Common Stock Purchase Agreement - Identix Inc. and VeriSign Capital Management
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is dated as of
December 22, 2000, by and among Identix Incorporated, a Delaware corporation
with principal offices at 510 N. Pastoria Avenue, Sunnyvale, CA 94086 (the
"Company"), and VeriSign Capital Management, Inc., a Delaware corporation having
its principal place of business at 300 Delaware Avenue, 9th Floor, Wilmington,
Delaware 19801 (the "Purchaser").
WHEREAS:
A. The Company and the Purchaser are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Regulation D, as promulgated by the United States
Securities and Exchange Commission under the Securities Act of 1933, as amended.
B. The Purchaser desires to purchase subject to the terms and conditions
stated in this Agreement, (i) the number of shares of the Company's common
stock, $0.01 par value per share (the "Common Stock") determined in accordance
with Section 2(b) hereof.
NOW, THEREFORE, the Company and the Purchaser hereby agree as follows:
1. DEFINITIONS.
For purposes of this Agreement:
"Bloomberg" means Bloomberg Financial Markets, or a comparable financial
reporting service of national reputation selected by the Company if Bloomberg
Financial Markets is not, at any given time, reporting the Closing Price of the
Common Stock.
"Business Day" means any day on which the principal United States
securities exchange or trading market on which the Common Stock is listed or
traded is open for trading.
"Closing" means the closing of the sale and purchase of the Shares
contemplated by this Agreement.
"Closing Date" means the date and time of the Closing.
"Closing Price" means, as of any date, the closing price of the Common
Stock on the principal United States securities exchange or trading market on
which the Common Stock is listed or traded as reported by Bloomberg.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Investment Amount" means $2,000,000, the dollar amount to be invested in
the Company at the Closing pursuant to this Agreement by the Purchaser.
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"itrust Business" means the itrust division within the Company (or any
other division, subsidiary, affiliate or other entity in which the itrust
business or assets are conveyed, transferred or assigned, whether through
reorganization, restructuring or otherwise), which division designs, develops,
markets and sells fully-integrated, secure-transactions management services for
the internet and wireless markets. Such services include user authentication,
validation of content delivery, content control and transaction management, and
variations thereof. As part of its integrated service solution, the itrust
Business uses, sells, licenses and distributes core biometric finger imaging
hardware, software and algorithmic solutions developed, independently from the
itrust division, by the IT Security division of the Company.
"Market Price" means, with respect to any date of determination, the
average Closing Price during the 10 Trading Days immediately prior to such date,
in each case appropriately adjusted to reflect any stock dividend, stock split
or similar transaction during such period.
"Material Adverse Effect" means any material adverse effect on (i) the
ability of the Company to perform its obligations hereunder (including the
issuance of the Shares) or (ii) the business, operations, properties, or
financial condition of the Company and its subsidiaries, taken as a whole.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means the shares of Common Stock to be issued and sold by the
Company and purchased by the Purchaser at the Closing.
"Trading Day" shall mean a Business Day on which at least 10,000 shares of
Common Stock are traded on the principal United States securities exchange or
trading market on which such security is listed or traded as reported by
Bloomberg.
2. PURCHASE AND SALE OF SHARES.
a. Generally. Except as otherwise provided in this Section 2 and subject
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to the satisfaction (or waiver) of the conditions set forth in Section 6 and
Section 7 below, the Purchaser shall purchase the number of Shares determined as
provided in this Section 2, and the Company shall issue and sell such number of
Shares to the Purchaser for the Investment Amount as provided below.
b. Closing; Number of Shares; Form of Payment.
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(i) Subject to the satisfaction (or waiver) of the conditions set
forth in Section 6 and Section 7, the Closing Date shall be 10:00 a.m. Pacific
Standard Time on January 2, 2001 or such other date or time as the parties may
mutually agree. The Closing shall occur at the offices of the Company, or at
such other place as the parties may mutually agree.
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(ii) On the Closing Date, the Company shall sell and the Purchaser
shall buy the number of Shares equal to the quotient of (A) the Investment
Amount divided by (B) the Market Price on the Closing Date.
(iii) On the Closing Date, the Purchaser shall pay the Company the
Investment Amount in immediately available funds by wire transfer to the
Company, in accordance with the Company's written wiring instructions against
delivery of certificates representing the number of Shares being purchased by
the Purchaser, and the Company shall deliver such Shares against delivery of the
Investment Amount by the Purchaser.
