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AGREEMENT DATE: JUNE 2, 1999 EXHIBIT 1
Corporate Non-Disclosure Agreement
This Corporate Non-Disclosure Agreement ("Agreement") is entered into and made
effective as of the date set forth above, by and between Intel Corporation and
its majority owned subsidiaries ("Intel"), and the Participant identified below
("Participant"). Unless the Participant indicates that this Agreement will apply
only to the specific division or location, this Agreement will apply to the
Participant's entire Company.
THE PARTIES AGREE AS FOLLOWS:
1. Confidential Information Transmittal Form. The confidential,
proprietary and made secret information of the disclosing party
("Confidential Information") to be disclosed hereunder is that
information which (i) is described in the Confidential Information
Transmittal Record ("CITR") executed from time to time hereafter and
(ii) is marked with a "confidential", "proprietary", or similar legend.
CITRs are subject to the terms of this Agreement. CITRs will be
executed, in writing or in electronic form, by the parties prior to the
disclosure of Confidential Information. All Confidential Information
received from the disclosing party will be in tangible form. To be
considered Confidential Information, non-tangible disclosures must be
identified as confidential prior to disclosure and produced in writing,
marked as provided above and delivered to the receiving party within
thirty (30) days of the original date of disclosure. The CITR will
indicate the disclosing party, a description of the Confidential
Information disclosed, the names of the representatives of the parties
and the dates when the disclosure covered by the CITR commenced.
2. Obligations of Receiving Party. The receiving party will maintain the
confidentiality of the Confidential Information of the disclosing party
with at least the same degree of care that it uses to protect its own
confidential and proprietary information, but no less than a reasonable
degree of care under the circumstances. The receiving party will not
disclose any of the disclosing party's Confidential Information to any
employees or to any third parties except to the receiving party's
employees, parent company and majority-owned subsidiaries who have a
need to know and who agree to abide by nondisclosure terms at least as
comprehensive as those set forth herein: provided that the receiving
party will be liable for breach by any such entity. The receiving party
will not make any copies of the Confidential Information received from
the disclosing party except as necessary for its employees, parent
company and majority-owned subsidiaries with a need to know. Any copies
which are made will be identified as belonging to the disclosing party
and marked "confidential", "proprietary", or with a similar legend.
3. Period of Non-Assertion. Unless a shorter period is indicated in the
applicable CITR, the disclosing party will not insert any claims of
breach of this Agreement or misappropriation of trade secrets against
the receiving party arising from the receiving party's disclosure of
the disclosing party's Confidential Information made more than five
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(5) years from the date of the CITR under which such information was
disclosed. However, unless at least one of the exceptions set for in
Section 4 below has occurred, the receiving party will continue to
treat such confidential Information as the confidential information of
the disclosing party and only disclose any such Confidential
Information to third parties under the terms of a non-disclosure
agreement.
4. Termination of Obligation of Confidentiality. The receiving party will
not be liable for the disclosure of any Confidential Information which
is:
(a) rightfully in public domain other than by a breach of duty to
the disclosing party
(b) rightfully received from a third party without any obligation
of confidentiality
(c) rightfully known to the receiving party without any limitation
on use or disclosure prior to its receipt from the disclosing
party
(d) independently developed by employees of the receiving party;
or
(e) generally made available to third parties by the disclosing
party without restriction on disclosure.
5. Title. Title or the right to possess Confidential Information as
between the parties will remain in the disclosing party.
6. No Obligation of Disclosure: Termination. Neither party has any
obligation to disclose Confidential Information to the other. Either
party may terminate this Agreement at any time without cause upon
written notice to the other party: provided that each party's
obligations with respect to Confidential Information disclosed during
the term of this Agreement will survive any such termination. Either
party may, at any time: (a) cease giving Confidential Information to
the other party without any liability and/or (b) request in writing the
return or destruction of all or part of its Confidential Information
previously disclosed, and all copies thereof, and the receiving party
will promptly comply with such request, and certify in writing its
compliance.
