Promissory Note - Identix Inc. and Erik E. Prusch
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DO NOT DESTROY THIS NOTE: When paid, this Note and the Deed of Trust must be
surrendered to Identix Incorporated with request for reconveyance.
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SECURED PROMISSORY NOTE
(This Note contains an acceleration clause)
$300,000.00
Los Gatos, California
Due October 5, 2006 October 5, 2001
FOR VALUE RECEIVED, ERIK E. PRUSCH (the "Borrower") promises to pay to Identix
Incorporated, a Delaware Corporation, or his assigns (the "Lender"), at 100
Cooper Court, Los Gatos, California 95032 or at such place or places as the
holder of this promissory note (the "Note") may from time to time designate in
writing, the principal sum of Three Hundred Thousand Dollars ($300,000.00) (the
"Principal"). The Principal shall bear no interest. This Note shall be payable
in full on the earlier of (i) October 5, 2006, (ii) 15 days after the effective
date of Borrower's separation of employment from the Lender, if such separation
arises out of a Termination for Cause or a Voluntary Termination, or (iii) the
last day of the Severance period, if Borrower's separation of employment from
the Lender arises out of a Termination Other Than for Cause or Resignation for
Good Reason. Capitalized terms used without definition in this paragraph have
the meanings given to them in the Employment Agreement between the Borrower and
the Lender dated as of April 2, 2001.
This Note and all obligation of Borrower hereunder are secured by a
certain Deed of Trust (the "Deed of Trust") to certain real property identified
therein in favor of the Lender, as TRUSTEE and BENEFICIARY.
If the Borrower shall sell, convey or alienate the property subject to
the Deed of Trust, or any part thereof, or any interest therein, or shall be
divested of his title or any interest therein in any manner or way, whether
voluntarily or involuntarily, without the written consent of the Borrower being
first had and obtained, any indebtedness or obligations evidenced hereby,
irrespective of the maturity date, shall immediately become due and payable.
Borrower may prepay the outstanding amount hereof in whole or in part at
any time, without premium or penalty.
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The occurrence of either of the following shall constitute an "Event of
Default" under this Note:
(1) the failure to make any payment of principal or any other amount
payable hereunder when due under this Note, or the breach of any
other condition or obligation under this Note or under the Deed
of Trust and the continuation of such failure or breach for 30
days; or
(2) upon 45 days following the Borrower's death.
Upon the occurrence of either Event of Default, the Lender, at his
option, may by notice to Borrower, declare the unpaid principal amount of this
Note and all other amounts payable hereunder to be immediately due and payable,
whereupon the unpaid principal amount of this Note and all such other amounts
shall become immediately due and payable, without presentment, demand, protest
or further notice of any kind.
Any taxable income to the Borrower, as a result of this loan, will be
grossed-up for income tax purposes.
Borrower waives demand, presentment, protest, notice of protest, notice
of demand, notice of dishonor, notice of nonpayment, any and all other notices
and demands in connection with the delivery, acceptance, performance, default or
enforcement of this Note. Borrower hereby waives to the full extent permitted by
law all rights to plead any statute of limitations as a defense to any action
hereunder. The failure of the Lender to exercise any of the rights created
hereby, or to promptly enforce any of the provisions of this Note, shall not
constitute a waiver of the right to exercise such rights or to enforce any such
provisions.
If any amount due under the terms of this Note is not paid in full,
Borrower agrees to pay all reasonable costs and expenses of collection,
including attorneys' fees, which the Lender incurs in connection with the
enforcement or attempted enforcement of this Note.
If any provisions of this Note is held invalid by a court of competent
jurisdiction, such provision shall be adjusted rather than voided, if possible,
in order to achieve the intent of the parties to the extent possible. In any
event, all other provisions of this Note shall be deemed valid and enforceable
to the fullest extent possible.
This Note shall be binding on and inure to the benefit of the heirs,
executors, successors and assigns of the Borrower and the Lender. This Note
shall be governed by and construed in accordance with the laws of the State of
California.
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IDENTIX INCORPORATED ERIK E. PRUSCH
/s/ James P. Scullion /s/ Erik E. Prusch
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Address: 100 Cooper Court Address: 16420 W. La Chiquita
Los Gatos, CA 95032 Los Gatos, CA 95032
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