Warrant To Purchase Common Stock - Identix Inc. and Motorola Inc.
IDENTIX INCORPORATED
Warrant No. 1
WARRANT TO PURCHASE A MAXIMUM OF
187,647 SHARES OF COMMON STOCK OF
IDENTIX INCORPORATED
(Void after July 7, 2005)
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT.
THIS WARRANT AND THE SHARES PURCHASABLE HEREUNDER ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AS SET FORTH HEREIN.
This certifies that Motorola, Inc., a Delaware corporation (the
"Holder"), or assigns, for value received, is entitled to purchase from Identix
Incorporated, a Delaware corporation (the "Company"), subject to the terms set
forth below, 187,647 fully paid and nonassessable shares (subject to adjustment
as provided herein) of the Company's Common Stock $0.01 par value per share (the
"Warrant Shares") for cash at a price of $17.1066 per share (the "Exercise
Price") (subject to adjustment as provided herein) at any time or from time to
time up to and including 5:00 p.m. (San Francisco Time) on July 7, 2005, such
day being referred to herein as the "Expiration Date," upon surrender to the
Company at its principal office (or at such other location as the Company may
advise the Holder in writing) of this Warrant properly endorsed with the Form of
Subscription Form attached hereto duly filled in and signed and upon payment of
the aggregate Exercise Price for the number of shares for which this Warrant is
being exercised determined in accordance with the provisions hereof. The
Exercise Price is subject to adjustment as provided in Section 3 of this
Warrant. This Warrant is issued subject to the following terms and conditions:
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1. Exercise, Issuance of Certificates, Reduction in Number of Warrant
Shares.
1.1 The purchase rights represented by this Warrant are
exercisable by the Holder in whole or in part, but not for less than 10,000
shares at a time (or such lesser number of shares which may then constitute the
maximum number purchasable; such number being subject to adjustment as provided
in Section 3 below), at any time, or from time to time, during the term hereof,
by the surrender of this Warrant and the Subscription annexed hereto duly
completed and executed on behalf of the Holder, at the office of the Company (or
such other office or agency of the Company as it may designate by notice in
writing to the Holder at the address of the Holder appearing on the books of the
Company), upon payment (i) in cash or by check acceptable to the Company, (ii)
by cancellation by the Holder of indebtedness or other obligations of the
Company to the Holder, or (iii) by a combination of (i) and (ii), of the
purchase price of the shares to be purchased.
1.2 This Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise as provided above, and the person entitled to receive the shares of the
Company's Common Stock issuable upon such exercise shall be treated for all
purposes as the holder of record of such shares as of the close of business on
such date. As promptly as practicable on or after such date and in any event
within ten (10) days thereafter, the Company at its expense shall issue and
deliver to the person or persons entitled to receive the same a certificate or
certificates for the number of shares issuable upon such exercise. In the event
that this Warrant is exercised in part, the Company at its expense will execute
and deliver a new Warrant of like tenor exercisable for the number of shares for
which this Warrant may then be exercised.
2. Shares to be Fully Paid. The Company covenants and agrees that all
Warrant Shares, will, upon issuance and, if applicable, payment of the
applicable Exercise Price, be duly authorized, validly issued, fully paid and
nonassessable, and free of all liens and encumbrances, except for restrictions
on transfer provided for herein or under applicable federal and state securities
laws.
