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EXHIBIT 4.5
Draft of August 29, 2001
COMMON SHARE OPTION AGREEMENT
THIS COMMON SHARE OPTION AGREEMENT (this "Agreement"), dated August 30,
2001, between Global Election Systems Inc., a company amalgamated under the Laws
of British Columbia (the "Company"), and Diebold, Incorporated, an Ohio
corporation ("Diebold").
RECITALS
A. The Company, Diebold and Diebold Acquisition Ltd., a company
incorporated under the Laws of British Columbia and a wholly-owned Subsidiary of
Diebold ("Sub"), are entering into an Arrangement Agreement and corresponding
Plan of Arrangement of even date herewith (the "Arrangement Agreement"), which
provides, among other things, for the exchange of all of the Company's Common
Shares for the Exchange Consideration upon the terms and subject to the
conditions contained therein; and
B. The Company has agreed, in order to induce Diebold to enter into the
Arrangement Agreement, to grant the Option.
NOW THEREFORE, in consideration of the premises and the
representations, warranties, mutual covenants and agreements set forth herein
and in the Arrangement Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Grant of Option. The Company hereby grants Diebold an irrevocable
option (the "Option") to purchase, subject to the terms and conditions set forth
herein, up to such number of common shares of the Company, no par value per
share (the "Common Shares"), as represents 10% of the total number of issued and
outstanding Common Shares on the date of mailing of an Exercise Notice to the
Company by Diebold, in the manner set forth below at a price per Common Share
equal to the sum of (i) the Cash Consideration and (ii) that number of shares of
Buyer Common Stock equal to the Exchange Ratio (calculated as of the ten
consecutive trading day period ending on the trading day immediately preceding
the date of Xxxxxxx'x mailing of an Exercise Notice; provided, that in no event
shall the Exchange Ratio be less than 0.02421 or greater than 0.03027 (such
range, the "Collar")) (as adjusted pursuant to Section 10, the "Exercise
Price"). The Exercise Price shall be deemed to have a value of $1.135 per Common
Share for all purposes of this Agreement subject to adjustment as provided in
Section 10. In connection with any adjustment to the Exercise Price pursuant to
Section 10, the Collar shall be proportionally adjusted.
2. Exercise of Option. (a) Subject to the provisions of Section 2(b),
the Option may only be exercised by Diebold, in whole or in part, simultaneously
with the closing of, an Alternative Proposal (the "Alternative Transaction").
The Company will provide Diebold notice in writing at least ten Business Days
prior to the anticipated closing date of the transactions contemplated by an
Alternative Proposal.
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(b) In the event Diebold wishes to exercise the Option, Diebold shall
deliver to the Company a written notice (an "Exercise Notice") specifying the
total number of the Common Shares it wishes to purchase. The Option shall
terminate upon the earlier of: (i) the Effective Time; and (ii) 5:00 p.m., New
York City time, on the date that is the 18-month anniversary of the termination
of the Arrangement Agreement or if, prior to the expiration of such 18-month
period, the Closing (as defined below) shall have occurred and the Option cannot
be exercised by reason of any applicable Order or Law, ten Business Days after
such impediment to exercise shall have been removed or shall have become final
and not subject to appeal.
3. Conditions to Closing. The obligation of the Company to issue the
Common Shares to Diebold hereunder is subject to the condition that no Law shall
be in effect, and no Order entered by any Governmental Authority in the United
States or Canada shall be in effect, that prohibits or restrains the exercise of
the Option pursuant to the terms of this Agreement.
4. Closing. The closing of the sale of some or all of the Common Shares
underlying the Option (a "Closing") shall take place within ten Business Days
following Xxxxxxx'x delivery of an Exercise Notice or, if earlier, immediately
prior to the closing of the Alternative Transaction. At any Closing, (a) upon
receipt of the payment provided for by this Section 4, the Company will deliver
to Diebold a single certificate in definitive form representing the number of
the Common Shares designated by Diebold in its Exercise Notice, such certificate
to be registered in the name of Diebold and to bear the legend set forth in
Section 11 of this Agreement, and (b) Diebold will deliver to the Company the
aggregate price for the Common Shares so designated in an amount equal to the
product obtained by multiplying the Exercise Price by the number of Common
Shares to be purchased by wire transfer of immediately available funds payable
to the Company pursuant to the Company's instructions. At any Closing at which
Diebold is exercising the Option in part, Diebold shall present and surrender
this Agreement to the Company.
