Diebold, Inc. / Third country release according to Article 30e Para. 1, No. 3
of the WpHG [the German Securities Trading Act]
29.09.2016 03:50
Dissemination of a Post-admission Duties announcement according to Article 30e
Para. 1 No. 3 WpHG, transmitted by
DGAP - a service of EQS Group AG.
The issuer is solely responsible for the content of this announcement.
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 26, 2016
Diebold, Incorporated
(Exact name of registrant as specified in its charter)
<pre>
Ohio 1-4879 34-0183970
(State or other (Commission (IRS Employer
jurisdiction File Number) Identification No.)
of incorporation)
</pre>
<pre>
5995 Mayfair Road, P.O. Box 3077, 44720-8077
North Canton, Ohio
(Address of principal executive offices) (Zip Code)
</pre>
Registrant's telephone number, including area code: (330) 490-4000
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of
the following provisions:
Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR
240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
On September 26, 2016, Diebold Holding Germany Inc. & Co. KGaA, a German
partnership limited by shares ('Diebold KGaA') and a wholly-owned
subsidiary of Diebold, Incorporated ('Diebold' or the 'Company') entered
into a domination and profit and loss transfer agreement (the 'Domination
and Profit and Loss Transfer Agreement'), as the controlling company, with
Wincor Nixdorf Aktiengesellschaft, a German public stock corporation
('Wincor Nixdorf'), as the controlled company. Effectiveness of the
Domination and Profit and Loss Transfer Agreement remains subject to
registration with the commercial register (Handelsregister) of the local
court (Amtsgericht) at the registered offices of Wincor Nixdorf. While the
Company plans to apply for registration of the Domination and Profit and
Loss Transfer Agreement without undue delay (but no earlier than October 1,
2016), registration may be delayed considerably pending potential
shareholder litigation, if any, in Germany.
As previously disclosed, the board of directors of Diebold and the
management and supervisory boards of Wincor Nixdorf approved the Domination
and Profit and Loss Transfer Agreement on August 16, 2016. Under the
Domination and Profit and Loss Transfer Agreement, when effective and
subject to certain limitations pursuant to applicable law, (i) Diebold KGaA
will be entitled to issue binding instructions to the management board of
Wincor Nixdorf, (ii) Wincor Nixdorf will transfer all of its annual profits
to Diebold KGaA, subject to, among other things, the creation or
dissolution of certain reserves, and (iii) Diebold KGaA will generally
absorb all annual losses incurred by Wincor Nixdorf. In addition, when
effective and subject to certain limitations pursuant to applicable law,
the Domination and Profit and Loss Transfer Agreement will provide that
Wincor Nixdorf shareholders be offered, at their election, (i) to put their
Wincor Nixdorf shares to Diebold KGaA in exchange for a compensation in
cash of EUR55.02 per Wincor Nixdorf Share, and (ii) to remain Wincor
Nixdorf shareholders and receive a recurring compensation in cash of
EUR3.13 (EUR2.82 net under the current taxation regime) for each full
fiscal year of Wincor Nixdorf and for each Wincor Nixdorf Share (based on
the risk-free rate of 0.5%, which takes into account the current interest
rates as well as interest structure data published by the German Federal
Bank (Deutsche Bundesbank)).
The foregoing description of the Domination and Profit and Loss Transfer
Agreement does not purport to be complete and is qualified in its entirety
by reference to the Domination and Profit and Loss Transfer Agreement, an
English translation of which is attached as Exhibit 10.1 to this Current
Report on Form 8-K.
Item 8.01 Other Events.
At an extraordinary general meeting of shareholders on September 26, 2016,
the shareholders of Wincor Nixdorf approved the Domination and Profit and
Loss Transfer Agreement.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. The following exhibits are filed with this report:
10.1 Domination and Profit and Loss Transfer Agreement, dated September 26,
2016, by and among Diebold Holding Germany Inc. & Co. KGaA and Wincor
Nixdorf AG (English translation).
