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Exhibit 99.8
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") dated as of September 11,
2001, by and among Diebold, Incorporated, an Ohio corporation ("DIEBOLD"), and
the individuals listed on SCHEDULE A attached hereto (each, a "SHAREHOLDER" and,
collectively the "SHAREHOLDERS").
RECITALS
A. Simultaneously with the execution of this Agreement, Diebold,
Diebold Acquisition Ltd., a company incorporated under the laws of British
Columbia and a wholly owned subsidiary of Diebold ("SUB"), and Global Election
Systems Inc., a company amalgamated under the laws of British Colombia
("GLOBAL"), have entered into an Arrangement Agreement and Plan of Arrangement
(the "Arrangement Agreement"), which provides, among other things, for the
exchange of all of the shares of Global's capital stock for shares of Diebold
common stock and cash (the "ARRANGEMENT") upon the terms and subject to the
conditions set forth therein.
B. Each Shareholder is the record and beneficial owners of, and have
the sole right to vote and dispose of that number of common shares of Global, no
par value per share ("TARGET COMMON SHARES"), listed opposite each Shareholder's
name on SCHEDULE A hereto.
C. As an inducement and a condition to its entering into and delivering
the Arrangement Agreement, Diebold has required that the Shareholders enter into
this Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, respective covenants and agreements of
the parties contained herein and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged by each of the parties
hereto), the parties hereto, intending to be legally bound hereby, agree as
follows:
I. CERTAIN DEFINITIONS
1.1 CAPITALIZED TERMS. Capitalized terms used in this Agreement and not
defined herein shall have the respective meanings ascribed to such terms in the
Arrangement Agreement.
1.2 OTHER DEFINITIONS. For the purposes of this Agreement:
"BENEFICIAL OWNER" or "BENEFICIAL OWNERSHIP" with respect to any
securities means having "BENEFICIAL OWNERSHIP" of such securities (as determined
pursuant to Rule 13d3 under the Exchange Act), including
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pursuant to any agreement, arrangement or understanding, whether or not in
writing. Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a Person shall include securities Beneficially
Owned by all Affiliates of such Person and all other Person with whom such
Person would constitute a "GROUP" within the meaning of Section 13(d) of the
Exchange Act and the rules promulgated thereunder.
"OWNED SHARES" means the Target Common Shares owned by a Shareholder on
the date hereof, together with any other Target Common Shares or any other
securities of Global entitled, or which may be entitled, to vote generally in
the election of directors and any other Target Common Shares or such other
securities which may hereafter be owned by a Shareholder.
"TRANSFER" means, with respect to a security, the sale, transfer,
pledge, hypothecation, encumbrance, assignment or disposition of such security
or the Beneficial Ownership thereof, the offer to make such a sale, transfer or
other disposition, and each option, agreement, arrangement or understanding,
whether or not in writing, to effect any of the foregoing.
II. AGREEMENT TO VOTE
2.1 AGREEMENT TO VOTE. Subject to the terms and conditions hereof, each
Shareholder irrevocably and unconditionally agrees that until this Agreement is
terminated pursuant to Section 5.1, at any meeting (whether annual or special,
and whether or not an adjourned or postponed meeting) of the Target Common
Shareholders, however called, or in connection with any written consent of the
Target Common Shareholders, such Shareholder shall vote, or cause to be voted
(including by written consent, if applicable) all Owned Shares of such
Shareholder (i) in favor of the Arrangement, the execution and delivery by
Global of the Arrangement Agreement, the approval and adoption of the
Arrangement and the terms thereof, the approval of each of the other actions
contemplated by the Arrangement Agreement and this Agreement and any other
actions that could be required in furtherance thereof and hereof, (ii) in favor
of the Share Issuance, and (iii) against any proposed action by Global, the
Target Common Shareholders or any other Person the result of which action could
impede, prevent, interfere with or delay completion of the Arrangement, the
Share Issuance or any of the transactions contemplated by the Arrangement
Agreement or this Agreement. Until such time as the Arrangement Agreement is
terminated, the Shareholders shall not enter into any agreement or understanding
with any Person the effect of which would be inconsistent or violative of this
Section 2.1.
III. REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each
Shareholder represents and warrants to Diebold that the following statements
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are as of the date of this Agreement, and will be, as of the date of the
Extraordinary General Meeting, true and correct:
(a) Such Shareholder has all necessary power and authority to enter
into, execute and deliver this Agreement and to perform all of his obligations
hereunder.
