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EXHIBIT 10.23
COVENANT NOT TO XXX AND NONDISCLOSURE AGREEMENT
In consideration of the purchase by Intel Corporation ("Intel") of
shares of capital stock of GlobeSpan, Inc. ("Company"), pursuant to a Series A
Preferred Stock Purchase Agreement dated as of May 6, 1999 (the "Purchase
Agreement"), Company and Intel agree to the terms and obligations of this letter
agreement ("Agreement"). Initially capitalized terms not defined herein shall
have the meanings assigned to them in the Purchase Agreement.
1. DEFINITIONS
1.1 "Assert" means to bring an action of any nature before any
legal, judicial, arbitration, administrative, executive or
other type of body or tribunal that has or claims to have
authority to adjudicate such action in whole or in part.
Examples of such body or tribunal include, without limitation,
united states state and federal courts, the united states
international trade commission and any foreign counterparts of
any of the foregoing.
1.2 "Chipset" means any integrated circuit designed to be
connected directly to an Intel microprocessor.
1.3 "Company's Products" means all products manufactured by or for
Company.
1.4 "Intel's Products" means all microprocessors manufactured by
or for Intel; and all Chipsets manufactured by or for Intel.
1.5 "Patent Rights" means with respect to the subject party all of
such party's rights arising from or related to all classes or
types of patents, utility models and design patents
(including, without limitation, originals, divisions,
continuations, continuations-in-part, extensions or reissues)
and applications for these classes or types of patent rights
and any equivalent rights in all countries of the world that
are owned or controlled by such party.
2. COVENANT NOT TO XXX
2.1 Covenant Not to Xxx. Company agrees that, for so long as Intel
maintains an investment in Company of at least 1% of the
Company's outstanding capital stock, Company shall not Assert
any Patent Right against Intel, its subsidiaries or
affiliates, or their customers (direct or indirect),
distributors (direct or indirect), agents (direct or indirect)
and contractors (direct or indirect) (collectively, the "Intel
Parties") for the manufacture, use, import, offer for sale or
sale of any of Intel's Products or any process or method
employed in the manufacture, testing, distribution or use
thereof for so long as Intel does not Assert any Patent Right
against Company, its subsidiaries or affiliates, or their
customers (direct or indirect), distributors (direct or
indirect), agents (direct or indirect) and contractors (direct
or indirect) for the manufacture, use, import, offer for sale
or sale of the Company's Products or any process or method
employed in the
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manufacture, testing, distribution or use thereof. This
covenant not to xxx shall not prevent Company from Asserting
any Patent Right against Level One, Inc., or its customers
(direct or indirect), distributors (direct or indirect),
agents (direct or indirect) and contractors (direct or
indirect), or against any Intel Party, in connection with any
product or technology or intellectual property that is, or is
derived from, any Level One, Inc. product, technology or
intellectual property. This covenant not to xxx shall take
effect only after the required investment level in Company by
Intel has been achieved, and shall survive any termination or
expiration of this Agreement and shall remain in full force
and effect until mutually agreed otherwise by the parties.
2.2 Assignment. If either party ("assigning party") assigns or
attempts to assign ownership of any of its Patent Rights to a
third party not bound by this covenant not to xxx (whether
directly or by operation of law), then effective immediately
prior to such assignment or attempted assignment, the
assigning party agrees that the other party shall have a
nonexclusive, nontransferable license, without right of
sublicense, under such assigned Patent Rights to make, use,
sell, offer for sale and import such party's Products. This
conditional license shall survive any termination or
expiration of this Agreement and shall remain in full force
and effect until mutually agreed otherwise by the parties.
3. NONDISCLOSURE AGREEMENT
3.1 Disclosure of Terms. The terms and conditions of this
Agreement, the Purchase Agreement and the agreements
contemplated by the Purchase Agreement (collectively, the
"Financing" or "Financing Terms"), including their existence,
shall be considered confidential information and shall not be
disclosed by any party hereto and any third party except in
accordance with the provisions set forth below. As between the
Company and Intel, this Agreement shall replace Section 7.15
of the Purchase Agreement except for the last sentence
thereof.
