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Exhibit 99.6
COMMON SHARE OPTION AGREEMENT
THIS COMMON SHARE OPTION AGREEMENT (this "AGREEMENT"), dated September
11, 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.
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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.
(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
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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 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
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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 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
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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
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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 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
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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 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,
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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).
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11. RESTRICTIVE LEGENDS. Each certificate representing Common Shares issued to
Diebold hereunder shall include a legend in substantially the following
form:
"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.
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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 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
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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 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
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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:
----------------
Xxxxxxx, 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
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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 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.
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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
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Xxxxx Xxxxxxxx
Chief Executive Officer
DIEBOLD, INCORPORATED
By:/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Senior Vice President and
Chief Financial Officer
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