EX-10.1






Exhibit 10.1




SEPARATION AGREEMENT




THIS SEPARATION AGREEMENT (this “Agreement”), is made, entered into and effective as of
September 20, 2005 (the “Transition Date”), by and between DIEBOLD INCORPORATED (the “Company”),
located at 5995 Mayfair Road, North Canton, Ohio 44720 and ERIC C. EVANS (“Evans”), residing at
7488 Valley View Road, Hudson, Ohio 44236.



WITNESSETH:




WHEREAS, prior to the Transition Date, Evans was the President and Chief Operating Officer of
the Company;



WHEREAS, Evans and the Company are parties to that certain letter agreement (the “Letter
Agreement”) dated January 6, 2004 and signed by Evans on January 13, 2004, and also to that certain
conditions of employment (“Conditions Agreement”) signed by Evans on January 28, 2004, and this
Agreement is intended to supersede and replace in every respect both the Letter Agreement and the
Conditions Agreement;



WHEREAS, subject to the terms of this Agreement, Evans and the Company have mutually
determined that, effective on the Transition Date, Evans shall resign from any and all offices of
the Company, and any other position, office or directorship of any other entity for which Evans was
serving at the request of the Company, and, in addition, that his employment with the Company shall
cease on January 26, 2006 (the “Separation Date”), and thereafter shall begin a severance period;



WHEREAS, the Company accepts Evans’ resignations as of the dates referenced above;



WHEREAS, the Company and Evans desire to set forth the payments and benefits that Evans will
be entitled to receive from the Company in connection with the cessation of his employment with the
Company; and



WHEREAS, the Company and Evans wish to resolve, settle and/or compromise certain matters,
claims and issues between them, including, without limitation, those relating to Evans’ resignation
from the offices he held and from cessation of his employment with the Company.



NOW, THEREFORE, in consideration of the promises and agreements contained herein and other
good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and
intending to be legally bound, the Company and Evans hereby agree as follows:



1. Resignation: Evans hereby resigns, effective on the Transition Date, his positions
as President and Chief Operating Officer of the Company and as a member of the Company‘s
Board of Directors. Evans further resigns, effective on the Transition Date: (a) from all other
offices of the Company to which he has been elected by the Board of Directors of the Company (or to
which he has otherwise been appointed); (b) from all offices of any entity that is a subsidiary of,
or is otherwise related to or affiliated with, the Company; (c) from all administrative, fiduciary
or other positions he may hold with respect to arrangements or plans for, of, or relating to the
Company; and (d) from any other directorship, office, or position of any corporation, partnership,
joint venture, trust or other enterprise (each an “Other Entity”) insofar as Evans is serving in
the directorship, office, or position of the Other Entity at the request of the Company. Evans
further agrees that effective as of the Separation Date, his employment with the Company, and its
subsidiaries and related or affiliated companies shall cease. The Company hereby consents to and
accepts said resignations and cessation.



2. Additional Compensation and Benefits: In consideration of the promises made by
Evans in this Agreement and subject to the conditions hereof, the Company agrees to the following:



a) Continued Salary and Severance Payment: For the time period (the “Transition
Period”) beginning on the Transition Date and ending on the Separation Date,  Evans shall
be paid his regular salary in semi-monthly payments (i.e. $19,500 semi-monthly gross pay), via
direct deposit account, subject to normal payroll deductions. The payment of these amounts during
the Transition Period shall be deemed to include any vacation pay otherwise due Evans. During the
Transition Period, Evans shall provide, upon reasonable notice, reasonable cooperation and
assistance in the transition of his duties to other Company personnel. For a time period (the
“Severance Period") beginning on the Separation Date and ending two (2) years after the
Separation Date, Evans shall continue to be paid as severance his current semi-monthly base salary
(i.e., $19,500 semi-monthly gross pay) in accordance with the Company’s usual payroll practices and
subject to normal payroll deductions.



