EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
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Between
ActivCard S.A.
and
SCM MICROSYSTEMS, INC.
Dated as of February 7, 2000
TABLE OF CONTENTS
Page
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SECTION 1. Definitions ................................................ ..........................1
SECTION 2. Notice of Proposed Transfer ................................ ..........................2
SECTION 3. Piggyback Registration ..................................... ..........................3
SECTION 4. Holdback Agreement ......................................... ..........................4
SECTION 5. Preparation and Filing ..................................... ..........................4
SECTION 6. Expenses ................................................... ..........................7
SECTION 7. Indemnification ............................................ ..........................7
SECTION 8. Underwriting Agreement ..................................... .........................10
SECTION 9. Information by Holders of Registrable Shares ............... .........................10
SECTION 00.Xxxxxxxx Act Compliance .................................... .........................10
SECTION 11.No-Action Letter or Opinion of Counsel in Lieu of Registration........................11
SECTION 12.Termination ................................................ .........................11
SECTION 13.Successors and Assigns ..................................... .........................11
SECTION 14.Assignment ................................................. .........................11
SECTION 15.Entire Agreement ........................................... .........................13
SECTION 16.Notices .................................................... .........................13
SECTION 17.Modifications; Amendments; Waivers ......................... .........................14
SECTION 18.Counterparts; Facsimile Signatures ......................... .........................14
SECTION 19.Headings ................................................... .........................14
SECTION 20.Severability; Governing Law ................................ .........................14
SECTION 21.Survival..............................................................................14
Exhibit 10.16
REGISTRATION RIGHTS AGREEMENT, dated as of February 7, 2000
(this
"AGREEMENT"), between ActivCard S.A., a French SOCIETE ANONYME
("ACTIVCARD"), and SCM Microsystems, Inc., a California corporation ("SCM
Microsystems").
R E C I T A L S
WHEREAS, pursuant to a stock purchase agreement dated the date
hereof (the "STOCK PURCHASE AGREEMENT"), SCM Microsystems has agreed to purchase
116,550 newly issued Ordinary Shares (as defined below) from ActivCard;
WHEREAS, the execution of this Agreement is a condition to the
purchase of the Ordinary Shares by SCM Microsystems pursuant to the Stock
Purchase Agreement;
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the
following terms shall have the following meanings:
"COMMISSION" means the U.S. Securities and Exchange Commission
or any successor agency.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder,
all as the same shall be in effect from time to time.
"ORDINARY SHARES" means the ordinary shares, FF 6.25 nominal
value per share, of ActivCard.
"OTHER SHARES" means at any time those Ordinary Shares which
do not constitute Primary Shares or Registrable Shares.
"PERSON" means an individual, corporation, partnership,
limited partnership, syndicate, person (including, without limitation, a
"person" as defined in Section 13(d)(3) of the Exchange Act), trust, association
or entity or government, political subdivision, agency or instrumentality of a
government.
"PRIMARY SHARES" means at any time the authorized but unissued
Ordinary Shares and Ordinary Shares held by ActivCard in its treasury.
"REGISTRATION DATE" means the date upon which a registration
statement pursuant to which ActivCard shall have initially registered Ordinary
Shares under the Securities Act for sale to the public shall have been declared
effective.
"REGISTRABLE SHARES" means the Ordinary Shares issued to SCM
Microsystems pursuant to the Stock Purchase Agreement and any securities issued
with respect to such Ordinary Shares pursuant to any stock split, stock
dividend, recapitalization, substitution or other similar transaction. For
purposes of this Agreement, any Registrable Shares shall cease to be Registrable
Shares (i) when they have been registered under the Securities Act (the
registration statement in connection therewith has been declared effective) and
disposed of pursuant to such effective registration statement, (ii) when they
are sold by a person in a transaction in which the rights under the provisions
of this Agreement are not assigned, (iii) when they have been sold or
distributed pursuant to Rule 144 (including, without limitation, Rule 144(k)) or
(iv) on the last day of any three-month period within which they may be sold or
distributed without registration pursuant to Rule 144.