7. Residuals. Notwithstanding anything herein to the contrary, either
party may use Residuals for any purpose, including without limitation
use in development manufacture, promotion, sale and maintenance of its
products or services: provided that this right to Residuals does not
represent a licence under any patents, copyrights or other intellectual
property rights of the disclosing party. The term "Residuals" means any
information retained in the unaided memories of the receiving party's
employees who have had access to the disclosing party's Confidential
Information pursuant to the terms of this Agreement. An employee's
memory is unaided if the employee has not intentionally memorized the
Confidential Information for the purpose of retaining and subsequently
using or disclosing it.
8. General.
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(a) This Agreement is neither intended to nor will it be
considered as creating a joint venture, partnership or other
form of business association between the parties, nor an
obligation to buy or sell products using or incorporating the
Confidential Information.
(b) Both parties understand and acknowledge that no license under
any patent, copyright, trade secret, or other intellectual
property right is granted to or conferred upon, either party
in this Agreement or by the disclosure of any Confidential
Information by one party to the other party as contemplated
hereunder, either expressly, by implication, inducement,
estoppel or otherwise, and that any license under such
intellectual property rights must be express and in writing.
(c) The failure of either party to enforce any right resulting
from breach of any provision of this Agreement by the other
party will not be deemed a waiver of any right relating to a
subsequent breach of such provision or of any other right
hereunder.
(d) This Agreement will be governed by laws of the State of
Delaware without reference to conflict of laws principles.
(e) This Agreement, any accompanying CITR and CITRs executed from
time to time hereafter which incorporate the terms of this
Agreement, constitutes the entire agreement between the
parties with respect to the disclosure(s) of Confidential
Information described in each CITR, and may not be amended
except in a writing signed by a duly authorized representative
of the respective parties. Any other agreements between the
parties, including non-disclosure agreements, will not be
affected by this Agreement.
INTEL CONTACT: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ M/S: FMS-92 TEL NO: ▇▇▇-▇▇▇▇
AGREED:
INTEL CORPORATION
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▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ PARTICIPANT: DSP Communications
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Signature of Authorized Representative
(e.g. President or V.P.)
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Printed Name
Chairman
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Title
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Addendum No. 1
to
Corporate Non-Disclosure Agreement 4655141
between
Intel Corporation ("Intel")
and
DSP Communications Inc. ("Company")
Effective August 31, 1999 (the "Effective Date"), the above-referenced Agreement
is modified solely with respect to the Confidential Information Transmittal
Records dated after August 31, 1999, and before December 31, 1999, executed in
connection with the consideration of a possible business transaction involving
an acquisition of the Company (the "Transaction"), as follows:
1. Sentence 2 of Section 2 Obligations of Receiving Party is hereby
deleted and replaced with the following:
The receiving party will not disclose any of the disclosing party's
Confidential Information to any employees or to any third parties
except to employees of the receiving party or its employees, parent
company and majority-owned subsidiaries and financial advisors,
attorneys and accountants who have a need to know such Confidential
Information (collectively "Representatives"), and who agree to abide by
nondisclosure terms at least as comprehensive as those set forth
herein; provided that the receiving party will be liable for breach by
any such entity.
2. Section 7 Residuals is hereby deleted and replaced with the following:
The Company understands that Intel is a diverse corporation which
conducts research and development activities in an immense variety of
technologies, often resulting in new commercial product development.
The Company acknowledges that Intel may already be working on similar
technology as that disclosed by the Company, and that Intel's personnel
to whom the disclosure is made may be wholly unaware of this work.
Intel's receipt of Confidential Information under this agreement shall
not create any obligation in any way limiting, restricting, or
prohibiting Intel's assignment of employees or contractors.
Notwithstanding anything herein to the contrary, Intel may use
residuals of the Confidential Information for any purpose including
without limitation use in development, manufacture, promotion, sale and
maintenance of Intel's products and services. The term "residuals" as
used herein means any information relating to the Company's technology
retained in the unaided memories of Intel's Representatives who have
had access to such Confidential Information pursuant to the terms of
this agreement. A Representative's
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memory is unaided if the Representative has not intentionally memorized
the Confidential Information for the purpose of retaining and
subsequently using or disclosing it. This provision grants no patent or
copyright license.
