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Exhibit 5
TENDER AND VOTING AGREEMENT AND
IRREVOCABLE PROXY
THIS TENDER AND VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of
October 13, 1999 (this "Agreement"), is entered into by and between Intel
Corporation, a Delaware corporation ("Parent"), and CWC Acquisition Corporation,
a Delaware corporation and wholly-owned subsidiary of Parent ("Acquisition"), on
the one hand, and Joseph Perl ("Stockholder"), on the other hand.
W I T N E S S E T H:
WHEREAS, concurrently herewith, Parent, Acquisition, and DSP
Communications, Inc., a Delaware corporation (the "Company"), have entered into
an Agreement and Plan of Merger, of even date herewith (as such agreement may
hereafter be amended from time to time, the "Merger Agreement"; initially
capitalized and other terms used but not defined herein shall have the meanings
ascribed to them in the Merger Agreement), pursuant to which Acquisition will
make a tender offer (the "Offer") for all outstanding shares of common stock,
$.001 par value, of the Company ("Company Common Stock") and, after Acquisition
has accepted tendered shares for payment (the date on which such acceptance
occurs, the "Acceptance Date"), the Company and Acquisition will merge with the
Company as the surviving corporation and wholly-owned subsidiary of Parent (the
"Merger");
WHEREAS, Stockholder Beneficially Owns (as defined herein) all shares
of Company Common Stock (the "Shares"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent and Acquisition have requested that Stockholder agree, and
Stockholder has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Provisions Concerning Company Common Stock.
(a) Tender of Shares. Subject to obtaining the consents described
in Schedule 4(a), Stockholder hereby agrees with Parent and Acquisition that
Stockholder will, promptly after the date of commencement of the Offer (but in
all events not later than ten (10) business days thereafter), tender to
Acquisition all Shares Beneficially Owned by Stockholder on such date (the
"Tendered Shares"). Stockholder further agrees to tender to Acquisition promptly
after Stockholder's acquisition thereof (but in all events not later than ten
(10) business days thereafter) all other shares of Company Common Stock acquired
and Beneficially Owned by Stockholder at any time prior to the Acceptance Date
or the date on which the Offer is terminated
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or expires without Acquisition's having accepted shares for payment; all such
subsequently tendered Shares shall constitute "Tendered Shares" for all purposes
of this Agreement. Stockholder agrees not to withdraw any of the Tendered Shares
unless the Offer is terminated or has expired without Acquisition's having
accepted the Tendered Shares for payment. Stockholder acknowledges and agrees
that Acquisition's obligation to accept for payment and pay for the Tendered
Shares is subject to all the terms and conditions of the Offer.
(b) Voting Agreement. Stockholder hereby agrees with Parent and
Acquisition that, at any meeting of the Company's stockholders, however called,
or in connection with any written consent of the Company's stockholders,
Stockholder shall vote the Shares Beneficially Owned by Stockholder, whether
heretofore owned or hereafter acquired, (i) in favor of approval of the Merger
Agreement and any actions required in furtherance of the transactions
contemplated thereby, including without limitation voting such shares in favor
of the election to the Company Board of each person designated by Parent for
nomination thereto pursuant to Section 1.3(a) of the Merger Agreement at any
meeting of the Company's stockholders called for the election of directors; (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement; and (iii) except as otherwise agreed to
in writing in advance by Parent, against: (A) any Third Party Acquisition, (B)
any change in a majority of the individuals who, as of the date hereof,
constitute the Board of Directors of the Company (other than as contemplated by
Section 1.3 of the Merger Agreement), (C) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company or any of its subsidiaries and any Third Party, (D) a
sale, lease, transfer or disposition of any assets of the Company's or any of
its subsidiaries' business outside the ordinary course of business, or any
assets which are material to its business whether or not in the ordinary course
of business, or a reorganization, recapitalization, dissolution or liquidation
of the Company or any of its subsidiaries, (E) any change in the present
capitalization of the Company or any amendment of the Company's Certificate of
Incorporation or bylaws, (F) any other material change in the Company's
corporate structure or affecting its business, or (G) any other action which is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone or materially adversely affect the Offer, the Merger or any of the
other transactions contemplated by the Merger Agreement or the Stock Option
Agreement, or any of the transactions contemplated by this Agreement.