CAUTIONARY STATEMENT ABOUT FORWARD LOOKING STATEMENTS
Certain statements contained in this document regarding matters that are
not historical facts are forward-looking statements (as defined in the
Private Securities Litigation Reform Act of 1995). These include statements
regarding management's intentions, plans, beliefs, expectations or
forecasts for the future including, without limitation, the business
combination with Wincor Nixdorf, the entry into and consummation of the
Domination and Profit and Loss Transfer Agreement and related transactions.
Such forward-looking statements are based on the current expectations of
Diebold and involve risks and uncertainties because such statements relate
to events and depend on circumstances that may or may not occur in the
future; consequently, actual results may differ materially from those
expressed or implied in the statements. Such forward-looking statements may
include statements about the effects of transactions on the businesses and
financial conditions of Diebold or Wincor Nixdorf, including synergies, pro
forma revenue, targeted operating margin, net debt to EBITDA ratios,
accretion to earnings and other financial or operating measures. By their
nature, forward-looking statements involve risks and uncertainties because
they relate to events and depend on circumstances that may or may not occur
in the future. Forward-looking statements are not guarantees of future
performance. In addition, risks and uncertainties related to the Domination
and Profit and Loss Transfer Agreement include, but are not limited to, the
risk that its effectiveness be delayed as a result of litigation or
otherwise or may not occur, and risks associated with any appraisal
proceedings. Risks and uncertainties may also include, but are not limited
to, the occurrence of any event, change or other circumstances that could
give rise to the termination of the Domination and Profit and Loss Transfer
Agreement, the timing, receipt and terms and conditions of any governmental
and regulatory approvals relating to the business combination with Wincor
Nixdorf that could reduce anticipated benefits of the business combination,
and risks associated with the impact the business combination and the
Domination and Profit and Loss Transfer Agreement and any related
litigation may have on the business and operations of the combined company,
including on the ability of the combined company to retain and hire key
personnel, and maintain relationships with its suppliers and customers.
These risks, as well as other risks are more fully discussed in Diebold's
reports filed with the SEC and available at the SEC's website at
www.sec.gov. Any forward-looking statements speak only as at the date of
this document. Except as required by applicable law, neither Diebold nor
Wincor Nixdorf undertakes any obligation to update or revise publicly any
forward-looking statement, whether as a result of new information, future
events or otherwise.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Diebold, Incorporated
Date: September 28, 2016
By: [/s/ Jonathan B. Leiken]
Name: Jonathan B. Leiken
Title: Senior Vice President, Chief Legal Officer and Secretary
EXHIBIT INDEX
Exhibit Number Description
10.1 Domination and Profit and Loss
Transfer Agreement, dated September
26, 2016, by and among Diebold Holding
Germany Inc. & Co. KGaA and Wincor
Nixdorf AG (English translation).
Exhibit 10.1
Domination and Profit-and-Loss Transfer Agreement
between
Diebold Holding Germany Inc. & Co. KGaA, Mergenthalerallee 10-12, 65760
Eschborn, Germany, registered in the commercial register (Handelsregister)
at the Local Court (Amtsgericht) Frankfurt am Main (HRB 104287)
- 'Diebold KGaA' -
and
Wincor Nixdorf Aktiengesellschaft, Heinz-Nixdorf-Ring 1,
33106 Paderborn, Germany, registered in the commercial register
(Handelsregister) at the Local Court (Amtsgericht) Paderborn (HRB 6846)
- 'Wincor Nixdorf AG' -
§ 1 Managerial Control
(1) Wincor Nixdorf AG submits the managerial control (Leitung) of its
company to Diebold KGaA. Diebold KGaA is accordingly entitled to issue
instructions (Weisungen) to the management board of Wincor Nixdorf AG with
regard to the managerial control of the company, generally and with regard
to individual cases. Diebold KGaA is not entitled to issue the instruction
to the management board of Wincor Nixdorf AG to amend, maintain or
terminate this agreement.
