EXHIBIT 4.1
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made as
of November 30, 2001, by and among Identix Incorporated (the "Company"), a
corporation organized under the laws of the State of Delaware, with its
principal offices at 000 Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx, and the purchaser
whose name and address is set forth on the signature page hereof (the
"Purchaser").
IN CONSIDERATION of the mutual promises and covenants contained in
this Agreement, the Company and the Purchaser agrees as follows:
SECTION 1. Authorization of Sale of the Shares. Subject to the terms
and conditions of this Agreement, the Company has authorized the sale of up to
_______________ shares (each, a "Share" and collectively, the "Shares") of
Company common stock, par value $0.01 per share ("Common Stock").
SECTION 2. Agreement to Sell and Purchase the Shares. At the closing
of the sale and purchase of the Shares (the "Closing"), the Company will sell to
the Purchaser, and such Purchaser will purchase from the Company _______________
Shares at the purchase price of $7.00 per Share for an aggregate purchase price
of $__________________. The Company proposes to enter into this same form of
purchase agreement with certain other investors (the "Other Purchasers") and
expects to complete sales of the Shares to them. The Purchaser and the Other
Purchasers are hereinafter sometimes collectively referred to as the
"Purchasers," and this Agreement and the agreements executed by the Other
Purchasers are hereinafter sometimes collectively referred to as the
"Agreements."
SECTION 3. Delivery of the Shares at the Closing.
3.1 Time and Place. The Closing shall occur at the principal offices
of the Placement Agent, as defined below, at 10:00 a.m. local time on that date
(the "Closing Date") which is two business days following notification by the
Securities and Exchange Commission (the "Commission") to the Company of the
Commission's willingness to declare effective the registration statement to be
filed by the Company pursuant to Section 7.1 below (the "Registration
Statement") of which the Purchaser will be notified by facsimile transmission or
otherwise, or at such alternate time and date as may be agreed by the Company
and X.X. Xxxxxx Securities Inc. (the "Placement Agent"); provided, however, that
the Placement Agent shall notify the Purchasers of such alternate time and date
if applicable.
3.2 Share Certificates. At the Closing, the Company shall deliver to
the Purchaser one or more stock certificates registered in the name of the
Purchaser, or in such nominee name(s) as designated by such Purchaser in
writing, representing the number of Shares set forth for such Purchaser in
Section 2 above and bearing an appropriate legend referring to the fact that the
Shares were sold in reliance upon the exemption from registration under the
Securities Act of 1933, as amended (the "Securities Act") provided by Section
4(2) thereof and Rule 506 thereunder. The Company will promptly substitute one
or more replacement certificates without the legend at such time as the
Registration Statement is effective. The name(s) in which the stock certificates
are to be registered are set forth in the Registration Statement Questionnaire
attached hereto as part of Appendix I.
3.3 Conditions to Company's Obligations to Sell Shares. The
Company's obligation to complete the sale and purchase of the Shares and deliver
such stock certificate(s) to the Purchaser at the Closing shall be subject to
the following conditions, any one or more of which may be waived by the Company:
(a) such Purchaser shall have executed the signature page to this Agreement and
delivered the same to the Company; (b) the Company shall have received
immediately available funds in the full amount of the purchase price for the
Shares being sold and purchased by such Purchaser hereunder; and (c) the
representations and warranties of such 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 such 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 such
Purchaser at or prior to the Closing Date.
3.4 Conditions to Purchasers' Obligations to Purchase Shares. Each
Purchaser's obligation to accept delivery of such stock certificate(s) and to
pay for the Shares evidenced thereby shall be subject to the following
conditions, any one or more of which may be waived by such Purchaser: (a) the
Company shall have executed the signature pages to this Agreement and delivered
the same to such Purchaser; (b) the Commission shall have notified the Company
of the Commission's willingness to declare the Registration Statement effective
on or prior to the 90th day after the date such Registration Statement was filed
by the Company; and (c) 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. Each Purchaser
agrees and acknowledges that, but for the conditions expressly set forth in this
Section 3.4, its obligations to purchase and pay for the number of Shares
identified for purchase under Section 2 is unconditional, and that such
Purchaser's obligations hereunder are expressly not conditioned on the purchase
by any or all of the other Purchasers of the Shares that they have agreed to
purchase from the Company.
