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EXHIBIT 11
Confidentiality Agreement between Parent and Company dated July 19, 1994
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DONALDSON, LUFKIN & JENRETTE
Donaldson, Lufkin & Jenrette Securities Corporation
140 Broadway, New York, NY 10005-1235 (212) 504-3000
July 19, 1994
Mr. Peter Rackov
Senior Financial Analyst
Diebold Incorporated
5995 Mayfair Road
North Canton, Ohio 44750
Attention: Mr. Peter Rackov
Senior Financial Analyst
Gentlemen:
In connection with your evaluation of a possible negotiated transaction by
you or one or more of your affiliates, involving Griffin Technology Incorporated
(the "Company") (a "Transaction"), the Company, Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJ"), acting as the Company's exclusive financial
advisor in connection with the proposed Transaction, and their respective
advisors and agents are prepared to make available to you certain information
which is non-public, confidential or proprietary in nature.
As used herein, "Evaluation Material" includes, without limitation, all
information, data, reports, interpretations, projections, forecasts, and records
that contain or otherwise reflect information concerning the Company provided to
you by or on behalf of the Company in connection with your evaluation of a
possible Transaction, together with all analyses, compilations, studies, and
other information, whether prepared by you, your Representatives or others,
which contain or otherwise reflect or are based on any such Evaluation Material
("Notes"). This Agreement shall be inoperative as to those particular portions
of the Evaluation Material that (i) become generally available to the public
other than as result of a disclosure by your or any of your Representatives,
(ii) were available to you on a non-confidential basis prior to the disclosure
of such Evaluation Material to you pursuant to this Agreement, provided that the
source of such information was not known by you or any of your Representatives
(as defined herein), to be bound by a confidentiality agreement with or other
contractual, legal or fiduciary obligation of confidentiality to the Company or
any of its affiliates with respect to such material or (iii) become available to
you on a non-confidential basis from a source other than the Company or its
agents, advisors or representatives provided that the source of such information
was not known by you or any of your Representatives, to be bound by a
confidentiality agreement with or other contractual, legal or fiduciary
obligation of confidentiality to the Company or any of its affiliates with
respect to such material.
In consideration of the Company's providing you with Evaluation Material,
by your execution of this letter agreement (the "Agreement"), you agree for a
period of two years after the date herein to treat all Evaluation Material as
confidential and to use Evaluation Material only for the purpose of evaluating a
possible transaction. You also agree that you will disclose Evaluation Material
only to those of your directors, officers, employees, partners, affiliates,
agents, advisors or representatives ("Representatives") who need to know the
Evaluation Material in order to assist you in your evaluation of the Transaction
(it being understood that such Representatives shall be informed by you of the
confidential nature of such Evaluation Material and shall be directed by you to
keep such Evaluation Material confidentially in accordance with the provisions
of this Agreement, and you shall be satisfied that they will do so. You will
also agree to assist in the enforcement of this Agreement against any such
Representatives, including institution of any action in your name, where the
same may be necessary or desirable.)
In addition, you agree that you will not make any disclosure other than to
relevant regulatory authorities that you or the Company are having or have had
discussions related to a possible Transaction, or that you have received
Evaluation Material, that you are considering a possible Transaction or any of
the terms, conditions or other facts with respect thereto; provided that you may
make such disclosure if you have received the opinion of your counsel that such
disclosure is required by applicable law, exchange requirement or similar
obligation and, prior to such disclosure, you advise and consult with the
Company and its legal counsel concerning the information you propose to
disclose.
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Mr. Peter Rackov
Diebold Incorporated
Page 2 July 19, 1994
Although the Company and DLJ have endeavored to include in the Evaluation
Material information known to them which they believe to be relevant for the
purpose of your investigation, you understand and agree that none of the
Company, DLJ or any of their affiliates, agents, advisors or representatives (i)
have made or make any representation or warranty, expressed or implied, as to
the accuracy or completeness of the Evaluation Material or (ii) shall have any
liability whatsoever to you or your Representatives relating to or resulting
from the use of the Evaluation Material or any errors therein or omissions
therefrom. Nothing contained in this paragraph and no investigation made by you
under this Agreement shall limit or be deemed to modify any representations or
warranties made by the Company in a definitive agreement relating to a
Transaction.
