As filed with the Securities and Exchange Commission on August 14, 2013
Registration No.
-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Diebold, Incorporated
(Exact Name of Registrant as Specified in Its Charter)
|
|
|
|
|
Ohio
|
|
34-0183970
|
(State or Other Jurisdiction of
Incorporation or Organization)
|
|
(I.R.S. Employer
Identification No.)
|
5995 Mayfair Road, P.O. Box 3077, North Canton, Ohio 44720-8077
(Address of Principal Executive Offices Including Zip Code)
CEO Common Shares Award Agreement
by and between Andreas W. Mattes and
Diebold, Incorporated
(Full Title of the Plan)
Chad F. Hesse
Vice President, General Counsel and Secretary
Diebold, Incorporated
5995 Mayfair Road
North Canton, Ohio 44720
(Name and Address of Agent For Service)
(330) 490-4000
(Telephone Number, Including Area Code, of Agent For Service)
Indicate by check mark whether
the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting
company” in Rule 12b-2 of the Exchange Act.
|
|
|
|
|
|
|
|
|
Large accelerated filer
|
|
x
|
|
Accelerated filer
|
|
¨
|
|
|
|
|
|
|
Non-accelerated filer
|
|
¨
(Do not check if a smaller reporting company)
|
|
Smaller reporting company
|
|
¨
|
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
Title of Each Class of
Securities to be Registered
|
|
Amount
to be
Registered
(1)
|
|
Proposed
Maximum
Offering Price
Per
Share
(2)
|
|
Proposed
Maximum
Aggregate
Offering
Price
(2)
|
|
Amount of
Registration Fee
|
|
Common Shares, $1.25 par value per share
|
|
15,343
|
|
$30.255
|
|
$464,202.47
|
|
$64
|
|
|
|
|
|
(1)
|
Represents the number of common shares, par value $1.25 per share (“
Common Shares
”), of Diebold, Incorporated
(the “
Registrant
”) to be issued pursuant to the CEO Common Shares Award Agreement, to be dated as of August 15, 2013, by and between Andreas W. Mattes and the Registrant (the “
Agreement
”)
being registered hereon.
|
|
(2)
|
Estimated solely for the purposes of determining the amount of the registration fee, pursuant to paragraphs (c) and (h) of Rule 457 under the Securities
Act of 1933, as amended (the “
Securities Act
”), on the basis of the average of the high and low sale prices of the Common Shares on the New York Stock Exchange on August 13, 2013, a date that is within five business days
prior to filing.
|
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
|
Item 3.
|
Incorporation of Documents by Reference.
|
The Registrant is subject to the informational and reporting requirements of Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “
Exchange
Act
”), and, in accordance therewith, files reports, proxy statements and other information with the Securities and Exchange Commission (the “
Commission
”). The following documents, which are on file with the
Commission, are incorporated into this Registration Statement by reference:
|
|
(a)
|
The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2012 (Commission File No. 001-04879), filed with the Commission on
February 15, 2013;
|
|
|
(b)
|
The Registrant’s Quarterly Reports on Form 10-Q for the period ended March 31, 2013 (Commission File No. 001-04879), filed with the Commission on
May 1, 2013, and for the period ended June 30, 2013 (Commission File No. 001-04879), filed with the Commission on August 14, 2013;
|
|
|
(c)
|
The Registrant’s Current Reports on Form 8-K (Commission File No. 001-04879), filed with the Commission on January 24, 2013 (only
Item 5.02), January 28, 2013, February 20, 2013, February 28, 2013, March 27, 2013, April 29, 2013, April 30, 2013 (only Item 5.02), June 6, 2013 and August 14,
2013; and
|
|
|
(d)
|
The description of the Registrant’s Common Shares contained in the Registrant’s Current Report on Form 8-K (Commission File No. 001-04879), filed
with the Commission on August 14, 2013, and all amendments and reports filed with the Commission for the purpose of updating such description.
