CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT
THIS CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (the "Agreement") is
made and entered into as of October 21, 1996, by and between Applied
Materials, Inc. ("Buyer"), a corporation organized under the laws of the State
of Delaware, and Opal, Inc. ("Orion"), a company organized under the laws of
the State of Delaware, with reference to the following facts:
RECITALS
A. WHEREAS, Buyer and Orion intend to enter into discussions and
transfer information regarding the possible acquisition by Buyer of the share
capital of Orion (the "Proposed Share Acquisition"); and
B. WHEREAS, in the course of the discussions, Buyer and Orion may
disclose or may have disclosed to one another, orally or in writing, certain
confidential and proprietary technical, financial and business information;
and
C. WHEREAS, Buyer and Orion wish to provide for the confidential
treatment of their discussions and written disclosures regarding the Proposed
Share Acquisition and all information related thereto.
AGREEMENT
NOW THEREFORE, the parties mutually agree to the following:
1. For the purpose of this Agreement, "Confidential Information"
shall mean (a) the existence or status of, or any other information relating
to, the discussions between Buyer and Orion (directly or through
representatives) relating to the Proposed Share Acquisition, and (b) any
information or materials disclosed by Buyer or Orion (in which case such party
shall be considered the "Disclosing Party") or by any directors, employees,
representatives, agents or professional advisors of the Disclosing Party, to
the other party (in which case such other party shall be considered the
"Recipient") or to any directors, employees, representatives, agents or
professional advisors of the Recipient, relating to the financial and business
information of the Disclosing Party or the design, development, manufacturing
or marketing of the Disclosing Party's products or services, or otherwise to
the business or technology of the Disclosing Party ; provided, however, that
any oral information disclosed to the Recipient by the Disclosing Party must
be identified in writing
to the Recipient as confidential within 30 days following such disclosure in
order for such oral information to be deemed "Confidential Information"
hereunder.
2. Subject to Section 3 hereof, Recipient agrees to hold in
confidence and not to reveal, report, publish, disclose or transfer, directly
or indirectly, any of the Confidential Information of the Disclosing Party
(including, without limitation, the Confidential Information referenced in
clause (a) of Section 1 above, as to which information both parties shall be
considered the "Recipient") to any third party or use any of the Confidential
Information of the Disclosing Party for any purpose at any time except as
necessary to evaluate and implement the Proposed Share Acquisition; provided
that the Recipient may disclose the Confidential Information referenced in
clause (a) of Section 1 above to the extent it reasonably deems necessary in
order to comply with securities laws and/or stock exchange regulations; and
provided further that the Recipient shall, if practicable within the context
of applicable legal and stock exchange requirements, give the Disclosing Party
prompt prior notice and first allow the Disclosing Party reasonable time to
comment on the Confidential Information the Recipient proposes to disclose
prior to its disclosure and, if permitted by law, stock exchange regulations
and if practicable within the context of applicable legal and stock exchange
requirements, use reasonable efforts to accept the good faith comments of the
other party. Confidential Information referenced in clause (b) of Section 1
above shall remain the sole property of the Disclosing Party. At the request
of the Disclosing Party, Recipient will promptly return to the Disclosing
Party all Confidential Information of the Disclosing Party referenced in
Section 1 above that is in tangible form, including any copies, and, with
respect to abstracts or summaries of Confidential Information that Recipient
may have made, Recipient will destroy such abstracts or summaries and will
provide a written declaration from an authorized officer of the Recipient
certifying to the Disclosing Party that it has done so.
3. Recipient agrees to be responsible for the conduct of its
directors, employees, representatives, agents and professional advisors
regarding the confidentiality and use of the Confidential Information. In
furtherance and not in limitation thereof, Recipient agrees that without the
written consent of the Disclosing Party, disclosure of or access to the
Confidential Information shall be permitted only to the directors, key
employees, representatives, agents and professional advisors of Recipient who
have a need to know in connection with the Proposed Share Acquisition, and who
have agreed to hold such information in confidence and to comply with all of
the requirements of Section 2 above. Notwithstanding anything contained herein
to the contrary, Confidential Information referenced in clause (a) of Section
1 above may be disclosed by Buyer to the directors, key employees and
professional advisors of Orbot Instruments Ltd. who have a need to know such
Confidential Information in connection with Buyer's possible acquisition of
Orbot Instruments Ltd.'s share capital and who have agreed to hold such
information in confidence and not to use such information for any purpose
except in connection with such possible acquisition. Orion agrees that
information disclosed to it by Buyer as to the existence or status of, or any
other information relating to, the discussions between Buyer and Orbot
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Instruments Ltd. shall be considered "Confidential Information" under clause
(a) of Section 1 above and treated as such hereunder.
4. Because of the unique confidential, proprietary and valuable
nature of the Confidential Information, Recipient understands and agrees that
in the event Recipient fails to comply with Recipient's obligations under
Sections 2 and 3 above that monetary damages may be inadequate to compensate
the Disclosing Party for such failure. Accordingly, Recipient agrees that the
Disclosing Party will, in addition to any other remedies available to it by
law or in equity, be entitled to seek injunctive relief to enforce the terms
of Sections 2 and 3 above.