b) Deferred Compensation: Any amounts held for and on behalf of Evans under the
Amended and Restated 1992 Deferred Incentive Compensation Plan for Diebold



Incorporated shall he distributed according to the terms and conditions of said Plan and shall be
based on the termination of his employment as of the Separation Date. Any amounts paid hereunder
shall be subject to applicable payroll tax deductions.



c) Annual Bonus: Evans shall not be eligible to receive any bonus for 2005 and shall
not be eligible for annual bonus participation after the 2005 bonus period.



d) Long Term Executive Incentive Plan: Evans shall be eligible to receive additional
compensation under the Company’s Long Term Executive Incentive Plan (“LTIP”) as follows: he shall
remain eligible to receive that amount that would be payable to him for the Performance Period
2003-2005 under the Performance Share Agreement for such Performance Period as if he was employed
by the Company throughout the balance of the Performance Period (as defined in such Performance
Share Agreement) and through the payment of the award. Any amounts paid hereunder shall be subject
to applicable payroll tax deductions. Evans shall not be eligible for any LTIP payments for any
subsequent periods.



e) Stock Options: Evans shall not be eligible for any additional grants of stock
options after the Transition Date. Evans’ rights with respect to stock options granted to him prior
to the Transition Date under certain nonqualified stock option plans of the Company shall he
governed by the terms and conditions of those stock option plans based on his termination or
employment on the Separation Date. Any compensation paid to Evans with respect to stock options
will be subject to applicable payroll tax deductions.



f) Medical Coverage: During the Transition Period and during the Severance Period,
Evans shall be allowed to continue as a plan participant in the Diebold, Incorporated



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Associate Healthcare Plan (the “Health Plan”) subject to the terms and conditions of the Health
Plan including, but not limited to, timely payment of any employee contributions necessary to
maintain participation. Evans’ benefits under the Health Plan shall be reduced, however, by any
comparable benefits that he receives from another employer, including self-employment, during the
Severance Period. At the conclusion of the Severance Period, Evans may continue, at his cost, his
participation in the Health Plan, pursuant as applicable to the Consolidated Omnibus Budget
Reconciliation Act of 1986, as amended (“COBRA”).



g) Life Insurance: During the Transition Period and during the Severance Period,
Evans shall continue to be eligible for the basic Company-paid life insurance benefit. Evans’ life
insurance benefit shall be reduced, however, by any comparable benefits that he receives from
another employer, including self-employment, during the Severance Period.



h) Company Car: The Company shall continue to provide Evans with use of the Company
car currently assigned to him during the Transition Period, subject to normal payroll adjustments
and deductions. After the Transition Period, Evans shall have the option of immediately either (i)
returning the car to the Company or (ii) purchasing the car pursuant to then-current Company
policies.



i.) Professional Fees: The Company and Evans acknowledge and agree that each shall
be responsible for the payment of their respective legal fees and costs (and related disbursements)
incurred in connection with Evans’ resignation and cessation of employment and all matters relating
to the negotiation and execution of the releases, employment terms and all other matters covered by
this Agreement. For financial planning activities associated with calendar year 2005 (including,
without limitation, tax return preparation), Evans shall continue to he eligible to receive
reimbursement for the costs of financial counseling up to a total cost to the Company of $15,000.



j) Retirement and 401(k) Plans: During the Transition Period, Evans shall continue
to participate in the Company’s 401(k) Savings Plan and Supplemental Employee Retirement Plan II
(collectively, “Retirement Plans”). Evans’ post-Separation Date eligibility for benefits, if any,
as a past employee of the Company under the Retirement Plans shall be as set forth in the
respective Plan documents and shall be based on the termination of his employment as of the
Separation Date Solely for purposes of determining vesting status and eligibility to receive a
benefit under the Supplemental Employee Retirement Plan II, Evans will be deemed to have ten years
of vesting service as or the commencement or his employment with the Company and while employed to
have accrued two years of service credits for each year of actual service, it being acknowledged
that as of the Separation Date, Evans will have two (2) years of actual service..