|
All documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the effective date of this Registration Statement and prior to
the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, will be deemed to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents. Any statement contained in any document incorporated or deemed to be incorporated by reference herein will be deemed to be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded will not be
deemed, except as modified or superseded, to constitute a part of this Registration Statement.
|
Item 5.
|
Interests of Named Experts and Counsel.
|
The legality of the Common Shares being offered by this Registration Statement has been passed upon for the Registrant by Mr. Chad F. Hesse. Mr. Hesse is the Vice President, General Counsel
and Secretary of the Registrant. As of August 13, 2013, Mr. Hesse held 2,153 Common Shares and 9,327 deferred shares to be settled in Common Shares and holds options to purchase another 24,990 Common Shares.
|
Item 6.
|
Indemnification of Directors and Officers.
|
The general effect of the Registrant’s Code of Regulations is to provide for the indemnification of its directors, officers and employees to the full extent permitted by applicable law, except that
such indemnity shall not extend to any matters as to which any director, officer or employee shall be finally adjudged, in any such action, suit or proceeding, to be liable for negligence or misconduct in the performance of duties as such director
or officer, nor to any settlement made without judgment, unless it be determined by the Board of Directors that he was not guilty of such negligence or misconduct.
Section 1701.13 of the Ohio Revised Code generally permits indemnification of any director, officer or employee with respect to any proceeding against any such person provided that: (a) such
person acted in good faith, (b) such person reasonably believed that the conduct was in or not opposed to the best interests of the corporation, and (c) in the case of criminal proceedings, such person had no reasonable cause to believe
that the conduct was unlawful. Indemnification may be made against expenses (including attorneys’ fees), judgments, fines and settlements actually and reasonably incurred by such person in connection with the proceeding; provided, however, that
if the proceeding is one by or in the right of the corporation, indemnification may be made only against reasonable expenses (including attorneys’ fees) and may not be made with respect to any proceeding in which the director, officer or
employee has been adjudged to be liable to the corporation, except to the extent that the court in which the proceeding was brought shall determine, upon application, that such person is, in view of all the circumstances, entitled to indemnity for
such expenses as the court shall deem proper. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent does not, of itself, create a presumption that the director, officer or
employee did not meet the standard of conduct required for indemnification to be permitted.
Section 1701.13 of the Ohio
Revised Code further provides that indemnification thereunder may not be made by the corporation unless authorized after a determination has been made that such indemnification is proper, with that determination to be made (a) by the Board of
Directors by a majority vote of a quorum consisting of directors not parties to the proceedings; (b) if such a quorum is not obtainable, or, even if obtainable, but a quorum of disinterested directors so directs, by independent legal counsel in
a written opinion; (c) by the shareholders; or (d) by the court in which the proceeding was brought.
Finally,
Section 1701.13 of the Ohio Revised Code provides that indemnification provided by that Section is not exclusive of any other rights to which those seeking indemnification may be entitled under the Articles of Incorporation or Code of
Regulations or any agreement, vote of shareholders or disinterested directors or otherwise.
The Registrant maintains
insurance on behalf of any person who is or was a director or officer against any loss arising from any claim asserted against him in any such capacity, subject to certain exclusions. The Registrant also maintains fiduciary liability insurance on
behalf of any person involved in the management or administration of any employee benefit plan maintained by the Registrant.