(2) The management board of Wincor Nixdorf AG is required to comply with
the instructions of Diebold KGaA as specified in Article 1 para. 1 and in
accordance with Section 308 of the German Stock Corporation Act
(Aktiengesetz - 'AktG').
(3) Any instructions require text form (Textform) or, if the instructions
are issued orally, they shall be confirmed in text form without undue
delay.
§ 2 Transfer of Profit
(1) Wincor Nixdorf AG undertakes to transfer its entire annual profit
(Gewinnabführung) to Diebold KGaA. Subject to establishing or dissolving
reserves in accordance with Article 2 para. 2 of this agreement below, the
maximum amount permissible under Section 301 AktG, as amended from time to
time, shall be transferred.
(2) Wincor Nixdorf AG may, with consent of Diebold KGaA, allocate parts of
its annual profit to other profit reserves if and to the extent permissible
under commercial law and as economically justified by reasonable commercial
judgement. If amounts are allocated to other profit reserves during the
course of this agreement, these amounts may be withdrawn from the other
profit reserves upon request of Diebold KGaA in text form and transferred
as profit. Other reserves or profits carried forward from the period prior
to the term of this agreement may neither be transferred as profit nor be
used to compensate for any annual deficit.
(3) The obligation to transfer the annual profit applies for the first time
to the entire profits generated in the fiscal year of Wincor Nixdorf AG in
which this agreement becomes effective according to Article 7 para. 2 of
this agreement, and is in each case due upon approval of the respective
annual financial statement of Wincor Nixdorf AG.
§ 3 Assumption of Losses
(1) Diebold KGaA is obliged towards Wincor Nixdorf AG to assume any losses
(Verlustübernahme) in accordance with the provisions of Section 302 AktG in
their entirety as amended from time to time.
(2) The obligation to assume any losses applies for the first time to the
entire fiscal year of Wincor Nixdorf AG in which this agreement becomes
effective according to Article 7 para. 2 of this agreement, and is in each
case due at the end of the respective fiscal year of Wincor Nixdorf AG.
(3) In the event that this agreement is ended during a fiscal year, and
specifically in the event of termination for cause (wichtiger Grund),
Diebold KGaA is required to assume the deficit by Wincor Nixdorf AG, as
shown in the balance sheet to be drawn up for the date of effectiveness of
the termination.
§ 4 Compensation
(1) Diebold KGaA guarantees that it will pay to outside shareholders of
Wincor Nixdorf AG as adequate compensation a recurring cash compensation
('Recurring Compensation Payment' or 'Recurring Compensation')
(Ausgleichszahlung or Ausgleich) for the term of this agreement.
(2) The Recurring Compensation Payment amounts for each full fiscal year of
Wincor Nixdorf AG for each no-par value bearer share in Wincor Nixdorf AG
(Aktien ohne Nennbetrag), each with a notional value of EUR1.00, (each a
'Wincor Nixdorf Share' and when taken together the 'Wincor Nixdorf Shares')
to EUR3.13 gross ('Gross Compensation Amount') less any amount of corporate
income tax (Körperschaftsteuer) and solidarity surcharge
(Solidaritätszuschlag) at the prevailing rate of these taxes for the
relevant fiscal year ('Net Compensation Amount'), whereby this deduction is
to be effected only on any portion of the Gross Compensation Amount from
profits which are subject to German corporate income tax. When rounded to a
full cent-amount in accordance with commercial practices, this portion
amounts to EUR1.97 per Wincor Nixdorf Share. Based on the circumstances at
the time of the conclusion of this agreement, this results in a Recurring
Compensation of EUR2.82 for each Wincor Nixdorf Share for an entire fiscal
year of Wincor Nixdorf AG. For the avoidance of doubt, it is agreed that
any withholding tax (such as capital gains tax plus solidarity surcharge
thereon) shall be withheld from the Net Compensation Amount to the extent
required by statute. The Recurring Compensation Payment is due on the first
banking day following the ordinary general shareholders' meeting of Wincor
Nixdorf AG for the respective preceding fiscal year but in any event within
eight months following expiration of this fiscal year.