3. THE PURCHASER'S REPRESENTATIONS AND WARRANTIES.
The Purchaser represents and warrants to the Company as follows:
a. Purchase for Own Account. The Purchaser is purchasing the Shares for
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the Purchaser's own account and not with a present view towards the distribution
thereof. The Purchaser understands that the Purchaser must bear the economic
risk of this investment indefinitely, unless the Shares are registered pursuant
to the Securities Act and any applicable state securities or blue sky laws or an
exemption from such registration is available.
b. Information. The Purchaser has been furnished all materials relating
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to the business, finances and operations of the Company and its subsidiaries and
materials relating to the offer and sale of the Shares which have been requested
by the Purchaser. The Purchaser has been afforded the opportunity to ask
questions of the Company and has received satisfactory answers to any such
inquiries.
c. Governmental Review. The Purchaser understands that no United States
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federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Shares.
d. Authorization; Enforcement. The Purchaser has the requisite power and
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authority to enter into and perform its obligations under this Agreement and to
purchase the Shares in accordance with the terms hereof. This Agreement has
been duly and validly authorized, executed and delivered on behalf of the
Purchaser and is a valid and binding agreement of the Purchaser enforceable
against the Purchaser in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other laws affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
e. Transfer or Resale. The Purchaser understands that (i) except as
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provided in Section 8 hereof, the Shares have not been and are not being
registered under the Securities Act or any state securities laws, and may not be
transferred unless and until (A) subsequently registered thereunder, (B) the
Purchaser shall have delivered to the Company an opinion of counsel reasonably
acceptable to the Company (which opinion shall be in form, substance and scope
customary for opinions of counsel in comparable transactions) to the effect that
the Shares to be sold or transferred may be sold or transferred under an
exemption from such registration, (C) sold under Rule 144 promulgated under the
Securities Act (or a successor rule), or (D) sold
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or transferred to an affiliate of the Purchaser pursuant to an exemption under
the Securities Act; and (ii) neither the Company nor any other person is under
any obligation to register such Shares under the Securities Act or any state
securities laws or to comply with the terms and conditions of any exemption
thereunder, in each case, other than pursuant to Section 8 hereof.
f. Legends. The Purchaser understands that the certificates for the
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Shares may bear a restrictive legend in substantially the following form:
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or the securities laws of any
state of the United States. The securities represented hereby may not be
offered or sold in the absence of an effective registration statement for
the securities under applicable securities laws unless offered, sold or
transferred under an available exemption from the registration requirements
of those laws.
At the request of a holder of the Shares, the legend set forth above shall
be removed and the Company shall issue a certificate without such legend to such
holder if, (a) such Shares have been sold in a transaction registered under the
Securities Act, (b) such holder provides the Company with an opinion of counsel,
in form, substance and scope reasonably satisfactory to the Company and
customary for opinions of counsel in comparable transactions, to the effect that
a public sale or transfer of such Shares have been made in reliance upon an
exemption from registration under the Securities Act or (c) such holder provides
the Company with reasonable assurances that such Shares can be sold under Rule
144(k). The Purchaser agrees to sell all Shares pursuant to an effective
registration statement or under an exemption from the registration requirements
of the Securities Act.
g. Accredited Investor Status. The Purchaser is an "accredited investor"
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as that term is defined in Rule 501(a) of Regulation D promulgated under the
Securities Act. The Purchaser is not registered as a broker or dealer under
Section 15(a) of the Exchange Act, or a member of the National Association of
Securities Dealers ("NASD").
h. Company Reliance. The Purchaser understands that the Shares are being
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offered and sold to it in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and that the
Company is relying upon the truth and accuracy of, and the Purchaser's
compliance with, the representations, warranties, agreements, acknowledgments,
and understandings of the Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of the Purchaser to acquire
the Shares.
i. No Tax Advice Provided By Company. Purchaser acknowledges and agrees
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that the Company and its advisors have not provided any advice to the Purchaser
regarding the federal, state, local or foreign tax implications of the
acquisition, ownership or disposition of the Securities and that it has been
advised to consult its own tax advisor with respect to such implications.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Purchaser as follows:
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a. Organization and Qualification. The Company is a corporation duly
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organized and existing under the laws of the jurisdiction in which it is
incorporated, and has the requisite corporate power to own its properties and to
carry on its business as now being conducted. The Company is duly qualified as
a foreign corporation to do business and is in good standing in every
jurisdiction in which the nature of the business conducted by it makes such
qualification necessary and where the failure to so qualify would have a
Material Adverse Effect.
b. Authorization; Enforcement. (i) The Company has the requisite
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corporate power and authority to enter into and perform its obligations under
this Agreement, to issue and sell the Shares in accordance with the terms
hereof; (ii) the execution, delivery and performance of this Agreement by the
Company and the consummation by it of the transactions contemplated hereby and
thereby (including, without limitation, the reservation for issuance and
issuance of the Shares) have been duly authorized by the Company's Board of
Directors and no further consent or authorization of the Company, its Board of
Directors or its stockholders is required; (iii) this Agreement has been duly
executed and delivered by the Company; and (iv) this Agreement constitutes valid
and binding obligations of the Company enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other laws affecting
creditors' rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in
equity).