|
|
|
|
|
Exhibit
Number
|
|
Exhibit Description
|
|
|
|
|
4.1
|
|
Amended and Restated Articles of Incorporation of the Registrant (incorporated herein by reference to Exhibit 3.1(i) to the Registrant’s Annual Report on Form 10-K for the year
ended December 31, 1994 (Commission File No. 001-04879) filed with the Commission on March 9, 1995)
|
|
|
|
|
4.2
|
|
Certificate of Amendment by Shareholders to Amended Articles of Incorporation of the Registrant (incorporated herein by reference to Exhibit 3.2 to the Registrant’s Quarterly
Report on Form 10-Q for the quarter ended March 31, 1996 (Commission File No. 001-04879) filed with the Commission on April 30, 1996)
|
|
|
|
|
4.3
|
|
Certificate of Amendment to Amended Articles of Incorporation of the Registrant (incorporated herein by reference to Exhibit 3.3 to the Registrant’s Form 10-K for the year
ended December 31, 1998 (Commission File No. 001-04879) filed with the Commission on March 8, 1999)
|
|
|
|
|
4.4
|
|
Amended and Restated Code of Regulations (incorporated herein by reference to Exhibit 3.1(ii) to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31,
2007 (Commission File No. 001-04879) filed with the Commission on May 10, 2007)
|
|
|
|
|
4.5
|
|
Form of CEO Common Shares Award Agreement by and between Andreas W. Mattes and the Registrant
|
|
|
|
|
5.1
|
|
Opinion of Counsel
|
|
|
|
|
23.1
|
|
Consent of KPMG LLP
|
|
|
|
|
23.2
|
|
Consent of Counsel (included in Exhibit 5.1)
|
|
|
|
|
24.1
|
|
Power of Attorney
|
(a) The
undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of a prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective Registration Statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
Provided, however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by
a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Canton, State of Ohio, on this 14th day of August, 2013.
|
|
|
|
|
DIEBOLD, INCORPORATED
|
|
|
|
|
By:
|
|
/s/ Chad F. Hesse
|
|
|
|
Chad F. Hesse
|
|
|
|
Vice President, General Counsel and Secretary
|
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by
the following persons in the capacities indicated as of August 14, 2013.
|
|
|
|
|
|
|
Signature
|
|
|
|
Title
|
|
|
|
|
|
*
Henry D.G. Wallace
|
|
|
|
Executive Chairman of the Board and Director (Principal Executive Officer)
|
|
|
|
|
|
*
Bradley C. Richardson
|
|
|
|
Executive Vice President and Chief Financial Officer (Principal Financial Officer)
|
|
|
|
|
|
*
Christopher Macey
|
|
|
|
Vice President and Corporate Controller (Principal Accounting Officer)
|
|
|
|
|
|
*
Patrick W. Allender
|
|
|
|
Director
|
|
|
|
|
|
*
Roberto Artavia
|
|
|
|
Director
|
|
|
|
|
|
*
Bruce L. Byrnes
|
|
|
|
Director
|
|
|
|
|
|
*
Phillip R. Cox
|
|
|
|
Director
|
|
|
|
|
|
*
Richard L. Crandall
|
|
|
|
Director
|
|
|
|
|
|
*
Gale S. Fitzgerald
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
Director
|
|
Andreas W. Mattes
|
|
|
|
|
|
|
|
|
|
|
|
Signature
|
|
|
|
Title
|
|
|
|
|
|
*
Robert S. Prather, Jr.
|
|
|
|
Director
|
|
|
|
|
|
*
Rajesh K. Soin
|
|
|
|
Director
|
|
|
|
|
|
*
Alan J. Weber
|
|
|
|
Director
|
|
*
|
The undersigned, by signing his name hereto, does hereby sign this Registration Statement on Form S-8 on behalf of each of the officers and directors of the Registrant
identified above pursuant to a Power of Attorney executed by the officers and directors identified above, which Power of Attorney is filed with this Registration Statement on Form S-8 as Exhibit 24.1.
