance
sheet (including the notes thereto) of the Partnership Business as of June 2,
2001.
Section 1.16 "Partnership Business" means business of providing design
engineering services, and intellectual property in connection therewith, to
electronic equipment manufacturers and other customers in the United States.
Section 1.17 "Partnership Contingent Liability" means any Liability,
other than Liabilities for Taxes, of the Partnership that is reflected on, or,
were it not for the reasons noted in clause (ii) below, would have been
reflected on, the Partnership Balance Sheet, whenever arising, to any Person
other the Partnership, if and to the extent that (i) such Liability arises out
of the events, acts or omissions occurring before the date hereof and (ii) the
existence or scope of the obligation the Partnership as of the date hereof 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 date hereof or
as a result of the failure of such Liability to have been discovered or asserted
as of the date hereof (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); provided,
however, that the only Liabilities relating to, arising out of or resulting from
litigation matters pending on the date hereof that shall constitute Partnership
Contingent Liabilities are Liabilities relating to, arising out of or resulting
from the matters identified on Schedule 1.17. In the case of any Liability a
portion of which arises out of events, acts or omissions occurring prior to the
date hereof and a portion of which arises out of events, acts or omissions
occurring on or after the date hereof, only that portion that arises out of
events, acts or omissions occurring prior to the date hereof shall be considered
a Partnership 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 date hereof if all the elements necessary for the assertion of a claim
with respect to such Liability shall have occurred on or prior to the date
hereof, such that the claim, were it asserted in an Action on or prior to the
date hereof, 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 of or resulting from any obligation of any Person to
perform the executory portion of any contract or agreement existing as of the
date
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hereof, or to satisfy any obligation accrued under any Employee Benefits Plan as
of the date hereof, shall be deemed to be a Partnership Contingent Liability.
Section 1.18 "Partnership Contracts" means the following contracts and
agreements to which Partnership 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 Partnership pursuant to this Agreement:
(i) any contract or agreement reflected on the Partnership
Balance Sheet, including without limitation, the Specified Separation
Agreements;
(ii) any contract or agreement entered into after October 4, 2000
and designated by the Partnership (subject to the consent of New Tality,
which shall not be unreasonably withheld) as a Partnership Contract;
(iii) any contract or agreement that is otherwise expressly
contemplated pursuant to this Agreement to be assigned to the
Partnership; and
(iv) any contract or agreement set forth on Schedule 1.18(iv).
Section 1.19 "Partnership Liabilities" means (without duplication) the
following Liabilities (other than those Liabilities constituting Excluded
Liabilities):
(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 the Partnership that arise after the date
of the Tality Balance Sheet that would be reflected on the consolidated
balance sheet of Tality as of the date hereof 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 Partnership
Business on the date hereof but are not reflected on the Partnership
Balance Sheet due to mistake or unintentional omission (as determined by
the Partnership in its sole and absolute discretion);
(iv) all Partnership Contingent Liabilities;
(v) all Liabilities (other than Liabilities for Taxes), whether
arising before, on or after the date hereof, solely relating to, arising
out of or resulting from:
(1) the operation of the Partnership Business, as
conducted at any time prior to, on or after the date hereof (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));
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(2) the operation of any business conducted by any member
of the Partnership at any time after the date hereof (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 Partnership Assets; and
(vi) all Liabilities that are expressly contemplated by this
Agreement or Schedule 1.19(vii), as Liabilities to be assumed by New
Tality.
Section 1.20 "Partnership Special Gain" means any claim or other right
of the Partnership that is reflected on, or, were it not for the reasons noted
in clause (ii) below, would have been reflected on, the Partnership Balance
Sheet, whenever arising, against any Person other than the Partnership, if and
to the extent that (i) such claim or right arises out of the events, acts or
omissions occurring before the date hereof (based on then existing law) and (ii)
the existence or scope of the obligation of such other Person as of the date
hereof was not acknowledged, fixed or determined in any material respect, due to
a dispute or other uncertainty as of the date hereof or as a result of the
failure of such claim or other right to have been discovered or asserted as of
the date hereof. A claim or right meeting the foregoing definition shall be
considered a Partnership Special Gain regardless of whether there was any Action
pending, threatened or contemplated as of the date hereof 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 date hereof and a portion of which arises
out of events, acts or omissions occurring on or after the date hereof, only
that portion that arises out of events, acts or omissions occurring prior to the
date hereof shall be considered a Partnership Special Gain. For purposes of the
foregoing, a claim or right shall be deemed to have accrued as of the date
hereof if all the elements of the claim necessary for its assertion shall have
occurred on or prior to the date hereof, such that the claim or right, were it
asserted in an Action on or prior to the date hereof, would not be dismissed by
a court on ripeness or similar grounds. Notwithstanding the foregoing, none of
(i) any Insurance 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 Partnership Special Gain.
Section 1.21 "Person" means an individual, a partnership, a corporation,
a limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization or a Governmental Authority.
Section 1.22 "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 1.23 "Specified Separation Agreements " means the following
agreements dated as of October 4, 2000 by and among Cadence, Cadence Holdings,
Inc., the Partnership, and Tality Corporation (except items (viii) and (xii), to
which the parties were Cadence and the Partnership), as amended:
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(i) Amended and Restated Master Separation Agreement (the
"Separation Agreement");
(ii) General Assignment and Assumption Agreement;
(iii) Real Estate Matters Agreement;
(iv) Master Confidentiality Agreement;
(v) Indemnity and Insurance Matters Agreement;
(vi) Master Intellectual Property Agreement;
(vii) Employee Matters Agreement;
(viii) Loaned Employee Agreement;
(ix) Master Corporate Services Agreement;
(x) Joint Sales Agreement;
(xi) Joint Technology Development and Support Agreement; and
(xii) EDA Tools Agreement.