5. Representations and Warranties of the Company. The Company
represents and warrants to Diebold, as of the date hereof and as of the date of
each Closing, that (a) the Company is a company duly amalgamated, validly
existing and in good standing under the Laws of the Province of British Columbia
and has the corporate power and authority to enter into this Agreement and to
carry out its obligations hereunder, (b) the execution and delivery of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of the Company and no other corporate proceedings on the part of the
Company are necessary to authorize this Agreement or any of the transactions
contemplated hereby, (c) this Agreement has been duly executed and delivered by
the Company, constitutes a valid and binding obligation of the Company and,
assuming this Agreement constitutes a valid and binding obligation of Diebold,
is enforceable against the Company in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar Laws affecting the enforcement of creditors' rights generally,
the availability of injunctive relief and other equitable remedies, and
limitations imposed by Law on indemnification for liability under securities
Laws, (d) the Company has taken all necessary corporate action to authorize and
reserve for issuance and to permit it to issue, upon exercise of the Option, and
at all times from the date hereof through the expiration of the Option will have
reserved sufficient unissued Common Shares and such other shares or other
securities which may be issued pursuant to Section 10 of this Agreement, all of
which, upon their issuance, payment and delivery in
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accordance with the terms of this Agreement, will be validly issued, fully paid
and nonassessable, and free and clear of all Encumbrances of any nature
whatsoever (other than those (i) created by or through Diebold or any of its
Affiliates, (ii) which arise under this Agreement, or (iii) which arise under
the Securities Act of 1933, as amended (the "Securities Act") or any applicable
securities Laws, (e) the execution and delivery of this Agreement by the Company
do not, and the performance of this Agreement by the Company will not, conflict
with, or result in any violation of, or default (with or without notice or lapse
of time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or the loss of a material benefit under, or the
creation of an Encumbrance on its Properties or assets pursuant to (any such
conflict, violation, default, right of termination, cancellation or
acceleration, loss or creation, a "Violation"), (A) any provision of the
Constituent Documents of the Company, (B) any provisions of any Contractual
Obligation or loan or credit agreement, note, mortgage, indenture, lease,
benefit plan or other agreement, obligation, instrument, permit, concession,
franchise, license of or applicable to the Company, its Properties or assets, or
(C) any Order or to its Knowledge, any Law applicable to the Company or its
Properties or assets, which Violation, in the case of each of clauses (B) and
(C), individually or in the aggregate, and (f) except as described in this
Agreement and, with respect to Section 9 hereof, compliance with the provisions
of the Securities Act and any applicable, securities Laws, the execution and
delivery of this Agreement by the Company do not, and the performance of this
Agreement by the Company will not, require any consent, approval, authorization
or permit of, or filing with or notification to, any Governmental Authority.
6. Representations and Warranties of Diebold. Diebold represents and
warrants to the Company that (a) Diebold is a corporation duly organized,
validly existing and in good standing under the Laws of the State of Ohio, and
has the corporate power and authority to enter into this Agreement and to carry
out its obligations hereunder, (b) the execution and delivery of this Agreement
by Diebold and the consummation by Diebold of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of Diebold and no other corporate proceedings on the part of Diebold are
necessary to authorize this Agreement or any of the transactions contemplated
hereby, (c) this Agreement has been duly executed and delivered by Diebold and
constitutes a valid and binding obligation of Diebold, and, assuming this
Agreement constitutes a valid and binding obligation of the Company, is
enforceable against Diebold in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar Laws affecting the enforcement of creditors' rights generally and the
availability of injunctive relief and other equitable remedies and limitations
imposed by Law on indemnification for liability under applicable securities
Laws, (d) the execution and delivery of this Agreement by Diebold does not, and
the performance of this Agreement by Diebold will not, result in any Violation
pursuant to (A) any provision of the Constituent Documents of Diebold, (B) any
provisions of any Contractual Obligation or loan or credit agreement, note,
mortgage, indenture, lease, or other agreement, obligation, instrument, permit,
concession, franchise, license of or applicable to Diebold, its Properties or
assets, or (C) any Order or to its Knowledge, any Law applicable to Diebold or
its Properties or assets, (e) the execution and delivery of this Agreement by
Diebold do not, and the performance of this Agreement by Diebold will not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Authority and (f) any Common Shares acquired
upon exercise of the Option will not be, and the Option is not being, acquired
by
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Diebold with a view to public distribution or resale in any manner which would
be in violation of U.S. or Canadian federal, state or provincial securities
Laws.