|
|
|
|
|
|
|
|
|
|
DATED: August 14, 2013
|
|
|
|
By:
|
|
/s/ Chad F. Hesse
|
|
|
|
|
|
|
|
Chad F. Hesse, attorney-in-fact
|
EXHIBIT INDEX
|
|
|
|
|
Exhibit
Number
|
|
Exhibit Description
|
|
|
|
|
4.1
|
|
Amended and Restated Articles of Incorporation of the Registrant (incorporated herein by reference to Exhibit 3.1(i) to the Registrant’s Annual Report on Form 10-K for the year
ended December 31, 1994 (Commission File No. 001-04879) filed with the Commission on March 9, 1995)
|
|
|
|
|
4.2
|
|
Certificate of Amendment by Shareholders to Amended Articles of Incorporation of the Registrant (incorporated herein by reference to Exhibit 3.2 to the Registrant’s Quarterly
Report on Form 10-Q for the quarter ended March 31, 1996 (Commission File No. 001-04879) filed with the Commission on April 30, 1996)
|
|
|
|
|
4.3
|
|
Certificate of Amendment to Amended Articles of Incorporation of the Registrant (incorporated herein by reference to Exhibit 3.3 to the Registrant’s Form 10-K for the year
ended December 31, 1998 (Commission File No. 001-04879) filed with the Commission on March 8, 1999)
|
|
|
|
|
4.4
|
|
Amended and Restated Code of Regulations (incorporated herein by reference to Exhibit 3.1(ii) to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31,
2007 (Commission File No. 001-04879) filed with the Commission on May 10, 2007)
|
|
|
|
|
4.5
|
|
Form of CEO Common Shares Award Agreement by and between Andreas W. Mattes and the Registrant
|
|
|
|
|
5.1
|
|
Opinion of Counsel
|
|
|
|
|
23.1
|
|
Consent of KPMG LLP
|
|
|
|
|
23.2
|
|
Consent of Counsel (included in Exhibit 5.1)
|
|
|
|
|
24.1
|
|
Power of Attorney
|
EXHIBIT 4.5
CEO Common Shares Award Agreement
WHEREAS,
Andreas W. Mattes
(hereinafter called the “CEO”) is the Chief Executive Officer of Diebold, Incorporated
(hereinafter called the “Corporation”);
WHEREAS, the Corporation has made an inducement grant of Common Shares,
$1.25 par value per share, of the Corporation (the “Common Shares”) to the CEO in connection with his assumption of the position of Chief Executive Officer of the Corporation (the “Sign-On Grant”), subject to the terms and
conditions of this Agreement;
WHEREAS, the effective date for the Sign-On Grant is August 15, 2013 (the “Date of
Grant”); and
WHEREAS, the execution of an Agreement substantially in the form hereof has been authorized by a resolution
of the Compensation Committee (the “Committee”) of the Board of Directors of the Corporation (the “Board”) duly adopted on July 30, 2013.
NOW, THEREFORE, the Corporation hereby confirms to the CEO the Sign-On Grant, subject to the terms and conditions described below, and the CEO hereby agrees, as follows:
As used in
this Agreement:
|
|
(a)
|
“Agreement” means this CEO Common Shares Award Agreement.
|
|
|
(b)
|
“Board” has the meaning set forth for such term in the recitals to this Agreement.
|
|
|
(c)
|
“Cause” means the CEO’s: (i) willful failure to substantially perform his duties with the Corporation (other than any such failure
resulting from the CEO’s Disability), after a written demand for substantial performance is delivered to the CEO that specifically identifies the manner in which the Corporation believes that the CEO has not substantially performed his duties,
and the CEO has failed to remedy the situation within fifteen (15) business days of such written notice from the Corporation; (ii) willful gross negligence in the performance of
|
|
|
the CEO’s duties; (iii) conviction of, or plea of guilty or nolo contendere to, any felony or a lesser crime or offense which, in the reasonable opinion of the Corporation, could
adversely affect the business or reputation of the Corporation; (iv) willful engagement in conduct that is demonstrably and materially injurious to the Corporation, monetarily or otherwise; (v) willful violation of any provision of the
Corporation’s Code of Business Ethics, as amended from time to time; (vi) willful violation of any of the covenants contained in Sections 11 through 13 of the Employment Agreement, as applicable; (vii) engaging in any act of
dishonesty resulting in, or intended to result in, personal gain at the expense of the Corporation; or (viii) engaging in any act that is intended to harm, or may be reasonably expected to harm, the reputation, business prospects, or operations
of the Corporation.