SECTION 4. Representations, Warranties and Covenants of the Company.
The Company hereby represents and warrants to, and covenants with, the Purchaser
as follows:
4.1 Organization and Qualification. The Company and each of its
subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and the Company and
each of its subsidiaries is qualified to do business as a foreign corporation in
each jurisdiction in which qualification is required, except
where failure to so qualify would not have a Material Adverse Effect (as defined
herein) on the Company.
4.2 Authorized Capital Stock. The capitalization of the Company and
each of its subsidiaries as of the date hereof is set forth on Schedule 4.2 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, and are fully
paid and nonassessable. Except as set forth on Schedule 4.2, 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 4.2,
as of the date of this Agreement, 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.
4.3 Issuance, Sale and Delivery of the Shares. The Shares are duly
authorized and when issued 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. No stockholder of the Company has any right
(which has not been waived or has not expired by reason of lapse of time
following notification of the Company's intent to file the Registration
Statement) to require the Company to register the sale of any shares owned by
such stockholder under the Securities Act of 1933, as amended (the "Securities
Act"), in the Registration Statement. No further approval or authority of the
stockholders or the Board of Directors of the Company will be required for the
issuance and sale of the Shares to be sold by the Company as contemplated
herein.
4.4 Due Execution, Delivery and Performance of the Agreements. The
Company has full legal right, corporate power and authority to enter into this
Agreement and perform the transactions contemplated hereby. This Agreement has
been duly authorized, executed and delivered by the Company. The making and
performance of this Agreement by the Company and the consummation of the
transactions herein contemplated will not violate any provision of the
organizational documents of the Company or any of its subsidiaries and will not
result in the creation of any lien, charge, security interest or encumbrance
upon any assets of the Company pursuant to the terms or provisions of, or will
not conflict with, result in the breach or violation of, or constitute, either
by itself or upon notice or the passage of time or both, a default under any
agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit
or other instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of their respective
properties may be bound or affected and in each case which would have a material
adverse effect on the condition (financial or otherwise), properties, business,
prospects or results of operations of the Company and its subsidiaries, taken as
a whole (a "Material Adverse Effect") or, to the Company's knowledge, any
statute or any authorization, judgment, decree, order, rule or regulation of any
court or any regulatory body,
administrative agency or other governmental body applicable to the Company or
any of its subsidiaries or any of their respective properties. No consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body is required for the execution
and delivery of this Agreement or the consummation of the transactions
contemplated by this Agreement, except for compliance with the Blue Sky laws and
federal securities laws applicable to the offering of the Shares. Upon the
execution and delivery, and assuming the valid execution thereof by the
respective Purchasers, the Agreement will constitute valid and binding
obligation of the Company, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and except as the indemnification agreements
of the Company in Section 7.3 hereof may be legally unenforceable.
4.5 Accountants. PricewaterhouseCoopers LLP, who have expressed
their opinion with respect to the consolidated financial statements to be
incorporated by reference from the Company's Annual Report on Form 10-K for the
year ended June 30, 2001 into the Registration Statement, are independent
accountants as required by the Securities Act of 1933, as amended (the
"Securities Act") and the rules and regulations promulgated thereunder (the
"Rules and Regulations").
4.6 No Defaults. Except for actual or possible violations, defaults
or rights as would not, individually or in the aggregate, have a Material
Adverse Effect, neither the Company nor any of its subsidiaries is in violation
or default of any provision of its certificate of incorporation or bylaws, or
other organizational documents, or in breach of or default with respect to any
provision of any agreement, judgment, decree, order, mortgage, deed of trust,
lease, franchise, license, indenture, permit or other instrument to which it is
a party or by which it or any of its properties are bound; and there does not
exist any state of fact which, with notice or lapse of time or both, would
constitute an event of default on the part of the Company or any of its
subsidiaries as defined in such documents, except such defaults which
individually or in the aggregate would not have a Material Adverse Effect.
