Diebold Nixdorf, Incorporated: Release according to Article 30e of the WpHG [the German Securities Trading Act] with the objective of Europe-wide distribution
SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): February 20, 2017
Diebold Nixdorf, Incorporated
(Exact name of registrant as specified in its charter)Ohio 1-4879 34-0183970 (State or other (Commission File (I.R.S. Employer jurisdiction of Number) Identification No.) incorporation) 5995 Mayfair Road, P.O. 44720-8077 Box 3077, North Canton, Ohio (Address of principal (Zip Code) executive offices)
Registrant's telephone number, including area code: (330) 490-4000
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 8.01 Other Events
On February 20, 2017, Diebold Holding Germany Inc. & Co. KGaA, a German partnership limited by shares ('Diebold KGaA') and a wholly-owned subsidiary of Diebold Nixdorf, Incorporated (the 'Company') published a settlement offer announcement (the 'Settlement Offer Announcement') with respect to the settlement offer for shares of Diebold Nixdorf AG (f/k/a Wincor Nixdorf AG). The settlement offer is being made pursuant to the domination and profit and loss transfer agreement (the 'Domination and Profit and Loss Transfer Agreement'), between Diebold KGaA and Diebold Nixdorf AG, dated September 26, 2016, which became effective on February 14, 2017. The effectiveness of the Domination and Profit and Loss Transfer Agreement has been previously disclosed in the Company's Current Report on Form 8-K filed February 17, 2017.
The exit compensation in the settlement offer of EUR55.02 per Diebold Nixdorf AG share plus interest will be paid to the accepting shareholders of Diebold Nixdorf AG in exchange for their Diebold Nixdorf AG shares. The acceptance period for the settlement offer ends on April 18, 2017, at 24:00 hours, midnight (Central European Summer Time). If appraisal proceedings pursuant to the German Appraisal Proceedings Act ( Spruchverfahrensgesetz ) are filed, the settlement offer can be accepted until two months after the date on which the decision on the last motion has been announced in the German Federal Gazette.
The Settlement Offer Announcement was published in accordance with German law in the German Federal Gazette ( Bundesanzeiger ) and on the Company's website at http://www.dieboldnixdorf.com . An English translation of the Settlement Offer Announcement is attached as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.
IMPORTANT INFORMATION FOR INVESTORS AND SHAREHOLDERS
The description of the Domination and Profit and Loss Transfer Agreement and the settlement offer in this document is not complete and qualified in its entirety by the Domination and Profit and Loss Transfer Agreement, an English translation of which was filed as Exhibit 10.1 to the Company's Current Report on Form 8-K filed September 29, 2016 (File No. 1?4879) and the Settlement Offer Announcement, an English translation of which is attached as Exhibit 99.1 to this Current Report on Form 8-K. This document does not constitute an offer or an invitation to participate in the settlement offer in any jurisdiction where it is unlawful to make such an offer or solicitation in such jurisdiction.
CAUTIONARY STATEMENTS CONCERNING FORWARD-LOOKING STATEMENTS
Certain statements contained in this communication 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 Diebold Nixdorf AG, the effectuation of personnel changes within the Diebold Nixdorf Group and the consummation of the domination and profit-and-loss transfer agreement. Such forward-looking statements are based on the current expectations of Diebold Nixdorf, Incorporated 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. 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, risks associated with appraisal proceedings in relation to the domination and profit-and-loss transfer agreement, the occurrence of any event, change or other circumstances that could give rise to the termination of the business combination agreement or the domination and profit-and-loss transfer agreement and risks associated with the impact the business combination agreement, the personnel changes 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. These risks, as well as other risks are more fully discussed in Diebold Nixdorf, Incorporated'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 Nixdorf, Incorporated nor Diebold Nixdorf AG undertakes any obligation to update or revise publicly any forward-looking statement, whether as a result of new information, future events or otherwise.
Item 9.01 Financial Statements and Exhibits.
99.1 Settlement Offer Announcement, dated February 20, 2017 (English translation).
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 Nixdorf, Incorporated February 21, 2017 By: /s/ Jonathan B. Leiken Name: Jonathan B. Leiken Title: Senior Vice President, Chief Legal Officer and Secretary
EXHIBIT INDEXExhibit Number Description 99.1 Settlement Offer Announcement, dated February 20, 2017 (English translation).