3. Section 8 General hereby becomes Section 11 General.
4. A new Section 8 is hereby added:
Section 8 Press Releases/Disclosures. Neither party nor any of its
affiliates shall make, or cause to be made, without the prior written
consent of the other party, any public or private disclosure or other
announcement with respect to the existence of the Agreement, the fact
that any investigations, discussions or negotiations are taking or have
taken place concerning the Transaction between the parties, or the
diligence or Confidential Information has been requested or received
from the parties, or any of the terms, conditions or other facts with
respect to any such potential Transaction, including the status
thereof. Any press release or other public disclosure or other
announcement with respect to any of the foregoing matters required by
law or the rules of any applicable securities exchange or market system
shall be submitted to the nondisclosing party within a reasonable time
prior to release in order for the nondisclosing party to provide
comments and, where possible, request confidential treatment of such
disclosure.
Intel and the Company understand that each party is subject to the
reporting and disclosure requirements of the Securities Exchange Act of
1934 and as such is required to disclose certain material information
regarding itself and its business and operations. From time to time,
however, Intel and its affiliates and the Company and its affiliates
may have in their possession certain material information that has not
yet been disclosed to the public. To the extent that any information
disclosed to receiving party constitutes material nonpublic information
about disclosing party, receiving party acknowledges its obligations
under the securities laws and acknowledges that failure to abide by
such restrictions may subject Recipient to criminal and/or civil
penalties.
5. A new Section 9 is hereby added:
Section 9 No Representations. Except as may be specifically provided
hereafter in a definitive written agreement, neither party shall be
deemed to
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make or have made any representation or warranty, express or implied,
as to the accuracy or completeness of any Confidential Information
which either party furnished to the other, and neither party shall bear
any liability to the other party or the other party's employees, agents
or consultants resulting from the use of any Confidential Information
by the other party or its employees, agents or consultants.
6. A new Section 10 is hereby added:
Section 10 Standstill. Without prior written consent of the other party
to this Agreement, neither party will for a period of eighteen (18)
months from the Effective Date: (i) acquire, offer to acquire, or agree
to acquire, directly or indirectly, by purchase or otherwise, any
voting securities or direct or indirect rights or options to acquire
any voting securities of the other party, (ii) make, or in any way
participate, directly or indirectly, in any "solicitation" of any
"proxy" to vote (as such terms are used in the proxy rules of the
Securities and Exchange Commission) or seek to advise or influence any
person or entity with respect to the voting of any voting securities of
the other party, (iii) form, join or in any way participate, directly
or indirectly, in a "group" within the meaning of Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended, with respect to any
voting securities of the other Party; (iv) otherwise act, along or in
concert with others, directly or indirectly, to seek control of the
management, board of directors, or policies of the other party; or (v)
seek any modification to or waiver of the terms or conditions of this
Section 10, unless, in any such case, specifically invited to do so by
actions of the Board of Directors or Chief Executive Officer of the
Company. Notwithstanding the above, either party and its affiliates
and/or its retirement plans may acquire not to exceed 2% of the
outstanding equity securities of the other party. The provisions of
this paragraph pertaining to Intel's obligations shall terminate in the
event that: (a) any third party unaffiliated with the Company initiates
a tender offer or exchange offer for the common stock of the Company or
(b) the Company enters into an agreement to merge with, or sell or
dispose of 50% or more of its assets or earning power, to any party not
affiliated with the Company. The provisions of this paragraph
pertaining to the Company's obligation shall terminate in the event
that: (a) any third party unaffiliated with Intel initiates a tender
offer or exchange offer for the common stock of Intel or (b) Intel
enters into an agreement to merge with, or sell or dispose of 50% or
more of its assets or earning power, to any party not affiliated with
Intel.
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7. New Section 11 is hereby added:
Section 11 Non-Exclusive Relationship: the Company acknowledges that
(a) Intel has invested and will continue to invest in a wide range of
companies in numerous market segments, (b) Intel may invest in multiple
competitors, with similar or identical strategies, within the same
market segment and (c) Intel will not maintain an exclusive
relationship with any one company.