c. Capitalization. The capitalization of the Company and each of its
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subsidiaries as of the date hereof is set forth on Schedule 4(c) of this
Agreement, including the authorized capital stock, the number of shares issued
and outstanding, the number of shares issuable and reserved for issuance
pursuant to the Company's stock option plans, the number of shares issuable and
reserved for issuance pursuant to securities exercisable for, or convertible
into or exchangeable for any shares of capital stock. All of such outstanding
shares of the Company's capital stock have been validly issued, fully paid and
nonassessable. Except as set forth on Schedule 4(c), no shares of capital stock
of the Company (including the Shares) are subject to preemptive rights or any
other similar rights of the stockholders of the Company or any liens or
encumbrances. Except for the Shares and as disclosed in Schedule 4(c), as of the
date of this Agreement, (i) there are no outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into or exercisable or
exchangeable for, any shares of capital stock of the Company, or arrangements by
which the Company is or may become bound to issue additional shares of capital
stock of the Company, and (ii) there are no agreements or arrangements under
which the Company is obligated to register the sale of any of its or their
securities under the Securities Act. Except as set forth on Schedule 4(c), there
are no securities or instruments containing antidilution or similar provisions
that may be triggered by the issuance of the Shares in accordance with the terms
of this Agreement, and the holders of the securities and instruments listed on
such Schedule 4(c) have waived any rights they may have under such antidilution
or similar provisions in connection with the issuance of the Shares in
accordance with the terms of this Agreement. The Company has made available to
each Purchaser true and correct copies of the Company's Certificate of
Incorporation as in effect on the date hereof ("Certificate of Incorporation"),
the Company's By-laws as in effect on the date hereof (the "By-laws") and all
other instruments and agreements governing securities convertible into or
exercisable or
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exchangeable for capital stock of the Company, except for stock options granted
under any employee benefit plan or director stock option plan of the Company.
d. Issuance of Shares. The Shares are duly authorized and when issued
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and paid for in accordance with the terms hereof, will be validly issued, fully
paid and non-assessable, and free from all taxes, liens, claims and
encumbrances, and will not be subject to preemptive rights or other similar
rights of stockholders of the Company and will not impose personal liability
upon the holder thereof.
e. No Conflicts. The execution, delivery and performance of this
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Agreement by the Company, and the consummation by the Company of the
transactions contemplated hereby (including, without limitation, the reservation
for issuance and issuance of the Shares) will not (i) conflict with or result in
a violation of the Certificate of Incorporation or By-laws or (ii) conflict
with, or constitute a default (or an event which, with notice or lapse of time
or both, would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of any agreement, indenture
or instrument to which the Company is a party, or result in a violation of any
law, rule, regulation, order, judgment or decree (including United States
federal and state securities laws and regulations) applicable to the Company or
by which any property or asset of the Company is bound or affected (except, with
respect to clause (ii), for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually or in the
aggregate, have a Material Adverse Effect). The Company is not in violation of
its Certificate of Incorporation, By-laws and other organizational documents,
and the Company is not in default (and no event has occurred which, with notice
or lapse of time or both, would put the Company in default) under, nor has there
occurred any event giving others (with notice or lapse of time or both) any
rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company is a party, except for
actual or possible violations, defaults or rights as would not, individually or
in the aggregate, have a Material Adverse Effect. The business of the Company
is not being conducted in violation of any law, ordinance or regulation of any
governmental entity, except for actual or possible violations, if any, the
sanctions for which either singly or in the aggregate would not have a Material
Adverse Effect. Except as specifically contemplated by this Agreement and as
required under the Securities Act and any applicable state securities laws, the
Company is not required to obtain any consent, approval, authorization or order
of, or make any filing or registration with, any court or governmental agency or
any regulatory or self regulatory agency in order for it to execute, deliver or
perform any of its obligations under this Agreement (including, without
limitation, the issuance and sale of the Shares as provided hereby), in each
case in accordance with the terms hereof or thereof. The Company is not in
violation of the listing requirements of the American Stock Exchange ("AMEX")
and does not reasonably anticipate that the Common Stock will be delisted by
AMEX in the foreseeable future based on its rules (and interpretations thereof)
as currently in effect.
f. SEC Documents; Financial Statements. Since June 30, 1999, the
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Company has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the Exchange Act,
and has filed all registration statements and other documents required to be
filed by it with the SEC pursuant to the Securities Act (all of the foregoing
filed prior to the date hereof, and financial statements and schedules thereto
and documents incorporated by reference therein, being hereinafter referred to
herein as the "SEC
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Documents"). As of their respective dates, the SEC Documents complied in all
material respects with the requirements of the Exchange Act or the Securities
Act, as the case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to the SEC Documents, and none of the SEC Documents, at
the time they were filed with the SEC, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Any statements made in
any such SEC Documents that are or were required to be updated or amended under
applicable law have been so updated or amended. As of their respective dates,
the financial statements of the Company included in the SEC Documents complied
in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC applicable with respect thereto. Such
financial statements have been prepared in accordance with United States
generally accepted accounting principles, consistently applied, during the
periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be condensed or
summary statements) and fairly present in all material respects the consolidated
financial position of the Company and its subsidiaries as of the dates thereof
and the results of their operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal and recurring year-end
audit adjustments). Except as set forth in the SEC Documents, the Company has no
liabilities, contingent or otherwise, other than (i) liabilities incurred in the
ordinary course of business subsequent to the date of such SEC Documents and
(ii) obligations under contracts and commitments incurred in the ordinary course
of business and not required under generally accepted accounting principles to
be reflected in such SEC Documents, which liabilities and obligations referred
to in clauses (i) and (ii), individually or in the aggregate, would not have a
Material Adverse Effect.
