EXHIBIT I
CONFIDENTIALITY AGREEMENT
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
1
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
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 Section 2
and 3 above the 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.
2
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. Henry Schwarzbaum, Avner
Hermoni and Israel Niv without such permission. It is understood that Henry
Schwarzbaum 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 Mr.
Schwarzbaum. 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.
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, correspondences 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.
3
If to Buyer:
Applied Materials, Inc.
3050 Bowers Avenue
Santa Clara, California 95054-3299
U.S.A.
Attention: Joseph J. Sweeney
Facsimile No. (408) 563-4635
Confirmation No. (408) 748-5420
If to Orion:
Opal, Inc.
c/o Opal Technologies Ltd.
Industrial Zone B
Nes Ziona, 70451
Israel
Attention: Henry Schwarzbaum
Facsimile No. (International) 972 (8) 940-5683
Confirmation No. (International) 972 (8) 938-3524
With a copy to:
Thomas P. Storer, P.C.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109
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.
4
(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 waive 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 reference in clause
(b) of Section 1 above.
(h) This Agreement may be signed in counterparts, each of which
shall for all purposes be deemed as original, and together shall
constitute one and the same instruments.
IN WITNESS WHEREOF the undersigned have executed this Agreement as
of the date first written above.
APPLIED MATERIALS, INC. OPAL, INC.
By: /s/ Joseph J. Sweeney By: /s/ Henry Schwarzbaum
------------------------------- ---------------------------------
Title: Vice President Title: Chief Financial Officer
---------------------------- ------------------------------
By: /s/ Rafi Yizhar
5 -------------------------------
Title: Chief Executive Officer
----------------------------