Exhibit 4.2
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CONFORMED COPY
LOAN REPAYMENT AGREEMENT
This LOAN REPAYMENT AGREEMENT (this "Agreement"), dated as of
October 20, 2001, is entered into by and between Xxxxxxx Xxxxx, in his
individual capacity and on behalf of any transferee of any of the Shares (as
defined below) ("Borrower"), and Zenzus Holdings Limited, a Gibraltar
corporation ("Zenzus").
WITNESSETH:
WHEREAS, Gemplus Americas, Inc., a California corporation
("Gemplus"), and Borrower entered into the Second Amended and Restated
Employment Agreement, dated as of July 11, 2001 (the "Employment Agreement"),
pursuant to which, among other things, Gemplus agreed to make or procure certain
loans to Borrower, subject to any applicable legal or financial constraints, in
connection with (i) Borrower's exercise of options (the "Options") to purchase
20,495,786 shares (the "Option Shares") of common stock (the "Common Stock") of
Gemplus International S.A., the indirect parent of Gemplus ("GISA"), and (ii)
income taxes incurred by Borrower in respect of the 10,247,893 shares of Common
Stock granted to Borrower (the "Additional Shares" and, together with the Option
Shares, the "Shares");
WHEREAS, GISA and Borrower entered into a Stock Option Grant
Agreement, dated as of July 13, 2000 (the "Option Agreement"), evidencing and
confirming the grant of the Options to Borrower and providing, among other
things, for the right of GISA to purchase the Option Shares under the
circumstances and at the purchase price described therein;
WHEREAS, pursuant to the Option Agreement and the Employment
Agreement, GISA's right to purchase the Option Shares lapses in installments
based on Borrower's continued employment with Gemplus and, in the case of 50% of
the Option Shares, achievement of certain performance objectives;
WHEREAS, as of the date hereof, GISA's right to purchase
8,326,413 Option Shares (the "Vested Shares") has lapsed in accordance with the
terms of the Option Agreement and the Employment Agreement;
WHEREAS, GISA and Borrower entered into a Stock Award
Agreement, dated as of July 13, 2000 (the "Award Agreement"), evidencing and
confirming the grant of the Additional Shares to Borrower and providing, among
other things, that Borrower is not permitted to sell or otherwise transfer the
Additional Shares until July 13, 2002, subject to the exceptions specified
therein;
WHEREAS, as permitted under the Stock Award Agreement,
Borrower transferred a portion of the Additional Shares to a family trust or
partnership controlled by Borrower (the "Permitted Transferee");
WHEREAS, Zenzus has extended four interest bearing loans
(each, a "Loan" and, collectively, the "Loans") to Borrower in an aggregate
principal amount of Euro 88,909,375.93 pursuant to promissory notes dated as of
July 25, 2000 (the "July 2000 Note"), September 25, 2000 (the "September 2000
Note"), December 15, 2000 (the "December 2000 Note") and March 28, 2001 (the
"March 2001 Note" and, together with the July 2000 Note, the September 2000 Note
and the December 2000 Note, the "Notes"), all of which principal amount is
currently outstanding (the "Aggregate Principal Amount," and the principal
amount outstanding under each such Note as of the date hereof, as set forth on
Schedule A hereto, the "Individual Principal Amount");
WHEREAS, in connection with each Loan, Borrower and Zenzus
entered into a pledge and security agreement providing for the pledge by
Borrower of a portion of the Shares as security for repayment of the related
Loan (each, a "Security Agreement" and, collectively, the "Security
Agreements");
WHEREAS, pursuant to the Employment Agreement, Gemplus has
agreed to cause interest accruing on the Aggregate Principal Amount with respect
to any period after June 30, 2001 to be forgiven or satisfied as of the due date
thereof;
WHEREAS, pursuant to the Employment Agreement and the Notes,
Borrower is required to repay the Aggregate Principal Amount as of the first
date following the initial public offering of the shares of Common Stock as of
which all applicable lock-up periods imposed on sales of Common Stock expire
(subject to compliance with applicable securities laws), provided that Borrower
is permitted to defer repayment of such Aggregate Principal Amount to the extent
that Borrower cannot realize at such time sufficient funds to repay all of the
Aggregate Principal Amount upon the sale of shares of Common Stock then owned by
him, including the Shares;
WHEREAS, Zenzus has requested that Borrower sell and transfer
to Zenzus all of the Additional Shares and the Vested Shares (collectively, the
"Initial Shares"), at a per share price equal to the Value thereof (as defined
below) as of the applicable Date of Determination (as defined below), and apply