3. Adjustments. The Exercise Price and the number of shares
purchasable hereunder are subject to adjustment from time to time as follows:
3.1 Merger, Sale of Assets, etc. If at any time while this
Warrant, or any portion hereof, is outstanding and unexpired there shall be (i)
a reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another corporation in which the
Company is not the surviving entity, or a reverse triangular merger in which the
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Company is the surviving entity but the shares of the Company's capital stock
outstanding immediately prior to the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash, or
otherwise, or (iii) a sale or transfer of the Company's properties and assets
as, or substantially as, an entirety to any other person, then, as a part of
such reorganization, merger, consolidation, sale or transfer, lawful provision
shall be made so that the holder of this Warrant shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified herein and
upon payment of the Exercise Price then in effect, the number of shares of stock
or other securities or property of the successor corporation resulting from such
reorganization, merger, consolidation, sale or transfer that a holder of the
shares deliverable upon exercise of this Warrant would have been entitled to
receive in such reorganization, consolidation, merger, sale or transfer if this
Warrant had been exercised immediately before such reorganization, merger,
consolidation, sale or transfer, all subject to further adjustment as provided
in this Section 3.1. The foregoing provisions of this Section 3 shall similarly
apply to successive reorganizations, consolidations, mergers, sales and
transfers and to the stock or securities of any other corporation that are at
the time receivable upon the exercise of this Warrant. If the per-share
consideration payable to the holder hereof for shares in connection with any
such transaction is in a form other than cash or marketable securities then the
value of such consideration shall be determined in good faith by the Company's
Board of Directors. In all events, appropriate adjustment (as determined in good
faith by the Company's Board of Directors) shall be made in the application of
the provisions of this Warrant with respect to the rights and interests of the
Holder after the transaction, to the end that the provisions of this Warrant
shall be applicable after that event, as near as reasonably may be, in relation
to any shares or other property deliverable after that event upon exercise of
this Warrant.
3.2 Reclassifications, etc. If the Company, at any time while
this Warrant, or any portion hereof, remains outstanding and unexpired by
reclassification of securities or otherwise, shall change any of the securities
as to which purchase rights under this Warrant exist into the same or a
different number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities that were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 3.
3.3 Split, Subdivision or Combination of Shares. If the Company
at any time while this Warrant, or any portion hereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Warrant exist, into a different number of securities of the
same class, the Exercise Price
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for such securities shall be proportionately decreased in the case of a split or
subdivision or proportionately increased in the case of a combination.
3.4 Adjustments for Dividends in Stock or Other Securities or
Property. If while this Warrant, or any portion hereof, remains outstanding and
unexpired, the holders of the securities as to which purchase rights under this
Warrant exist at the time shall have received, or, on or after the record date
fixed for the determination of eligible stockholders, shall have become entitled
to receive, without payment therefor, other or additional stock or other
securities or property (other than cash) of the Company by way of dividend, then
and in each case, this Warrant shall represent the right to acquire, in addition
to the number of shares of the security receivable upon exercise of this
Warrant, and without payment of any additional consideration therefor, the
amount of such other or additional stock or other securities or property (other
than cash) of the Company that such holder would hold on the date of such
exercise had it been the holder of record of the security receivable upon
exercise of this Warrant on the date hereof and had thereafter, during the
period from the date hereof to and including the date of such exercise, retained
such shares and/or all other additional stock available by it as aforesaid
during such period, giving effect to all adjustments called for during such
period by the provisions of this Section 3.
3.5 Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 3, the Company at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each Holder of this Warrant a certificate
setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. The Company shall, upon
written request, at any time, of any such Holder, furnish or cause to be
furnished to such Holder a like certificate setting forth: (i) such adjustments
and readjustments; (ii) the Exercise Price at the time in effect; and (iii) the
number of shares and the amount, if any, of other property that at the time
would be received upon the exercise of the Warrant.
3.6 No Impairment. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Section 3 and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holder of this Warrant against impairment.
4. No Voting or Dividend Rights.
Subject to Sections 3 and 8 of this Warrant, nothing contained in this
Warrant shall be construed as conferring upon the holder hereof the right to
vote or to consent to
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receive notice as a stockholder of the Company on any other matters or any
rights whatsoever as a stockholder of the Company. No dividends or interest
shall be payable or accrued in respect of this Warrant or the interest
represented hereby or the shares purchasable hereunder until, and only to the
extent that, this Warrant shall have been exercised.
5. Transfer of Warrant.
5.1 Warrant Register. The Company will maintain a register (the
"Warrant Register") containing the names and addresses of the Holder or Holders.
Any Holder of this Warrant or any portion thereof may change his or her address
as shown on the Warrant Register by written notice to the Company requesting
such change. Any notice or written communication required or permitted to be
given to the Holder may be delivered or given by mail to such Holder as shown on
the Warrant Register and at the address shown on the Warrant Register. Until
this Warrant is transferred on the Warrant Register of the Company, the Company
may treat the Holder as shown on the Warrant Register as the absolute owner of
this Warrant for all purposes, notwithstanding any notice to the contrary.