8. New Section 12 is hereby added:
Section 12 Material Inside Information: Each party hereby acknowledges
that it is aware (and that its Representatives who are apprized of a
possible transaction have been advised) that the United States and
other applicable securities laws prohibit any person who has material,
non-public information about a company from purchasing or selling
securities of such company or from communicating such information to
any other person under circumstances in which it is reasonably
foreseeable that such person is likely to purchase or sell such
securities.
Except as modified herein, the terms and conditions of the Agreement remain in
full force and effect.
Agreed and accepted:
INTEL CORPORATION DSP Communications, Inc.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Printed Name Printed Name
Asst Treasurer General Counsel and Secretary
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Title Title
8/31/99 September 7, 1999
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Date Date
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Signature Page to Addendum No. 1 to Corporate
Non-Disclosure Agreement 4655141
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CITR DATE: August 31, , 1999 CNDA# 4665141
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(Date Disclosure(s) will commence (Fill in Number from Executed CNDA)
Participant's Name: DSP Communications, Inc.
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Location of Disclosure: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Street Address City State Zip Code
Intel and Participant agree that the Confidential Information described below
shall be kept confidential by the receiving party. This CITR incorporates all
the terms and conditions of the Corporate Non-Disclosure Agreement ("CNDA")
executed by the parties.
1. Describe Confidential Information disclosed by each party. (Be
specific, include subject or product, any document title,
drawing/document number, date, rev., etc.) Identify visuals, foils, and
verbal disclosures. (Use additional sheets if necessary).
Intel Confidential Information:________________________________________
Participant's Confidential Information: Preliminary Due Diligence Per
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Attached List
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2. This CITR covers the above described Confidential Information to be
conveyed commencing on the CITR Date stated above provided it is marked
as required under the CNDA.
3. Unless a shorter period is indicated below, the disclosing party will
not assert any claims of breach or misappropriation of trade secrets
against the receiving party arising from the receiving party's
disclosure of the disclosing party's Confidential Information under
this CITR more than five (5) years from the date when such information
was disclosed. However, unless at least one of the exceptions set
forth in Section 4 of the CNDA has occurred, the receiving party will
continue to treat such Confidential Information as the confidential
information of the disclosing party and only disclose any such
Confidential Information to third parties under the terms of a
non-disclosure agreement. Either party may at any time request in
writing the immediate return of all or part of its Confidential
Information disclosed hereunder, and all copies thereof, and the
receiving party shall promptly comply with such request. If initialed
and filled in below, the period after which the disclosing party agrees
not to assert claims against the receiving party with respect to the
Confidential Information disclosed under this CITR will be ____ months
(not less than twenty-four (24) months nor more than sixty (60)
months), (______/______)
4. Confidential Information may be controlled by U.S. Export Regulations,
and export, re-export or foreign disclosure (including to subsidiary
employees) may require U.S. Government approval. The receiving party
shall not use, export, transfer, make available or otherwise disclose
any Confidential Information in violation of U.S. Export Regulations,
including any use or development in nuclear, missile, chemical and/or
biological weapons activities.
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5. All other terms and conditions of the executed CNDA shall remain in
full force and effect. Nothing contained herein shall be construed as
amending or modifying the terms of the CNDA referenced above.
6. Both parties understand and acknowledge that no license under any
patent, copyright, trade secret or other intellectual property right is
granted to or conferred upon either party in this Agreement or by the
disclosure of any Confidential Information by one party to the other
party as contemplated hereunder, either expressly, by implication,
inducement, estoppel or otherwise, and that any license under such
intellectual property rights must be express and in writing.
PARTICIPANT DSP Communications, Inc.
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(Company Name, Division/Sub if
applicable)
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INTEL CORPORATION Street Address
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City, State, Zip
Represented By: Represented By:
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Signature Signature
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Printed Name Printed Name
Asst. Treasurer General Counsel and Corporate Secretary
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Title Title
8/31/99 9/7/99 as of 8/31/99
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Date Date
PLEASE SEND ONE COPY OF THE CITR TO: INTEL CORPORATION, ATTN:
Post Contract Mgmt, FM6-03
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