[DIEBOLD LOGO]
EXHIBIT 10.3
RSU AGREEMENT
WHEREAS,_______________ (hereinafter called the "Grantee") is a key
associate of Diebold, Incorporated (hereinafter called the "Corporation")
or a Subsidiary;
WHEREAS, the execution of an RSU Agreement substantially in the form
hereof has been authorized by a resolution of the Compensation Committee
(the "Committee") of the Board of Directors of the Corporation (the
"Board") duly adopted on _____________, 20___;
NOW, THEREFORE, the Corporation hereby grants to the Grantee
effective as of ____________, 20___ (the "Date of Grant"), pursuant to the
Corporation's 1991 Equity and Performance Incentive Plan (As Amended and
Restated as of February 7, 2001), and as further amended by Amendments No.
1 and No. 2 (the "Plan"), _____________ Deferred Shares in the form of
Restricted Stock Units ("RSU's") subject to the terms and conditions of
the 1991 Plan and the terms and conditions described below.
1. Definitions.
As used in this Agreement:
(a) "Change in Control" shall be deemed to have occurred if
any of the following events shall occur:
(i) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 15% or more of either: (A) the
then-outstanding shares of common stock of the
Corporation (the "Corporation Common Stock") or (B) the
combined voting power of the then-outstanding voting
securities of the Corporation entitled to vote generally
in the election of directors ("Voting Stock"); provided,
however, that for purposes of this subsection (i), the
following acquisitions shall not constitute a Change in
Control: (1) any acquisition directly from the
Corporation, (2) any acquisition by the Corporation, (3)
any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or any
Subsidiary of the Corporation, or (4)
any acquisition by any Person pursuant to a transaction
which complies with clauses (A), (B) and (C) of
subsection (iii) of this Section 1(b); or
(ii) Individuals who, as of the date hereof, constitute
the Board cease for any reason (other than death or
disability) to constitute at least a majority of the
Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election,
or nomination for election by the Corporation's
shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent
Board (either by a specific vote or by approval of the
proxy statement of the Corporation in which such person
is named as a nominee for director, without objection to
such nomination) shall be considered as though such
individual were a member of the Incumbent Board, but
excluding for this purpose, any such individual whose
initial assumption of office occurs as a result of an
actual or threatened election contest (within the
meaning of Rule 14a-11 of the Exchange Act) with respect
to the election or removal of directors or other actual
or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board; or
(iii) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or
substantially all of the assets of the Corporation (a
"Business Combination"), in each case, unless, following
such Business Combination, (A) all or substantially all
of the individuals and entities who were the beneficial
owners, respectively, of the Corporation Common Stock
and Voting Stock immediately prior to such Business
Combination beneficially own, directly or indirectly,
more than 50% of, respectively, the then-outstanding
shares of common stock and the combined voting power of
the then-outstanding voting securities entitled to vote
generally in the election of directors, as the case may
be, of the entity resulting from such Business
Combination (including, without limitation, an entity
which as a result of such transaction owns the
Corporation or all or substantially all of the
Corporation's assets either directly or through one or
more subsidiaries) in substantially the same proportions
relative to each other as their ownership, immediately
prior to such Business Combination, of the Corporation
Common Stock and Voting Stock of the Corporation, as the
case may be, (B) no Person (excluding any entity
resulting from such Business Combination or any employee
benefit plan (or related trust) sponsored or maintained
by the Corporation or such entity resulting from such
Business
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Combination) beneficially owns, directly or indirectly,
15% or more of, respectively, the then-outstanding
shares of common stock of the entity resulting from such
Business Combination, or the combined voting power of
the then-outstanding voting securities of such
corporation except to the extent that such ownership
existed prior to the Business Combination and (C) at
least a majority of the members of the board of
directors of the corporation resulting from such
Business Combination were members of the Incumbent Board
at the time of the execution of the initial agreement,
or of the action of the Board providing for such
Business Combination; or
(iv) Approval by the shareholders of the Corporation of
a complete liquidation or dissolution of the
Corporation.
(b) "Deferral Period" means the period commencing
___________, 20___ and ending on _____________, 20___.
(c) Capitalized terms used herein without definition shall
have the meanings assigned to them in the 1991 Plan.
2. Payment of RSU's.
The RSU's granted hereby shall become payable to the Grantee
if they become nonforfeitable in accordance with Section 3, Section 4 or
Section 5 hereof.
3. Vesting of RSU's.
Subject to the terms and conditions of Sections 4, 5 and 6
hereof, the Grantee's right to receive Common Shares under this Agreement
shall become nonforfeitable at the end of the Deferral Period.
4. Effect of Change in Control.
In the event of a Change in Control prior to the end of the
Deferral Period, the RSU's granted hereby shall become nonforfeitable.