4.7 No Actions. Except as disclosed in the Company's reports,
schedules, forms, statements and other documents required to be filed with the
Commission pursuant to the Securities Exchange Act of 1934, as amended, and
except as disclosed in the Company's registration statements and other documents
required to be filed by it with the Commission pursuant to the Securities Act
(all of the foregoing reports, schedules, forms, statements, registration
statements and other documents 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 Documents"), 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.
4.8 Properties. Each of the Company and its subsidiaries holds its
leased properties under valid and binding leases, with such exceptions as are
not materially significant in relation to their respective businesses.
4.9 No Material Change. Since September 30, 2001, except as
disclosed in the SEC Documents, (i) neither the Company nor its subsidiaries has
incurred any material liabilities or obligations, indirect, or contingent, or
entered into any material verbal or written agreement or other transaction which
is not in the ordinary course of business or which could reasonably be expected
to result in a material reduction in the future earnings of the Company or its
subsidiaries; (ii) neither the Company nor its subsidiaries has sustained any
material loss or interference with its businesses or properties from fire,
flood, windstorm, accident or other calamity not covered by insurance; (iii)
neither the Company nor its subsidiaries has paid or declared any dividends or
other distributions with respect to its capital stock and neither the Company
nor its subsidiaries is in default in the payment of principal or interest on
any outstanding debt obligations; (iv) there has not been any change in the
capital stock of the Company other than the sale of the Shares hereunder and
shares or options issued pursuant to employee equity incentive plans or purchase
plans approved by the Company's Board of Directors, or indebtedness material to
the Company (other than in the ordinary course of business); and (v) except for
the operating losses and negative cash flow the Company has continued to incur,
there has not been a Material Adverse Effect.
4.10 Intellectual Property. To the knowledge of the Company, the
Company owns or is licensed to use all patents, trademarks, trade names, service
marks, copyrights, licenses, permits, know-how (including trade secrets) and
other similar rights and proprietary knowledge (collectively, "Intangibles")
necessary for the conduct of its business as now being conducted. The Company
has not received actual notice that it is infringing any validly issued and
currently existing third-party Intangibles, nor to the Company's knowledge,
except as set forth on Schedule 4.10, is the Company in conflict with any other
person with respect to any currently issued and validly existing Intangibles,
which any case, individually or in the aggregate, if the subject of an
unfavorable, final decision, ruling or finding, would have a Material Adverse
Effect. To the knowledge of the Company, its Intangibles are valid and
enforceable, and no registration relating thereto has lapsed, expired or been
abandoned or canceled or is the subject of cancellation, and all applications
therefor are pending and in good standing. To the Company's knowledge, the
Company has complied in all material respects, with its contractual obligations
relating to the protection of the Intangibles used pursuant to licenses. Except
as set forth on Schedule 4.10, to the Company's knowledge, no person is
infringing on or violating the Intangibles owned by the Company.
4.11 Compliance. Neither the Company nor any of its subsidiaries has
been advised, or has reason to believe, that it is not conducting business in
compliance with all applicable laws, rules and regulations of the jurisdictions
in which it is conducting business, including, without limitation, all
applicable local, state and federal environmental laws and regulations, except
where failure to be so in compliance would not have a Material Adverse Effect.
4.12 Taxes. Each of the Company and its subsidiaries has filed all
necessary federal, state and foreign income and franchise tax returns and has
paid or accrued all taxes
shown as due thereon, and neither the Company nor its subsidiaries has knowledge
of a tax deficiency which has been asserted or threatened against it which could
have a Material Adverse Effect.
4.13 Investment Company. The Company is not an "investment company"
or an "affiliated person" of, or "promoter" or "principal underwriter" for an
investment company, within the meaning of the Investment Company Act of 1940, as
amended.