g. Absence of Certain Changes. Except as disclosed in the SEC Documents,
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since July 31, 2000, there has been no change or development that individually
or in the aggregate has had or could reasonably be expected to have a Material
Adverse Effect.
h. Absence of Litigation. Except as disclosed in the SEC Documents,
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there is no action, suit, proceeding, inquiry or investigation before or by any
court, public board, government agency, self-regulatory organization or body
pending or, to the Company's knowledge, threatened against or affecting the
Company or any of the Company's directors or officers in their capacities as
such which would reasonably be expected to have a Material Adverse Effect or
which would materially adversely affect the validity, enforceability of, or the
authority or ability of the Company to perform its obligations under this
Agreement.
i. Disclosure. All information relating to or concerning the Company set
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forth in this Agreement and the schedules hereto is true and correct in all
material respects and the Company has not omitted to state any material fact
necessary in order to make the statements made herein or therein, in light of
the circumstances under which they were made, not misleading. No event or
circumstance has occurred or exists with respect to the Company or its
subsidiaries or their businesses, properties, operations, prospects or financial
conditions, which has not been publicly disclosed but, under applicable law,
rule or regulation, would be required to be disclosed by the Company in a
registration statement filed on the date hereof by the Company under the
Securities Act with respect to a primary issuance of the Company's
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securities. The Company has not provided, and without the Purchaser's consent
thereto, will not thereafter provide to the Purchaser, any information which,
according to applicable law, rule or regulation, should have been disclosed
publicly by the Company but which has not been disclosed.
j. No Brokers. The Company has not engaged any person to which or to
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whom brokerage commissions, finder's fees, financial advisory fees or similar
payments are or will become due in connection with this Agreement or the
transactions contemplated.
k. No General Solicitation. Neither the Company nor any person
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participating on the Company's behalf in the transactions contemplated hereby
has conducted any "general solicitation" or "general advertising" as such terms
are used in Regulation D, with respect to any of the Shares.
l. No Integrated Offering. Neither the Company, nor any of its
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affiliates, nor any person acting on its or their behalf, has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security under circumstances that would require registration of the
Shares under the Securities Act or cause this offering of Shares to be
integrated with any prior offering of securities of the Company for purposes of
the Securities Act or any applicable stockholder approval provisions.
m. Form S-3 Eligibility. The Company is currently eligible to register
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the resale of its Common Stock on a registration statement on Form S-3 under the
Securities Act. To the Company's knowledge, after reasonable investigation,
there exist no facts or circumstances (including without limitation any required
approvals or waivers of any circumstances that may delay or prevent the
obtaining of accountant's consents) that would prohibit or delay the preparation
and filing of a registration statement on Form S-3 with respect to the Shares.
5. COVENANTS.
a. Reasonable Commercial Efforts. The parties shall use their reasonable
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commercial efforts to timely satisfy each of the conditions set forth in Section
6 and Section 7 of this Agreement.
b. Form D. The Company agrees to file a Form D with respect to the
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Shares as required under Regulation D and to provide a copy thereof to each
Purchaser promptly after such filing. The Company shall, on or before the
Closing Date, take such action as the Company shall reasonably determine is
necessary to qualify the Shares for sale to the Purchasers pursuant to this
Agreement under applicable securities or "blue sky" laws of the states of the
United States or obtain exemption therefrom, and shall provide evidence of any
such action so taken to each Purchaser on or prior to the Closing Date.
c. Reporting Status. So long as a Purchaser beneficially owns any
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Shares, the Company shall timely file all reports required to be filed with the
SEC pursuant to the Exchange Act, and shall not terminate its status as an
issuer required to file reports under the Exchange Act even if the Exchange Act
or the rules and regulations thereunder would permit such termination. The
Company's obligation in this Section 5(c) will terminate in the event of a
merger,
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consolidation or sale of all or substantially all of the Company's assets,
wherein the Company is not the surviving or successor entity.
d. Use of Proceeds. The Company shall use the net proceeds from the
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sale of the Shares solely for the research, design, development, marketing and
manufacture of product and service solutions designed, developed and
manufactured by the itrust Business. The net proceeds from the sale of the
Shares shall not be used by the Company for any other purpose or to retire or
redeem outstanding debt or equity, make any payments to shareholders, directors,
officers, employees or affiliates (other than reasonable salaries and other
reasonable compensation related solely to the itrust Business in the ordinary
course of its business), or make any other distribution (by way of dividend or
otherwise).