(b) This Agreement has been duly and validly executed and delivered by
such Shareholder and constitutes a legal, valid and binding agreement of such
Shareholder enforceable by Diebold against such Shareholder in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(c) Such Shareholder is the record holder and beneficial owner of the
Owned Shares which, as of the date hereof, are set forth on SCHEDULE A hereto
opposite such Shareholder's name, and except as provided in this Agreement, has
full and unrestricted power to dispose of and vote all such Owned Shares. Each
Shareholder has good and marketable title thereto, free and clear of any and all
pledges, mortgages, liens, charges, proxies, voting agreements, encumbrances,
adverse claims, options, security interests and demands of any nature or kind
whatsoever. Such Owned Shares constitute all of the capital stock of Global that
is Beneficially Owned by such Shareholder, and except for the Owned Shares and
Target Common Shares issuable upon exercise of Target Stock Options held by such
Shareholder (as set forth in SCHEDULE A to this Agreement), neither such
Shareholder nor any of his respective Affiliates Beneficially Owns or has any
right to acquire (whether currently, upon lapse of time, following the
satisfaction of any conditions, upon the occurrence of any event or any
combination of the foregoing) any Target Common Shares or any securities
convertible into Target Common Shares.
(d) None of the execution and delivery of this Agreement by such
Shareholder, the consummation by such Shareholder of the transactions
contemplated hereby or compliance by such Shareholder with any of the provisions
hereof shall (A) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, loan agreement,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to which
such Shareholder is a party or by which such Shareholder or any of such
Shareholder's Properties or assets (including the Owned Shares) may be bound, or
(B) violate any order, writ, injunction, decree, judgment, statute, rule or
regulation applicable to such Shareholder or any of his respective Properties or
assets.
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(e) No broker, investment banker, financial advisor or other Person is
entitled to any broker's, finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of such Shareholder.
(f) Such Shareholder understands and acknowledges that Diebold is
entering into, the Arrangement Agreement, and is incurring the obligations set
forth therein, in reliance upon the Shareholders' execution and delivery of this
Agreement.
3.2 REPRESENTATIONS AND WARRANTIES OF DIEBOLD. Diebold represents and
warrants to the Shareholders that the following statements are as of the date of
this Agreement, and will be, as of the date of the Extraordinary General Meeting
true and correct:
(a) Diebold is a corporation duly incorporated and validly existing
under the laws of the State of Ohio.
(b) Diebold has all necessary corporate power and authority to enter
into this Agreement and to perform all of its obligations hereunder. The
execution, delivery and performance of this Agreement and the Arrangement
Agreement by Diebold and the consummation of the transactions contemplated
hereby and thereby have been duly and validly approved by the board of directors
of Diebold and no other corporate proceedings on the part of Diebold or its
stockholders are necessary to authorize the execution, delivery and performance
of this Agreement or the Arrangement Agreement or the consummation of the
transactions contemplated hereby or thereby.
(c) This Agreement has been duly and validly executed and delivered by
Diebold and constitutes a legal, valid and binding agreement of Diebold
enforceable against Diebold in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
IV. COVENANTS OF THE SHAREHOLDERS
4.1 GENERAL. Each Shareholder covenants and agrees with Diebold that,
during the period commencing the date hereof and ending on the date this
Agreement is terminated under Article V hereof:
(a) Such Shareholder will not take any act, directly or indirectly,
which may in any way adversely affect in any respect the successful consummation
of the Arrangement or the Share Issuance;
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(b) Such Shareholder will not, directly or indirectly: (i) Transfer to
any Person any or all Owned Shares; or (ii) grant any proxies or powers of
attorney, rights or privileges (whether by law, preemptive or contractual), with
respect to Owned Shares, deposit any Owned Shares into a voting trust or enter
into a voting agreement, understanding or arrangement with respect to Owned
Shares except as provided in Section 2.1;
(c) Such Shareholder will promptly notify Diebold in writing upon any
representation or warranty of such Shareholder contained in this Agreement
becoming untrue or incorrect in any respect during the term of this Agreement
and for the purposes of this provision, each representation and warranty shall
be deemed to be given at and as of all times during such term (irrespective of
any language which suggests that it is only being given as at a particular
date); and
(d) Such Shareholder will execute and deliver such other documents and
instruments and take such further actions as may be necessary or appropriate or
as may be reasonably requested by Diebold in order to ensure that Diebold
receives the full benefit of this Agreement.
4.2 AMENDMENT TO THIS AGREEMENT. In the event that Global, Diebold and
Sub enter into an amendment to the Arrangement Agreement, the Shareholders
covenant and agree with Diebold to enter into an amendment to this Agreement in
accordance with Section 6.7 that shall reflect, to the extent appropriate, the
terms of such amended Arrangement Agreement.
