Exhibit 10.13
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the "Agreement") is entered into
by and among following Parties: ActivCard, S.A., (the "Company"), ActivCard,
Inc., Xxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx and Xxxx Xxxxxx Xxxxxx (collectively
"Defendants"), on the one hand, and Xxxxxxx X. Xxxxxxx ("Plaintiff" or
"Xxxxxxx"), on the other hand (collectively, the "Parties").
On October 31, 1997, Plaintiff commenced an action entitled Xxxxxxx X.
Xxxxxxx v. ActivCard, S.A. et al., in the United States District Court for the
Northern District of California, Case C-97-4021 MMC ("the Litigation")
alleging violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934, fraud and deceit, conspiracy, breach of contract, breach of
fiduciary duty against Defendants arising out of his ownership of shares in
ActivCard Networks, Inc. and the merger of ActivCard Networks Inc. into
Defendant ActivCard, Inc.
Plaintiff believes that the claims asserted in the Litigation have
merit. Defendants deny each and all of the claims and contentions alleged in
the Litigation. Nevertheless, to avoid the expense and uncertainty of
litigation the Parties desire that the Litigation be fully and finally
settled in the manner and on the terms and conditions set forth below.
Now, therefore, the Parties hereby agree that the Litigation be finally
and fully settled upon and subject to the following terms and conditions:
1. CONSIDERATION:
1.1 As additional consideration for Plaintiff's shares in ActivCard
Networks, Inc., and in settlement of Plaintiff's claims in the Litigation, on
the date of execution of this Agreement by the Parties, the Company will and
hereby does authorize the disbursement to Xxxxxxx of U.S. $637,500 in cash
(the "Cash Consideration") from the trust account described below and, on or
before August 2, 1999, the Company shall deliver to Plaintiff 480,000 shares
of common stock
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of ActivCard, S.A. (the "Shares") at an issue price of $1.25 per share (the
"Effective Date"). The Company shall deliver the Shares to Xxxxxxx by
causing the Shares to be registered solely in the name of Xxxxxxx X. Xxxxxxx
on the books of PARIBAS, 0 xxx x'xxxxx, 00000 Xxxxx XXXXX 0, Xxxxxx, in an
account solely under Xxxxxxx'x name and subject to his sole and exclusive
authority and discretion. The fact and manner of the delivery of the Shares,
including all account information, shall be verified by the Company in
writing, and the Company shall use its best efforts to obtain from PARIBAS,
and to deliver with the Company's verification to Xxxxxxx, written
confirmation of the fact and manner of delivery and all account information, as
soon as possible. For the purposes of this Agreement, however, the Shares
shall not be considered to have been delivered, and the Company's performance
of its obligations therefore not complete, until the foregoing written
confirmation has been received by Plaintiff through his counsel of record, by
facsimile or overnight delivery, at the address set forth below. The Shares
shall be paid for in their entirety by setting off the subscription price of
the Shares against the Company's obligation, pursuant to this Agreement, to
provide Plaintiff additional consideration for Plaintiff's shares in
ActivCard Networks, Inc. As of June 25, 1999, the Cash Consideration has
been deposited by or on behalf of Defendants in an interest-bearing trust
account maintained by Plaintiff's counsel, and Xxxxxxx is entitled to all
interest accrued on the Cash Consideration. Collectively, the Cash
Consideration and the Shares shall constitute the "Settlement Consideration."
1.2 In consideration of the foregoing, as soon as practicable following
the Company's performance of its obligations under paragraph 1.1, and in no
event later than ten court days thereafter, Plaintiff shall dismiss the
Litigation in its entirety, against all Defendants and each of them, with
prejudice, with each Party bearing its own costs, expenses and legal fees in
the Litigation. If for any reason the Litigation is not dismissed with
prejudice, the Settlement Consideration, together with any interest earned,
less all out of pocket expenses and fees incurred.
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on behalf of Plaintiff to secure French counsel in connection with reaching a
final agreement, will be returned to the Company.
RELEASE:
2.1 A "Released Person" is a Party in whose favor the release set forth in
this Agreement has been executed by another Party.
2.1 "Released Claims" shall collectively mean any and all claims (including
"Unknown Claims" as defined in paragraph 2.2 hereof), demands, rights,
liabilities and causes of action of every nature and description
whatsoever, known or unknown, whether or not concealed or hidden, asserted or
that might have been asserted, based upon the facts, transactions, events,
occurrences, sets, disclosures, statements, omissions or failures to act
which were, could or might have been alleged in the Litigation, including,
without limitation, claims for negligence, gross negligence, breach of duty of
care and/or breach of duty of loyalty, fraud, breach of fiduciary duty, or
violations of any state or federal statutes, rules or regulations.