e. Reservation of Shares. The Company has and shall at all times have
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authorized and reserved for the purpose of issuance a sufficient number of
shares of Common Stock to provide for the issuance of the Shares as provided in
Section 2 hereof. The Company shall not reduce the number of shares of Common
Stock reserved for issuance under this Agreement (except as a result of the
issuance of the Shares hereunder), without the consent of the Purchasers.
f. Listing. Within 30 business days after the Closing Date, the Company
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shall have applied to list the Shares upon each national securities exchange or
automated quotation system, if any, upon which shares of Common Stock are then
listed or quoted (subject to official notice of issuance) and shall maintain, so
long as any other shares of Common Stock shall be so listed, such listing of all
Shares from time to time issuable hereunder. The Company will use commercially
reasonable efforts to continue the listing and trading of its Common Stock on
the AMEX, the New York Stock Exchange ("NYSE") or the Nasdaq National Market
("NASDAQ") and will comply in all material respects with the Company's
reporting, filing and other obligations under the bylaws or rules of the AMEX or
such other national securities exchange on which the Common Stock is then
traded.
g. No Integrated Offering. Neither the Company, nor any of its
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affiliates, nor any person acting on its or their behalf, shall, directly or
indirectly, make any offers or sales of any security or solicit any offers to
buy any security under circumstances that would require registration of the
Shares under the Securities Act or cause this offering of Shares to be
integrated with any prior or future offering of securities of the Company for
purposes of the Securities Act or any applicable stockholder approval
provisions.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell Shares to the
Purchaser at the Closing is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions; provided, however, that these
conditions are for the Company's sole benefit and may be waived by the Company
at any time in its sole discretion.
a. The Purchaser shall have executed the signature page to this Agreement
and delivered the same to the Company.
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b. The Purchaser shall have delivered to the Company the Investment
Amount in accordance with Section 2(b) above.
c. The representations and warranties of the Purchaser shall be true and
correct in all material respects as of the date when made and as of the Closing
Date as though made at that time (except for representations and warranties that
speak as of a specific date, which representations and warranties shall be true
and correct as of such date), and the Purchaser shall have performed, satisfied
and complied in all material respects with the covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied
with by the Purchaser at or prior to the Closing Date.
d. No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
7. CONDITIONS TO PURCHASER'S OBLIGATION TO PURCHASE SHARES.
The obligation of the Purchaser hereunder to purchase Shares to be
purchased by it hereunder is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, provided that these
conditions are for the Purchaser's sole benefit and may be waived by the
Purchaser at any time in the Purchaser's sole discretion:
a. The Company shall have executed the signature pages to this Agreement
and delivered the same to the Purchaser.
b. The Company shall have delivered to the Purchaser certificates
representing the number of Shares as provided in Section 2(b) above.
c. Trading in the Common Stock shall not have been suspended or be under
threat of suspension by the SEC or AMEX or such other national securities
exchange on which the Common Stock is then traded.
d. The representations and warranties of the Company shall be true and
correct in all material respects as of the date when made and as of the Closing
Date as though made at that time (except for representations and warranties that
speak as of a specific date, which representations and warranties shall be true
and correct as of such date) and the Company shall have performed, satisfied and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Company at or prior to the Closing Date. The Purchaser shall have received a
certificate, executed on behalf of the Company by its Chief Executive Officer,
dated as of the Closing Date, to the foregoing effect and attaching true and
correct copies of the resolutions adopted by the Company's Board of Directors
authorizing the execution, delivery and performance by the Company of its
obligations under this Agreement.
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e. No statute, rule, regulation, executive order, decree, ruling,
injunction, action, proceeding or interpretation shall have been enacted,
entered, promulgated, endorsed or adopted by any court or governmental authority
of competent jurisdiction or any self-regulatory organization, or the staff of
any thereof, having authority over the matters contemplated hereby which
questions the validity of, or challenges or prohibits the consummation of, any
of the transactions contemplated by this Agreement.
f. The Purchaser shall have received an opinion of the Company's counsel,
dated as of the Closing Date, in substantially the form of Exhibit A attached
hereto.
g. From the date of this Agreement through the Closing Date, there shall
not have occurred any Material Adverse Effect.
8. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES ACT.
a. Registration Procedures and Expenses. The Company is obligated to do
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the following:
(i) No later than 120 days following the Closing Date, the Company
shall prepare and file with the SEC one or more registration statements on Form
S-3 in order to register with the SEC the resale by the Purchaser, from time to
time, of the Shares through AMEX or the facilities of any national securities
exchange on which the Company's Common Stock is then traded, or in privately-
negotiated transactions (a "Registration Statement"). The Company shall use
reasonable commercial efforts to cause such Registration Statement to be
declared effective as soon thereafter as reasonably possible.