7. Put/Call Right. (a) Exercise of Put/Call. At any time during
which the Option is exercisable pursuant to Section 2, upon demand by either
Diebold or the Company and simultaneously with the consummation of the
Alternative Transaction, Diebold shall sell to the Company (or any successor
entity thereof) and the Company (or such successor entity) shall be obligated to
repurchase from Diebold (the "Put/Call"), all or any portion of the Option, at
the price equal to the product of multiplying (A) the difference between (1) the
highest price per share to be paid for Common Shares in the Alternative
Transaction (the "Offer Price") and (2) the Exercise Price, by (B) the number of
Common Shares purchasable pursuant to the Option (or portion thereof that is
subject to the Put/Call under this Section 7). In determining the Offer Price,
the value of consideration other than cash or stock as provided above shall be
determined by a nationally recognized investment banking firm selected by
Diebold and reasonably acceptable to the Company.
(b) Payment and Redelivery of Option. In the event the Put/Call is
exercised under this Section 7, the Company shall, at and subject to
consummation of the Closing, pay the required amount to Diebold by wire transfer
in immediately available funds to an account specified by Diebold two Business
Days prior to the date that payment is due and Diebold shall surrender to the
Company the Option, and Diebold shall warrant that it owns such Option free and
clear of all Encumbrances of any kind or nature whatsoever.
8. Restrictions on Certain Actions. The Company shall not adopt any
rights agreement or shareholder rights plan or any amendment thereto in any
manner which would cause Diebold, if Diebold has complied with its obligations
under this Agreement, to become an "Acquiring Person" under such rights
agreement or shareholder rights plan or otherwise cause a "trigger event" to
have occurred solely by reason of the beneficial ownership of the Common Shares
acquired pursuant to this Agreement.
9. Registration Rights. (a) Demand. The Company (or its successors)
will, if requested in writing (a "Registration Notice") by Diebold at any time
and from time to time within two years of the exercise of the Option, as
expeditiously as possible prepare and file registration statements under the
Securities Act or any applicable Canadian provincial securities Laws if such
registration or the obtaining of a receipt for a prospectus is necessary in
order to permit the sale or other disposition of any or all shares or other
securities that have been acquired by or are issuable to Diebold upon exercise
of the Option ("Registrable Securities") in accordance with the intended method
of sale or other disposition stated by Diebold. Any such Registration Notice
must relate to a number of Registrable Securities equal to at least 3% of the
total number of Common Shares then outstanding, unless the remaining number of
Registrable Securities is less than such amount, in which case Diebold shall be
entitled to exercise its rights hereunder but only for all of the remaining
Registrable Securities (a "Permitted Offering"). Xxxxxxx'x rights hereunder
shall terminate at such time as Diebold shall be entitled to sell all of the
remaining Registrable Securities pursuant to Rule 144(k) under the Securities
Act and there are no restrictions on the disposition of such securities under
applicable Canadian securities Laws. The Company will use its reasonable best
efforts to qualify such shares or other securities under any applicable state
securities Laws; provided, however, that the Company shall not be required to
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qualify to do business, consent to general service of process or submit to
taxation in any jurisdiction by reason of this provision. The Company will use
reasonable best efforts to cause each such registration statement to become
effective and to obtain a (final) receipt for each such prospectus, to obtain
all consents or waivers of other parties which are required therefor, and to
keep such registration statement or prospectus effective for such period not in
excess of 180 calendar days from the day such registration statement first
becomes effective or the date of the (final) receipt for such prospectus as may
be reasonably necessary to effect such sale or other disposition. The
obligations of the Company hereunder to file a registration statement or
prospectus and to maintain its effectiveness may be suspended for up to 60
calendar days if the Board of Directors of the Company shall have determined
that the filing of such registration statement or prospectus or the maintenance