2.2 "Unknown Claims" means any Related Claims which any Party does not know or
suspect to exist in his or its favor at the time of the Effective Date which,
if known by him or it, might have affected his or its settlement with and
release of the Released Persons, or might have affected his or its decision to
enter into this Agreement. With respect to any and all Released Claims, the
Parties agree that, upon the Effective Date, the Parties shall have expressly
waived any and all provisions, rights and benefits conferred by any law of any
state or territory of the United States, or principle of common law, or of
international or foreign law which is similar, comparable or equivalent to
California Civil Code Section 1542, which provides as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor.
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Each of the Parties may hereafter discover facts in addition to or different
from those which he or it now knows or believes to be true with respect to
the subject matter of the Released Claims, but each Party agrees that upon
the Effective Date that Party shall have, fully, finally, and forever settled
and released any and all Released Claims, known or unknown, suspected or
unsuspected, contingent or non-contingent, whether or not concealed or
hidden, which now exist, or heretofore have existed upon any theory of law or
equity now existing or coming into existence in the future, including, but
not limited to, conduct which is negligent, intentional, with or without
malice, or a breach of any duty, law or rule, without regard to the
subsequent discovery or existence of such different or additional facts. The
Parties acknowledge that the foregoing waiver was separately bargained for
and an essential element of the settlement of which this release is a part.
2.3 As of the Effective Date, Plaintiff shall and hereby does fully,
finally, and forever release Defendants and each of them, and their
respective directors, officers, representatives, agents, employees,
successors, assigns, heirs and attorneys, past and present, of and from the
Released Claims. This release operates to make Defendants, and each of them,
Released Persons, as defined herein, and includes the release of all Unknown
Claims, as defined herein.
2.4 As of the Effective Date, Defendants, and each of them, shall and
hereby do fully, finally, and forever release Plaintiff, and each of his
representatives, agents, successors, assigns, heirs and attorneys, past and
present, of and from the Released Claims. This release operates to make
Plaintiff a Released Person, as defined herein, and includes the release of
all Unknown Claims, as defined herein.
3. OTHER PROVISIONS:
3.1 RIGHTS OF PLAINTIFF AS SHAREHOLDER. As a shareholder of the
Company's common stock, Plaintiff shall have the rights appurtenant to such
ownership. In particular, in the event
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the Company causes its common stock to become tradable (whether directly or
indirectly, through American Depository Receipts), on any exchange other than
NASDAQ, Plaintiff's shares shall be likewise so tradable.
3.2 ACTION BY CORPORATE DEFENDANT TO EFFECT SETTLEMENT. The Company
represents and warrants that it has taken all corporate and other action
necessary and sufficient to secure all necessary approvals and to effect each
and all of the terms of the Agreement, including any and all board actions,
approvals (including shareholder approvals), and filings required by any
governmental or other agency. The Defendants acknowledge that time is of the
essence with respect to their execution of all documents and corporate and
other action necessary to effectuate the Agreement.
3.3 NO RESTRICTIONS ON SHARES. The Company represents and warrants that
all of the Shares delivered to Plaintiff pursuant to this Agreement will be
fully issued and shall be freely available and transferable without
restriction. Upon delivery of the Shares, all securities and rights under
this Agreement shall be freely transferable, assignable, and such securities
may be used as collateral or pledged in any way at the sole discretion of the
Plaintiff, except as otherwise provided herein.
3.4 ORDERLY SALE OF SHARES. Plaintiff agrees to sell any Company Shares
owned by him in an orderly fashion.
3.5 TAX TREATMENT. The Parties agree that they will not report the
transfer of the Settlement Consideration to Plaintiff as anything other than
consideration paid pursuant to a "Deorganization" within the meaning of
Section 368 of the Internal Revenue Code. Defendants will not, however, be
required to make any specific filings or to amend any previously filed tax
returns. Plaintiff agrees to indemnify the Company for any United States
withholding taxes finally determined by the Internal Revenue Service ("IRS") to
be due and payable
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notwithstanding the reporting of the payment of the Settlement Consideration
in the manner described, in the amount of such taxes that would have been
payable by Plaintiff, but in no event to exceed $220,000. This indemnity
provision shall be void and of no effect if Defendants report or contend in
any manner that payment of the Settlement Consideration is anything other
than consideration paid pursuant to a reorganization within the meaning of
Section 368 of the Internal Revenue Code; the foregoing however, does not
limit Defendants' ability to accurately describe the facts pertaining to this
settlement to the IRS in response to an inquiry by the IRS, and such
responses shall not void this indemnity provision. This indemnity provision
shall expire at the earlier of a change in control of the Company or
January 1, 2003.
3.6 AUTHORITY. Each of the Parties and signatories for the Parties
represents that he or it has the full right, power and authority to execute
and perform this Agreement and each of the other instruments and agreements
required from that Party pursuant to this Agreement and that no such
execution or performance in any way, directly or indirectly, violates or
conflicts with: (a) any law or any order of a court or a government authority
or agency, or (b) any contract, right, title or interest of any other person
or entity.