5. Effect of Death, Disability or Retirement.
If the Grantee's employment with the Corporation or one of its
Subsidiaries should terminate because of death, permanent total disability
or retirement under a retirement plan (including, without limitation, any
supplemental retirement plan) of the Corporation or a Subsidiary at or
after the earliest voluntary retirement age provided for in any such
retirement plan or should retire at an earlier age with the consent of the
Committee prior to the end of the Deferral Period, the RSU's granted
hereby shall become nonforfeitable.
6. Effect of Terminations of Employment; Detrimental Activity.
In the event that the Grantee's employment shall terminate in
a manner other than any specified in Section 5 hereof or if the Grantee
shall engage in any Detrimental Activity (as
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defined below), the Grantee shall forfeit any RSU's that have not become
nonforfeitable by such Grantee at the time of such termination; provided,
however, that the Board upon recommendation of the Committee may order
that any part or all of such RSU's become nonforfeitable.
7. Form and Time of Payment of RSU's.
Payment shall be made in the form of the Corporation's Common
Shares at the time they become nonforfeitable in accordance with Section
3, 4 or 5 hereof. To the extent that the Corporation is required to
withhold federal, state, local or foreign taxes in connection with the
delivery of Common Shares to the Grantee or any other person under this
Agreement, the number of Common Shares to be delivered to the Grantee or
such other person shall be reduced (based on the Market Value per Share as
of the date the RSU's become payable) to provide for the taxes required to
be withheld, with any fractional shares that would otherwise be delivered
being rounded up to the next nearest whole share. The Committee may, at
its discretion, adopt any alternative method of providing for taxes
required to be withheld.
8. Detrimental Activity.
If the Grantee, either during employment by the Corporation or
a Subsidiary or within one year after termination of such employment,
shall engage in any Detrimental Activity, and the Board shall so find, and
(except for any Detrimental Activity described in Section 8(d)(v)(B)) if
the Grantee shall not have ceased all Detrimental Activity within 30 days
after notice of such finding given within one year after commencement of
such Detrimental Activity, the Grantee shall:
(a) Return to the Corporation all Common Shares that the
Grantee has not disposed of that were paid out pursuant to
this Agreement within a period of one year prior to the date
of the commencement of such Detrimental Activity, and
(b) With respect to any Common Shares that the Grantee has
disposed of that were paid out pursuant to this Agreement
within a period of one year prior to the date of the
commencement of such Detrimental Activity, pay to the
Corporation in cash the value of such Common Shares on the
date such Common Shares were paid out.
(c) To the extent that the amounts referred to in Section
8(a) and (b) above are not paid to the Corporation, the
Corporation may set off the amounts so payable to it against
any amounts that may be owing from time to time by the
Corporation or a Subsidiary to the Grantee, whether as wages,
deferred compensation or vacation pay or in the form of any
other benefit or for any other reason.
(d) For purposes of this Agreement, the term "Detrimental
Activity" shall include:
(i) Engaging in any activity, as an employee,
principal, agent, or consultant for another entity, and
in a capacity, that directly competes with
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the Corporation or any Subsidiary in any actual product,
service or business activity (or in any product, service
or business activity which was under active development
while the Grantee was employed by the Corporation if
such development is being actively pursued by the
Corporation during the one-year period first referred to
in this Section 8) for which the Grantee has had any
direct responsibility and direct involvement during the
last two years of his or her employment with the
Corporation or a Subsidiary, in any territory in which
the Corporation or a Subsidiary manufactures, sells,
markets, services, or installs such product or service,
or engages in such business activity.
(ii) Soliciting any employee of the Corporation or a
Subsidiary to terminate his or her employment with the
Corporation or a Subsidiary.
(iii) The disclosure to anyone outside the Corporation
or a Subsidiary, or the use in other than the
Corporation or a Subsidiary's business, without prior
written authorization from the Corporation, of any
confidential, proprietary or trade secret information or
material relating to the business of the Corporation and
its Subsidiaries, acquired by the Grantee during his or
her employment with the Corporation or its Subsidiaries
or while acting as a consultant for the Corporation or
its Subsidiaries thereafter.
(iv) The failure or refusal to disclose promptly and to
assign to the Corporation upon request all right, title
and interest in any invention or idea, patentable or
not, made or conceived by the Grantee during employment
by the Corporation and any Subsidiary, relating in any
manner to the actual or anticipated business, research
or development work of the Corporation or any Subsidiary
or the failure or refusal to do anything reasonably
necessary to enable the Corporation or any Subsidiary to
secure a patent where appropriate in the United States
and in other countries.
(v) Activity that results in Termination for Cause.