4.14 Offering Materials. The Company has not distributed and will
not distribute prior to the Closing Date any offering material in connection
with the offering and sale of the Shares. The Company has not in the past nor
will it hereafter take any action independent of the Placement Agent to sell,
offer for sale or solicit offers to buy any securities of the Company which
would bring the offer, issuance or sale of the Shares, as contemplated by this
Agreement, within the provisions of Section 5 of the Securities Act, unless such
offer, issuance or sale was or shall be within the exemptions of Section 4 of
the Securities Act.
4.15 Insurance. Each of the Company and its subsidiaries maintains
insurance of the types and in the amounts that the Company reasonably believes
is adequate for its business, including, but not limited to, insurance covering
all real and personal property owned or leased by the Company or its
subsidiaries against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against by similarly situated companies, all of which
insurance is in full force and effect.
4.16. Contributions. Neither the Company at any time since its
incorporation nor its subsidiaries at any time since they were acquired by the
Company has, directly or indirectly, (i) made any unlawful contribution to any
candidate for public office, or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal or state governmental
officer or official, or other person charged with similar public or quasi-public
duties, other than payments required or permitted by the laws of the United
States or any jurisdiction thereof.
4.17 Additional Information. The Company represents and warrants
that none of the following documents at the time they were filed with the
Commission, 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:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 2001(without exhibits);
(b) the Company's Quarterly Report on Form 10-Q for the fiscal
quarters ended September 30, 2001;
(c) the Company's Proxy Statement for the 2001 Annual Meeting of
Stockholders;
(e) the Registration Statement; and
(f) the Company's other SEC Documents.
4.18 Legal Opinion. Prior to the Closing, Xxxxxx Xxxxxx White &
XxXxxxxxx, outside counsel to the Company, will deliver a legal opinion to the
Purchasers substantially in the form attached hereto as Exhibit 4.18.
4.19 Certificate. At the Closing, the Company will deliver to the
Purchasers a certificate executed by the Chairman of the Board or President and
the Chief Financial Officer of the Company, dated the Closing Date, in form and
substance reasonably satisfactory to the Purchasers, to the effect that the
representations and warranties of the Company set forth in this Section 4 are
true and correct in all material respects as of the date of this Agreement and
as of the Closing Date (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 has 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.
SECTION 5. Representations, Warranties and Covenants of Purchasers.
(a) Each Purchaser represents and warrants to, and covenants with,
the Company as follows: (i) the Purchaser is knowledgeable, sophisticated and
experienced in making, and is qualified to make, decisions with respect to
investments in shares representing an investment decision like that involved in
the purchase of the Shares, including investments in securities issued by the
Company, and has requested, received, reviewed and considered all information it
deems relevant in making an informed decision to purchase the Shares; (ii) the
Purchaser is acquiring the number of Shares set forth in Section 2 above in the
ordinary course of its business and for its own account for investment (as
defined for purposes of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976
and the regulations thereunder) only and with no present intention of
distributing any of such Shares or any arrangement or understanding with any
other persons regarding the distribution of such Shares; (iii) the Purchaser
will not, directly or indirectly, offer, sell, pledge, transfer or otherwise
dispose of (or solicit any offers to buy, purchase or otherwise acquire or take
a pledge of) any of the Shares except in compliance with the Securities Act and
the Rules and Regulations; (iv) the Purchaser has completed or caused to be
completed the Registration Statement Questionnaire attached hereto as Appendix
I, for use in preparation of the Registration Statement, and the answers thereto
are true and correct as of the date hereof and will be true and correct as of
the effective date of the Registration Statement; (v) the Purchaser has, in
connection with its decision to purchase the number of Shares set forth in
Section 2 above, relied solely upon the upon its own diligence and the
representations and warranties of the Company contained herein; (vi) the
Purchaser has been furnished all materials relating 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, and the
Purchaser has been afforded the opportunity to ask questions of the Company and
has received satisfactory answers to any such inquiries; and (vii) the Purchaser
is an "accredited investor" within the meaning of Rule 501 of Regulation D
promulgated under the Securities Act, and 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.