3.2 Press Releases, Etc. Within sixty (60) days of the Closing,
the Company may issue a press release in a form approved in
advance in writing by Intel, which approval shall not
unreasonably be withheld, disclosing that the Investors have
invested in the Company; provided that the release does not
disclose any of the Financing Terms. The Company may also
provide such information in its filings with the Securities
and Exchange Commission in connection with its pending
Registration Statement on Form S-1 (the "Registration
Statement") as may be required to comply with its legal
obligations. For each amendment to the Registration Statement
other than (i) amendment number 2 or (ii) any amendment that
does not make a change in the language regarding Intel
Corporation the Company shall give Intel a copy of such
amendment at least 24 hours before such amendment is filed and
Intel Corporation will have the opportunity to provide
reasonable comments to the disclosure regarding the Financing
within such period. Notwithstanding any other provision of
this Agreement, for any subsequent filings by the Company with
the Commission, the Company may include the disclosure in
substantially the form provided in the Registration Statement.
No other announcement regarding any Investor's participation
in the Financing shall be made in a press release, conference,
advertisement, announcement, professional or trade
publication, mass marketing materials or otherwise to the
general public without such Investor's prior written consent.
3.3 Permitted Disclosures. Notwithstanding the foregoing, (i) any
party may disclose any of the Financing Terms to its current
or bona fide prospective investors, employees, investment
bankers, lenders, accountants and attorneys, in each case only
where such persons or entities are under appropriate
nondisclosure
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obligations; (ii) any party may disclose (other than in a
press release or other public announcement described in
Section 3.2) solely the fact that the Investors are investors
in the Company to any third parties without the requirement
for the consent of any other party or nondisclosure
obligations; and (iii) Intel may disclose its investment in
the Company and the Financing Terms to third parties or to the
public at its sole discretion and, if it does so, the Company
shall have the right to disclose to third parties any such
information disclosed in a press release or other public
announcement by Intel.
3.4 Legally Compelled Disclosure. In the event that any party is
requested or becomes legally compelled (including without
limitation, pursuant to securities laws and regulations) to
disclose the existence of this Agreement, the Purchase
Agreement or any of the Financing Terms hereof, in
contravention of the provisions of this Section 3, such party
(the "Disclosing Party") shall provide the other parties (the
"Nondisclosing Parties") with prompt written notice of that
fact so that the appropriate party may seek (with the
cooperation and reasonable efforts of the other parties) a
protective order, confidential treatment or other appropriate
remedy. In such event, the Disclosing Party shall furnish only
that portion of the information which is legally required and
shall exercise reasonable efforts to obtain reliable assurance
that confidential treatment will be accorded such information
to the extent reasonably requested by any Non-Disclosing
Party.
3.5 Other Information. The provisions of this Section 3 shall be
in addition to, and not in substitution for, the provisions of
any separate nondisclosure agreement executed by any of the
parties hereto with respect to the transactions contemplated
hereby. Additional disclosures and exchange of confidential
information between the Company and Intel Corporation shall be
governed by the terms of the Corporate Xxx-Xxxxxxxxxx
Xxxxxxxxx, Xx. 0000000, dated June 6, 1998, executed by the
Company and Intel.
3.6 Notices. All notices required under this section shall be made
in compliance with Section 7.6 of the Purchase Agreement..
4. MISCELLANEOUS.
4.1 This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
4.2 This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall
constitute one and the same instrument.
4.3 This Agreement may not be amended or modified without the
written consent of Intel and the Company, nor shall any waiver
be effective against any party unless in a writing executed on
behalf of such party.
4.4 If any provision of this Agreement shall be declared void or
unenforceable by any judicial or administrative authority, the
validity of any other provision and of the entire Agreement
shall not be affected thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first indicated above.
GLOBESPAN, INC. INTEL CORPORATION
By:_________________________________ By:_________________________________
Name:_______________________________ Name:_______________________________
Title:______________________________ Title:______________________________
SIGNATURE PAGE
COVENANT NOT TO XXX