Section 1.24 "Subsidiary " of any Person means any other Person of which
at least a majority of the securities or other interests having by their terms
ordinary voting power to elect at least a majority of the board of directors or
other body performing similar functions with respect to such other Person is
directly or indirectly owned or controlled (including by contract) by such first
Person.
Section 1.25 "Taxes" means any foreign or U.S. federal, state, local or
municipal income, alternative or add-on minimum, gross receipts, sales, use, ad
valorem, transfer, franchise, profits, license, withholding, payroll,
employment, excise, severance, stamp, occupation, premium, property, value added
or any other tax, custom, tariff, impost, levy, duty, governmental fee or other
like assessment or charge of any kind whatsoever, together with any interest or
penalty, addition to tax or additional amount related thereto, imposed by any
governmental authority or any subdivision, agency, commission or authority
thereof, or any quasi-governmental or private body having jurisdiction over the
assessment, determination, collection or other imposition of the foregoing.
ARTICLE II
CONTRIBUTION AND ASSUMPTION; NEW TALITY STOCK
Section 2.1 Contribution of Assets and Assumption of Liabilities.
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(a) Contribution of Assets. Partnership hereby assigns,
transfers, conveys and delivers to New Tality, and New Tality hereby accepts
from the Partnership, Partnership's respective right, title and interest in and
to the Partnership Assets other than the Excluded Assets.
(b) Assumption of Liabilities. New Tality hereby assumes and
agrees faithfully to perform and fulfill, all the Partnership Liabilities, other
than the Excluded Liabilities, in accordance with their respective terms.
Thereafter, New Tality shall be responsible for all Partnership Liabilities,
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 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 Partnership.
Section 2.2 Methods of Transfer and Assumption.
(a) General. It is the intent of the parties hereto that pursuant
to Section 2.1 the transfer and assumption of all other Partnership Assets and
Partnership Liabilities shall be made effective as of the date hereof.
(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 date hereof, there may
exist (i) Assets that the parties discover were, contrary to this Agreement, by
mistake or omission, transferred or not transferred, as the case may be, to New
Tality or (ii) Liabilities that the parties discover were, contrary to this
Agreement, by mistake or omission, assumed or not assumed, as the case may be,
by New Tality. 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 New Tality. 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 Transfers of Assets and Assumption of
Liabilities. In furtherance of the assignment, transfer and conveyance of the
Partnership Assets and the assumption of Partnership Liabilities set forth in
Sections 2.2(a) and (b), simultaneously with the execution and delivery hereof
or as promptly as practicable thereafter, (i) Partnership 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 the Partnership's right, title and interest in and to the Partnership Assets
to New Tality effected by this Agreement; and (ii) New Tality execute and
deliver such assumptions of contracts and other instruments of assumption as and
to the extent necessary to evidence the valid and effective assumption of the
Partnership Liabilities by New Tality effected by this Agreement.
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Section 2.3 Novation of Assumed Partnership Liabilities.
(a) Reasonable Commercial Efforts. Each of the parties shall use
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 Partnership Liabilities or to obtain in
writing the unconditional release of all parties to such arrangements so that,
in any such case, New Tality shall be solely responsible for such Liabilities;
provided, however, that neither of the parties 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 Partnership 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 Agreement), New Tality shall, pay, perform and discharge fully, or cause
to be paid, transferred or discharged all the obligations or other Liabilities
of the Partnership, thereunder from and after the date hereof. Partnership
shall, without further consideration, pay and remit, or cause to be paid or
remitted, to New Tality promptly all money, rights and other consideration
received by it 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, Partnership shall thereafter assign, or cause to be assigned, all its
rights, obligations and other Liabilities thereunder to the New Tality without
payment of further consideration and the New Tality shall, without the payment
of any further consideration, assume such rights and obligations.
Section 2.4 Issuance and Transfer of New Tality Stock. In consideration
for the assignment and assumption of the Partnership Assets and Partnership
Liabilities subject to the terms and conditions of this Agreement, New Tality
shall issue and transfer all of its authorized capital stock to Tality, LP.
ARTICLE III
LITIGATION
Section 3.1 Allocation.
(a) Litigation to Be Transferred to New Tality. The
responsibilities for management of the litigation identified on Schedule 3.1(a)
(the "Litigation Schedule"), are hereby transferred in their entirety from the
Partnership to New Tality. From and after the date hereof , New Tality shall
manage the defense of such litigation. The Partnership must first obtain the
prior consent of New Tality for any action taken subsequent to the date hereof
in connection with the litigation identified in the Litigation Schedule, which
consent cannot be unreasonably withheld or delayed. All other matters relating
to such litigation, including any
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indemnification for such claims, shall be governed by the provisions of the
Indemnification and Insurance Matters Agreement.
(b) Litigation to Be Defended by the Partnership at New Tality's
Expense. Partnership shall defend, and shall cause its applicable Subsidiaries
to defend, the litigation identified in the Litigation Schedule that is not
delivered by the Partnership to New Tality on the date hereof. 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 other
Ancillary Agreement (as defined in the Separation 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 Agreement
effective as of the date first set forth above.
NEW TALITY CORPORATION TALITY, LP
By: /s/ Robert P. Wiederhold By: TALITY CORPORATION,
Name: Robert P. Wiederhold AS GENERAL PARTNER
Title: President and Chief Executive By: /s/ Duane W. Bell
Officer Name: Duane W. Bell
Title: Senior Vice President,
Chief Financial Officer
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