|
For purposes of this definition, no act or omission by the CEO shall be considered
“willful” unless it is done or omitted in bad faith or without reasonable belief that the CEO’s action or omission was in the best interests of the Corporation. Any act or failure to act based upon: (x) authority given pursuant
to a resolution duly adopted by the Board; or (y) advice of counsel for the Corporation, shall be conclusively presumed to be done or omitted to be done by the CEO in good faith and in the best interests of the Corporation. For purposes of this
Agreement, there shall be no termination for Cause pursuant to Sections 1(c)(ii) through 1(c)(viii) above, unless a written notice, containing a detailed description of the grounds constituting Cause hereunder, is delivered to the CEO stating the
basis for the termination. Upon receipt of such notice, the CEO shall be given 30 days to fully cure (if such violation, neglect, or conduct is capable of cure) the violation, neglect, or conduct that is the basis of such claim.
|
|
(d)
|
“CEO” has the meaning set forth for such term in the recitals to this Agreement.
|
|
|
(e)
|
“Combination Repayment” has the meaning set forth for such term in Section 6(a)(iii) of this Agreement.
|
|
|
(f)
|
“Committee” has the meaning set forth for such term in the recitals to this Agreement.
|
|
|
(g)
|
“Common Shares” has the meaning set forth for such term in the recitals to this Agreement.
|
2
|
|
(h)
|
“Corporation” has the meaning set forth for such term in the recitals to this Agreement.
|
|
|
(i)
|
“Date of Grant” has the meaning set forth for such term in the recitals to this Agreement.
|
|
|
(j)
|
“Disability” means the CEO’s permanent and total disability as defined by the long-term disability plan in effect for senior executives of the
Corporation.
|
|
|
(k)
|
“Employment Agreement” means the Executive Employment Agreement, dated as of June 6, 2013, by and between the Corporation and the CEO.
|
|
|
(l)
|
“Good Reason” means the occurrence of any one or more of the following without the CEO’s express written consent: (i) the Corporation materially
changes the CEO’s title or job duties such that it results in material diminution in CEO’s authority, duties, or responsibilities; or (ii) the Corporation materially reduces the amount of the CEO’s then current base salary or the
target for his annual incentive; or (iii) the Corporation requires the CEO to be based at a location in excess of fifty (50) miles from the Corporation’s North Canton, Ohio corporate headquarters; or (iv) the failure of the
Corporation to obtain in writing the obligation to perform or be bound by the terms of the Employment Agreement by any successor to the Corporation or a purchaser of all or substantially all of the assets of the Corporation; or (v) any other
action or inaction by the Corporation that constitutes a material breach by the Corporation of the terms and conditions of the Employment Agreement. The CEO is not entitled to assert that his termination is for Good Reason, unless the CEO gives the
Corporation written notice of the event or events that are the basis for such claim within 30 days after the event or events occur, describing such claim in reasonably sufficient detail to allow the Corporation to address the event or events and a
period of not less than 30 days after to cure the alleged condition.
|
|
|
(m)
|
“Inducement Shares” has the meaning set forth for such term in Section 2 of this Agreement.
|
|
|
(n)
|
“Repayment Amount” has the meaning set forth for such term in Section 6(a)(ii) of this Agreement.
|
|
|
(o)
|
“Repayment Shares” has the meaning set forth for such term in Section 6(a)(i) of this Agreement.
|
3
|
|
(p)
|
“Sign-On Grant” has the meaning set forth for such term in the recitals to this Agreement.
|
|
|
(q)
|
“Withholding Shares” has the meaning set forth for such term in Section 4 of this Agreement.
|
2.
Grant
. The Corporation hereby confirms to the CEO the Sign-On Grant, effective as of the Date of Grant, of 15,343 Common Shares
(the “Inducement Shares”), subject to the terms and conditions described below.
3.
Consideration and
Issuance
. The Inducement Shares shall be issued on a bonus basis for no cash consideration as soon as practicable after the Date of Grant and the execution of this Agreement by both the Corporation and the CEO.
4.