of its effectiveness would require premature disclosure of nonpublic information
that would materially and adversely affect the Company or otherwise interfere
with or adversely affect any pending or proposed offering of securities of the
Company or any other material transaction involving the Company. Subject to
applicable Law, the expenses associated with the preparation and filing any
registration statement or prospectus prepared and filed under this Section 9,
and any sale covered thereby ("Registration Expenses"), will be paid by the
Company. In connection with any registration statement or prospectus pursuant to
this Section 9, Diebold shall furnish, or cause any holder of the Option or
Common Shares (a "Holder") to furnish, the Company with such information
concerning itself and the proposed sale or distribution as shall reasonably be
required in order to ensure compliance with the requirements of the Securities
Act and to provide representations and warranties customary for selling
shareholders who are unaffiliated with the Company. The Company shall indemnify
and hold Diebold, its underwriters and each of their respective Affiliates
harmless against any and all losses, claims, damages, liabilities and expenses
(including, without limitation, investigation expenses and fees and disbursement
of counsel and accountants), joint or several, to which Diebold, its
underwriters and each of their respective Affiliates may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in written information furnished by to the Company expressly for use
in such registration statement.
(b) Piggyback. If, during the time periods referred to in the first
sentence of subsection (a), the Company effects a registration under the
Securities Act or any applicable Canadian provincial securities Laws of the
Common Shares for its own account or for any other shareholders of the Company
pursuant to a firm commitment underwriting (other than on Form S-4 or Form S-8,
or any successor form), it will allow Diebold the right to participate in such
registration or qualification as long as Diebold participates in such
underwriting on terms reasonably satisfactory to the managing underwriters of
such offering, and such participation will not affect the obligation of the
Company to effect demand registration statements or prospectuses for Diebold
under this Section 9; provided, that, if the managing underwriters of such
offering advise the Company in writing that in their opinion the number of
shares of the Common Shares requested to be included in such registration or
qualification exceeds the number that it would be in the best interests of the
Company to sell in such offering, the Company will, after fully including
therein all Common Shares to be sold by the Company, include the Common Shares
requested to be included therein by Diebold pro rata (based on the number of
Common Shares requested to be included therein) with the Common Shares requested
to be included therein by persons other than the Company and persons to whom the
Company owes a Contractual
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Obligation (other than any director, officer or employee of the Company to the
extent any such person is not currently owed such Contractual Obligation).
(c) In connection with any registration or qualification pursuant to
this Section 9, the Company and Diebold will provide each other and any
underwriter of the offering with customary representations, warranties,
covenants, indemnification and contribution in connection with such registration
or qualification. The Company shall provide to any underwriters such
documentation (including certificates, opinions of counsel and "comfort" letters
from auditors) as are customary in connection with underwritten public offerings
as such underwriters may reasonably require.
10. Adjustment Upon Changes in Capitalization. (a) In the event of any
change in the Common Shares by reason of stock dividends, split-ups, mergers,
recapitalizations, combinations, exchange of shares or the like, the percentage
and class of shares or securities subject to the Option, and the Exercise Price
per share provided in Section 1 of this Agreement, shall be adjusted
appropriately, and proper provision shall be made in the agreements governing
such transaction so that Diebold shall receive and accept, upon exercise of the
Option, the percentage and class of shares or other securities or property that
Diebold would have received in respect of the Common Shares if the Option had
been exercised immediately prior to such event or the record date therefor, as
applicable.