k) Business Expenses: Evans will promptly pay any balance due on any Company credit
card or other account used by him. The Company will either; (i) reimburse Evans for any pending
reasonable, business-related credit card charge for which Evans has not already been reimbursed,
provided Evans files a proper Travel and. Expense Report; or (ii) pay such charge directly to the
card-issuing bank. Evans hereby authorizes the Company to deduct from monies due Evans under this
Agreement any balance remaining on Evans’ Company credit card account after such; (i)
reimbursement; or (ii) direct payment.



l) Outplacement: After the Transition Date, Evans shall be eligible to receive



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outplacement services from Right Management Consultants or a similar firm mutually agreeable to the
parties up to a cost to the Company of $15,000.



m) Other Compensation and Benefits: Except as specifically set forth herein, no
other compensation or benefits are due Evans under this Agreement, the Letter Agreement, the
Conditions Agreement, or any other agreement, policy or program of the Company.



3. Non-Competition: During the Transition Period and for a period of two (2) years
thereafter, Evans will not, without prior written consent of the Company, engage, directly or
indirectly, either personally or as an employee, agent, representative, or consultant for another,
in any activity that competes directly or indirectly with the Company or any of its subsidiaries or
affiliate in any products, services, systems, or other business activities (or in any product,
service, systems, or business activity that was under either active development or consideration
while Evans was employed by the Company). Evans acknowledges and agrees that the Company competes
worldwide in the sale of products, services, systems, and business activities and that the market
for technology related to its products, services, systems, and business activities is worldwide.



4. No Solicitation of Employees: During the Transition Period and for a period of two
(2) years thereafter, Evans will not induce or assist others in inducing any employee of the
Company or its affiliates to give up employment with the Company or its affiliates. In the event
that the scope of the restrictions in Paragraphs 3 or 4 are found overly broad, Evans agrees that a
court should reform the restrictions by limiting them to the maximum reasonable scope.



5. Release by Evans:



a.) Evans for himself and his dependents, successors, assigns, heirs, executors and
administrators (and his and their legal representatives of every kind), hereby releases, dismisses,
and forever discharges the Company from, and agrees to indemnify the Company against, any and all
arbitrations, claims (including claims for attorney’s fees), demands, damages, suits, proceedings,
actions and/or causes of action of any kind and every description, whether known or unknown, which
Evans now has or may have had for, upon, or by reason of any cause whatsoever (except that this
release shall not apply to the obligations of the Company arising under this Agreement), against
the Company (“Claims”), including but not limited to:



(i) any and all Claims, directly or indirectly, arising out of or relating to: (A) Evans’
employment with or consulting services for the Company; and (B) Evans’ resignation as president and
Chief Operating Officer and any other position and/or the cessation of his employment, as described
in Paragraph l of this Agreement;



(ii) any and all claims of discrimination, including but not limited to claims of
discrimination on the basis of sex, race, age, national origin, marital status, religion or
disability, including, specifically, but without limiting the generality of the foregoing, any
claims under the Age Discrimination in Employment Act, as amended (the “AD EA”), Title Vll of the
Civil Rights Act of 1964, as amended, the Americans with Disabilities Act of 1990, the Family and
Medical Leave Act of 1993 and Ohio Revised Code Chapter 4112;



(iii) any and all claims of wrongful or unjust discharge or breach of any contract or
promise, express or implied; and



(iv) any and all claims under or relating to any and all employee compensation, employee
benefit, employee severance or employee incentive bonus plans and arrangements; provided that he
shall remain entitled to the amounts and benefits specified in Paragraph 2 above, Evans agrees that
he intends to release any and all worker compensation claims he may have against the Company by
this Agreement, and further agrees to execute any documentation as may be reasonably required to
perfect such release when presented to him by the Company.