(ii) The Company shall prepare and file with the SEC (i) such
amendments and supplements to the Registration Statement and the prospectus used
in connection therewith, (ii) such SEC Reports and (iii) such other filings
required by the SEC, in each case as may be necessary to keep the Registration
Statement continuously effective and not misleading until the earliest of (A)
the second anniversary date of the Closing, (B) such date as all of the Shares
have been resold or (C) such time as all of the Shares held by the Purchaser can
be sold within a given three-month period pursuant to Rule 144 under the
Securities Act. Notwithstanding the foregoing, following the effectiveness of
the Registration Statement, the Company may, at any time, suspend the
effectiveness of the Registration Statement for up to no longer than 30 days, as
appropriate (a "Suspension Period"), by giving notice to the Purchaser, if the
Company shall have determined that the Company may be required to disclose any
material corporate development. The Company will use reasonable commercial
efforts to minimize the length of any Suspension Period. Notwithstanding the
foregoing, the Company may not suspend the effectiveness of the Registration
Statement more than twice in any 12 month period. The Purchaser agrees that,
upon receipt of any notice from the Company of a Suspension Period, the
Purchaser will not sell any Shares pursuant to the Registration Statement until
(i) the Purchaser is advised in writing by the Company that the use of the
applicable prospectus may be resumed, (ii) the Purchaser has received copies of
any additional or supplemental or amended prospectus, if applicable, and (iii)
the Purchaser has received copies of any additional or supplemental filings
which are incorporated or deemed to be incorporated by reference in such
prospectus.
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(iii) In order to facilitate the public sale or other disposition of
all or any of the Shares by the Purchaser, the Company shall furnish to each
Purchaser with respect to the Shares registered under the Registration Statement
such number of copies of prospectuses, prospectus supplements and preliminary
prospectuses as the Purchaser reasonably requests in conformity with the
requirements of the Securities Act.
(iv) The Company shall file any documents required of the Company
for normal blue sky clearance in states specified in writing by the Purchaser;
provided, however, that the Company shall not be required to qualify to do
business or consent to service of process in any jurisdiction in which it is not
now so qualified or has not so consented.
(v) Other than fees and expenses, if any, of counsel or other
advisers to the Purchasers, which fees and expenses shall be borne by the
Purchasers, the Company shall bear all expenses (exclusive of any brokerage
fees, underwriting discounts and commissions) in connection with the procedures
in paragraphs (a) through (d) of this Section 8.
(vi) With a view to making available to the Purchasers the benefits
of Rule 144 under the Securities Act and any other rule or regulation of the SEC
that may at any time permit a Purchaser to sell Shares to the public without
registration or pursuant to registration, the Company covenants and agrees to:
(i) make and keep public information available, as those terms are understood
and defined in Rule 144, until the earlier of (A) the second anniversary of the
Closing Date or (B) such date as all of the Shares shall have been resold; (ii)
file with the SEC in a timely manner all reports and other documents required of
the Company under the Exchange Act; and (iii) furnish to any Purchaser upon
request, as long as the Purchaser owns any Shares, (A) a written statement by
the Company that it has complied with the reporting requirements of the Exchange
Act, (B) a copy of the most recent annual or quarterly report of the Company,
and (C) such other information as may be reasonably requested in order to avail
any Purchaser of any rule or regulation of the SEC that permits the selling of
any such Shares without registration under the Securities Act.
b. Transfer of Securities After Registration. The Purchaser will not
-----------------------------------------
effect any disposition of the Shares that would constitute a sale within the
meaning of the Securities Act, except:
(i) pursuant to the Registration Statement, in which case the
Purchaser shall submit the certificates evidencing the Shares to the Company's
transfer agent, accompanied by a separate "Purchaser's Certificate" to the
effect that (1) the Shares have been sold in accordance with the Registration
Statement and (2) the requirement of delivering a current prospectus has been
satisfied; or
(ii) in a transaction exempt from registration under the Securities
Act, in which case the Purchaser shall, prior to effecting such disposition,
submit to the Company an opinion of counsel in form and substance reasonably
satisfactory to the Company to the effect that the proposed transaction is in
compliance with the Securities Act.