3.7 CONFIDENTIALITY. The terms of this Agreement shall be confidential.
The Parties agree to keep each and all of the terms of this Agreement
confidential from third parties, nonemployees, and from employees of any
corporate Defendant who do not need to know such terms for the purpose of
performing their duties, except as may be required by law including, without
limitation, pursuant to an order of a court of competent jurisdiction, as
required by any regulatory agency, to the Company's statutory auditors, for
tax and accounting purposes, or as may be required in the course of due
diligence pursuant to any merger, acquisition, or reorganization of the
Company. The fact of the existence of a settlement may be disclosed. Released
Persons may file the Agreement in any action that may be brought against them
in order to support a defense or counterclaim based on principles of RES
JUDICATA, collateral
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estoppel, release, good faith settlement, judgment bar or reduction or any
other theory of claim preclusion or issue preclusion or similar defense or
counterclaim, but shall first take all action necessary to preserve the
confidentiality of the terms of the Agreement, including filing under seal. No
party hereto shall make or cause to be made any public statement, press
release, or affirmative disclosure of the terms of this Agreement other than
those statements required under the reporting requirements imposed by the laws
of France or of the United States, nor shall any party hereto make or cause to
be made any public statement or press release regarding the merits of the
Litigation. Any party hereto who receives any inquiry regarding the
Litigation shall respond only by saying that a settlement has been reached,
and that its terms are confidential.
3.8 LEGAL FEES. In any legal or equitable action or arbitration
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.
3.9 WRITTEN MODIFICATION. This Agreement may not be altered,
amended, modified, or otherwise changed in any respect or particular
whatsoever, except in a writing duly executed by all of the Parties to this
Agreement.
3.10 ENTIRE AGREEMENT. The Parties agree that this Agreement
constitutes their full, final, and irrevocable agreement to settle the
Litigation and that this Agreement is the entire Agreement between the
Parties and supersedes all prior or contemporaneous oral or written
agreements or discussions, and that no Party has relied upon any other
communication whatsoever in entering this Agreement. The Parties acknowledge
that this Agreement has been reviewed by their respective counsel prior to
its signing, and that each Party has had an opportunity to discuss fully the
terms of this Agreement with its respective counsel.
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3.11 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.
3.12 CONSTRUCTION. All of the provisions of this Agreement are
contractual and not mere recitals. The Parties hereby agree that any
common-law, equitable or statutory rule to the effect that an ambiguous term
or provision will be construed against the maker of this Agreement is hereby
waived. In the event of any conflict between this Agreement and any translation
of this Agreement, the English language version shall control.
3.13 SUCCESSORS AND ASSIGNS. This Agreement is binding upon and shall
inure to the benefit of the Parties and their respective parent companies,
affiliates, subsidiaries, agents, employees, officers, directors,
shareholders, partners, joint ventures, attorneys, insurers, bonding
companies, heirs, successors and assigns.
3.14 CHOICE OF LAW. This Agreement shall be governed by, and construed
in accordance with and pursuant to, the law of California.
3.15 EXECUTION IN COUNTERPARTS AND/OR VIA FACSIMILE. This Agreement
may be executed in one or more counterparts and/or via facsimile, each of which
shall be deemed an original, but all of which shall constitute one and the
same instrument.
3.16 JURISDICTION AND VENUE. The Defendants, and each of them, hereby
consent to the 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.
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3.17 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.
3.18 NO INSOLVENCY. Each Defendant warrants that, as to his or its
contribution to the settlement consideration, at the time of such contribution,
he or it was not insolvent nor did nor will such contribution render such
Defendant insolvent within the meaning of and/or for the purposes of United
States Bankruptcy Code, including Sections 1101 and 547, or any analogous
provisions of the law of any other jurisdiction. This warranty is made by each
Defendant and not by such Defendant's counsel.
3.19 EFFECT OF COMPANY INSOLVENCY. If, prior to the expiration of 91
days following the transfer of any portion of the Settlement Consideration, a
case is commenced in respect to the Company under Title 11 of the United States
Code (Bankruptcy), or any analogous provisions of the law of any other
jurisdiction, or a trustee, receiver or conservator is appointed under any
similar law, and in the event of the entry of a final order of a court of
competent jurisdiction determining the transfer of the Settlement
Consideration, or any portion thereof, by or on behalf of the Company to be a
preference, voidable transfer, fraudulent transfer or similar
transaction, then the release given and Dismissal entered in favor of the
Company pursuant to this Agreement shall be voidable, and Plaintiff's claims
against the Company, and each of them, revived NUNC PRO TUNC, at Plaintiff's
election.
3.20 BEST EFFORTS. The Parties (a) acknowledge that it is their intent
to consummate this Agreement, and (b) agree to cooperate to the extent
reasonably necessary to effectuate and implement all terms and conditions of
the Agreement and to exercise their best efforts to accomplish the foregoing
terms and conditions of the Agreement.
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3.21 FULL, FINAL AND IRREVOCABLE SETTLEMENT OF CLAIMS. The Parties
intend this Agreement to be a final and complete resolution of all disputes
between them with respect to the Litigation. The settlement compromises
claims which are contested and shall not be deemed an admission by any Party
as to the merits of any claim or defense. The Parties agree that the
Settlement Consideration paid and the other terms of this Agreement were
negotiated in good faith by the Parties, and reflect a settlement that was
reached voluntarily after consultation with experienced legal counsel.
3.22 NO ADVERSE INFERENCES TO BE DRAWN. Neither this Agreement, nor any
act performed or document executed pursuant to or in furtherance of the
Agreement (including the Memorandum of Understanding effective June 11,
1999): (a) constitutes an admission of, or evidence of, the validity of any
Released Claim, or of any wrongdoing or liability of the Released Persons; or
(b) may be used as an admission of, or evidence of, any fault or omission of
any of the Released Persons in any civil, criminal or administrative
proceedings in any court, administrative agency or other tribunal.
AGREED AND APPROVED AS TO FORM:
/s/ Xxxx-Xxxxxx Xxxxxx
-------------------------------------
ActivCard, S. A.
by Xxxx-Xxxxxx Xxxxxx, its chief executive officer
/s/ Xxxx-Xxxxxx Xxxxxx
-------------------------------------
ActivCard, Inc.
by Xxxx-Xxxxxx Xxxxxx, its President
/s/ Xxxx Xxxxxxxx
-------------------------------------
Xxxx Xxxxxxxx
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3.21 FULL, FINAL AND IRRAVOCABLE SETTLEMENT OF CLAIMS. The Parties
intend this Agreement to be a final and complete resolution of all disputes
between them with respect to the Litigation. The settlement compromises
claims which are contested and shall not be deemed an admission by any Party
as to the merits of any claim or defense. The Parties agree that the
Settlement Consideration paid and the other terms of this Agreement were
negotiated in good faith by the Parties, and reflect a settlement that was
reached voluntarily after consultation with experienced legal counsel.
3.22 NO ADVERSE INFERENCE TO BE DRAWN. Neither this Agreement, nor any
act performed or document executed pursuant to or in furtherance of the
Agreement (including the Memorandum of Understanding effective June 11,
1999): (a) constitutes an admission of, or evidence of, the validity of any
Released Claim, or of any wrongdoing or liability of the Released Persons; or
(b) may be used as an admission of, or evidence of, any fault or omission of
any of the Released Persons in any evil, criminal or administrative
proceedings in any court, administrative agency or other tribunal.
AGREED AND APPROVED AS TO FORM:
/s/ Xxxx-Xxxxxx Xxxxxx
-------------------------------------
ActivCard, S. A.
by Xxxx-Xxxxxx Xxxxxx, its chief executive officer
/s/ Xxxx-Xxxxxx Xxxxxx
-------------------------------------
ActivCard, Inc.
by Xxxx-Xxxxxx Xxxxxx, its President
/s/ Xxxx Xxxxxxxx
-------------------------------------
Xxxx Xxxxxxxx
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/s/ Achille Delahayo
------------------------------------
Xxxxxxx Xxxxxxxx
------------------------------------
Xxxx-Xxxxxx Xxxxxx
APPROVED AS TO FORM:
/s/ X. X. Xxxxxxxx
------------------------------------
X. X. Xxxxxxxx
Xxxxx Xxxxxxxx
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile (000) 000-0000
Attorneys for Defendants ActivCard, SA,
ActivCard, Inc., Xxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx
and Xxxx-Xxxxxx Xxxxxx
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------------------------------------
Xxxxxxx Xxxxxxxx
/s/ Xxxx-Xxxxxx Xxxxxx
------------------------------------
Xxxx-Xxxxxx Xxxxxx
APPROVED AS TO FORM:
/s/ X. X. Xxxxxxxx 7/23/99
------------------------------------
X. X. Xxxxxxxx
Xxxxx Xxxxxxxx
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile (000) 000-0000
Attorneys for Defendants ActivCard, SA,
ActivCard, Inc., Xxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx
and Xxxx-Xxxxxx Xxxxxx
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AGREED AND APPROVED AS TO FORM:
------------------------------------
Xxxxxxx X. Xxxxxxx
APPROVED AS TO FORM:
------------------------------------
Xxxxx X. Xxxxx, Xx.
Xxxx X. Missing
Xxxxx X. Xxxx
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
Attorneys for Plaintiff Xxxxxxx X. Xxxxxxx
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