For the purposes of this Section, "Termination for
Cause" shall mean a termination:
(A) due to the Grantee's willful and continuous
gross neglect of his or her duties for which he or
she is employed, or
(B) due to an act of dishonesty on the part of
the Grantee constituting a felony resulting or
intended to result, directly or indirectly, in his
or her gain for personal enrichment at the expense
of the Corporation or a Subsidiary.
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9. Payment of Dividend Equivalents.
During the Deferral Period, from and after the Date of Grant
and until the earlier of (a) the time when the RSU's become payable in
accordance with Section 3, Section 4 or Section 5 hereof or (b) the time
when the Grantee's right to receive Common Shares upon payment of RSU's is
forfeited in accordance with Section 6 hereof, the Company shall pay to
the Grantee, whenever a dividend is paid on Common Shares, an amount of
cash equal to the product of the per-share amount of the dividend paid
times the number of such RSU's.
10. RSU's Non-Transferable.
Neither the RSU's granted hereby nor any interest therein or
in the Common Shares related thereto shall be transferable other than by
will or the laws of descent and distribution prior to payment.
11. Dilution and Other Adjustments.
In the event of any change in the aggregate number of
outstanding Common Shares by reason of (a) any stock dividend, stock
split, combination of shares, recapitalization or other change in the
capital structure of the Corporation, or (b) any merger, consolidation,
spin-off, split-off, spin-out, split-up, reorganization, partial or
complete liquidation or other distribution of assets, issuance of rights
or warrants to purchase securities, or (c) any other corporate transaction
or event having an effect similar to any of the foregoing, then the
Committee shall adjust the number of RSU's then held by the Grantee in
such manner as to prevent the dilution or enlargement of the rights of the
Grantee that would otherwise result from such event. Furthermore, in the
event that any transaction or event described or referred to in the
immediately preceding sentence shall occur, the Committee may provide in
substitution of any or all of the Grantee's rights under this Agreement
such alternative consideration as the Committee may determine in good
faith to be equitable under the circumstances. Such adjustments made by
the Committee shall be conclusive and binding for all purposes of this
Agreement.
12. Employment Rights.
For purposes of this Agreement, the continuous employ of the
Grantee with the Corporation or a Subsidiary shall not be deemed
interrupted, and the Grantee shall not be deemed to have ceased to be an
associate of the Corporation or any Subsidiary, by reason of the transfer
of his or her employment among the Corporation and its Subsidiaries. This
RSU award is a voluntary, discretionary bonus being made on a one-time
basis and it does not constitute a commitment to make any future awards.
This RSU award and any payments made hereunder will not be considered
salary or other compensation for purposes of any severance pay or similar
allowance, except as otherwise required by law. Nothing in this Agreement
will give the Grantee any right to continue employment with the
Corporation or any Subsidiary, as the case may be, or interfere in any way
with the right of the Corporation or a Subsidiary to terminate the
employment of the Grantee.
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13. Data Privacy.
Information about the Grantee and the Grantee's participation
in the Plan may be collected, recorded, and held, used and disclosed for
any purpose related to the administration of the Plan. The Grantee
understands that such processing of this information may need to be
carried out by the Corporation and its Subsidiaries and by third party
administrators whether such persons are located within the Grantee's
country or elsewhere, including the United States of America. The Grantee
consents to the processing of information relating to the Grantee and the
Grantee's participation in the Plan in any one or more of the ways
referred to above.
14. Plan and Capitalized Terms.
This Agreement is subject to the terms and conditions of the
Plan. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Plan.
15. Amendments.
Any amendment to the Plan shall be deemed to be an amendment
to this Agreement to the extent that the amendment is applicable hereto;
provided, however, that no amendment shall adversely affect the rights of
the Grantee with respect to RSU's without the Grantee's consent.
16. Validity.
If any provision of this Agreement or the application of any
provision hereof to any person or circumstances is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and
the application of such provision in any other person or circumstances
shall not be affected, and the provisions so held to be invalid,
unenforceable or otherwise illegal shall be reformed to the extent (and
only to the extent) necessary to make it enforceable, valid and legal.
17. Governing Law.
This Agreement is made under, and shall be construed in
accordance with the internal substantive laws of the State of Ohio.
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The undersigned hereby acknowledges receipt of an executed original
of this RSU Agreement and accepts the RSU's granted thereunder on the
terms and conditions set forth herein in the Plan.
Date:_________________________ ______________________________
[Signature]
Executed in the name and on behalf of the Corporation at North
Canton, Ohio as of the ____ day of ___________, 20___.
DIEBOLD, INCORPORATED
Walden W. O'Dell
Chairman of the Board
and Chief Executive Officer
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