b. Evans understands and acknowledges that the Company does not admit any violation of law,
liability or invasion or any of his rights and that any such violation, liability or invasion is
expressly denied. The consideration provided under this Agreement is made for the purpose of
settling and extinguishing all claims and rights (and every other similar or dissimilar matter)
that Evans ever had or now may have or ever will have against the Company to the extent provided in
this Paragraph 5. Evans further agrees and acknowledges that no representations, promises or
inducements have been made by the Company other than as appear in this Agreement.



c. Evans further understands and acknowledges that:



(i) The release provided for in this Paragraph 5, including claims under the ADEA to and
including the date of this Agreement, is in exchange for the additional consideration provided for
in this Agreement, to which consideration he was not heretofore entitled;



(ii) He has been advised by the Company to consult with legal counsel prior to executing this
Agreement and the release provided for in this Paragraph 5, has had an opportunity to consult with
and to be advised by legal counsel of his choice, fully understands the terms of this Agreement,
and enters into this Agreement freely, voluntarily and intending to be bound;



(iii) He has been given a period of twenty-one days to review and consider the terms of this
Agreement, and the release contained herein, prior to its execution and that he may use as much of
the twenty-one day period as he desires; and



(iv) He may, within seven days after execution, revoke this Agreement. Revocation shall be
made by delivering a written notice of revocation to the Vice President and Chief Human Resources
Officer at the Company. For such revocation to be effective, written notice must be actually
received by the Vice President and Chief Human Resources Officer at the Company no later than the
close of business on the seventh day after Evans executes this Agreement. If Evans does exercise
his right to revoke this Agreement, all of the terms and conditions of the Agreement shall be of no
force and effect and the Company shall have no obligation to satisfy the terms or make any payment
to Evans as set forth in Paragraph 2 of this Agreement.



d. Evans will never file a lawsuit or other complaint asserting any claim that is released in
this Paragraph 5. In the event Evans breaches this Paragraph 5.d, he agrees to indemnify the
Company against any costs or expenses, including attorney fees, that the Company may incur in
connection with such breach.



e. Evans and the Company acknowledge that his resignation and cessation of



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employment is by mutual agreement between the Company and Evans, and that Evans waives and releases
any claim that he has or may have to reemployment.



f. For purposes of the above provisions of this Paragraph 5, the “Company” shall include its
predecessors, subsidiaries, divisions, related or affiliated companies, officers, directors,
stockholders, members, employees, heirs, successors, assigns, representatives, agents and counsel.



6. Confidential Information: Evans acknowledges and agrees that as an employee of the
Company, he may have created or had access to in formation, trade secrets, substances and
inventions including confidential information relating to the business or interests of persons with
whom the Company or its affiliated companies may have commercial, technical, or scientific
relations (“Information”) that is valuable to the Company or its affiliated companies and may lose
its value if disclosed to third parties. Evans therefore agrees to treat all such Information as
confidential and belonging to the Company and to take all actions reasonably requested to confirm
such ownership. Evans will not, without the prior written consent of the Company, disclose or use
the Information other than in the course of your employment with the Company. This non-disclosure
obligation shall continue until such Information becomes public knowledge through no fault of
Evans. In addition, Evans acknowledges and agrees that he remains bound in all respects by the
provisions in Section B of the Conditions Agreement. 



7. [This section intentionally left blank.]



8. Breach; Arbitration:



a) If Evans breaches any of the provisions of this Agreement, then the Company may immediately
terminate all remaining payments and benefits described in this Agreement, and in addition, the
Company shall be entitled to obtain reimbursement from Evans of all payments and benefits already
provided pursuant to Paragraph 2 of this Agreement, plus any expenses and damages incurred as a
result of the breach (including, without limitation, reasonable fees), with the remainder or this
Agreement, and all promises and covenants herein, remaining in full force and effect; provided,
however, that with regard to any breach of Evans’ obligations under Paragraph 9 a) of this
Agreement, Evans shall have ten (10) calendar days from the date he receives written notice thereof
from the Company to cure any such alleged breach;