Stockholder shall not enter into any agreement or understanding with any person
the effect of which would be inconsistent or violative of the provisions and
agreements contained herein. For purposes of this Agreement, "Beneficially Own"
or "Beneficial Ownership" with respect to any securities shall mean
Stockholder's having such ownership, control or power to direct the voting with
respect to, or otherwise enables Stockholder to legally act with respect to,
such securities as contemplated hereby, including pursuant to any agreement,
arrangement or understanding, whether or not in writing. Securities Beneficially
Owned by Stockholder shall (i) include securities Beneficially Owned by all
other persons with whom Stockholder would constitute a "group" as within the
meaning of Section 13(d)(3) of the Exchange Act of 1934, as amended (the
"Exchange Act") and (ii) exclude, until their issuance, any Shares issuable upon
exercise of options held by Stockholder. Stockholder and Parent acknowledge and
agree that nothing in this subsection (b) shall require or be construed to
require
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Stockholder to take, or not to take, any action in his capacity as a member of
the Company Board.
2. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Acquisition,
which shall act by and through Suzan A. Miller and Guy S. Anthony (each, a
"Proxy Holder"), or either of them, with full power of substitution, its true
and lawful proxy and attorney-in-fact to vote at any meeting (and any
adjournment or postponement thereof) of the Company's stockholders called for
purposes of considering whether to approve the Merger Agreement, the Merger or
any of the other transactions contemplated by the Merger Agreement, or any Third
Party Acquisition, or to execute a written consent of stockholders in lieu of
any such meeting, all Shares Beneficially Owned by Stockholder as of the date of
such meeting or written consent in favor of the approval of the Merger
Agreement, the Merger and the other transactions contemplated by the Merger
Agreement, with such modifications to the Merger Agreement as the parties
thereto may make, or against a Third Party Acquisition, as the case may be. Such
proxy shall be limited strictly to the power to vote the Shares in the manner
set forth in the preceding sentence and shall not extend to any other matters.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder shall not grant any
proxy to any person which conflicts with the proxy granted herein, and any
attempt to do so shall be void. The power of attorney granted herein is a
durable power of attorney and shall survive the death or incapacity of
Stockholder.
(c) If Stockholder fails for any reason to vote his, hers or its
Shares in accordance with the requirements of Section 1(b) hereof, then the
Proxy Holder shall have the right to vote the Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with the provisions of this Section 2. The vote of
the Proxy Holder shall control in any conflict between his vote of such Shares
and a vote by Stockholder of such Shares.
3. Director Matters Excluded. Parent and Acquisition acknowledge and
agree that no provision of this Agreement shall limit or otherwise restrict
Stockholder with respect to any act or omission that Stockholder may undertake
or authorize in his capacity as a director of the Company, including, without
limitation, any vote that Stockholder may make as a director of the Company with
respect to any matter presented to the Board of Directors of the Company.
4. Other Covenants, Representations and Warranties. Stockholder hereby
represents and warrants to Parent and Acquisition as follows:
(a) Ownership of Shares. Stockholder is the Beneficial Owner of
all the Shares. On the date hereof, the Shares constitute all of the Shares
Beneficially Owned by Stockholder. Stockholder has voting power with respect to
the matters set forth in Section 1(b)
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hereof with respect to all of the Shares, with no limitations,
qualifications or restrictions on such rights other than as set forth on
Schedule 4(a) hereto.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any agreement or any court order to which
Stockholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except
as expressly contemplated by this Agreement, Stockholder shall not, directly or
indirectly: (i) except as expressly contemplated by this Agreement, offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of the Shares or any
interest therein; (ii) grant any proxies or powers of attorney or deposit any
Shares into a voting trust or enter into a voting agreement with respect to any
Shares; or (iii) take any action that would make any representation or warranty
of Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling Stockholder from performing any of Stockholder's
obligations under this Agreement. Notwithstanding anything to the contrary
provided in this Agreement, Stockholder shall have the right to transfer Shares
to (i) any Family Member, (ii) the trustee or trustees of a trust for the
benefit of Stockholder and/or one or more Family Members and/or charitable
organizations, (iii) a foundation created or established by Stockholder, (iv) a
corporation of which Stockholder and/or any Family Members owns the majority of
the outstanding capital stock, (v) a partnership of which Stockholder and/or
Family Members owns a majority of the partnership interests, (vi) a limited
liability company of which Stockholder and/or any Family Members owns a majority
of the membership interests, (vii) any other entity of which Stockholder and/or
any Family Members owns a majority of the ownership interests, (viii) the
executor, administrator or personal representative of the estate of Stockholder,
or (ix) any guardian, trustee or conservator appointed with respect to the
assets of Stockholder; provided that in the case of any such transfer, the
transferee shall, as a condition to such transfer, execute an agreement to be
bound by the terms of this Agreement, or terms substantially identical thereto.
"Family Member" shall have the meaning ascribed to "Related Parties" under
Section 672(c) of the Internal Revenue Code of 1986, as amended.