- Non-binding Convenience Translation -
Diebold Holding Germany Inc. & Co. KGaA Eschborn
to the Minority Shareholders of
Diebold Nixdorf Aktiengesellschaft Paderborn
- ISIN DE000A0CAYB2 / WKN A0C AYB -
On September 26, 2016 Diebold Holding Germany Inc. & Co. KGaA, Eschborn, ('Diebold KGaA ') as controlling company, and Diebold Nixdorf Aktiengesellschaft (formerly: Wincor Nixdorf Aktiengesellschaft), Paderborn (' Diebold Nixdorf AG '), as controlled company, entered into a domination and profit and loss transfer agreement pursuant to Section 291 para. 1 German Stock Corporation Act ( Aktiengesetz - AktG ) (' Agreement '). The Agreement was approved by the general meeting of shareholders of Diebold KGaA on September 26, 2016 and by the extraordinary general meeting of shareholders of Diebold Nixdorf AG on September 26, 2016. Following the registration of the Agreement with the commercial register (HRB 6846) at the Local Court ( Amtsgericht ) Paderborn on February 14, 2017, the Agreement became effective. The registration was published pursuant to Section 10 German Commercial Code ( Handelsgesetzbuch - HGB ) on February 14, 2017.
In the Agreement, Diebold KGaA agreed to acquire, upon request by any minority shareholder of Diebold Nixdorf AG, such shareholder's no-par value bearer shares of Diebold Nixdorf AG (ISIN DE000A0CAYB2), each representing a notional value of EUR 1.00 of the share capital of Diebold Nixdorf AG (each a ' Diebold Nixdorf Share ' and together the ' Diebold Nixdorf Shares '), in exchange for a cash compensation (' Exit Compensation ') in the amount of
EUR 55.02 per Diebold Nixdorf Share
Pursuant to Section 305 para. 3 sent. 3 German Stock Corporation Act, the Exit Compensation is to be paid with interest in the amount of five (5) percentage points above the base interest rate pursuant to Section 247 German Civil Code ( Bürgerliches Gesetzbuch - BGB ) from the expiration of the day on which the Agreement became effective, i.e. from February 15, 2017.
Minority shareholders of Diebold Nixdorf AG who do not accept the Settlement Offer remain shareholders of Diebold Nixdorf AG.
Diebold KGaA is obligated to pay to the minority shareholders of Diebold Nixdorf AG for the duration of the Agreement an annually recurring cash compensation payment (' Recurring Compensation ') as adequate compensation. The Recurring Compensation is EUR 3.13 gross for each full fiscal year of Diebold Nixdorf AG for each Diebold Nixdorf Share (' Gross Compensation Amount ') less any amount of corporate income tax ( Körperschaftsteuer ) and solidarity surcharge ( Solidaritätszuschlag ) at the prevailing rate 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 practice, based on the circumstances at the
time of the conclusion of the Agreement, this portion amounts to EUR 1.97 per Diebold Nixdorf Share. Based on the circumstances at the time of the conclusion of the Agreement, this results in a Recurring Compensation of EUR 2.82 for each Diebold Nixdorf Share for an entire fiscal year of Diebold Nixdorf AG. For the avoidance of doubt, it is agreed in the Agreement 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 law. The Recurring Compensation is due on the first banking day following the respective ordinary general shareholders' meeting of Diebold Nixdorf AG for the preceding fiscal year but in any event within eight (8) months following expiration of the respective fiscal year. The Recurring Compensation is first granted for the fiscal year of Diebold Nixdorf AG in which the Agreement becomes effective according to Section 7 para. 2 of the Agreement.
If the Agreement ends during a fiscal year of Diebold Nixdorf AG or if Diebold Nixdorf AG establishes a short fiscal year ( Rumpfgeschäftsjahr ) during the effectiveness of the Agreement, the Recurring Compensation is reduced pro rata temporis for the relevant fiscal year.
The amount of the Exit Compensation and Recurring Compensation was determined by the management of Diebold KGaA and the management board of Diebold Nixdorf AG on the basis of the expert opinion of PricewaterhouseCoopers Aktiengesellschaft, Wirtschaftsprüfungsgesellschaft, Frankfurt am Main. The adequacy of the Exit Compensation and the Recurring Compensation was verified and confirmed by the judicially appointed contract auditor ADKL AG Wirtschaftsprüfungs-gesellschaft, Düsseldorf.
Minority shareholders of Diebold Nixdorf AG who wish to accept the Settlement Offer are requested to instruct their custodian bank to effect the book transfer of their Diebold Nixdorf Shares for the purpose of receiving the Exit Compensation in the amount of EUR 55.02 per Diebold Nixdorf Share from now on to
Deutsche Bank AG, Frankfurt am Main,
acting as central settlement agent.