(i) The Company will not terminate pursuant to Paragraph 8.a any benefits in which Evans had
vested as of the Transition Date under the Retirement Plans. Evans’ COBRA rights, if any, will not
be reduced by any action taken by the Company under Paragraph 8.a;



(ii) Evans may challenge any Company action under Paragraph 8.a.



b) The parties agree that any disputes, controversies, or claims of whatever nature arising
out of or relating to this Agreement or breach thereof shall be resolved through binding
arbitration before a mutually agreeable arbitrator or arbitrators, in accordance with the
applicable rules of the American Arbitration Association; provided, however, that
the parties agree that in the event of any alleged breach by Evans of any of his obligations under
Paragraphs 3, 4, and 6 of the Agreement, the arbitration requirements of this Paragraph 8.b shall
not apply,



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and that instead, the Company may elect, in its sole discretion, to seek relief in a court of
general jurisdiction in the State of Ohio, and the parties hereby consent to the exclusive
jurisdiction of such court. In addition, in connection with any such court action, Evans
acknowledges and agrees that the remedy at law available to the Company for breach by Evans of any
of his obligations under Paragraphs 3, 4, and 6 of this Agreement would be inadequate and that
damages flowing from such a breach would not readily be susceptible to being measured in monetary
terms. Accordingly, Evans acknowledges, consents and agrees that, in addition to any other rights
or remedies which the Company may have at law, in equity or under this Agreement, upon adequate
proof of Evans’ violation of any provision of Paragraphs 3, 4, and 6 of this Agreement, the Company
shall be entitled to immediate injunctive relief and may obtain a temporary order restraining any
threatened or further breach, without the necessity of proof of actual damage.



9. Continued Availability and Cooperation:



a) Evans shall cooperate fully with the Company and with the Company’s counsel in connection
with any present and future actual or threatened litigation or administrative proceeding involving
the Company that relates to events, occurrences or conduct occurring (or claimed to have occurred)
during the period of Evans’ employment by the Company or during the Severance Period. This
cooperation by Evans shall include, but not be limited to:



(i) making himself reasonably available for interviews and discussions with the Company’s
counsel as well as for depositions and trial testimony;



(ii) if depositions or trial testimony are to occur, making himself reasonably available and
cooperating in the preparation therefore as and to the extent that the Company or the Company’s
counsel reasonably requests;



(iii) refraining from impeding in any way the Company’s prosecution or defense of such
litigation or administrative proceeding; and



(iv) cooperating fully in the development and presentation of the Company’s prosecution or
defense of such litigation or administrative proceeding.



b) Evans shall be reimbursed by the Company for reasonable travel, lodging, telephone and
similar expenses incurred in connection with such cooperation, which the Company shall reasonably
endeavor to schedule at times not conflicting with the reasonable requirements of any employer of
Evans, or with the requirements of any third party with whom Evans has a business relationship
permitted hereunder that provides remuneration to Evans. Evans shall not unreasonably withhold his
availability for such cooperation.



c) Upon the Transition Date, Evans will update the Company as to the status of all pending
matters for which he was responsible or otherwise involved.



d) The Company agrees to release Evans and indemnify and hold him harmless against all
liability or loss, and against all claims or actions, arising from or connected with his past
activities as an employee of the Company, including but not limited to those claims or actions
based upon or arising out of negligent or wrongful acts to persons or property and the defense of
any such claims or actions. Notwithstanding the foregoing, the Company will have no obligation to
release, indemnify, hold harmless or defend Evans for any conduct by Evans



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alleged to be intentional or willful or that arises from a violation of any statutory prohibition
unless such conduct was specifically requested by the Company. Evans warrants that he has disclosed
to the Company all claims and circumstances and potential claims and circumstances that may exist
or could reasonably be brought against him concerning his past activities as an employee.