In the event that you or anyone to whom you transmit any Evaluation
Material in accordance with this Agreement are requested or required (by
deposition, interrogatories, requests for information or documents in legal
proceedings, subpoenas, civil investigative demand or similar process), in
connection with any proceeding, to disclose any Evaluation Material, you will
give the Company prompt notice of such request or requirement so that the
Company may seek an appropriate protective order or other remedy and/or waive
compliance with the provisions of this Agreement, and you will cooperate with
the Company at the Company's expense to obtain such protective order. The
Company will advise you promptly of the action that it intends to take. In the
event that such protective order or other remedy is not obtained or the Company
waives compliance with the relevant provisions of this Agreement, you (or such
other persons to whom such request is directed) will furnish only that portion
of the Evaluation Material which is legally required to be disclosed. It is
further agreed that, if in the absence of a protective order you (or such other
persons to who such request is directed) are nonetheless legally compelled to
disclose such information, you may make such disclosure without liability
hereunder, provided that you give the Company notice of the information to be
disclosed as far in advance of its disclosure as is practicable and, upon the
Company's request and at its expense, request that confidential treatment will
be accorded to such information.
If you decide that you do not wish to proceed with a Transaction, you will
promptly notify DLJ of that decision. In that case, or if the Company shall
elect at any time to terminate further access by you to the Evaluation Material
for any reason, you will within promptly redeliver to us all copies of the
Evaluation Material in the possession of you or your affiliates or your
Representatives, will destroy all Notes and will further deliver to DLJ and the
Company a certificate executed by one of your officers indicating that the
requirements of this sentence have been satisfied. Notwithstanding the return or
destruction of Evaluation Material and Notes, you and your Representatives will
continue to be bound by your obligations of confidentiality and other
obligations hereunder.
You hereby acknowledge that you are aware that the securities laws of the
United States prohibiting any person who has material, non-public information
concerning the Company or a possible Transaction involving the Company from
purchasing or selling securities in reliance upon such information or from
communicating such information to any such person or entity under circumstances
in which it is reasonably foreseeable that such person or entity is likely to
purchase or sell such securities in reliance upon such information.
You understand that (i) the Company and DLJ shall conduct the process for a
possible Transaction as they in their sole discretion shall determine
(including, without limitation, negotiating with any prospective buyer and
entering into definitive agreements without prior notice to you or any other
person), (ii) any procedures relating to such a Transaction may be changed at
any time without notice to you or any other person, (iii) the Company shall have
the right to reject or accept any potential buyer, proposal or offer, for any
reason whatsoever, in its sole discretion, and (iv) neither you nor any of your
Representatives shall have any claims whatsoever against the Company or DLJ or
any of their respective directors, officers, stockholders, owners, affiliates or
agents arising out of or relating to the Transaction (other than those against
the parties to a definitive agreement with you in accordance with the terms
thereof).
It is further understood and agreed that DLJ will arrange for appropriate
contacts for due diligence purposes. It is also understood and agreed that,
except as the Company or DLJ may direct or permit, all (i) communications
regarding a possible Transaction, (ii) request for additional information, (iii)
requests for facility tours or management meetings and (iv) discussions or
questions regarding procedures, will be
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Mr. Peter Rackov
Diebold Incorporated
Page 3 July 19, 1994
submitted or directed exclusively to DLJ, and that none of you, your affiliates
or your Representatives who are aware of the Evaluation Material and/or the
possibility of a Transaction will initiate or cause to be initiated any
communication with any director, officer or employee of the Company concerning
the Evaluation Material or a Transaction.
You agree that unless and until a definitive agreement between the Company
and you with respect to any Transaction has been executed and delivered, neither
the Company nor you will be under any legal obligation of any kind whatsoever
with respect to such Transaction.
All modifications of, waivers of and amendments to this Agreement or any
part hereof must be in writing signed on behalf of you and the Company or by you
and DLJ, as agent for the Company. You acknowledge that the Company is intended
to be benefited by this Agreement and that the Company shall be entitled, either
alone or together with DLJ, to enforce this Agreement and to obtain for itself
the benefit of any remedies that may be available for the breach hereof.
It is further understood and agreed that no failure or delay by any party
in exercising any right, power or privilege under this Agreement shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise of any right, power or privilege hereunder.
In the event that any provision or portion of this letter is determined to
be invalid or unenforceable for any reason, in whole or in part, the remaining
provisions of this letter shall be unaffected thereby and shall remain in full
force and effect to the fullest extent permitted by applicable law.
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York.
If you are in agreement with the foregoing, please so indicate by signing,
dating and returning one copy of this Agreement, which will constitute our
agreement with respect to the matters set forth herein.
Very truly yours,
GRIFFIN TECHNOLOGY INCORPORATED
By: /s/ ROBERT S. URLAND
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Robert S. Urland
President and Chief Executive
Officer
Griffin Technology Incorporated
By: /s/ SAFRA A. CATZ
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Safra A. Catz
Senior Vice President
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION,
as Exclusive Agent
Agreed and Accepted:
DIEBOLD INCORPORATED
By: /s/ ROBERT J. WARREN
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Title: President and Treasurer
Date: 7-19-94