The obligation of Diebold KGaA to acquire Diebold Nixdorf Shares is for a limited time. The contractual acceptance period for the Settlement Offer ends two (2) months after the date on which the registration of this Agreement in the commercial register of Diebold Nixdorf AG has been announced pursuant to Section 10 of the German Commercial Code. Therefore, the acceptance period ends on April 18, 2017 at 24:00 hours (Central European Summer Time). If a motion to the competent court to determine the adequate Recurring Compensation or Exit Compensation pursuant to Section 2 of the German Appraisal Proceedings Act ( Spruchverfahrensgesetz - SpruchG ) is filed, the Settlement Offer can be accepted until two (2) months after the date on which the decision on the last motion has been announced in the Federal Gazette ( Bundesanzeiger ). It is sufficient that the declaration of acceptance of the Settlement Offer is received by the respective custodian bank during the acceptance period.
The Exit Compensation of EUR 55.02 per Diebold Nixdorf Share plus interest will be paid to the accepting shareholders of Diebold Nixdorf AG in exchange for their Diebold Nixdorf Shares. The transfer of Diebold Nixdorf Shares in exchange for the Exit Compensation is free of charge for minority shareholders of Diebold Nixdorf AG, provided that they have a domestic securities deposit account.
If appraisal proceedings are initiated pursuant to the German Appraisal Proceedings Act for the judicial determination of the adequate Exit Compensation and/or adequate Recurring Compensation, and the adjudicating court sets a legally binding higher Exit Compensation and/or Recurrent Compensation - as in each case contractually agreed - minority shareholders of Diebold Nixdorf AG who have already accepted the Settlement Offer will also be entitled to claim a corresponding increase of the Exit Compensation or Recurring Compensation, as the case may be, which they have previously received. The same applies if Diebold KGaA commits in a court settlement with any minority shareholder of Diebold Nixdorf AG to pay a higher Exit Compensation and/or Recurring Compensation to avoid or end appraisal proceedings under the German Appraisal Proceedings Act. In each case this applies regardless of whether the minority shareholder
of Diebold Nixdorf AG participated in any proceeding pursuant to the German Appraisal Proceedings Act.
Diebold Nixdorf, Incorporated, North Canton, Ohio, United States of America, and Diebold KGaA, reserve the right to purchase additional Diebold Nixdorf Shares outside of the Settlement Offer at any time, directly or indirectly, on or off a stock exchange. Additional purchases, if any, will comply with applicable laws and regulations, including, to the extent applicable, from the time of announcement of the Settlement Offer until its expiration, the U.S. Securities Exchange Act of 1934 and the rules and regulations promulgated by the SEC thereunder. If such additional purchases of Diebold Nixdorf Shares take place or agreements awarding a claim to the transfer of Diebold Nixdorf Shares are entered into prior to March 30, 2017, this will be published by Diebold Nixdorf, Incorporated without undue delay in accordance with applicable law, including Sections 14 para. 3, 23 para. 2 of the German Takeover Act ( Wertpapiererwerbs- und Übernahmegesetz - WpÜG ), on the website of Diebold Nixdorf, Incorporated at http:// www.dieboldnixdorf.com under Company/Investor Relations, in the German Federal Gazette ( Bundesanzeiger ) and by way of an English language press release via an electronically operated information distribution system in the United States, stating the number of shares and/or voting rights so acquired or agreed to acquire, and the nature and amount of consideration paid or agreed to be paid for each share and/or voting right. The obligation to publically disclose information regarding additional purchases pursuant to Sections 14 para. 3, 23 para. 2 of the German Takeover Act exists only for purchases or acquisition agreements respectively which will have taken place or will be closed until March 29, 2017, 24:00 hours (Central European Summer Time).
The Agreement, the joint contract report of the management board of Diebold Nixdorf AG and the management of Diebold KGaA pursuant to Sec. 293a German Stock Corporation Act of August 16, 2016, relating to the Agreement, as well as further information on the Agreement and the Settlement Offer are available at http://www.dieboldnixdorf.com under Company/Investor Relations.Eschborn, February 2017 Diebold Holding Germany Inc. & Co. KGaA The management
21.02.2017 The DGAP Distribution Services include Regulatory Announcements, Financial/Corporate News and Press Releases. Archive at www.dgap.deLanguage: English
Company: Diebold Nixdorf, Incorporated 5995 Mayfair Road 44720 North Canton, OH
United States Internet: www.diebold.com End of News DGAP News Service