(3) The Recurring Compensation Payment is first granted for the fiscal year
of Wincor Nixdorf AG in which this agreement becomes effective according to
Article 7 para. 2.
(4) If this agreement ends during a fiscal year of Wincor Nixdorf AG or if
Wincor Nixdorf AG establishes a short fiscal year (Rumpfgeschäftsjahr)
during the effectiveness of this agreement, the Recurring Compensation is
reduced to pro rata temporis for the relevant fiscal year.
(5) If the share capital of Wincor Nixdorf AG is increased from the
company's own funds in exchange for the issuance of new shares, the Gross
Compensation Amount per Wincor Nixdorf Share changes to such an extent that
the total amount of the Gross Compensation Amount remains unchanged. If the
share capital is increased by cash contributions and/or by contributions in
kind, the rights under this Article 4 also apply for the shares subscribed
to by outside shareholders for such capital increase. The beginning of each
entitlement of new shares pursuant to this Article 4 follows the dividend
entitlement set by Wincor Nixdorf AG when issuing new shares.
(6) If appraisal proceedings are initiated pursuant to the German Act on
Appraisal Proceedings (Spruchverfahrensgesetz - 'SpruchG') and the
adjudicating court sets a legally binding higher Recurring Compensation
Payment, the shareholders, even if they have already been compensated in
accordance with Article 5, are entitled to demand a corresponding payment
in addition to already received Recurring Compensation Payment. Likewise,
all other outside shareholders will be treated in the same way if Diebold
KGaA commits to a higher Recurring Compensation vis-à-vis an outside
shareholder of Wincor Nixdorf AG in a court settlement to avoid or end
appraisal proceedings.
§ 5 Exit Compensation
(1) Diebold KGaA undertakes upon demand of any outside shareholder of
Wincor Nixdorf AG to purchase such shareholder's Wincor Nixdorf Shares in
exchange for a cash compensation ('Exit Compensation') (Abfindung) in the
amount of EUR55.02 for each Wincor Nixdorf Share.
(2) The obligation of Diebold KGaA to acquire Wincor Nixdorf Shares is for
a limited time. The time limitation period ends two months after the date
on which the entry of the existence of this agreement in the commercial
register at the registered seat of Wincor Nixdorf AG has been announced
pursuant to Section 10 of the German Commercial Code (Handelsgesetzbuch -
HGB). An extension of the time limitation period pursuant to Section 305
para. 4 sentence 3 AktG as a result of a motion for determination of the
adequate Recurring Compensation or Exit Compensation by a court pursuant to
Section 2 SpruchG remains unaffected; in this event, the time limitation
period ends two months after the date on which the decision on the last
motion ruled on has been announced in the Federal Gazette (Bundesanzeiger).
(3) If the share capital of Wincor Nixdorf AG is increased from the
company's own funds in exchange for the issuance of new shares prior to the
expiration of the time limitation period set forth in Article 5 para. 2 of
this agreement, the Exit Compensation for each Wincor Nixdorf Share is
reduced to such an extent that the total amount of the Exit Compensation
remains unchanged. If the share capital of Wincor Nixdorf AG is increased
prior to expiration of the time limitation period set forth in Article 5
para. 2 of this agreement by means of cash contributions and/or
contributions in kind, the rights under this Article 5 also apply for the
shares subscribed to by outside shareholders in such capital increase.
(4) If proceedings are initiated pursuant to Section 1 number 1 SpruchG and
the court adjudicates a higher Exit Compensation, shareholders who have
already received Exit Compensation can also require a corresponding
supplement to the Exit Compensation already received. Similarly, all other
outside shareholders of Wincor Nixdorf AG will be treated in the same way
if Diebold KGaA commits to a higher Exit Compensation vis-à-vis a
shareholder of Wincor Nixdorf AG in a settlement to avoid or end
proceedings pursuant to Section 1 number 1 SpruchG.