"RULE 144" means Rule 144 promulgated under the Securities Act
or any successor rule thereto or any complementary rule thereto (such as Rule
144A).
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder, all as
the same shall be in effect from time to time.
"STOCK PURCHASE AGREEMENT" has the meaning set forth in the
recitals to this Agreement.
SECTION 2. NOTICE OF PROPOSED TRANSFER.
Prior to any proposed transfer of any Registrable Shares
(other than under the circumstances described in Section 3 hereof), the holder
thereof shall have given written notice to ActivCard of its intention to effect
such transfer. Each such notice shall describe the manner of the proposed
transfer and, if requested by ActivCard, shall be accompanied by an opinion of
counsel satisfactory to ActivCard to the effect that the proposed transfer may
be effected without registration under the Securities Act, whereupon the holder
of such Registrable Shares shall be entitled to transfer such Registrable Shares
in accordance with the terms of its notice. Additionally, all such transfers
shall be made pursuant to the Letter Agreement dated the date hereof among
Paribas, ActivCard and SCM Microsystems, or any other similar letter agreement
required to be entered into by subsequent holders of the Registrable Shares. SCM
Microsystems' compliance with Section 3.5 of the Stock Purchase Agreement shall
be deemed to be compliance with the notice requirements of this Section 2.
SECTION 3. PIGGYBACK REGISTRATION.
(a) If ActivCard at any time proposes for any reason to
register Ordinary Shares under the Securities Act (other than a registration
relating to the initial public offering of Ordinary Shares by Activcard
(including Ordinary Shares in the form of American Depositary Shares) in the
United States, a registration relating solely to employee benefit plans, or a
registration on registration statement Form X-0, Xxxx X-0 or any registration
form which does not permit secondary sales or does not include substantially the
same information as would be required to be included in a registration statement
covering the sale of Registrable Securities, in each case, promulgated under the
Securities Act or any successor forms thereto), it shall give written notice to
the holders of Registrable Shares of its intention to so register such Ordinary
Shares at least 30 days before the initial filing of such registration
statement. Upon the written request of the holders of Registrable Shares to
include Registrable Shares in such registration (which request (i) must be
delivered to ActivCard within 15 days after delivery by ActivCard of any notice
pursuant to this Section 3(a), (ii) shall specify the number of Registrable
Shares proposed to be included in such registration and (iii) shall state that
such holders of Registrable Shares desire to sell such Registrable Shares in the
public securities markets), ActivCard shall use its best efforts to cause all
such Registrable Shares to be included in such registration on the same terms
and conditions as the securities otherwise being sold in such registration;
PROVIDED, HOWEVER, that if the managing underwriter advises ActivCard that the
inclusion of all Registrable Shares proposed to be included in such registration
would interfere with the successful marketing (including pricing) of the Primary
Shares or Other Shares proposed to be registered by ActivCard, then the number
of Primary Shares, Registrable Shares and/or Other Shares proposed to be
included in such registration shall be included in the following order:
(i) first, the Primary Shares and any other Ordinary Shares
owned by Xxx Xxxxxxx as of such date; and
(ii) second, the Registrable Shares and Other Shares requested
to be included in such registration (or, if necessary, such Registrable
Shares and Other Shares PRO RATA among the holders thereof based upon
the aggregate number of Registrable Shares and Other Shares requested
to be registered by each such holder).
(b) If the registration of which ActivCard gives notice is for
an underwritten registered public offering, ActivCard shall so advise the
holders as part of the written notice given pursuant to Section 3(a). In such
event, the right of any holder to registration pursuant to this Section 3 shall
be conditioned upon such holder's participation in such underwritten offering
and the inclusion of such holder's Registrable Securities in the underwritten
offering to the extent provided herein. All holders proposing to distribute
Registrable Shares through such underwritten offering shall (together with
ActivCard and the other shareholders distributing their securities through such
underwritten offering) enter into an underwriting agreement in customary form
with the underwriter selected by ActivCard. If any holder disapproves of the
terms of any such underwritten offering, he may elect to withdraw therefrom by
written notice to ActivCard
and the underwriter. Any Registrable Securities or other securities excluded or
withdrawn from such underwritten offering shall be withdrawn from such
registration.