c. Indemnification. As used in this Section 8(c) the following terms
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shall have the following respective meanings:
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(i) "Selling Shareholder" shall mean the Purchaser and any
transferee of the Purchaser who is entitled to resell Shares pursuant to the
Registration Statement;
(ii) "Registration Statement" shall include any final prospectus,
exhibit, supplement or amendment included in or relating to the Registration
Statement referred to in Section 8(a)(i); and
(iii) "Untrue Statement" shall include any untrue statement or
alleged untrue statement, or any omission or alleged omission to state in the
Registration Statement a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
The Company agrees to indemnify and hold harmless each Selling Shareholder
(and each person, if any, who controls the Selling Shareholder within the
meaning of Section 15 of the Securities Act, and each officer, director,
employee and representative of the Selling Shareholder) from and against any
losses, claims, damages or liabilities to which such Selling Shareholder (and
each person, if any, who controls the Selling Shareholder within the meaning of
Section 15 of the Securities Act, and each officer, director, employee and
representative of the Selling Shareholder) may become subject (under the
Securities Act or otherwise) insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon, any Untrue Statement on or after the effective date of the
Registration Statement, or on or after the date of any prospectus or prospectus
supplement or the date of any sale by Purchaser thereunder, or arise out of any
failure by the Company to fulfill any undertaking included in the Registration
Statement and the Company will reimburse such Selling Shareholder for any legal
or other expenses reasonably incurred in investigating, defending or preparing
to defend any such action, proceeding or claim; provided, however, that the
Company shall not be liable to such Selling Shareholder in any such case to the
extent that such loss, claim, damage or liability arises out of, or is based
upon, an Untrue Statement made in such Registration Statement in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of such Selling Shareholder specifically for use in preparation of the
Registration Statement, or the failure of such Selling Shareholder to comply
with the covenants and agreements of Selling Shareholder contained in Section 8
hereof respecting sale of the Shares.
The Purchaser agrees to indemnify and hold harmless the Company (and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act, and each officer and director of the Company) from and against
any losses, claims, damages or liabilities to which the Company (or any such
officer, director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon, any failure to comply with the Purchaser's covenants and agreements
contained in this Section 8 respecting sale of the Shares, or any Untrue
Statement contained in the Registration Statement on or after the effective date
thereof, or in any prospectus supplement as of its issue date or date of any
sale by Purchaser thereunder, if such Untrue Statement was made in reliance upon
and in conformity with written information furnished by or on behalf of the
Purchaser specifically for use in preparation of the Registration Statement, and
the Purchaser will reimburse the Company (or such officer, director or
controlling person), as the case may be, for any legal or other expenses
reasonably incurred in
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investigating, defending or preparing to defend any such action, proceeding or
claim; provided that in no event shall any indemnity by a Purchaser under this
Section 8(c) exceed the gross proceeds received by the Purchaser from the sale
of Shares covered by such Registration Statement.
Promptly after receipt by any indemnified person of a notice of a claim or
the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 8(c) such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions hereinafter stated,
in case any such action shall be brought against an indemnified person and such
indemnifying person shall have been notified thereof, such indemnifying person
shall be entitled to participate therein, and, to the extent it shall wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified person. After notice from the indemnifying person to such
indemnified person of its election to assume the defense thereof, such
indemnifying person shall not be liable to such indemnified person for any legal
expenses subsequently incurred by such indemnified person in connection with the
defense thereof; provided, however, that if there exists or shall exist a
conflict of interest that would make it inappropriate, in the opinion of counsel
to the indemnified person, for the same counsel to represent both the
indemnified person and such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain its own counsel at
the expense of such indemnifying person; provided, however, that no indemnifying
person shall be responsible for the fees and expenses of more than one separate
counsel for all indemnified parties.
d. Termination of Conditions and Obligations. The conditions precedent
-----------------------------------------
imposed by Section 3 or this Section 8 upon the transferability of the Shares
shall cease and terminate as to any particular number of the Shares when such
Shares shall have been sold or otherwise disposed of in accordance with the
intended method of disposition set forth in the Registration Statement covering
such Shares or at such time as an opinion of counsel satisfactory to the Company
shall have been rendered to the effect that such conditions are not necessary in
order to comply with the Securities Act.
e. Information Available. So long as the Registration Statement is
---------------------
effective covering the resale of Shares owned by the Purchasers, the Company
will furnish to the Purchaser:
(i) upon the request of any Purchaser, as soon as practicable after
available (but in the case of the Company's Annual Report to Shareholders,
within 150 days after the end of each fiscal year of the Company), one copy of
(i) its Annual Report to Shareholders (which Annual Report shall contain
financial statements audited in accordance with generally accepted auditing
standards certified by a national firm of certified public accountants); (ii)
its Annual Report on Form 10-K; (iii) its quarterly reports on Form 10-Q (the
foregoing, in each case, excluding exhibits); (iv) its Proxy Statement; and (v)
its current reports on Form 8-K, if any;
(ii) upon the reasonable request of any Purchaser, a reasonable
number of copies of the prospectuses and supplements to supply to any other
party requiring such prospectuses.