(b) Each Purchaser acknowledges and agrees 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
Shares and that it has been advised to consult its own tax advisor with respect
to such implications.
(c) Each Purchaser hereby covenants with the Company not to make any
sale of the Shares without satisfying the prospectus delivery requirement under
the Securities Act, and the Purchaser acknowledges and agrees that such Shares
are not transferable on the books of the Company unless the certificate
submitted to the transfer agent evidencing the Shares is accompanied by a
separate notice of transfer: (i) in the form of Appendix II hereto, (ii)
executed by a broker designated by, the Purchaser, and (iii) to the effect that
(A) the Shares have been sold in accordance with the Registration Statement, the
Securities Act and the Rules and Regulations and any applicable state securities
or blue sky laws and (B) the requirement of delivering a current prospectus has
been satisfied. The Purchaser acknowledges that there may occasionally be times
when the Company must suspend the use of the prospectus forming a part of the
Registration Statement until such time as an amendment to the Registration
Statement has been filed by the Company and declared effective by the
Commission, or until such time as the Company has filed an appropriate report
with the Commission pursuant to the Exchange Act. The Purchaser hereby covenants
that it will not sell any Shares pursuant to said prospectus during the period
commencing at the time at which the Company gives the Purchaser written notice
of the suspension of the use of said prospectus and ending at the time the
Company gives the Purchaser written notice that the Purchaser may thereafter
effect sales pursuant to said prospectus. The Purchaser further covenants to
notify the Company promptly of the sale of any or all of its Shares.
(d) Each Purchaser further represents and warrants to, and covenants
with, the Company that (i) the Purchaser has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (ii) upon the
execution and delivery of this Agreement, this Agreement shall constitute a
valid and binding obligation of the Purchaser enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as
the indemnification agreements of the Purchaser in Section 7.3 hereof may be
legally unenforceable.
(e) Each Purchaser represents and warrants to and covenants with the
Company that the Purchaser has not engaged in, directly or indirectly, and from
the date first above written and continuing for so long as the Purchaser owns
Shares purchased hereunder, will not engage in, directly or indirectly, any
short sales of the Company's Common Stock.
SECTION 6. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation made by any party hereto or by the Placement
Agent, all covenants, agreements, representations and warranties made by the
Company and each Purchaser herein and in the certificates for the Shares
delivered pursuant hereto shall survive for one year following the Closing Date.
SECTION 7. Registration of the Shares; Compliance with the
Securities Act.
7.1 Registration Procedures and Expenses. The Company shall:
(a) as promptly as practicable, prepare and file with the Commission
the Registration Statement on Form S-3 relating to the sale of the Shares by the
Purchasers from time to time through the automated quotation system of the
Nasdaq National Market or the facilities of any national securities exchange on
which the Common Stock is then traded or in privately-negotiated transactions;
(b) use its reasonable efforts, subject to receipt of necessary
information from the Purchasers, to cause the Commission to notify the Company
of the Commission's willingness to declare the Registration Statement effective
within 90 days after the Registration Statement is filed by the Company;
(c) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Registration Statement effective until
the earlier of (i) twenty-four months after the effective date of the
Registration Statement or (ii) the date on which the Shares may be resold by the
Purchasers without registration by reason of Rule 144(k) under the Securities
Act or any other rule of similar effect;
(d) furnish to each Purchaser with respect to the Shares registered
under the Registration Statement such reasonable number of copies of
prospectuses and such other documents as the Purchaser may reasonably request,
in order to facilitate the public sale or other disposition of all or any of the
Shares by the Purchaser; provided, however, that the obligation of the Company
to deliver copies of prospectuses to the Purchaser shall be subject to the
receipt by the Company of reasonable assurances from the Purchaser that the
Purchaser will comply with the applicable provisions of the Securities Act and
of such other securities or blue sky laws as may be applicable in connection
with any use of such prospectuses;
(e) file 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; and
(f) bear all expenses in connection with the procedures in
paragraphs (a) through (d) of this Section 7.1 and the registration of the
Shares pursuant to the Registration Statement, other than fees and expenses, if
any, of counsel or other advisers to the Purchasers or underwriting discounts,
placement fees, brokerage fees or commissions incurred by the Purchasers, if
any.