(5) The transfer of Wincor Nixdorf Shares in exchange for Exit Compensation
is without charge to outside shareholders of Wincor Nixdorf AG, provided
that they have a domestic securities deposit account.
§ 6 Right to Information
Diebold KGaA is entitled to inspect the books and records of Wincor Nixdorf
AG at any time. The management board of Wincor Nixdorf AG is required to
supply Diebold KGaA at any time with all requested information on all
matters relating to Wincor Nixdorf AG. Notwithstanding the rights agreed to
above, Wincor Nixdorf AG is required to keep Diebold KGaA continuously
informed on the business development, and, specifically, on material
transactions.
§ 7 Effectiveness and Term of this Agreement
(1) This agreement requires for its effectiveness the consent of the
general shareholders' meeting of Wincor Nixdorf AG and the general
shareholders' meeting of Diebold KGaA as well as the consent of Diebold,
Incorporated as general partner (persönlich haftende Gesellschafterin) of
Diebold KGaA.
(2) This agreement becomes effective upon registration of its existence in
the commercial register at the registered seat of Wincor Nixdorf AG.
(3) This agreement is concluded for an indefinite period of time. It can be
terminated with a notice period of six months prior to the end of the
fiscal year of Wincor Nixdorf AG. Subject to the provisions in Article 7
para. 4, this agreement can be ordinarily terminated for the first time as
of the end of the fiscal year of Wincor Nixdorf AG that ends at least five
years (Zeitjahre) (60 months) after the beginning of the fiscal year in
which this agreement becomes effective.
(4) Each party can terminate this agreement for cause (wichtiger Grund)
without compliance with any notice period. Cause exists in particular if
Diebold KGaA disposes of or contributes (Einbringung) its participation in
Wincor Nixdorf AG, or in case of a merger (Verschmelzung), spin-off
(Spaltung) or liquidation of Diebold KGaA or Wincor Nixdorf AG.
(5) In the event of termination for cause (wichtiger Grund) without notice,
this agreement lapses at the end of the date stated in the notice of
termination provided that this is no earlier than the day on which notice
of termination is served.
(6) If the agreement ends, Diebold KGaA must furnish security to the
creditors of Wincor Nixdorf AG pursuant to Section 303 AktG.
(7) Any notice of termination must be in writing.
§ 8 Guarantee
Diebold, Incorporated with its seat in North Canton, Ohio, USA ('Diebold
Inc.') directly holds 100% of the limited partnership shares and therewith
all shares in Diebold KGaA. Diebold Inc., in its capacity as personally
liable partner (persönlich haftende Gesellschafterin) of Diebold KGaA, is
not required to deposit contributions to Diebold KGaA. Diebold Inc. in its
capacity as direct shareholder, has, without joining the agreement as a
party, provided the guarantee attached for information purposes to this
agreement as an annex. This guarantee is not part of this agreement. In
this guarantee Diebold Inc. undertakes, without limitation and irrevocably,
to ensure that Diebold KGaA will be financially equipped in a way that
Diebold KGaA is at all times able to fulfil all its obligations arising
from or in connection with this agreement completely and in time. This
applies in particular to the obligation to assume losses pursuant to
Section 302 AktG as amended. The contractual obligation assumed by Diebold
Inc. pursuant to the two preceding sentences will only result in a payment
obligation when and to the extent it is specifically foreseeable that
Diebold KGaA will not be able to fully meet its obligations under or in
connection with the Agreement when due. According to this guarantee,
Diebold Inc. also undertakes towards the outside shareholders of Wincor
Nixdorf AG irrevocably and in principle without limitation that Diebold
KGaA fulfils all its obligations towards them arising from or in connection
with this agreement completely and in time, in particular with respect to
the payment of a Recurring Compensation Payment and the Exit Compensation.