10. Successors and Binding Agreement:



a) This Agreement shall be binding upon and inure to the benefit of the Company and any
successor of or to the Company, including, without limitation, any persons acquiring, directly or
indirectly, all or substantially all of the business and/or assets of the Company whether by
purchase, merger, consolidation, reorganization, or otherwise (and such successor shall thereafter
be deemed included in the definition of “the Company” for purposes of this Agreement), but shall
not otherwise be assignable or delegable by the Company.



b) This Agreement shall inure to the benefit of and be enforceable by Evans’ personal or legal
representatives, executors, administrators, successors, heirs, distributees, and/or legatees.



c) This Agreement is personal in nature and none of the parties hereto shall, without the
consent of the other parties, assign, transfer or delegate this Agreement or any rights or
obligations hereunder except as expressly provided in Subparagraphs (a) and (b) of this Paragraph
10.



d) This Agreement is intended to be for the exclusive benefit of the parties hereto, and
except us provided in Subparagraphs (a) and (b) of this Paragraph 10, no third party shall have any
rights hereunder.



11. Statements to Third Parties: Because the purpose of this Agreement is to settle
amicably, any and all potential disputes or claims among the parties, neither Evans on the one hand
nor Wally O’Dell, the Company’s Chief Executive Officer, or Sheila Rutt, the Company’s Chief Human
Resources Officer, when either O’Dell or Rutt are acting in an official capacity on behalf of the
Company, on the other hand, shall, directly or indirectly, make or cause to be made any statements
to any third parties criticizing or disparaging the other or comment on its/his character or
business reputation. Evans further hereby agrees not; (i) to comment to others concerning the
status, plans or prospects of the business of the Company; or (i) to engage in any act or omission
that would be detrimental, financially or otherwise, to the Company, or that would subject the
Company to public disrespect, scandal, or ridicule. For purposes of this Paragraph 11, the
“Company” shall mean Diebold Incorporated and its directors, officers, predecessors, parents,
subsidiaries, divisions, and related or affiliated companies.



12. Notices: For all purposes of this Agreement, all communications provided for
herein shall he in writing and shall be deemed to have been duly given when delivered, addressed to
the Company (to the attention of the CEO) at its principal executive offices and to Evans at his
principal residence, 7488 Valley View Road, Hudson, Ohio 44236, or to such other address as any
party may have furnished to the other in writing and in accordance herewith. Notices of change of
address shall be effective only upon receipt.



13. Miscellaneous: No provision of this Agreement may be modified, waived or
discharged unless such modification, waiver or discharge is agreed to in writing signed by Evans



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and the Company. No waiver by either party hereto at any time of any breach by the other party
hereto or compliance with any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same
or at any prior or subsequent time. No agreements or representations, oral or otherwise, expressed
or implied, with respect to the subject matter hereof have been made by any of the parties that are
not set forth expressly in this Agreement and every one of them (if, in fact, there have been any)
is hereby terminated without liability or any other legal effect whatsoever.



14. Entire Agreement: This Agreement shall constitute the entire agreement among the
parties hereto with respect to the subject matter hereof and, except to the extent otherwise
provided herein, shall supersede all prior verbal or written agreements, covenants, communications,
understandings, commitments, representations or warranties, whether oral or written, by any party
hereto or any of its representatives pertaining to such subject matter.



15. Governing Law: Any dispute, controversy, or claim of whatever nature arising out
of or relating to this Agreement or breach thereof shall be governed by and under the laws of the
State of Ohio.



16. Validity: The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this Agreement, which
shall nevertheless remain in full force and effect.



17. Counterparts: This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall constitute one and the
same Agreement.



18. Captions and Paragraph Headings: Captions and paragraph headings used herein are
for convenience and are not part or this Agreement and shall not be used in construing it.



19. Further Assurances: Each party hereto shall execute such additional documents, and
do such additional things, as may reasonably be requested by the other party to effectuate the
purposes and provisions of this Agreement.



IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date
First set forth above.



DIEBOLD, INCORPORATED



By: /s/Walden W. O’Dell


Date: October 12, 2005



By: /s/Eric C. Evans


Date: October 12, 2005


Witness: /s/Richard A. Broock




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