(b) In the event that the Company shall enter in an agreement: (i) to
consolidate with or merge into any Person, other than Diebold or another direct
or indirect wholly-owned subsidiary of Diebold, and shall not be the continuing
or surviving corporation of such consolidation or merger; (ii) to permit any
Person, other than Diebold or another direct or indirect wholly-owned subsidiary
of Diebold, to merge into the Company and the Company shall be the continuing or
surviving corporation, but, in connection with such merger, the then-outstanding
Common Shares shall be changed into or exchanged for stock or other securities
of the Company or any other Person or cash or any other Property or the
outstanding Common Shares immediately prior to such merger shall after such
merger represent less than 50% of the outstanding shares and share equivalents
of the merged company; or (iii) to sell or otherwise transfer all or
substantially all of its assets to any Person, other than Diebold or another
direct or indirect wholly-owned subsidiary of Diebold, then, and in each such
case, the Company shall immediately so notify Diebold, and the agreement
governing such transaction shall make proper provisions so that upon the
consummation of any such transaction and upon the terms and conditions set forth
herein Diebold shall, upon exercise of the Option, receive for each Company
Share with respect to which the Option has not been exercised an amount of
consideration in the form of and equal to the per share amount of consideration
that would be received by the holder of a Common Share less the Exercise Price
(and, in the event of an election or similar arrangement with respect to the
type of consideration to be received by the holders of Common Shares, subject to
the foregoing, proper provision shall be made so that the holder of the Option
would have the same election or similar rights as would the holder of the number
of Common Shares for which the Option is then exercisable).
11. Restrictive Legends. Each certificate representing Common Shares
issued to Diebold hereunder shall include a legend in substantially the
following form:
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"The transfer of the shares represented by this certificate is
subject to certain provisions of an agreement between the
registered holder hereof and the Company and to resale
restrictions arising under the Securities Act of 1933, as
amended. A copy of such agreement is on file at the principal
office of the Company and will be provided to the holder
hereof without charge upon receipt by the company of a written
request therefor."
The Company shall, upon written request of the holder thereof, issue such holder
a new certificate evidencing such Common Shares without such legend in the event
(i) the sale of such Common Shares has been registered pursuant to the
Securities Act or (ii) such holder shall have delivered to the Company an
opinion of counsel to the effect that subsequent transfers of such Common Shares
may be effected without registration under the Securities Act.
12. Listing. The Company, upon request of Diebold, shall as promptly as
practicable file an application to list Common Shares to be acquired upon
exercise of the Option for listing or quotation on the TSE and on the American
Stock Exchange (the "AMEX") and shall use its reasonable best efforts to obtain
approvals for such quotations as promptly as practicable and exercise of the
Option will remain subject to such approvals.
13. Binding Effect; No Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. Except as expressly provided for in this Agreement and
except for any assignment by Diebold, in whole or in part, to a wholly-owned,
direct or indirect, Subsidiary of Diebold (provided that any such subsidiary
agrees in writing to be bound by and liable for all of the terms, conditions and
provisions contained herein that would otherwise be applicable to Diebold and
provided further that Diebold shall remain liable for all of its duties and
obligations hereunder in the event such subsidiary shall fail to perform
hereunder), neither this Agreement nor the rights or the obligations of either
party hereto are assignable in whole or in part (whether by operation of Law or
otherwise), without the written consent of the other party and any attempt to do
so in contravention of this Section 13 will be void. Nothing contained in this
Agreement, express or implied, is intended to confer upon any person other than
the parties hereto and their respective permitted assigns any rights or remedies
of any nature whatsoever by reason of this Agreement.
14. Specific Performance. The parties recognize and agree that if for
any reason any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached, immediate and
irreparable harm or injury would be caused for which money damages would not be
an adequate remedy. Accordingly, each party agrees that, in addition to other
remedies, the other party shall be entitled to an injunction or injunctions
restraining any violation or threatened violation of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof. In the
event that any action should be brought in equity to enforce the provisions of
this Agreement, neither party will allege, and each party hereby waives the
defense, that there is adequate remedy at Law.
15. Entire Agreement. This Agreement and the Arrangement Agreement
(including the Exhibits and Schedules thereto) constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
other prior discussions, representations and
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warranties, agreements and understandings, both written and oral, among the
parties or any of them with respect to the subject matter hereof. No prior
drafts of this Agreement and no words or phrases from any such prior drafts
shall be admissible into evidence in any action, suit or other proceeding
involving this Agreement.