V. TERMINATION
5.1 TERMINATION. This Agreement shall be terminated upon the earliest
of (i) the Effective Time, (ii) the termination of the Arrangement Agreement
pursuant to the rights to terminate set forth in Section 6.1 thereof; provided,
however, that no such termination in connection with which Diebold is or may be
entitled to the payment specified in Section 6.2(b) of the Arrangement Agreement
shall be effective until such time as Diebold has been paid the amount which it
is entitled pursuant to Section 6.2 of the Arrangement Agreement, and (iii) with
respect to a particular Shareholder upon a written election to terminate
delivered to Diebold from such Shareholder following the execution of any
amendment to the Arrangement Agreement that would result in a material reduction
in the value of the Exchange Consideration.
5.2 EFFECT OF TERMINATION. Upon termination of this Agreement, the
covenants, agreements and obligations of all the parties shall terminate and
become void without further action by any party except for the provisions of
this Section 5.2 and Article VI, which shall survive such termination.
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VI. GENERAL
6.1 NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and, unless otherwise provided in this Agreement,
shall be deemed to have been duly given (a) on the date of delivery if delivered
personally, (b) on the first business day following the date of dispatch if
delivered by a nationally recognized next-day courier service, or (c) if sent by
facsimile transmission, with a copy mailed on the same day in the manner
provided in (a) or (b) above, when transmitted and receipt is confirmed by
telephone; 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 shall notify any
other party of any changes to its address:
If to a Shareholder:
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At the address of such Shareholder listed on the signature page hereto.
If to Diebold:
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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
Diebold, 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
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with copies to (which shall not constitute notice):
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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
6.2 NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to
confer third-party beneficiary rights upon any Person.
6.3 SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held to be
invalid, illegal or unenforceable in any respect for any reason under any
present or future Law, public policy or order, (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 shall negotiate in good faith with a
view to the substitution therefor of a suitable and equitable solution in order
to carry out to the maximum extent possible, so far as may be valid and
enforceable, the intent and purpose of such invalid provision, PROVIDED, HOWEVER
that the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall not be in
any way impaired thereby, it being intended that all of the rights and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
6.4 ASSIGNMENT. Neither this Agreement nor any right, interest or
obligation hereunder may be assigned by any party hereto, in whole or part
(whether by operation of law or otherwise), without the prior written consent of
the other party hereto and any attempt to do so will be void; provided that
Diebold may assign its rights and obligations under this Agreement to any
Affiliate of Diebold.
6.5 SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors, permitted
assigns, heirs, administrators, executors and legal representatives.
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6.6 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. 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 successors and permitted 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.
6.7 AMENDMENTS. This Agreement may not be amended or supplemented
except by written agreement signed by all of the parties to this Agreement.
6.8 FEES AND EXPENSES. Each of the parties shall pay its own fees and
expenses (including, without limitation, the fees and expenses of financial
consultants, investment bankers, accountants and counsel) in connection with the
entry into of this Agreement and the consummation of the transactions
contemplated hereby.
6.9 SCHEDULES. SCHEDULE A hereto shall for all purposes form an
integral part of this Agreement.
6.10 ENTIRE AGREEMENT. This Agreement, including SCHEDULE A hereto,
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements, understandings, negotiations,
representations and warranties, and discussions, whether oral or written, among
the parties hereto, with respect to the subject matter hereof. There are no
conditions, covenants, agreements, representations, warranties or other
provisions, express or implied, collateral, statutory or otherwise, relating to
the subject matter of this Agreement. 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.
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6.11 TIME OF ESSENCE. Time shall be of the essence in this Agreement.
6.12 REMEDIES CUMULATIVE. Except as otherwise herein provided, the
rights and remedies provided herein shall be cumulative and not exclusive of any
rights or remedies provided by applicable law.
6.13 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other
parties.
6.14 EXECUTION. This Agreement may be executed by facsimile signatures
by any party and such signature shall be deemed binding for all purposes hereof,
without delivery of an original signature being thereafter required.
6.15 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a)
(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.
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(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 6.15(e) 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.
6.16 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.
6.17 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.
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
signed as of the date first above written.
DIEBOLD CORPORATION
By:_____________________________________
Xxxxxxx X. Xxxxxxx
Senior Vice President and
Chief Financial Officer
________________________________________
[Name of Shareholder]
Notice Address: ________________________
________________________
________________________
Facsimile No.: ________________________
________________________________________
[Name of Shareholder]
Notice Address: ________________________
________________________
________________________
Facsimile No.: ________________________
________________________________________
[Name of Shareholder]
Notice Address: ________________________
________________________
________________________
Facsimile No.: ________________________
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SCHEDULE A
NUMBER OF TARGET
SHAREHOLDER TARGET COMMON SHARES STOCK OPTIONS
____________ _________________ _________________
____________ _________________ _________________
____________ _________________ _________________