Withholding
. To the extent that the Corporation is required to withhold federal, state, local or foreign taxes in connection
with the issuance of the Inducement Shares to the CEO, it shall be a condition to the realization of such benefit that the CEO makes arrangements satisfactory to the Corporation for payment of the balance of such taxes required to be withheld, which
arrangements may include, at the election of the CEO, the Corporation withholding from the Inducement Shares a number of Common Shares having a value equal to the amount required to be withheld. Any Common Shares used for tax withholding will be
valued at an amount equal to the closing price per share of the Common Shares on the New York Stock Exchange on the date the benefit is to be included in CEO’s income, but in no event will the aggregate value of Common Shares used to satisfy
applicable withholding taxes in connection with the benefit exceed the minimum amount of taxes required to be withheld. For purposes of this Agreement, any Inducement Shares withheld by the Corporation pursuant to this Section 4 in full or
partial settlement of the CEO’s tax withholding obligation related to the Sign-On Grant will be referred to as the “Withholding Shares”.
5.
No Vesting and No Restrictions or Risk of Forfeiture
. Except as provided in Section 6 of this Agreement, the Inducement Shares will be fully vested as of the Date of Grant, will not be
subject to any restrictions, performance, holding or deferral periods or requirements (except as may be required under the Corporation’s stock ownership guidelines in effect for the CEO from time to time), and will not be subject to any risk of
forfeiture or repayment.
6.
Corporation Reimbursement Rights
.
(a)
100% Reimbursement During Year One
. Subject to Section 6(d) below, if the CEO’s employment with the Corporation
terminates for any reason prior to the first anniversary of the Date of Grant, then the CEO shall, within 30 days of such termination:
|
|
(i)
|
deliver to the Corporation a number of Common Shares equal to the number of Inducement Shares (the “Repayment Shares”); or
|
4
|
|
(ii)
|
pay to the Corporation an amount in cash equal in value to the product of (A) the Repayment Shares multiplied by (B) the closing price per share of the Common
Shares on the New York Stock Exchange on the date of the CEO’s termination (the “Repayment Amount”); or
|
|
|
(iii)
|
deliver to the Corporation a combination of both Common Shares and a cash payment (a “Combination Repayment”) such that the aggregate value of the Combination
Repayment is equal to the Repayment Amount (with each delivered Common Share valued for such purposes based on the closing price per share of the Common Shares on the New York Stock Exchange on the date of the CEO’s termination).
|
(b)
50% Reimbursement During Year Two
. Subject to Section 6(d) below, if the CEO’s employment
with the Corporation terminates for any reason on or after the first anniversary of the Date of Grant but prior to the second anniversary of the Date of Grant, then the CEO shall, within 30 days of such termination:
|
|
(i)
|
deliver to the Corporation a number of Common Shares equal to 50% of the Repayment Shares; or
|
|
|
(ii)
|
pay to the Corporation an amount in cash equal in value to 50% of the Repayment Amount; or
|
|
|
(iii)
|
deliver to the Corporation a Combination Repayment such that the aggregate value of the Combination Repayment is equal to 50% of the Repayment Amount (with each
delivered Common Share valued for such purposes based on the closing price per share of the Common Shares on the New York Stock Exchange on the date of the CEO’s termination).
|
(c)
Limited Set-Off
. To the extent that the cash and/or Common Shares referred to in Section 6(a) or 6(b) above are not paid
to or delivered to the Corporation, as applicable, the Corporation may set off the value of such remaining amount so payable to it against any amounts that may be owing from time to time by the Corporation to the CEO, whether as wages, deferred
compensation or vacation pay or in the form of any other benefit or for any other reason, but only to the extent that such amounts would not be considered “nonqualified deferred compensation” within the meaning of Section 409A of the
Internal Revenue Code.
5
(d)
Exceptions To Reimbursement
. Notwithstanding Sections 6(a) and 6(b) of this
Agreement, the Corporation’s reimbursement rights under Section 6 of this Agreement shall immediately expire if:
|
|
(i)
|
the CEO’s employment with the Corporation terminates because of death or due to his Disability prior to the second anniversary of the Date of Grant;
|
|
|
(ii)
|
the CEO’s employment with the Corporation is terminated by the Company without Cause prior to the second anniversary of the Date of Grant; or
|
|
|
(iii)
|
the CEO terminates his employment with the Corporation for Good Reason prior to the second anniversary of the Date of Grant.
|
7.