(c) The number of requests permitted by the holders of
Registrable Shares pursuant to this Section 3 shall be unlimited.
SECTION 4. HOLDBACK AGREEMENT.
If ActivCard at any time shall register Ordinary Shares under
the Securities Act (including any registration pursuant to Section 3 hereof) for
sale to the public, SCM Microsystems shall not sell publicly or privately, make
any short sale of, grant any option for the purchase of, or otherwise dispose
publicly of, any Registrable Shares (other than those Ordinary Shares included
in such registration pursuant to Section 3 hereof) without the prior written
consent of ActivCard, for a period as shall be determined by the relevant
managing underwriters, which period shall begin not more than 10 days prior to
the initial filing of the registration statement pursuant to which such public
offering shall be made and shall not last more than 180 days after the effective
date of such registration statement; provided, however, that SCM Microsystems
shall be subject to the holdback restrictions of this Section 4 only once in any
twelve-month period during the term of this Agreement.
SECTION 5. PREPARATION AND FILING.
(a) If and whenever ActivCard is under an obligation pursuant
to the provisions of this Agreement to use its best efforts to effect the
registration of any Registrable Shares, ActivCard shall, as expeditiously as
practicable:
(i) use its best efforts to cause a registration statement
that registers such Registrable Shares to become and remain effective
for a period of 90 days or until all of such Registrable Shares have
been disposed of (if earlier). ActivCard shall not be required to
maintain the effectiveness of any registration statement that
contemplates a distribution of securities on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act;
(ii) furnish, at least ten business days before filing a
registration statement, to counsel designated by SCM Microsystems
("INVESTOR'S Counsel"), a copy of the registration statement proposed
to be filed and the prospectus relating thereto or any amendments or
supplements relating to such a registration statement or prospectus (it
being understood that such ten-business-day period need not apply to
successive drafts of the same document proposed to be filed so long as
such successive drafts are supplied to the Investor's Counsel in
advance of the proposed filing by a period of time that is reasonable
under the circumstances);
(iii) prepare and file with the Commission such amendments and
supplements
to such registration statement and the prospectus relating thereto as
may be necessary to keep such registration statement effective for at
least a period of 90 days or until all of such Registrable Shares have
been disposed of (if earlier) and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of such
Registrable Shares;
(iv) provide written notice to Investor's Counsel concerning
(i) the receipt by ActivCard of any comments of the Commission with
respect to such registration statement or prospectus or any amendment
or supplement thereto or any request by the Commission for the amending
or supplementing thereof or for additional information with respect
thereto, (ii) the receipt by ActivCard of any notification with respect
to the issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or prospectus or any
amendment or supplement thereto or the initiation or threatening of any
proceeding for that purpose and (iii) the receipt by ActivCard of any
notification with respect to the suspension of the qualification of
such Registrable Shares for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purposes;
(v) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as the holders of the Registrable Shares reasonably
request and do any and all other acts and things which may be
reasonably necessary or advisable to enable such holders to consummate
the disposition in such jurisdictions of such holders' Registrable
Shares; PROVIDED, HOWEVER, that ActivCard will not be required (i) to
qualify generally to do business, subject itself to general taxation or
consent to general service of process in any jurisdiction where it
would not otherwise be required to do so but for this paragraph (v),
(ii) to provide any material undertaking or make any changes in its
charter documents which the Board of Directors determines to be
contrary to the best interests of ActivCard or (iii) to modify any of
its contractual relationships then existing;
(vi) furnish to the holders of such Registrable Shares such
number of copies of a summary prospectus, if any, or other prospectus,
including a preliminary prospectus, in conformity with the requirements
of the Securities Act, and such other documents as such holders may
reasonably request in order to facilitate the public sale or other
disposition of such Registrable Shares;
(vii) notify the holders of such Registrable Shares on a
timely basis of the happening of any event as a result of which a
prospectus included in the registration statement relating to such
Registrable Shares, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing and, at the request of such