To that extent, the outside shareholders of Wincor Nixdorf AG have an own
claim according to Section 328 para. 1 of the German Civil Code
(Bürgerliches Gesetzbuch - 'BGB') directed at payment to Diebold KGaA under
the guarantee. The liability of Diebold Inc. pursuant to the two
aforementioned sentences under the guarantee shall only apply to the extent
that Diebold KGaA does not fulfil its obligations towards the outside
shareholders of Wincor Nixdorf AG arising from or in connection with this
agreement completely and in time and Diebold Inc. does not comply with the
obligation to equip Diebold KGaA described above.
§ 9 Miscellaneous
(1) To the extent a provision of this agreement is or becomes invalid or
impracticable in full or in part, or if this agreement does not contain a
necessary provision, the validity of the remaining provisions of this
agreement shall not be affected. In place of the invalid or impracticable
provision, or in order to remedy an omission in this agreement, an
appropriate provision shall apply which corresponds as far as legally
permissible to what the parties intended or would have intended in
accordance with the intent and purpose of this agreement if they had been
aware of the provision. Furthermore, when interpreting this agreement, the
income tax provisions for recognition of a fiscal unity, especially
Sections 14 to 19 of the German Corporate Income Tax Act
(Körperschaftsteuergesetz) as amended shall be taken into account.
(2) The parties explicitly declare that the present agreement is not
intended to form a legal unity (Section 139 BGB) with the guarantee
attached to this agreement as annex for information purposes only and other
legal transactions or agreements effected or concluded between the parties
or between Wincor Nixdorf AG and Diebold Inc. in the past or which may be
effected or concluded between the parties or Wincor Nixdorf AG and Diebold
Inc. in the future.
(3) Amendments and supplements to this agreement must be in writing to be
effective. This specifically also applies to this clause requiring written
form. The provisions of Section 295 AktG apply.
(4) As far as legally permissible, Paderborn is the place of performance
for reciprocal obligations and the exclusive legal venue.
BY MUTUAL CONSENT TO THE DOMINATION AND PROFIT-AND-LOSS TRANSFER AGREEMENT:
On behalf of Diebold Holding Germany Inc. & Co. KGaA
Place: Paderborn
Date: September 26, 2016
signed
Christopher A. Chapman
as Chief Financial Officer (CFO) of Diebold, Incorporated in its capacity
as General Partner of Diebold Holding Germany Inc. & Co. KGaA
BY MUTUAL CONSENT TO THE DOMINATION AND PROFIT-AND-LOSS TRANSFER AGREEMENT:
On behalf of Wincor Nixdorf Aktiengesellschaft:
Place: Paderborn
Date: September 26, 2016
signed
Eckard Heidloff signed
Dr. Jürgen Wunram
President and Chief Executive Officer (CEO) of Wincor Nixdorf
Aktiengesellschaft Member of the Management Board and Deputy Chief
Executive Officer (CEO) of Wincor Nixdorf Aktiengesellschaft
signed
Olaf Heyden signed
Dr. Ulrich Näher
Member of the Management Board of Wincor Nixdorf Aktiengesellschaft Member
of the Management Board of Wincor Nixdorf Aktiengesellschaft
Annex: Guarantee by Diebold, Incorporated
North Canton, August 16, 2016
Wincor Nixdorf Aktiengesellschaft
Heinz-Nixdorf-Ring 1
33106 Paderborn
Germany
Guarantee (Patronatserklärung)
Diebold Holding Germany Inc. & Co. KGaA, Mergenthalerallee 10-12, 65760
Eschborn, Germany, registered in the commercial register (Handelsregister)
at the Local Court (Amtsgericht) Frankfurt am Main under company number HRB
104287 ('Diebold KGaA'), intends to enter into a domination and
profit-and-loss transfer agreement ('Agreement') (Beherrschungs- und
Gewinnabführungsvertrag) with Wincor Nixdorf Aktiengesellschaft,
Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany, registered in the
commercial register at the Local Court Paderborn under company number HRB
6846 ('Wincor Nixdorf'), with Wincor Nixdorf as the controlled and profit
transferring company. Diebold, Incorporated, a stock corporation
incorporated and operating under the laws of Ohio, USA, with its registered
office in North Canton, Ohio, USA ('Diebold Inc.'), directly holds 100% of
the limited partnership shares and therewith all shares in Diebold KGaA.