Entire Agreement
. This Agreement, together with the Employment Agreement, contains the entire understanding and agreement
between the Corporation and the CEO concerning the subject matter hereof and supersedes all prior agreements, understandings, discussions, negotiations and undertakings, whether written or oral, between the Corporation and the CEO with respect
thereto.
8.
Validity
. If any provision of this Agreement or the application of any provision hereof to any person or
circumstances is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the application of such provision to any other person or under any circumstances shall not be affected, and the provisions so held to be invalid,
unenforceable or otherwise illegal shall be reformed to the extent (and only to the extent) necessary to make it enforceable, valid and legal.
9.
Not an Employment Contract
. None of the Inducement Shares, the Sign-On Grant and this Agreement will confer upon the CEO any right with respect to continuance of employment or other service with
the Corporation or any subsidiary, and they will not interfere in any way with any right the Corporation or any subsidiary would otherwise have to terminate the CEO’s employment or other service at any time.
10.
Governing Law
. This Agreement shall be governed in accordance with the laws of Ohio without reference to principles of
conflict of laws.
11.
Counterparts
. This Agreement may be executed in two or more counterparts.
[signatures to follow]
6
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first
written above.
|
|
|
|
|
|
|
|
|
|
|
DIEBOLD, INCORPORATED
|
|
|
|
CEO
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Sheila M. Rutt
|
|
|
|
Andreas W. Mattes
|
|
|
|
Title:
|
|
Vice President, Chief Human Resources Officer
|
|
|
|
|
7
EXHIBIT 5.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Chad F. Hesse
|
|
|
|
|
Diebold, Incorporated
5995
Mayfair Road
|
|
Vice President, General Counsel and Secretary
|
|
|
|
P.O. Box 3077
|
|
|
|
|
|
North Canton, Ohio 44720
|
|
|
|
|
|
Phone: 330-490-4522
|
|
|
|
|
|
Fax: 330-490-4450
|
|
|
August 14, 2013
Diebold, Incorporated
5995 Mayfair Road
North Canton, Ohio 44720
|
|
Re:
|
Registration Statement on Form S-8 Filed by Diebold, Incorporated
|
Ladies and Gentlemen:
I have acted as counsel for Diebold, Incorporated, an Ohio
corporation (the “
Corporation
”), in connection with the CEO Common Shares Award Agreement to be entered into by and between Andreas W. Mattes and the Corporation (the “
Agreement
”). In connection with
the opinion expressed herein, I have examined such documents, records and matters of law as I have deemed relevant or necessary for purposes of such opinion. Based on the foregoing, and subject to the further limitations, qualifications and
assumptions set forth herein, I am of the opinion that the 15,343 common shares (the “
Shares
”), par value $1.25 per share, of the Corporation (the “
Common Shares
”) that may be issued pursuant to the
Agreement have been authorized by all necessary corporate action of the Corporation and will be, when issued in accordance with the Agreement, validly issued, fully paid and nonassessable, provided that the consideration for the Shares is at least
equal to the stated par value thereof.
The opinion expressed herein is limited to the laws of the State of Ohio, as currently
in effect, and I express no opinion as to the effect of the laws of any other jurisdiction. In addition, I have assumed that the resolutions authorizing the Corporation to issue the Shares pursuant to the Agreement will be in full force and effect
when the Shares are issued by the Corporation, and the Corporation will take no action inconsistent with such resolutions.
I
hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement on Form S-8 filed by the Corporation to effect registration of the Shares to be issued pursuant to the Agreement under the Securities Act of 1933 (the
“
Act
”). In giving such consent, I do not thereby admit that I am included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange
Commission promulgated thereunder.
|
|
|
Very truly yours,
|
|
|
|
/s/ Chad F. Hesse
|