16. Further Assurances. Promptly after the date hereof, each party will
execute and deliver all such further documents and instruments and take all such
further action, including, without limitation, obtaining all necessary
regulatory approvals and making all necessary filings (including, without
limitation, with the TSE and the AMEX) as may be necessary in order to
consummate the transactions contemplated hereby (including the issuance,
registration and listing of the Common Shares issuable upon exercise of the
Option). The Company will not take any actions which would frustrate the
exercise of the Option.
17. Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." The words "hereof," "herein" and "herewith" and words of
similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole and not to any particular provision of this Agreement. All
terms defined in this Agreement shall have the defined meaning contained herein
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein. The definitions contained in this Agreement
are applicable to the singular as well as the plural forms of such terms and to
the masculine as well as to the gender and neuter genders of such term. Any
agreement or instrument defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement or instrument as from
time to time amended, modified or supplemented and attachments thereto and
instruments incorporated therein. References to a person are also to its
permitted successors and assigns. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local or
foreign statute or Law shall be deemed to also to refer to any amendments
thereto and all rules and regulations promulgated thereunder, unless the context
requires otherwise.
18. Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of the other
provisions of this Agreement, which shall remain in full force and effect. In
the event any court or other competent authority holds any provision of this
Agreement to be null, void or unenforceable, under any present or future Law,
public policy or order, and if the rights or obligations of any party hereto
under this Agreement or the Arrangement Agreement, and the economic or legal
substance of the transactions contemplated hereby and thereby, will not be
materially and adversely affected thereby, (i) such provision will be fully
severable and (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof.
Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith
the execution and delivery of an amendment to this Agreement in order to the
maximum extent possible to effectuate, to the
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extent permitted by Law, the intent of the parties hereto with respect to such
provision. Each party agrees that, should any court or other competent authority
hold any provision of this Agreement or part hereof to be null, void or
unenforceable, or order any party to take any action inconsistent herewith, or
not take any action required herein, the other party shall not be entitled to
specific performance of such provision or part hereof or to any other remedy,
including but not limited to money damages, for breach hereof or of any other
provision of this Agreement or part hereof as the result of such holding or
order.
19. Notices. Any notice, request, claim, demand or communication
required or permitted hereunder shall be in writing and either delivered
personally, telecopied or sent by certified or registered mail, postage prepaid,
and shall be deemed to be given, dated and received (a) on the date of delivery
if delivered personally, including by courier, (b) upon receipt if delivered by
registered or certified mail, return receipt requested, postage prepaid or (c)
upon receipt if sent by facsimile transmission, provided that any notice
received by telecopy or otherwise at the addressee's location on any Business
Day after 5:00 p.m. (addressee's local time) shall be deemed to have been
received at 9:00 a.m. (addressee's local time) on the next Business Day. Any
party to this Agreement may notify any other party of any changes to the address
or any of the other details specified in this paragraph, provided that such
notification shall only be effective on the date specified in such notice or
five Business Days after the notice is given, whichever is later. Rejection or
other refusal to accept or the inability to deliver because of changed address
of which no notice was given shall be deemed to be receipt of the notice as of
the date of such rejection, refusal or inability to deliver. All notices
hereunder shall be delivered to the parties to the addresses or facsimile
numbers set forth below, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice:
If to the Company to:
c/o Global Election Systems, Inc.
0000 Xxxxxxx Xxxx
XxXxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx
with copies to (which shall not constitute notice):
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
5400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
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and
Gowling Xxxxxxx Xxxxxxxxx LLP
X.X. Xxx 00000, Xxxxx 0000
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Facsimile No.: (000) 000-0000
Attention: Xxx X. XxXxxx
If to Diebold to:
Diebold, Incorporated
0000 Xxxxxxx Xxxx
X.X. Xxx 0000
Xxxxx Xxxxxx, Xxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx,
Senior Vice President and
Chief Financial Officer
and
Xxxxxxx, Incorporated
0000 Xxxxxxx Xxxx
X.X. Xxx 0000
Xxxxx Xxxxxx, Xxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx,
Vice President and General Counsel
with copies to (which shall not constitute notice):
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Bark
and
Fasken Xxxxxxxxx XxXxxxxx LLP
0000-0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx
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20. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
21. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties. A facsimile copy of a signature
page shall be deemed to be an original signature page.