holders, prepare and furnish to such holders a reasonable number of
copies of a supplement to or an amendment of such prospectus as
may be necessary to cause such prospectus, as so supplemented or
amended, not to include an untrue statement of a material fact or omit
to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(viii) subject to the execution of confidentiality agreements
in form and substance satisfactory to ActivCard and upon reasonable
notice and during normal business hours, make available for inspection
by the holders of such Registrable Shares, any underwriter
participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by SCM
Microsystems or the underwriter (collectively, the "INSPECTORS"), all
pertinent financial and other records, pertinent corporate documents
and properties of ActivCard (collectively, the "RECORDS"), as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause ActivCard's officers, directors and employees
to supply all information (together with the Records, the
"INFORMATION") reasonably requested by any such Inspector in connection
with such registration statement. Notwithstanding the foregoing, any of
the Information which ActivCard determines in good faith to be
confidential, and of which determination the Inspectors are so
notified, shall not be disclosed to or by the Inspectors unless (i) the
disclosure of such Information is necessary to avoid or correct a
misstatement or omission in the registration statement, (ii) the
release of such Information is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction or (iii) such Information
is generally available to the public other than as a result of
disclosure by the Inspectors; the holders of such Registrable Shares
agree that they will, upon learning that disclosure of such Information
is sought in a court of competent jurisdiction, give notice to
ActivCard and allow ActivCard, at ActivCard's expense, to undertake
appropriate action to prevent disclosure of the Information deemed
confidential; and the Inspectors shall use best efforts to maintain the
confidentiality of all information disclosed pursuant to this Section
5(a)(viii);
(ix) use its best efforts to obtain from its independent
certified public accountants "cold comfort" letters in customary form,
at customary times and covering matters of the type customarily covered
by cold comfort letters;
(x) use its best efforts to obtain from its counsel an opinion
or opinions in customary form;
(xi) provide a transfer agent and registrar (which may be the
same entity and which may be ActivCard) for such Registrable Shares;
(xii) list such Registrable Shares or American Depositary
Shares representing such Registrable Shares, as the case may be, on any
national securities exchange on which any Ordinary Shares or American
Depositary Shares representing Ordinary Shares are listed;
(xiii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available
to its security holders, as soon as
reasonably practicable, earnings statements (which need not be audited)
covering a period of 12 months beginning within three months after the
effective date of the registration statement, which earnings statements
shall satisfy the provisions of Section 11(a) of the Securities Act;
and
(xiv) subject to all the other provisions of this Agreement,
use its reasonable best efforts to take all other steps necessary to
effect such registration of such Registrable Shares contemplated hereby
(including, without limitation, if the method of distribution is by
means of an underwriting agreement in customary form).
(b) Each holder of the Registrable Shares, upon receipt of any
notice from ActivCard of any event of the kind described in Section 5(a)(vii)
hereof, shall forthwith discontinue disposition of the Registrable Shares
pursuant to the registration statement covering such Registrable Shares until
such holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 5(a)(vii) hereof, and, if so directed by ActivCard, such
holder shall deliver to ActivCard all copies, other than permanent file copies
then in such holder's possession, of the prospectus covering such Registrable
Shares at the time of receipt of such notice.
SECTION 6. EXPENSES.
All expenses (other than underwriting discounts and
commissions relating to the Registrable Shares, as provided in the last sentence
of this Section 6) incurred by ActivCard in complying with Section 5, including,
without limitation, all registration and filing fees (including all expenses
incident to filing with the National Association of Securities Dealers, Inc.),
fees and expenses of complying with securities and blue sky laws, printing
expenses, fees and expenses of ActivCard's counsel and accountants and
reasonable fees and expenses (not to exceed U.S. $20,000) of the Investor's
Counsel, shall be paid by ActivCard; PROVIDED, HOWEVER, that all underwriting
discounts and selling commissions applicable to the Registrable Shares and Other
Shares shall be borne by the holders selling such Registrable Shares and Other
Shares, in proportion to the number of Registrable Shares and Other Shares sold
by each such holder.