(d) Other Potential Acquirors. Stockholder shall immediately
cease any discussions or negotiations with any other persons with respect to any
Third Party Acquisition. Stockholder shall not, directly or indirectly,
encourage, solicit, participate in or initiate discussions or negotiations with
or provide any information to any person or group (other than Parent and
Acquisition or any designees of Parent and Acquisition) concerning any Third
Party Acquisition. The Stockholder shall promptly (and in any event within one
business day after becoming aware thereof) (i) notify Parent in the event the
Stockholder receives any proposal or inquiry concerning a Third Party
Acquisition, including the terms and conditions thereof and the identity of the
party submitting such proposal, and any request for confidential information in
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connection with a potential Third Party Acquisition, (ii) provide a copy of any
written agreements, proposals or other materials the Stockholder receives from
any such person or group (or its representatives), and (iii) advise Parent from
time to time of the status, at any time upon Parent's request, and promptly
following any developments concerning the same.
(e) Reliance by Parent and Acquisition. Stockholder understands
and acknowledges that Parent and Acquisition are entering into the Merger
Agreement in reliance upon Stockholder's execution and delivery of this
Agreement.
5. Stop Transfer. Stockholder agrees with, and covenants to, Parent and
Acquisition that Stockholder shall not request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares, unless such transfer is made pursuant to this
Agreement. In the event of a stock dividend or distribution, or any change in
the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged.
6. Termination. The proxy granted pursuant to Section 2 hereof and,
except as otherwise provided herein, Stockholder's covenants and agreements
contained herein with respect to the Shares, shall terminate upon the earliest
to occur of: (a) the termination of the Merger Agreement in accordance with its
terms; (b) the Acceptance Date; and (c) July 31, 2000. Upon the termination of
this Agreement, this Agreement shall forthwith become null and void, and there
shall be no liability on the part of any party hereto, except (i) that the
provisions of this Section 6 and the provisions of Section 7 shall survive the
termination of this Agreement and (ii) nothing herein shall relieve any party
from liability for any intentional breach hereof.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Shares and shall be binding upon
any person to which legal or beneficial ownership of any Shares shall pass,
whether by operation of law or otherwise. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
(c) Assignment. This Agreement shall not be assigned by operation
of law or otherwise without the prior written consent of the other party;
provided, however, that Parent may, in its sole discretion, assign its rights
and obligations hereunder to any direct wholly-owned subsidiary of Parent;
provided further that such assignment shall not relieve Parent of its
obligations hereunder if such subsidiary shall fail to perform such obligations
in accordance with the terms of this Agreement.
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(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) the case of mailing on the third business day
following that on which the piece of mail containing such communication is
posted. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: Joseph Perl
27644 Natoma Rd
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Los Altos Hills, CA 94022
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Telephone: 650-559-9857
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Facsimile: 650-559-9121
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Attention:
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with a copy to: Skadden, Arps, Slate, Meagher & Flom, LLP
525 University Ave., Suite 220
Palo Alto, CA 94301
Facsimile: (650) 470-4570
Attention: Kenton J. King, Esq.
If to Parent or Acquisition: Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-1859
Attention: General Counsel
and
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Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-6038
Attention: Treasurer
Gibson, Dunn & Crutcher LLP
with a copy to: One Montgomery Street
Telesis Tower
San Francisco, California 94104
Telephone: (415) 393-8200
Telecopier: (415) 986-5309
Attention: Kenneth R. Lamb, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
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(i) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(j) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
(k) Obligations of Parent. Whenever this Agreement requires a
subsidiary of Parent to take any action, such requirement shall be deemed to
include an undertaking on the part of Parent to cause such subsidiary to take
such action.
(l) Limitations on Warranties. Except for the representations and
warranties contained in this Agreement, Stockholder makes no other express or
implied representation or warranty to Parent or Acquisition. Parent and
Acquisition acknowledge that, in entering into this Agreement, it has not relied
on any representations or warranties of the Stockholder other than the
representations and warranties of the Stockholder set forth in this Agreement.
(m) Stock Transfer Taxes. Acquisition will pay all stock transfer
taxes with respect to the transfer and sale of any Shares to it, Parent or any
affiliate thereof pursuant to this Agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed on its behalf as of the day and year first above written.
INTEL CORPORATION,
a Delaware corporation
By: /s/ ARVIND SODHANI
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Name: Arvind Sodhani
Title: Treasurer
CWC ACQUISITION CORPORATION,
a Delaware corporation
By: /s/ SUZAN A. MILLER
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Name: Suzan A. Miller
Title: President
STOCKHOLDER:
By: /s/ JOSEPH PERL
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Name: Joseph Perl
[SIGNATURE PAGE FOR INTEL/DSP COMMUNICATIONS STOCKHOLDER TENDER AND
VOTING AGREEMENT AND IRREVOCABLE PROXY]
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SCHEDULE 4(A)
Limitations, Qualifications or Restrictions on Ownership of Shares
None