7.2 Transfer of Shares After Registration. Each Purchaser agrees
that it will not effect any disposition of the Shares or its right to purchase
the Shares that would constitute a sale within the meaning of the Securities
Act, except as contemplated in the Registration Statement referred to in Section
7.1, and that it will promptly notify the Company of any changes in the
information set forth in the Registration Statement regarding the Purchaser or
its plan of distribution.
7.3 Indemnification. For the purpose of this Section 7.3:
(i) the term "Purchaser/Affiliate" shall include the Purchaser and
any affiliate of such Purchaser; and
(ii) the term "Registration Statement" shall include any final
prospectus, exhibit, supplement or amendment included in or relating to the
Registration Statement referred to in Section 7.1.
(a) The Company agrees to indemnify and hold harmless each of the
Purchasers and each person, if any, who controls any Purchaser within the
meaning of the Securities Act, against any losses, claims, damages, liabilities
or expenses, joint or several, to which such Purchasers or such controlling
person may become subject, under the Securities Act, the Exchange Act, or any
other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Company), insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof as
contemplated below) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, including the prospectus, financial statements and schedules, and all
other documents filed as a part thereof, as amended at the time of effectiveness
of the Registration Statement, including any information deemed to be a part
thereof as of the time of effectiveness pursuant to paragraph (b) of Rule 430A,
or pursuant to Rule 434, of the Rules and Regulations, or the prospectus, in the
form first filed with the Commission pursuant to Rule 424(b) of the Regulations,
or filed as part of the Registration Statement at the time of effectiveness if
no Rule 424(b) filing is required (the "Prospectus"), or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state in any of them a material fact required to be stated therein
or necessary to make the statements in any of them, in light of the
circumstances under which they were made, not misleading 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 or are based in whole or in part on any breach of
the representations and warranties of the Company contained in this Agreement,
or any failure of the Company to perform its obligations hereunder or under law,
and will reimburse each Purchaser and each such controlling person for any legal
and other expenses as such expenses are reasonably incurred by such Purchaser or
such controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage, liability or expense arises out
of or is based upon (i) an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, the Prospectus
or any amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Company: by or on behalf of the Purchaser
expressly for use therein, or (ii) the failure of such Purchaser to comply with
the covenants and agreements contained in Sections 5(c) or 7.2 hereof respecting
sale of the Shares, or (iii) the inaccuracy of any representations made by such
Purchaser herein or (iv) any statement or omission in any Prospectus that is
corrected in any subsequent Prospectus that was delivered to the Purchaser prior
to the pertinent sale or sales by the Purchaser.
(b) Each Purchaser will severally indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of the Securities Act, against any losses, claims, damages, liabilities or
expenses to which the Company, each of its directors, each of its officers who
signed the Registration Statement or controlling person may become subject,
under the Securities Act, the Exchange Act, or any other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Purchaser) insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof as contemplated below) arise out of
or are based upon (i) any failure to comply with the covenants and agreements
contained in Sections 2, 5(c) or 7.2 hereof respecting the sale of the Shares or
(ii) the breach of any representation made by such Purchaser herein or (iii) any
untrue or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Purchaser expressly
for use therein, and will reimburse the Company, each of its directors, each of
its officers who signed the Registration Statement or controlling person for any
legal and other expense reasonably incurred by the Company, each of its
directors, each of its officers who signed the Registration Statement or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action.
(c) Promptly after receipt by an indemnified party under this
Section 7.3 of notice of the threat or commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 7.3 promptly notify the indemnifying party
in writing thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party for
contribution or otherwise than under the indemnity agreement contained in this
Section 7.3 or to the extent it is not prejudiced as a result of such failure.