5.2 Warrant Agent. The Company may, by written notice to the
Holder, appoint an agent for the purpose of maintaining the Warrant Register
referred to in Section 5(a) above, issuing the securities issuable upon the
exercise of this Warrant, exchanging this Warrant, replacing this Warrant, or
any or all of the foregoing. Thereafter, any such registration, issuance,
exchange, or replacement, as the case may be, shall be made at the office of
such agent.
5.3 Transferability and Nonnegotiability of Warrant. This Warrant
may not be transferred or assigned in whole or in part without compliance with
all applicable federal and state securities laws by the transferor and the
transferee (including the delivery of investment representation letters and
legal opinions reasonably satisfactory to the Company, if such are requested by
the Company). Subject to the provisions of this Warrant with respect to
compliance with the Securities Act of 1933, as amended (the "Act"), title to
this Warrant may be transferred by endorsement (by the Holder executing the
Assignment Form annexed hereto) and delivery in the same manner as a negotiable
instrument transferable by endorsement and delivery.
5.4 Exchange of Warrant Upon a Transfer. On surrender of this
Warrant for exchange, properly endorsed on the Assignment Form and subject to
the provisions of this Warrant with respect to compliance with the Act and with
the limitations on assignments and transfers contained in this Section 5, the
Company at its expense shall issue to or on the order of the Holder a new
warrant or warrants of like tenor, in the name of the Holder or as the Holder
(on payment by the Holder of any
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applicable transfer taxes) may direct, for the number of shares issuable upon
exercise hereof.
5.5 Compliance with Securities Laws. The Holder of this Warrant,
by acceptance hereof, acknowledges that this Warrant and the Warrant Shares to
be issued upon exercise hereof or conversion thereof are being acquired solely
for the Holder's own account and not as a nominee for any other party, and for
investment, and that the Holder will not offer, sell or otherwise dispose of
this Warrant or Warrant Shares to be issued upon exercise hereof or conversion
thereof except under circumstances that will not result in a violation of the
Act or any state securities laws. Upon exercise of this Warrant, the Holder
shall, if requested by the Company, confirm in writing, in a form satisfactory
to the Company, that the Warrant Shares issued upon exercise hereof or
conversion thereof shall be stamped or imprinted with a legend in substantially
the following form (in addition to any legend required by state securities
laws):
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES AND ANY SECURITIES ISSUED
HEREUNDER OR THEREUNDER MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND APPLICABLE LAWS.
6. Reservation of Stock.
The Company covenants that during the term this Warrant is
exercisable, the Company will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of Warrant
Shares upon the exercise of this Warrant and, from time to time, will take all
steps necessary to amend its Certificate of Incorporation (the "Certificate") to
provide sufficient reserves of shares of issuable upon exercise of the Warrant.
The Company further covenants that all shares that may be issued upon the
exercise of rights represented by this Warrant and payment of the Exercise
Price, all as set forth herein, will be free from all taxes, liens and charges
in respect of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously or otherwise specified herein). The Company agrees
that its issuance of this Warrant shall constitute full authority to its
officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for shares of its Common Stock upon
the exercise of this Warrant.
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7. Modification and Waiver.
This Warrant and any provision hereof may be changed, waived,
discharged, or terminated only by an instrument in writing signed by the party
against which enforcement of the same is sought.
8. Notices.
8.1 Any notice, request, or other document required or permitted
to be given or delivered to the Holder hereof or the Company shall be delivered
or shall be sent by certified mail, postage prepaid, to each such Holder at its
address as shown on the books of the Company or to the Company at the address
indicated therefor in the first paragraph of this Warrant or such other address
as either may from time to time provide to the other.
In case:
(i) the Company shall take a record of the holders of its
Common Stock (or other stock or securities at the time receivable upon the
exercise of this Warrant) for the purpose of entitling them to receive any
dividend or other distribution, or any right to subscribe for or purchase any
shares of stock of any class or any other securities, or to receive any other
right, or
(ii) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of all
or substantially all of the assets of the Company to another corporation, or
(iii) of any voluntary dissolution, liquidation or winding-up of
the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Holder or Holders a notice specifying, as the case may be, (A) the date on which
a record is to be taken for the purpose of such dividend, distribution or right,
and stating the amount and character of such dividend, distribution or right, or
(B) the date on which such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding-up is to take place, and
the time, if any is to be fixed, as of which the holders of record of Common
Stock (or such stock or securities at the time receivable upon the exercise of
the Warrant) shall be entitled to exchange their shares of Common Stock (or such
other stock or securities) for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up. Such notice shall be mailed at least 15
days prior to the date therein specified.