5. Notwithstanding Section 2, Confidential Information shall not
include any information which (a) at the time of its disclosure or thereafter
is generally available to and known by the public other than as a result of a
disclosure by the Recipient or its directors, employees, representatives,
agents or professional advisors in violation of this Agreement, (b) was or
becomes available to the Recipient, on a nonconfidential basis from a source
other than the Disclosing Party without, to the knowledge of the Recipient, a
duty to the Disclosing Party having been breached, or (c) is shown by written
record to have been independently acquired or developed by Recipient without
violating this Agreement. If the Recipient or any of its directors, employees,
representatives, agents or professional advisors becomes legally compelled to
disclose any Confidential Information, Recipient shall provide the Disclosing
Party with prompt written notice of such required disclosures so that the
Disclosing Party may seek a protective order or other appropriate remedy
and/or may waive compliance with the confidentiality obligations hereof. In
the event that such protective order or other remedy is not obtained, or that
compliance is waived, Recipient shall disclose the minimum amount of
Confidential Information legally required and shall use its best efforts to
obtain assurance that confidential treatment will be accorded such
information.
6. So long as discussions are taking place with respect to the
Proposed Share Acquisition, Buyer shall not initiate contact with any officer,
employee or agent of Orion regarding its business, operations, prospects or
finances, except with the express written permission of Orion and except that
Buyer shall have the right to initiate contact with Messrs. Xxxxx Xxxxxxxxxxx,
Xxxxx Xxxxxxx and Israel Niv without such permission. It is understood that
Xxxxx Xxxxxxxxxxx will arrange for appropriate contacts for due diligence
purposes, which contacts shall include Messrs. Hermoni and Niv. Buyer shall
submit or direct all requests for additional information, requests for
facility tours or management meetings and discussions or questions regarding
procedures, to Xx. Xxxxxxxxxxx. So long as active discussions between the
parties regarding the Proposed Share Acquisition are being conducted, Orion
agrees to promptly provide any information reasonably requested by Buyer in
connection with Buyer's consideration of the Proposed Share Acquisition.
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7. This Agreement shall be binding upon and inure to the benefit of
the parties, their subsidiaries, and their respective successors. No
assignment of this Agreement may be made by Recipient without the prior
written consent of the Disclosing Party, which consent may be withheld or
granted in the Disclosing Party's sole discretion.
8. Any communications, transmissions, correspondence or notices shall
be in writing, sent by hand delivery or postage prepaid, certified mail or by
telecopier, to the authorized representative of each party at the address set
forth below, or to such other address as to which notice is given in
accordance with this provision. Notices shall be deemed received seven
business days after mailing certified mail, or upon receipt if given by hand
or by telecopier.
If to Buyer:
Applied Materials, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000
U.S.A.
Attention: Xxxxxx X. Xxxxxxx
Facsimile No. (000) 000-0000
Confirmation No. (000) 000-0000
If to Orion:
Opal, Inc.
c/o Opal Technologies Ltd.
Industrial Xxxx X
Xxx Xxxxx, 00000
Xxxxxx
Attention: Xxxxx Xxxxxxxxxxx
Facsimile No. (International) 000 (0) 000-0000
Confirmation No. (International) 000 (0) 000-0000
With a copy to:
Xxxxxx X. Xxxxxx, P.C.
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
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9. The parties hereto are independent contractors and nothing herein
shall be construed as creating any agency, joint venture, partnership or other
form of business association between the parties.
10. (a) The obligations of Buyer and Orion under this Agreement shall
be governed by New York law applicable to contracts fully executed and
performed in New York, without regard to the principles of conflicts of laws
thereof. (b) This Agreement contains the full and complete understanding of
the parties with respect to the subject matter hereof and supersedes all prior
representations and understandings regarding the subject matter hereof,
whether oral or written. (c) In the event that any provision hereof or any
obligation hereunder is found invalid or unenforceable pursuant to a judicial
decree or decision, any such provision or obligation shall be deemed and
construed to extend to and only to the maximum extent permitted by law, and
the remainder of this Agreement shall remain valid and enforceable according
to its terms. (d) Obligations hereunder shall apply to any item of
Confidential Information for a period of three (3) years following its
disclosure to Recipient by the Disclosing Party, and with respect to the
Confidential Information referenced in clause (a) of Section 1 above, for a
period of one (1) year from the date hereof, subject to any longer period of
confidentiality to which the Disclosing Party is bound by agreement with a
third party. (e) Failure to exercise or delay in exercising any remedy
hereunder shall not be deemed a waiver thereof. (f) Each party represents that
this Agreement is being signed by a duly authorized officer. (g) The parties
intend to be mutually bound hereunder and understand and agree that each of
them is subject to all of the obligations of the "Recipient" hereunder with
respect to the Confidential Information referenced in clause (a) of Section 1
of this Agreement and with respect to the Confidential Information of the
other party referenced in clause (b) of Section 1 above. (h) This Agreement
may be signed in counterparts, each of which shall for all purposes be deemed
an original, and together shall constitute one and the same instrument.
IN WITNESS WHEREOF the undersigned have executed this Agreement as of
the date first written above.
APPLIED MATERIALS, INC. OPAL, INC.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxxxxxx
---------------------------- -----------------------------------
Title: Vice President Title: Chief Financial Officer
---------------------------- ----------------------------------
By: /s/ Rafi Yizhar
----------------------------
Title: Chief Executive Officer
----------------------------
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