Exhibit 10.14
THIS AGREEMENT, dated as of February 22, 2000 (this
"AGREEMENT"), between ActivCard S.A., a French SOCIETE ANONYME ("ACTIVCARD or
the "COMPANY") and Xxxxxxx X. Xxxxxxx, a citizen of the United States ("XX.
XXXXXXX").
R E C I T A L S
WHEREAS, pursuant to a settlement agreement and release,
entered into by and among ActivCard, ActivCard, Inc., Xxxx Xxxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxx-Xxxxxx Xxxxxx (collectively, the "DEFENDANTS") and Xx. Xxxxxxx,
having an effective date on or before August 2, 1999 (the "SETTLEMENT
AGREEMENT"), ActivCard issued 480,000 ordinary shares, FF 6.25 nominal value,
of the Company (the "ORDINARY SHARES") to Xx. Xxxxxxx;
AND WHEREAS, ActivCard is contemplating an offering of
Ordinary Shares in the United States, in the form of American Depositary Shares,
and has applied to list such American Depositary Shares on the Nasdaq National
Market;
AND WHEREAS, while the Ordinary Shares are freely tradeable on
Easdaq, Xx. Xxxxxxx may not offer or sell his Ordinary Shares in the United
States unless either they are registered under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), or an exemption from registration is available;
AND WHEREAS, ActivCard desires to grant Xx. Xxxxxxx the rights
set forth in this Agreement in exchange for Xx. Xxxxxxx'x waiver and release of
certain statements set forth Sections 3.1 and 3.3 of the Settlement Agreement
with respect to the Xxxxxxx Shares as more fully described herein;
A G R E E M E N T
NOW THEREFORE, in consideration of the promises and of the
mutual covenants and obligations hereinafter set forth, the parties hereby agree
as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the
following terms shall have the following meanings:
"AGREEMENT" or "THIS AGREEMENT" has the meaning set
forth in the title to this Agreement.
"BUSINESS DAY" means any day that is not a Saturday, a Sunday
or other day on which banks are required or authorized by law to be
closed in Fremont, California or Paris, France.
"CALCULATION DATE" means the next succeeding Business Day
following the last day of the Calculation Period.
"CALCULATION PERIOD" means the period beginning on
the Offering Date and ending on August 11, 2000.
"DEFENDANTS" has the meaning set forth in the first
recital to this Agreement.
"EASDAQ INTRA-DAY HIGH" means, for any Trading Day, the
highest reported sales price per share for the Ordinary Shares on
Easdaq; PROVIDED that any Easdaq Intra-Day High that was not based on
an arms' length trade or that was designed to unfairly manipulate, or
had the effect of unfairly manipulating, the price of the Ordinary
Shares on Easdaq shall not be counted in calculating the Gross-Up
Amount hereunder.
"EASDAQ AVERAGE HIGH" means the average of the five
highest Easdaq Intra-Day Highs during the Calculation Period.
"XXXXXXX SHARES" means the Ordinary Shares issued by ActivCard
to Xx. Xxxxxxx pursuant to the Settlement Agreement and that are owned
by Xx. Xxxxxxx as of the last day of the Calculation Period, and which
shall not exceed 105,000 Ordinary Shares.
"GROSS-UP AMOUNT" has the meaning set forth in Section 3 of
this Agreement.
"NASDAQ AVERAGE HIGH" means the average of the five highest
Nasdaq Intra-Day Highs during the Calculation Period.
"NASDAQ INTRA-DAY HIGH" means, for any Trading Day, the
highest reported sales price per share for the Ordinary Shares, in the
form of American Depositary Shares on the Nasdaq National Market;
PROVIDED, that any Nasdaq Intra-Day High that was not based on an arms'
length trade or that was designed to unfairly manipulate, or had the
effect of unfairly manipulating, the price of the Company's American
Depositary Shares on the Nasdaq National Market shall not be counted in
calculating the Gross-Up Amount hereunder. In the event that the ratio
of the Company's American Depositary Shares to Ordinary Shares is other
than 1:1, then the Nasdaq Intra-Day High shall be adjusted accordingly.
"OFFERING DATE" means the first day on which the Ordinary
Shares, in the form of American Depositary Shares, are traded on the
Nasdaq National Market after the effective date of the Registration
Statement.
"ORDINARY SHARES" has the meaning set forth in the
first recital to this Agreement.
"REGISTRATION STATEMENT" means the Registration Statement on
Form F-1, as amended, filed with the Securities and Exchange Commission
on or about February 22, 2000 with respect to an offering by the
Company and certain selling shareholders of Ordinary Shares, in the
form of American Depositary Shares.
"SETTLEMENT AGREEMENT" has the meaning set forth in
the first recital to this Agreement.
"TRADING DAY" means any day on which both Easdaq and
the Nasdaq National Market are open for trading.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) Xx. Xxxxxxx represents and warrants to ActivCard that:
(i) as of the date of this Agreement, he owns 105,000
Ordinary Shares; and
(ii) he has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of the Ordinary Shares on
Easdaq or the Company's American Depositary Shares.
(b) The Company represents and warrants to Xx. Xxxxxxx that:
(i) it has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of the Ordinary Shares on
Easdaq or its American Depositary Shares on the Nasdaq National Market.
SECTION 3. GROSS-UP. ActivCard agrees to pay Xx.