Diebold Inc. in its capacity as general partner (persönlich haftende
Gesellschafterin) of Diebold KGaA, is not required to deposit contributions
to Diebold KGaA. Diebold Inc. hereby makes the following declarations
without joining the Agreement as a party:
1. Diebold Inc. irrevocably undertakes without limitation to procure that
Diebold KGaA will have sufficient financial means which enable Diebold KGaA
at any time to meet all of its obligations arising from or in connection
with the Agreement in full when they become due. This applies in particular
to the obligation to assume losses pursuant to Section 302 of the German
Stock Corporation Act (Aktiengesetz - AktG) as amended. The contractual
obligation assumed by Diebold Inc. pursuant to the two preceding sentences
will only result in a payment obligation when and to the extent it is
specifically foreseeable that Diebold KGaA will not be able to fully meet
its obligations under or in connection with the Agreement when due.
2. Diebold Inc. irrevocably guarantees without limitation vis-à-vis the
outside shareholders of Wincor Nixdorf that Diebold KGaA will fulfill all
its obligations towards them arising from or in connection with the
Agreement in full when they become due, in particular with respect to a
recurring compensation payment (Ausgleichszahlung) and the cash exit
compensation (Abfindung). To this extent, outside shareholders of Wincor
Nixdorf have an own right pursuant to Section 328 para. 1 of the German
Civil Code (Bürgerliches Gesetzbuch - BGB) to demand payment to Diebold
KGaA. The liability of Diebold Inc. pursuant to the two preceding sentences
does, however, only apply to the extent Diebold KGaA does not fulfil its
obligations toward the outside shareholders of Wincor Nixdorf arising from
or in connection with the Agreement in full when they become due and to the
extent Diebold Inc. does not comply with its obligation to procure Diebold
KGaA with sufficient financial means pursuant to Section 1 of this
Guarantee.
3. This Guarantee is subject to the laws of the Federal Republic of
Germany. To the extent legally possible, Diebold Inc. hereby subjects
itself with regard to any disputes and claims under or in connection with
this Guarantee to the jurisdiction of German courts with the courts of
Paderborn having regional jurisdiction. In this context, Diebold Inc.
acknowledges the enforceability of legally binding (rechtskräftig)
decisions of German courts. Diebold KGaA, Att. the Management,
Mergenthalerallee 10-12, 65760 Eschborn, Germany shall be the agent for
services of process (Zustellungsbevollmächtigte) in Germany for all
proceedings under or in connection with this Guarantee.
SIGNATURE PAGE TO THE GUARANTEE (PATRONATSERKLÄRUNG):
On behalf of Diebold, Incorporated:
Place: North Canton, Ohio
Date: August 16, 2016
signed
Christopher A. Chapman
as Chief Financial Officer (CFO) of Diebold, Incorporated
29.09.2016 The DGAP Distribution Services include Regulatory Announcements,
Financial/Corporate News and Press Releases.
Archive at www.dgap.de
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Language: English
Company: Diebold, Inc.
5995 Mayfair Road
44720 North Canton, OH
United States
Internet: www.diebold.com
End of Announcement DGAP News-Service
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DGAP-CMS: Diebold, Inc.: Release according to Article 30e of the WpHG [the German Securities Trading Act] with the objective of Europe-wide distribution
| Source: EQS Group AG