100% of the proceeds of such sale and transfer (the "Initial Share Proceeds") to
prepay (i) first, 100% of the Initial Interest (as defined below), (ii) next,
100% of the Individual Principal Amount under the December 2000 Note and the
March 2001 Note and (iii) last, a pro rata portion of the Individual Principal
Amount under the July 2000 Note and the September 2000 Note, and Borrower has
agreed to effect such sale, transfer and prepayments;
WHEREAS, Zenzus and Borrower have also agreed that, with
respect to the aggregate Individual Principal Amount remaining outstanding under
the July 2000 Note and the September 2000 Note after prepayment of a pro rata
portion thereof pursuant to this Agreement (such remaining aggregate principal
amount, the "Remaining Principal Amount"), Borrower will repay 100% of such
Remaining Principal Amount and Zenzus will accept the Remaining Option Shares in
full payment thereof in accordance with this Agreement upon the Remaining Option
Shares (as defined below) having an aggregate Value equal to such Remaining
Principal Amount; and
WHEREAS, all applicable lock-up periods and other restrictions
on transfer of the Initial Shares have or will have expired or been waived with
respect to Borrower's transfer of such Initial Shares to Zenzus accordance with
this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
covenants and promises contained herein and for other good and valuable
consideration, Borrower and Zenzus hereby agree as follows:
1. Sale and Transfer of Additional Shares; Prepayment; First Closing.
Each of Zenzus and Borrower hereby covenants and agrees that, at the First
Closing (as defined below), Borrower will sell, transfer and deliver to Zenzus
and Zenzus will purchase all of the Initial Shares, at a price per Initial Share
equal to the Value thereof as of the applicable Date of Determination, and will
apply 100% of the Initial Share Proceeds to prepay (i) first, 100% of the
Initial Interest, (ii) next, 100% of the Individual Principal Amount under the
December 2000 Note and the March 2001 Note, (iii) third, a pro rata portion of
the Individual Principal Amount under each of the July 2000 Note and the
September 2000 Note used by Borrower to purchase the Vested Option Shares and
(iv) a pro rata portion of the Individual Principal Amount under each of the
July 2000 Note and the September 2000 Note used by Borrower to purchase the
Remaining Option Shares, resulting in full and complete satisfaction of
Borrower's obligations (x) for Initial Interest, (y) under the December 2000
Note and the March 2001 Note and the related Security Agreements and (z) in
respect of the applicable pro rata portion of the Individual Principal Balance
under the July 2000 Note and the September 2000 Note. With respect to each of
the July 2000 Note and the September 2000 Note, the pro rata portion of the
Individual Principal Amount prepaid thereunder at such First Closing will equal
the product of (i) the excess of (A) 100% of the Initial Share Proceeds over (B)
the sum of the Initial Interest, the Individual Principal Amount under the
December 2000 Loan and the Individual Principal Amount under the March 2001
Loan, multiplied by (ii) a fraction, the numerator of which equals the
Individual Principal Amount of the applicable Note and the denominator of which
equals the sum of the Individual Principal Amount under the July 2000 Note and
the Individual Principal Amount under the September 2000 Note.
2. Sale and Transfer of Remaining Option Shares; Repayment. Each of
Zenzus and Borrower hereby covenants and agrees that, on any date after the
Lock-Up End Date (as defined below), when the Remaining Option Shares have an
aggregate Value equal to or greater than the Remaining Principal Amount, either
party may deliver written notice to the other requiring Borrower to sell and
transfer to Zenzus, or Zenzus to purchase and accept from Borrower, as
applicable, all of the Remaining Option Shares at the Second Closing in full
satisfaction of the Remaining Principal Amount. For the avoidance of doubt, if
such Value exceeds the Remaining Principal Amount, Zenzus shall retain such
excess and Borrower shall not be entitled to any compensation in respect
thereof.
3. Effect on Notes and Security Agreements.
(a) Sale of Initial Shares; December 2000 Note and March 2001
Note. At the First Closing, immediately upon the sale,
transfer and delivery of the Initial Shares in accordance
with Section 1, each of the December 2000 Note and March
2001 Note and the related Security Agreements shall
automatically terminate in their entirety without any action
required on the part of any party thereto and, thereupon,
all of the respective rights and obligations of such parties
thereunder shall terminate.