SECTION 7. INDEMNIFICATION.
(a) In connection with any registration of any Registrable
Shares under the Securities Act pursuant to this Agreement, ActivCard shall
indemnify and hold harmless the holders of Registrable Shares, each
underwriter, broker or any other Person acting directly on behalf of the
holders of Registrable Shares in connection with the distribution thereof and
each other Person, if any, who controls any of the foregoing Persons within
the meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several (or actions in respect thereof), to which any
of the foregoing Persons may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
allegedly untrue statement of a material fact contained in the registration
statement under which such Registrable Shares were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein or otherwise filed with the Commission, any
amendment or supplement thereto or any document incident to registration or
qualification of any Registrable Shares, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading
or, with respect to any prospectus, necessary to make the statements therein
in light of the circumstances under which they were made not misleading, or
any violation by ActivCard of the Securities Act or state securities or blue
sky laws applicable to ActivCard and relating to action or inaction required
of ActivCard in connection with such registration or qualification under such
state securities or blue sky laws; and ActivCard shall reimburse the holders
of Registrable Shares, such underwriter, such broker or such other Person
acting on behalf of the holders of Registrable Shares and each such
controlling Person for any legal or other expenses reasonably incurred by any
of them in connection with investigating or defending any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that ActivCard shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action (including any legal or other expenses incurred) arises
out of or is based upon an untrue statement or allegedly untrue statement or
omission or alleged omission made in said registration statement, preliminary
prospectus, final prospectus, amendment, supplement or document incident to
registration or qualification of any Registrable Shares in reliance upon and
in conformity with written information furnished to ActivCard through an
instrument duly executed by the holders of Registrable Shares or their
counsel or underwriter specifically for use in the preparation thereof;
PROVIDED FURTHER, HOWEVER, that the foregoing indemnity agreement is subject
to the condition that, insofar as it relates to any untrue statement,
allegedly untrue statement, omission or alleged omission made in any
preliminary prospectus but eliminated or remedied in the final prospectus
(filed pursuant to Rule 424 of the Securities Act), such indemnity agreement
shall not inure to the benefit of any holder of Registrable Shares,
underwriter, broker or other Person acting on behalf of holders of
Registrable Shares from whom the Person asserting any loss, claim, damage,
liability or expense purchased the Registrable Shares which are the subject
thereof, if a copy of such final prospectus had been made available to such
holder of Registrable Shares, underwriter, broker or other Person acting on
behalf of holders of the Registrable Shares and such final prospectus was not
delivered to such Person with or prior to the written confirmation of the
sale of such Registrable Shares to such Person, and the legal effect of
delivery of such final prospectus would have been to eliminate the liability
otherwise suffered or incurred by the Person asserting such loss, claim,
damage, liability or expense.
(b) In connection with any registration of Registrable Shares
under the Securities Act pursuant to this Agreement, each holder of
Registrable Shares shall severally and not jointly indemnify and hold
harmless ActivCard, each director of ActivCard, each officer of ActivCard who
shall sign such registration statement, each underwriter, broker or other
Person acting on behalf of the holders of Registrable Shares and each Person
who controls any of the foregoing Persons within the meaning of the
Securities Act against any losses, claims, damages or liabilities, joint or
several (or actions in respect thereof), to which any of the foregoing
Persons may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue
statement or allegedly untrue statement of a material fact contained in the
registration statement under which such Registrable Shares were registered
under the Securities Act, any preliminary prospectus or final prospectus
contained therein or otherwise filed with the Commission, any amendment or
supplement thereto or any document incident to registration or qualification
of any Registrable Shares, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading or, with
respect to any prospectus, necessary to make the statements therein in light
of the circumstances under which they were made not misleading, if such
untrue statement or allegedly untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to ActivCard or such underwriter by or on behalf of such holder of
Registrable Shares specifically for use in connection with the preparation of
such registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document; PROVIDED, HOWEVER, that the maximum amount
of liability in respect of such indemnification shall be limited, in the case
of each seller of Registrable Shares, to an amount equal to the net proceeds
actually received by such seller from the sale of Registrable Shares effected
pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice
of the commencement of any action involving a claim referred to in the
preceding paragraphs of this Section 7, such indemnified party will, if a
claim in respect thereof is made against an indemnifying party, give written
notice to the latter of the commencement of such action. The failure of any
indemnified party to notify an indemnifying party of any such action shall
not (unless such failure shall have a material adverse effect on the
indemnifying party) relieve the indemnifying party from any liability in
respect of such action that it may have to such indemnified party on account
of this Section 7. In case any such action is brought against an indemnified
party, the indemnifying party will be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be responsible for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; PROVIDED, HOWEVER, that if any
indemnified party shall have reasonably concluded that there may be one or
more legal or equitable defenses available to such indemnified party which
are additional to or conflict with those available to the indemnifying party,
or that such claim or litigation involves or could have an effect upon
matters beyond the scope of the indemnity agreement provided in this Section
7, the indemnifying party shall not have the right to assume the defense of
such action on behalf of such indemnified party (but shall have the right to
participate therein with counsel of its choice) and such indemnifying party
shall reimburse such indemnified party for that portion of the reasonable
fees and expenses of any counsel retained by the indemnified party which is
reasonably related to the matters covered by the indemnity agreement provided
in this Section 7. If the indemnifying party is not entitled to, or elects
not to, assume the defense of a claim or series of claims of all indemnified
parties, it will not be obligated to pay the fees and expenses of more than
one counsel with respect to all indemnified parties as to any claim or series
of related
claims. The indemnifying party may not settle any such claim without the
consent of the indemnified party.
(d) If the indemnification provided for in this Section 7 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, claim, damage, liability or action referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amounts paid or payable by such
indemnified party as a result of such loss, claim, damage, liability or action
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions which resulted in such loss, claim,
damage, liability or action as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The parties agree that it would not be just
and equitable if contribution pursuant hereto were determined by PRO RATA
allocation or by any other method or allocation which does not take account of
the equitable considerations referred to herein. No Person guilty of fraudulent
misrepresentation shall be entitled to contribution from any Person.
SECTION 8. UNDERWRITING AGREEMENT.
Notwithstanding the provisions of Sections 4, 5, 6 and 7, to
the extent that the holders of Registrable Shares shall enter into an
underwriting or similar agreement, which agreement contains provisions covering
one or more issues addressed in such Sections, the provisions contained in such
agreement addressing such issue or issues shall control; PROVIDED, HOWEVER, that
any such agreement to which ActivCard is not a party shall not be binding upon
ActivCard. No holder may participate in any underwritten registration hereunder
unless such holder (a) agrees to sell such holders' securities on the basis
provided in any underwriting arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably and customarily required under the terms of such
underwriting arrangements.
SECTION 9. INFORMATION BY HOLDERS OF REGISTRABLE SHARES.
Each holder of Registrable Shares shall furnish to ActivCard
such written information regarding such Person and the distribution proposed by
such Person as ActivCard
may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Agreement.
SECTION 10. EXCHANGE ACT COMPLIANCE.
From the Registration Date or such earlier date as a
registration statement filed by ActivCard pursuant to the Exchange Act relating
to any class of ActivCard's securities shall have become effective, ActivCard
shall comply with all of the reporting requirements of the Exchange Act
applicable to it and shall comply with all other public information reporting
requirements of the Commission which are conditions to the availability of Rule
144 for the sale of the Common Stock. ActivCard shall cooperate with each holder
of Registrable Shares in supplying such information as may be necessary for such
holder to complete and file any information reporting forms presently or
hereafter required by the Commission as a condition to the availability of Rule
144.
SECTION 11. NO-ACTION LETTER OR OPINION OF COUNSEL
IN LIEU OF REGISTRATION.
Notwithstanding anything in this Agreement in the contrary, if
at any time after the date of ActivCard's initial public offering of its
securities under the Securities Act ActivCard shall have obtained from the
Commission a "no-action" letter in which the Commission has indicated that it
will take no action if, without registration under the Securities Act, any
holder disposes of Registrable Shares covered by any request for registration
made under this Agreement in the manner in which such holder proposes to dispose
of the Registrable Shares included in such request, or if in the opinion of
counsel for ActivCard concurred in by counsel for such holder no registration
under the Securities Act is required in connection with such disposition, the
Registrable Shares included in such request shall not be eligible for
registration under this Agreement; provided, however, with respect to any holder
who may deemed to be an "affiliate," as that term is defined under Rule 144, if,
notwithstanding the opinion of such counsel, the holder is unable to dispose of
all the Registrable Shares included in his request in the manner in which such
holder so proposes without registration, the Registrable Shares included in such
request shall be eligible for registration under this Agreement.
SECTION 12. TERMINATION.
All registration rights granted under this Agreement shall
terminate and be of no further force and effect upon the earlier of (i) two (2)
years after the Registration Date and (ii) the date on which all of the
Registrable Shares cease to be Registrable Shares hereunder.
SECTION 13. SUCCESSORS AND ASSIGNS.
This Agreement shall bind and inure to the benefit of
ActivCard and SCM Microsystems and, subject to Section 15, their respective
successors and assigns.
SECTION 14. ASSIGNMENT.
SCM Microsystems may assign its rights hereunder to any of its
affiliates to
which it transfers Registrable Shares; PROVIDED, HOWEVER, that such transferee
shall, as a condition to the effectiveness of such assignment, be required to
execute a counterpart to this Agreement agreeing to be treated as a holder of
Registrable Shares whereupon such purchaser or transferee shall have the
benefits of, and shall be subject to the restrictions contained in, this
Agreement as if such transferee had originally been a party hereto; and
PROVIDED, FURTHER, that such transferee shall not be a competitor of ActivCard
(as reasonably determined by the Board of Directors of ActivCard).
SECTION 15. ENTIRE AGREEMENT.
This Agreement, the Stock Purchase Agreement and the other
writings referred to herein and therein or delivered pursuant hereto or thereto,
contain the entire agreement among SCM Microsystems, ActivCard and any other
parties to each of the foregoing with respect to the subject matter hereof and
supersede all prior and contemporaneous arrangements or understandings with
respect thereto.
SECTION 16. 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: Xxxxxx Xxxxx;
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx;
(ii) if to SCM Microsystems, to:
SCM MicroSystems
000 Xxxxxxxx Xxx
Xxx Xxxxx, XX 00000
Telephone: (408) 370-488_
Telecopy: [_______]
Attention: Chief Financial Officer;
.
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx Bermy
(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 17. 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 holders of more than 50%
of the Registrable Shares that are entitled to registration rights hereunder, or
in the case of a waiver, by the party against whom the waiver is to be
effective.
SECTION 18. 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 19. 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 20. SEVERABILITY; GOVERNING LAW.
It is the desire and intent of the parties that the provisions
of this Agreement be enforced to the fullest extent permissible under the laws
and public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any particular provision of this Agreement shall be adjudicated
by a court of competent jurisdiction to be invalid, prohibited or unenforceable
for any reason, such provision, as to such jurisdiction, shall be ineffective,
without invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts made and to be performed wholly therein.
SECTION 21. SURVIVAL.
The respective agreements, covenants, indemnities and other
statements set forth in Section 7 hereof shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first written above.
ActivCard S.A.
By: /s/ XXXXXX X. XXXXX
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
SCM MICROSYSTEMS, INC.
By: /s/ XXXXXX XXXXXXXXX
------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Chairman
The Parties agree to submit all disputes in connection with or arising out of
the validity, interpretation, performance, termination or annulment of this
Agreement to an accredited arbitrator satisfactory to both parties.
Executed at this 7th day of February, 2000 in two (2) original
copies.
For ACTIVCARD For SCM MICROSYSTEMS
/s/ XXXXXX X. XXXXX /s/ XXXXXX XXXXXXXXX
------------------------------- -----------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx Xxxxxxxxx
Title: Chief Financial Officer Title: Chairman