22. Expenses. Except as otherwise expressly provided herein or in the
Arrangement Agreement, all costs and expenses incurred by a party in connection
with the transactions contemplated by this Agreement, including fees and
expenses of its own financial consultants, investment bankers, accountants and
counsel, shall be paid by the party incurring such expenses.
23. Amendments; Waiver. This Agreement may be amended by the parties
hereto and the terms and conditions hereof may be waived only by an instrument
in writing signed on behalf of each of the parties hereto, or, in the case of a
waiver, by an instrument in writing signed on behalf of the party waiving
compliance.
24. Governing Law; Jurisdiction; Consent to Service of Process. (a)
This Agreement and the legal relations among the parties hereto will be governed
by and construed in accordance with the substantive Laws of the State of
Delaware, without giving effect to the principles of conflict of Laws thereof.
(b) Each party hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of any state or federal
court located in the State of Delaware (each, a "Delaware Court"), and any
appellate court from any such court, in any suit, action or proceeding arising
out of or relating to this Agreement or any Transaction Document, or for
recognition or enforcement of any judgment resulting from any such suit, action
or proceeding, and each party hereby irrevocably and unconditionally agrees that
all claims in respect of any such suit, action or proceeding may be heard and
determined in a Delaware Court.
(c) It will be a condition precedent to each party's right to bring any
such suit, action or proceeding that such suit, action or proceeding, in the
first instance, be brought in a Delaware Court (unless such suit, action or
proceeding is brought solely to obtain discovery or to enforce a judgment), and
if each such court refuses to accept jurisdiction with respect thereto, such
suit, action or proceeding may be brought in any other court with jurisdiction.
(d) No party may move to (i) transfer any such suit, action or
proceeding from a Delaware Court to another jurisdiction, (ii) consolidate any
such suit, action or proceeding brought in a Delaware Court with a suit, action
or proceeding in another jurisdiction unless such motion seeks solely and
exclusively to consolidate such suit, action or proceeding in a Delaware Court,
or (iii) dismiss any such suit, action or proceeding brought in a Delaware Court
for the purpose of bringing or defending the same in another jurisdiction.
(e) Each party hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, (i) any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in a Delaware Court,
(ii) the defense of an inconvenient forum to the maintenance of such suit,
action
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or proceeding in a Delaware Court, and (iii) the right to object, with respect
to such suit, action or proceeding, that such court does not have jurisdiction
over such party. Each party irrevocably consents to service of process in any
manner permitted by Law. Notwithstanding the foregoing, this Section 24 will not
apply to (x) any suit, action or proceeding by a party seeking indemnification
or contribution pursuant to this Agreement or otherwise in respect of a suit,
action or proceeding against such party by a third party if such suit, action or
proceeding by such party seeking indemnification or contribution is brought in
the same court as the suit, action or proceeding against such party or (y) any
suit, action or proceeding by a party seeking to enforce an Order of a Delaware
Court.
25. Remedies Cumulative. Except as otherwise herein provided, the
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by applicable Law.
26. Entire Agreement; No Third Party Beneficiaries. This Agreement
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter of this Agreement. The terms and provisions of this Agreement are
intended solely for the benefit of each party hereto and their respective
successors or permitted assigns, and except as otherwise expressly provided for
herein, it is not the intention of the parties to confer third-party beneficiary
rights upon any other person.
27. Date for Any Action. In the event that any date on which any action
is required to be taken hereunder by any of the parties hereto is not a Business
Day, such action shall be required to be taken on the next succeeding day which
is a Business Day.
28. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, ARISING OUT OF
OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
29. Capitalized Terms. Terms used herein and not defined otherwise
defined herein will have the same meanings as used in the Arrangement Agreement.
(Signature page follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
GLOBAL ELECTION SYSTEMS INC.
By: /s/ XXXXX XXXXXXXX
------------------------------------
Xxxxx Xxxxxxxx
Chief Executive Officer
DIEBOLD, INCORPORATED
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President and
Chief Financial Officer
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