(b) Sale of Initial Shares; July 2000 Note and September 2000
Note. Each of Borrower and Zenzus hereby acknowledges and
agrees that, from and after the sale of the Initial Shares
and prepayment as described in Section 1, all of the
Remaining Option Shares shall continue to be pledged as
security for the repayment of the remaining Individual
Principal Amount under the July 2000 Note and the September
2000 Note. After the First Closing, each of the July 2000
Note and the September 2000 Note and the related Security
Agreements will continue in full force and effect in
accordance with their respective original terms, including,
without limitation, such terms permitting Borrower to
transfer to Zenzus Remaining Option Shares that, at the time
of such transfer, are subject to GISA's right of purchase in
satisfaction of the portion of the related Loan made to
Borrower to purchase such Remaining Option Shares, provided
that, promptly following the written request of Borrower
delivered to Zenzus, Zenzus will prepare and deliver to
Borrower amended Notes, executed by Zenzus, reflecting the
principal amount then outstanding thereunder after giving
effect to the prepayment contemplated by this Agreement and
full payment and satisfaction of the Initial Interest
thereunder.
(c) Sale of Remaining Option Shares; July 2000 Note and the
September 2000 Note. After the Second Closing , immediately
upon the sale, transfer and delivery of the Remaining Option
Shares in accordance with Section 2, each of the July 2000
Note and the September 2000 Note and the related Security
Agreements shall automatically terminate in their entirety
without any action required on the part of any party thereto
and, thereupon, all of the respective rights and obligations
of such parties thereunder shall terminate.
4. Closings.
(a) In General. The First Closing and the Second Closing will
each take place at the principal offices of Zenzus, as soon
as reasonably practicable following the satisfaction of the
conditions precedent to such closing, provided that the
First Closing will take place no later than December 31,
2001 and the Second Closing will take place no later than
three business days following satisfaction of such
conditions. At the applicable Closing, Borrower will sell
the applicable Shares to Zenzus and will transfer and
deliver to Zenzus all documents necessary or appropriate to
transfer full and complete ownership of such Shares to
Zenzus, free and clear of any and all liens or other
encumbrances thereon (other than those created by the
Security Agreements, the Employment Agreement and the Option
Agreement), and, at such Closing, Zenzus will purchase such
Shares and will accept all such document(s). Borrower hereby
irrevocably instructs and authorizes any officer of GISA
(with full power of sub-delegation) to proceed to the
inscription on the share register of GISA of the transfer of
the applicable Shares, Zenzus being thereafter at liberty to
dispose of such Shares, and to the registration in such
share register of any modifications in the security
arrangements to any of the Shares resulting from the
transactions contemplated by this Agreement.
(b) Conditions. Each closing shall be subject to the accuracy of
the representations of Borrower set out in Section 7 on and
as of the date thereof and due execution and delivery by
Borrower of all document(s) necessary or appropriate to
transfer full and complete ownership of such Shares to
Zenzus, duly endorsed, free and clear of any and all liens
or other encumbrances thereon (other than those created by
the Security Agreements, the Employment Agreement and the
Option Agreement).
(c) Additional Conditions Applicable to the First Closing. The
First Closing shall further be subject to (i) resolution of
the GISA Board stating that it has no objection to the sale
and transfer of the Shares and prepayment of the Notes in
accordance with this Agreement and authorizing the amendment
or waiver of any Agreement to which it is party to the
extent necessary to permit such sale, transfer and
prepayment, (ii) receipt by GISA of an opinion of
PriceWaterhouseCoopers as to the fairness of such
transactions to Zenzus and to the shareholders of GISA,
which opinion is reasonably acceptable to GISA, and (iii)
receipt by Zenzus of legal opinions concerning such
transactions that are reasonably acceptable to Zenzus.
5. Governing Law. The provisions of this Agreement shall be construed
and interpreted in accordance with the laws of California, without regard to the
principles of conflicts of laws.
6. Notices. Any notice or other communication required or permitted to
be delivered under this Agreement shall be (i) in writing, (ii) delivered
personally, by courier service or by certified or registered mail, first-class
postage prepaid and return receipt requested, (iii) deemed to have been received
on the date of delivery or, if so mailed, on the third business day after the
mailing thereof or as provided by the postal services, whichever is the latest,
and (iv) addressed as follows (or to such other address as the party entitled to
notice shall hereafter designate in accordance with the terms hereof):
(A) If to Zenzus, to it at:
Zenzus Holdings Limited
10/8 International Commercial Center
Casemates Square
Gibraltar
Attention: Corporate Secretary
(B) if to Borrower, to him at his residential address as
currently on file with Gemplus.