Xxxxxxx a sum (the "GROSS-UP AMOUNT"), if any, equal to the Gross-Up Amount as
determined by the following formula, as calculated on the Calculation Date,
Xxxxxxx Shares x (A - B) = Gross-Up Amount
where "A" is the Nasdaq Average High and "B" is the Easdaq Average High. The
Gross-Up Amount, if any, will be paid to Xx. Xxxxxxx in immediately available
funds within ten Business Days of the Calculation Date, as Xx. Xxxxxxx shall
direct in writing to ActivCard. In the event that (A - B) is equal to or less
than zero, the Gross-Up Amount shall be zero. On the Calculation Date, the
calculation of the Gross-Up Amount shall be made, at the Company's expense, by
Ernst & Young, the Company's independent auditors. All supporting materials for
the calculation of the Gross-Up Amount shall be provided to Xx. Xxxxxxx upon his
request to the Company.
SECTION 4. RELEASE.
In consideration of the possibility of being paid the Gross-Up
Amount by ActivCard pursuant to Section 2 of this Agreement, Xx. Xxxxxxx agrees
to waive and release and hereby waives and releases each of the Defendants,
during the Calculation Period and only during the Calculation Period, from the
second sentence of Section 3.1 of the Settlement Agreement and the first and
second sentences of Section 3.3 of the Settlement Agreement specifically as they
relate to the Ordinary Shares issued to Xx. Xxxxxxx under the Settlement
Agreement being freely tradable and transferable without restriction on the
Nasdaq National Market. This Section 4 in no way modifies, limits or alters any
rights that Xx. Xxxxxxx has with respect to trading the Ordinary Shares issued
to Xx. Xxxxxxx under the Settlement Agreement. Except as expressly waived by
this Section 4, the Settlement Agreement remains in full force and effect.
SECTION 5. ADDITIONAL AMOUNTS.
Xx. Xxxxxxx will be responsible for all personal income taxes
relating to the Gross-Up Amount.
SECTION 6. NOTICES.
(a) All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or sent by telecopy, nationally
recognized overnight courier or first class registered or certified mail, return
receipt requested, postage prepaid, addressed to such party at the address set
forth below or such other address as may hereafter be designated in writing by
such party to the other parties:
(i) if to ActivCard, to:
ActivCard S.A.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx-Xxxxxx Xxxxxx
(ii) if to Xx. Xxxxxxx, to:
X.X. Xxx 0000
Xxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
(b) All such notices, requests, consents and other
communications shall be deemed to have been delivered (a) in the case of
personal delivery or delivery by telecopy, on the date of such delivery, (b) in
the case of dispatch by nationally recognized overnight courier, on the next
business day following such dispatch and (c) in the case of mailing, on the
third business day after the posting thereof.
SECTION 7. TERMINATION. This Agreement will be
terminated and be of no further force and effect if the Registration Statement
has not become effective on or before August 1, 2000.
SECTION 8. SUCCESSORS AND ASSIGNS. This Agreement shall bind
and inure to the benefit of ActivCard and Xx. Xxxxxxx and their respective
successors and assigns.
SECTION 9. ASSIGNMENT. Neither party may assign its or his
rights hereunder without the prior written consent of the others.
SECTION 10. LEGAL FEES. In any legal or equitable action,
arbitration or mediation between any of the parties arising out of a breach of
or brought to enforce any of the provisions of this Agreement, the prevailing
party or parties shall be entitled to recover from the non-prevailing party or
parties its costs, expenses, and attorneys' fees incurred in connection
therewith.
SECTION 11. MODIFICATIONS; AMENDMENTS; WAIVERS. The terms and
provisions of this Agreement may not be modified or amended, nor may any
provision be waived, except pursuant to a writing signed, in the case of an
amendment or modification, by all parties, or in the case of a waiver, by the
party against whom the waiver is to be effective.
SECTION 12. SEVERABILITY. All of the provisions of this
Agreement shall be considered severable, such that if any provision or part
hereof shall at any time be held under any law or ruling to be invalid, such
provision or part shall remain in force to the extent allowed by law, and all
other provisions shall remain in full force and effect and enforceable.
SECTION 13. CHOICE OF LAW. This Agreement shall be governed
by, and construed in accordance with and pursuant to, the law of California.
SECTION 14. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement
may be executed in any number of counterparts (including by telecopy), and each
such counterpart hereof shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement.
SECTION 15. HEADINGS. The headings of the various sections of
this Agreement have been inserted for convenience of reference only and shall
not be deemed to be a part of this Agreement.
SECTION 16. JURISDICTION AND VENUE. Each of ActivCard and Xx.
Xxxxxxx hereby consent to the exclusive jurisdiction of the United States
District Court for the Northern District of California with respect to the
enforcement of this Agreement, and any dispute arising under this Agreement. The
parties further agree that venue in the Northern District of California is
proper with respect to any action to enforce the provisions of this Agreement.
SECTION 17. MEDIATION. The parties agree that any dispute
between them arising under this Agreement shall be submitted to non-binding
mediation before a retired judge of the United States District Court for the
Northern District of California or of the San Francisco Superior Court before
any litigation is commenced with respect to such dispute.
SECTION 18. NO ADVERSE INFERENCES TO BE DRAWN. Neither this
Agreement, nor any act performed or document executed pursuant to or in
furtherance of the Agreement: (a) constitutes an admission of, or evidence of,
the validity of any claim, or of any wrongdoing or liability of any party
hereto; or (b) may be used as an admission of, or evidence of, any fault or
omission of any of the parties hereto in any civil, criminal or administrative
proceedings in any court, administrative agency or other tribunal.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first written above.
ActivCard S.A.
By: /s/ Xxxx-Xxxxxx Xxxxxx
------------------------
Name: Xxxx-Xxxxxx Xxxxxx
Title: Chairman & CEO
Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxx
