Exhibit 10.1
MUTUAL RELEASE AND WAIVER
AGREEMENT
This MUTUAL
RELEASE AND WAIVER AGREEMENT (the “Release”), is
made and entered into as of July 19, 2007 (the
“Effective Date”), by and between ACTIVIDENTITY
CORPORATION, a Delaware corporation (the
“Company”) and JASON HART, MICHAEL SMITH and
EQUITY PARTNERS TWO PTY LTD (collectively, the “Former
Protocom Shareholders”). The Company and each of the
Former Protocom Shareholders are sometimes referred to herein
individually as a “Party” and collectively as
the “Parties”.
W I T N E S S E T
H
WHEREAS, the
Company, the Former Protocom Shareholders and Peter Johnson (as
replaced by Quentin Jones) (the “Sellers’
Representative”), entered into that certain Stock
Purchase Agreement (the “Stock Purchase
Agreement”), dated as of July 26, 2005, pursuant to
which the Company acquired the outstanding capital stock (the
“Acquisition”) of Protocom Development Systems
Pty. Ltd. (“ Protocom”). Capitalized terms that
are not otherwise defined herein shall have the meanings ascribed
to such terms as set forth in the Stock Purchase Agreement;
WHEREAS, pursuant
to Sections 2.02 and 2.07 of the Stock Purchase Agreement, the
Company agreed to issue up to an additional 2,100,000 shares of its
Common Stock to the Former Protocom Shareholders under an earn-out
provision if Protocom achieved certain revenue targets during the
one-year period ended June 30, 2006 (the
“Earnout”);
WHEREAS, based on
the Company’s calculation of the qualifying revenues that are
credited toward the Earnout, the Company has concluded that the
revenue targets have not been met and no additional consideration
under the Earnout is owed to the Former Protocom Shareholders;
WHEREAS, the
Sellers’ Representative has demanded that the full Earnout
amount be paid to the Former Protocom Shareholders and has
threatened to file suit against the Company (the “Earnout
Dispute”);
WHEREAS, the
Parties desire to settle the outstanding disputes, including the
Earnout Dispute, related to the transactions contemplated by the
Stock Purchase Agreement as set forth herein.
NOW, THEREFORE, in
consideration of the $898,000 (USD) (the “Settlement
Amount”) to be paid by the Company to the Former Protocom
Shareholders within five (5) business days from the date
hereof, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company and
the Former Protocom Shareholders agree as follows:
1.
Release and Waiver .
(a)
Subject to delivery of the full Settlement Amount to the
Sellers’ Representative, the Former Protocom Shareholders, on
behalf of themselves and their successors,
1
assigns, heirs,
beneficiaries, creditors, representatives, agents, shareholders,
partners, limited partners, general partners and affiliates (the
“Protocom Releasing Parties”), hereby fully,
finally, unconditionally and irrevocably waive, pursuant to
Section 10.03 of the Stock Purchase Agreement, any and all of
their rights to receive shares of Common Stock pursuant to Sections
2.02 and 2.07 of the Stock Purchase Agreement and release, acquit
and forever discharge the Company, and each of its respective
officers, directors, partners, general partners, limited partners,
managing directors, members, stockholders, trustees,
representatives, employees, principals, agents, affiliates,
parents, subsidiaries (direct and indirect), joint ventures,
predecessors, successors, assigns, beneficiaries, heirs, executors,
personal or legal representatives, insurers and attorneys of any of
them (collectively, the “Company Released
Parties”), of and from any and all commitments, actions,
debts, claims, counterclaims, suits, causes of action, damages,
demands, liabilities, obligations, costs, expenses, and
compensation of every kind and nature whatsoever, past, present or
future, at law or in equity, whether known or unknown, contingent
or otherwise, which the Protocom Releasing Parties, or any of them,
had, has or may have had at any time in the past until and
including the date of this Release, against the Company Released
Parties, or any of them, including, but not limited to, any claims
which relate to or arise out of the Stock Purchase Agreement and
any claims for breach of contract or for fraud or fraudulent
inducement in connection with the negotiation, execution, delivery
and performance of the Stock Purchase Agreement and the other
documents and agreements to which the Former Protocom Shareholders
are a party in connection with the transactions contemplated by the
Stock Purchase Agreement (collectively, “Company Causes of
Action”). Notwithstanding the foregoing, this Release
shall exclude (i) claims solely related to the Company’s
payment of the Settlement Amount and (ii) any claims arising
out of or relating to Mr. Hart’s or
Mr. Smith’s employment with the Company.
(b)
The Company, on behalf of itself and its successors, assigns,
heirs, beneficiaries, creditors, representatives, agents,
shareholders, partners, limited partners, general partners and
affiliates (the “Company Releasing Parties”),
hereby fully, finally, unconditionally and irrevocably waives and
releases, acquits and forever discharges each of the Former
Protocom Shareholders, and each of their respective officers,
directors, partners, general partners, limited partners, managing
directors, members, stockholders, trustees, representatives,
employees, principals, agents, affiliates, parents, subsidiaries
(direct and indirect), joint ventures, predecessors, successors,
assigns, beneficiaries, heirs, executors, personal or legal
representatives, insurers and attorneys of any of them
(collectively, the “Protocom Released Parties”),
of and from any and all commitments, actions, debts, claims,
counterclaims, suits, causes of action, damages, demands,
liabilities, obligations, costs, expenses, and compensation of
every kind and nature whatsoever, past, present or future, at law
or in equity, whether known or unknown, contingent or otherwise,
which such Company Releasing Parties, or any of them, had, has or
may have had at any time in the past until and including the date
of this Release, against the Protocom Released Parties, or any of
them, including, but not limited to, any claims which relate to or
arise out of the Stock Purchase Agreement and any claims for breach
of contract or for fraud or fraudulent inducement in connection
with the negotiation, execution, delivery and performance of the
Stock Purchase Agreement and the other documents and agreements to
which the Company is a party in connection with the transactions
contemplated by the Stock Purchase Agreement (collectively,
“Protocom Shareholders Causes of Action” and
together with the Company Causes of Action, the “Causes of
Action
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