Copies of any notices or other communications given under this Agreement shall
also be given to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
Spear Xxxxxx Xxxxx
Xxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
and
GEMPLUS AMERICAS INC.
0 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
7. Representations and Warranties; Additional Covenants.
(a) Representations and Warranties. Borrower hereby represents
and warrants as of the date hereof and each Closing date
that (i) he is entering and has entered into this Agreement
voluntarily, (ii) he has had the opportunity to obtain the
advice of counsel of his own choosing in entering into this
Agreement and transactions contemplated hereby, (iii) he is
fully aware of the contents of this Agreement and its legal
effect and is entering and has entered into this Agreement
without threat, coercion, fraud or duress of any kind, (iv)
he is not relying on any representation, statement or
warranty of any party regarding this Agreement or the
transactions contemplated hereby, (v) he has full power and
authority to enter into this Agreement and to perform his
covenants and obligations hereunder, on his own behalf and
on behalf of any transferee of any of the Shares, and (vi)
compliance with the terms and conditions of this Agreement
by him or them will not conflict with or result in the
breach by him or them of any agreement to which he or they
are a party or by which he or they may be bound.
(b) Covenants. Borrower hereby covenants and agrees that, in the
case of any Shares that are held by the Permitted
Transferee, Borrower will cause the Permitted Transferee to
sell, transfer and deliver such Shares at the time and in
the manner that Borrower is required by this Agreement to
sell, transfer and deliver such Shares.
8. Assignment. This Agreement shall be assignable in full or in part by
Zenzus to any affiliate of Zenzus without the consent of Borrower. No obligation
or rights of Borrower hereunder can be assigned or transferred without the prior
written consent of Zenzus.
9. No Waiver; Cumulative Remedies. No failure on the part of Zenzus or
Borrower to exercise, and no delay in exercising, any of its or his rights,
remedies or powers hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise by Zenzus or Borrower of any such right, remedy or
power hereunder preclude any other or future exercises of any other right,
remedy or power. Each and every right, remedy and power hereby granted to Zenzus
or Borrower or allowed it or him by law or other agreement shall be cumulative
and not exclusive of any other, and may be exercised by Zenzus or Borrower, as
the case may be, from time to time.
10. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision of this Agreement or the application thereof
to any circumstance shall, to any extent, be invalid, illegal or unenforceable,
such term or such provision shall be ineffective to the extent of such
invalidity, illegality or unenforceability without invalidating or rendering
unenforceable any remaining terms or provisions hereof or thereof or the
application of such term or provision to circumstances other than those as to
which it is held invalid, illegal or unenforceable.
11. Headings. The section headings in this Agreement are for
convenience only and are not intended to effect the construction of the
provisions of this Agreement.
12. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one and the same instrument.
13. Entire Agreement. This Agreement, together with the Employment
Agreement, the Security Agreements and the Notes, constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
provided that the terms of this Agreement shall supersede any terms of the
Employment Agreement, the Security Agreements and/or the Notes that are
inconsistent with the terms of this Agreement. All prior correspondence and
proposals and all prior promises, representations, understandings, arrangements
and agreements relating to such subject matter are merged herein and superseded
hereby.
14. Certain Definitions. For purposes of this Agreement, the following
terms shall have the following meanings when capitalized:
(a) "Value" means (x) in the case of the sale and
transfer of the Initial Shares, Euro 2.79 (constituting the
lesser of (i) the closing price for a share of Common Stock on
Euronext Paris on the Date of Determination and (ii) the
average of the closing prices for a share of Common Stock on
Euronext Paris on the five trading days up to and including on
the Date of Determination) and (y) in the case of the sale and
transfer of the Remaining Option Shares, the lesser of (i) the
closing price for a share of Common Stock on Euronext Paris on
the Date of Determination and (ii) the average of the closing
prices for a share of Common Stock on Euronext Paris on the
five trading days up to and including the Date of
Determination.
(b) "Date of Determination" means, in the case of the
sale and transfer of the Initial Shares, October 19, 2001,
and, in the case of the sale and transfer of the Remaining
Option Shares, the date of the written notice of Zenzus or
Borrower in accordance with Section 2.