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9. Governing Law.
This Warrant shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by the laws of the State of
Delaware.
10. Lost Warrants.
The Company represents and warrants to the Holder hereof that upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction, or mutilation of this Warrant and, in the case of any such loss,
theft or destruction, upon receipt of an indemnity reasonably satisfactory to
the Company, or in the case of any such mutilation upon surrender and
cancellation of such Warrant, the Company, at its expense, will make and deliver
a new Warrant, of like tenor, in lieu of the lost, stolen, destroyed or
mutilated Warrant.
11. Fractional Shares.
No fractional shares shall be issued upon exercise of this Warrant.
The Company shall, in lieu of issuing any fractional share, pay the Holder
entitled to such fraction a sum in cash equal to such fraction (calculated to
the nearest 1/100th of a share) multiplied by the then effective Exercise Price
on the date the Form of Subscription is received by the Company.
12. No Impairment.
The Company will not, by charter amendment or by reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities, or any other voluntary action, avoid or seek to avoid the observance
or performance of any terms of this Warrant, but will at all times in good faith
assist in the carrying out of all such terms and in the taking of all such
action as may be necessary or appropriate in order to protect the rights of the
Holder against impairment. Upon the request of the Holder, the Company will at
any time during the period this Warrant is outstanding acknowledge in writing,
in form satisfactory to Holder, the continued validity of this Warrant and the
Company's obligations hereunder.
13. Successors and Assigns.
This Warrant and the rights evidenced hereby shall inure to the
benefit of and be binding upon the successors of the Company and the Holder. The
provisions of this Warrant are intended to be for the benefit of all Holders
from time to time of this Warrant, and shall be enforceable by any such Holder.
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14. Registration Rights.
Upon exercise of this Warrant, the Holder shall have and be entitled
to exercise, together with all other holders of Registrable Securities
possessing registration rights under that certain Information and Registration
Rights Agreement, of even date herewith, between the Company and the parties who
have executed the counterpart signature pages thereto or are otherwise bound
thereby (the "Rights Agreement"), the rights of registration granted under the
Rights Agreement to Registrable Securities. By its receipt of this Warrant,
Holder agrees to be bound by the Rights Agreement.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its officer, thereunto duly authorized as of this 7th day of July,
2000.
Identix Incorporated
a Delaware corporation
By: /s/ James P Scullion
Name: James P. Scullion
Title: President
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FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To: Identix Incorporated
[Please mark one box]
[_] The undersigned, the holder of the attached Common Stock Warrant,
hereby irrevocably elects to exercise the purchase right represented
by such Warrant for, and to purchase thereunder, _____________/1/
shares of Common Stock of Identix Incorporated (the "Company") and
herewith makes payment of $_________ therefor.
The undersigned, the holder of the attached Common Stock Warrant,
hereby irrevocably elects to exercise the purchase right represented
by such Warrant for, and to purchase thereunder,
__________________________/1/ shares of Common Stock of the Company
and herewith elects to pay for such shares by reducing the number of
shares issuable thereunder in accordance with Section 1.2 thereof. The
undersigned hereby authorizes the Company to make the required
calculation under Section 1.2 of the Warrant.
The undersigned represents that it is acquiring such Common for its own account
for investment and not with a view to or for sale in connection with any
distribution thereof. The undersigned requests that certificates for such shares
be issued in the name of, and delivered to, _________________________________
whose address is ______________________________________________________________
_______________.
DATED: _________________
______________________________________
(Signature must conform in all respects to name of
Holder as specified on the face of the Warrant)
Name: _______________________________
Title: ______________________________
_________________________
/1/Insert here the number of shares called for on the face of the Warrant
(or, in the case of a partial exercise, the portion thereof as to which the
Warrant is being exercised), in either case without making any adjustment for
any stock or other securities or property or cash which, pursuant to the
adjustment provisions of the Warrant, may be deliverable upon exercise.
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