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9. GOVERNING LAW; MISCELLANEOUS.
a. Governing Law; Jurisdiction. This Agreement shall be governed by and
---------------------------
construed in accordance with the laws of the State of California applicable to
contracts made and to be performed in the State of California. All parties
hereto irrevocably consent to the jurisdiction of the United States federal
courts and the state courts located in San Francisco, California in any suit or
proceeding based on or arising under this Agreement and irrevocably agree that
all claims in respect of such suit or proceeding shall be determined in such
courts. All parties hereto irrevocably waives the defense of an inconvenient
forum to the maintenance of such suit or proceeding. All parties hereto agree
that a final non-appealable judgment in any such suit or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on such judgment
or in any other lawful manner.
b. Counterparts. This Agreement may be executed in two or more
------------
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
In the event any signature is delivered by facsimile transmission, the party
using such means of delivery shall cause the manually executed execution page(s)
hereof to be physically delivered to the other party within five (5) days of the
execution hereof.
c. Headings. The headings of this Agreement are for convenience of
--------
reference and shall not form part of, or affect the interpretation of, this
Agreement.
d. Severability. If any provision of this Agreement shall be invalid or
------------
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
e. Entire Agreement; Amendments; Waiver. This Agreement and the
------------------------------------
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor the Purchaser
makes any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by
an instrument in writing signed by the Company and by the Purchaser. Any waiver
by the Purchaser, on the one hand, or the Company, on the other hand, of a
breach of any provision of this Agreement shall not operate as or be construed
to be a waiver of any other breach of such provision of or any breach of any
other provision of this Agreement. The failure of the Purchaser, on the one
hand, or the Company, on the other hand to insist upon strict adherence to any
term of this Agreement on one or more occasions shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
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<PAGE>
f. Notices. Any notices required or permitted to be given under the
-------
terms of this Agreement shall be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier or by confirmed
telecopy, and shall be effective five days after being placed in the mail, if
mailed, or upon receipt, if delivered personally or by courier or confirmed
telecopy (such confirmation being conclusive proof of receipt or delivery), in
each case addressed to a party. The addresses for such communications shall be:
If to the Company:
Identix Incorporated
510 N. Pastoria Avenue
Sunnyvale, CA 94086
Telephone: (408) 731-2000
Facsimile: (408) 739-0178
Attention: Mark Molina, Vice President, General Counsel
& Secretary
With a copy to:
Richard A. Peers
Heller Ehrman White & McAuliffe LLP
525 University Avenue, Suite 1100
Palo Alto, CA 94301-1900
Telephone No.: (650) 324-7000
Facsimile No.: (650) 324-0638
If to the Purchaser:
VeriSign Capital Management, Inc.
1350 Charleston Road
Mountain View, California 94043
Telephone: (650)429-3410
Facsimile: (650) 961-8853
Attention: Dana Evan, Vice President
Each party shall provide notice to the other parties of any change in
address.
g. Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
The Company shall not assign this Agreement or any rights or obligations
hereunder without the prior written consent of the Purchasers, unless such
assignment is made in connection with an asset sale, stock sale, merger,
consolidation or other transaction in which the stockholders of the Company
immediately prior to such asset sale, stock sale, merger, consolidation or other
transaction own less than 50% of the voting stock of the surviving or acquiring
entity. The Purchaser may not assign this Agreement or any rights or obligations
hereunder without the prior written consent of the Company, which approval shall
not be unreasonably withheld. Notwithstanding the foregoing, the Purchaser may
assign this Agreement or any rights or obligations hereunder without the prior
written consent of
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<PAGE>
the Company, if such assignment is made in connection with an asset sale, stock
sale, merger, consolidation or other transaction in which the stockholders of
the Purchaser immediately prior to such asset sale, stock sale, merger,
consolidation or other transaction own less than 50% of the voting stock of the
surviving or acquiring entity.
h. Third Party Beneficiaries. This Agreement is intended for the benefit
-------------------------
of the parties hereto and their respective permitted successors and assigns, and
is not for the benefit of, nor may any provision hereof be enforced by any other
person.
i. Survival. The representations and warranties of the Purchaser set
--------
forth in Section 3 and of the Company set forth in Section 4 shall survive for
one year following the Closing Date, notwithstanding any due diligence
investigation conducted by or on behalf of the Company or the Purchaser,
respectively. Moreover, none of the representations and warranties made by the
Company herein shall act as a waiver of any rights or remedies the Purchaser may
have under applicable federal or state securities laws.
j. Publicity. The Company and the Purchaser shall have the right to
---------
review and approve the issuance of any press releases, or review and comment
upon the filing of any SEC or AMEX filings, or any other public statements with
respect to the transactions contemplated hereby.
k. Further Assurances. Each party shall do and perform, or cause to be
------------------
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
l. Termination. In the event that the Closing Date shall not have
-----------
occurred on or before January 5, 2001, unless the parties agree otherwise, this
Agreement shall terminate at the close of business on such date.
Notwithstanding any termination of this Agreement, any party not in breach of
this Agreement shall preserve all rights and remedies it may have against
another party hereto for a breach of this Agreement prior to or relating to the
termination hereof.
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused
this Agreement to be duly executed as of the date first above written.
IDENTIX INCORPORATED VERISIGN CAPITAL MANAGEMENT, INC.
By /s/ Robert McCashin By /s/ Dana Evan
Name: Robert McCashin Name: Dana Evan
Title: Chief Executive Officer Title: Vice President
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