(c) "Initial Interest" means Euro 4,559,000, which
constitutes the sum of the interest accrued in respect of each
Loan for the period from the date of origination of such Loan
through and including June 30, 2001.
(d) "First Closing" means the closing of the sale and
transfer of the Initial Shares to Zenzus and the application
of the Initial Share Proceeds to the prepayment of Initial
Interest and a portion of the Aggregate Principal Balance in
accordance with this Agreement.
(e) "Second Closing" means the closing of the sale and
transfer of the Remaining Option Shares to Zenzus and the
application of the proceeds thereof to the repayment of the
Remaining Principal Balance in accordance with this Agreement.
(f) "Remaining Option Shares" means the 12,169,373
Option Shares which, as of the date hereof, are subject to
GISA's right of purchase in accordance with the Option
Agreement and the Employment Agreement.
(g) "Closing" means the First Closing or the Second
Closing, as the context requires.
(h) "Lock-Up End Date" means the earlier of (i) December
8, 2001 and (ii) the date the French COB authorizes, or waives
any objection to, the sale of the Remaining Option Shares.
IN WITNESS WHEREOF, Zenzus has duly executed this Agreement by
its authorized representative, and Borrower has hereunto set his hand, in each
case effective as of the date first above written.
ZENZUS HOLDINGS LIMITED
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Attorney in fact duly authorized
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
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SCHEDULE A
Promissory Note dated as of July 25, 2000: Individual Principal Amount equal to
Eur 69,177,096.46
Promissory Note dated as of September 25, 2000: Individual Principal Amount
equal to Eur 2,681,129.36
Promissory Note dated as of December 15, 2000: Individual Principal Amount equal
to Eur 3,417,197.46
Promissory Note dated as of March 28, 2001: Individual Principal Amount equal to
Eur 13,633,952.47
December 19, 2001
Xxxx X. Xxxxxxxx
Vice Chairman
Gemplus International SA
Xxxxxxx X. Xxxxx
Chairman, Audit Committee
Gemplus International
Gemplus International SA
Xxxxxxxx Xxxxxx
0 Xxxxxxxx
X-0000 Xxxxxxxxxxx
Xxxxxxxxxx
Attention: General Counsel
GEMPLUS AMERICAS Inc.
0 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
and
Zensus Holdings Limited
10/8 International Commercial Center
Casemates Square
Gibraltar
Attention: Corporate Secretary
Gentlemen,
Pursuant to our discussions, I hereby resign all of my positions with Gemplus
International SA ("GISA") and all of its subsidiaries and affiliates effective
December 19, 2001, subject to the following understanding and agreements:
(i) GEMPLUS AMERICAS Inc. ("Gemplus) and GISA agree that my resignation with
less than 30 days notice is not a violation of my Second Amended and Restated
Employment Agreement, dated as of July 11, 2001 ("Employment Agreement") and
will be deemed to have occurred for "Good Reason, entitling me the termination
benefits set forth under Section 7(f)(i)(A), (B) and (C) of my Employment
Agreement.
(ii) Gemplus, GISA, Zenzus Holdings Limited ("Zenzus") and I agree that there
shall occur no acceleration of vesting in stock options or stock option shares
that might otherwise occur by reason of a resignation for "Good Reason."
(iii) Zenzus, GISA and Gemplus agree that, pursuant to Section 4(b)(iii) of my
Employment Agreement and the terms of my July 2000 Note and September 2000 Note
in favor of Zenzus, any remaining indebtedness thereunder, after giving effect
to the First Closing under the Repayment Agreement entered into October 20, 2001
between myself and Zenzus (the "Repayment Agreement"), including the Remaining
Balance of the July 2000 Note and September 2000 Note (as defined in the
Repayment Agreement), shall be deemed satisfied in full by my transfer of my
Remaining Option Shares (as defined in the Repayment Agreement) to Zenzus, and I
shall be entitled to an appropriate tax gross-up payment. I agree to transfer
such shares to Zenzus on the date of my resignation or as soon as practicable
thereafter.
(iv) Gemplus, GISA, Zenzus and I will deliver appropriate mutual releases of all
claims.
I agree to work with the Board to make an orderly and successful transition to
new leadership. I have worked hard to make Gemplus as successful as possible. I
would not want to see it fail or falter.
Sincerely.
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