In case any such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an indemnifying party,
the indemnifying party will be entitled to participate in, and, to the extent
that it may wish, jointly with all other indemnifying parties similarly
notified, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be a conflict
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such
indemnified party under this Section 7.3 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel,
approved by such indemnifying party in the case of paragraph (a), representing
the indemnified parties who are parties to such action) or (ii) the indemnified
party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice
of commencement of action, in each of which cases the reasonable fees and
expenses of counsel shall be at the expense of the indemnifying party.
(d) If the indemnification provided for in this Section 7.3 is
required by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party under paragraphs
(a), (b) or (c) of this Section 7.3 in respect to any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of any losses, claims, damages, liabilities or expenses referred to
herein (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Purchaser from the placement of Common Stock or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but the relative fault of the
Company and the Purchaser in connection with the statements or omissions or
inaccuracies in the representations and warranties in this Agreement which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The respective relative benefits
received by the Company on the one hand and each Purchaser on the other shall be
deemed to be in the same proportion as the amount paid by such Purchaser to the
Company pursuant to this Agreement for the Shares purchased by such Purchaser
that were sold pursuant to the Registration Statement bears to the difference
(the "Difference") between the amount such Purchaser paid for the Shares that
were sold pursuant to the Registration Statement and the amount received by such
Purchaser from such sale. The relative fault of such Selling Stockholders and
each Purchaser shall be determined by reference to, among other things, whether
the untrue or alleged statement of a material fact or the omission or alleged
omission to state a material fact or the inaccurate or the alleged inaccurate
representation and/or warranty relates to information supplied by the Company or
by such Purchaser and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in paragraph (c) of this Section 7.3, any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in
paragraph (c) of this Section 7.3 with respect to the notice of the threat or
commencement of any threat or action shall apply if a claim for contribution is
to be made under this paragraph (d); provided, however, that no additional
notice shall be required with respect to any threat or action for which notice
has been given under paragraph (c) for purposes of indemnification. The Company
and each Purchaser agree that it would not be just and equitable if contribution
pursuant to this Section 7.3 were determined solely by pro rata allocation (even
if the Purchaser were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to in this paragraph. Notwithstanding the provisions of this Section
7.3,
no Purchaser shall be required to contribute any amount in excess of the amount
by which the Difference exceeds the amount of any damages that such Purchaser
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Purchasers' obligations to contribute pursuant
to this Section 7.3 are several and not joint.
7.4 Termination of Conditions and Obligations. The conditions
precedent imposed by Section 5 or this Section 7 upon the transferability of the
Shares shall cease and terminate as to any particular number of the Shares upon
the passage of twenty-four months from the effective date of the Registration
Statement covering such Shares or at such time as an opinion of counsel
satisfactory in form and substance to the Company shall have been rendered to
the effect that such conditions are not necessary in order to comply with the
Securities Act.
SECTION 8. Placement Agent Fee. The Purchasers acknowledge that the
Company intends to pay to the Placement Agent a fee in respect of the sale of
the Shares by the Company to the Purchasers. Each of the parties hereto hereby
represents that, on the basis of any actions and agreements by it, there are no
other brokers or finders entitled to compensation in connection with the sale of
the Shares to the Purchasers.
SECTION 9. Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be mailed by first-class
registered or certified airmail, confirmed facsimile or nationally recognized
overnight express courier postage prepaid, and shall be deemed given when so
mailed and shall be delivered as addressed as follows:
(a) If to the Company:
Identix Incorporated
000 Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxx
Executive Vice President, Chief Financial Officer
Fax No: (000) 000-0000
With a copy to:
Incorporated
000 Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Executive Vice President, General Counsel & Secretary
Fax No: (000) 000-0000
or to such other person at such other place as the Company
shall designate to the Purchaser in writing; and
(b) if to any Purchaser, at its address as set forth on Schedule
A to this Agreement, or at such other address or addresses as
may be furnished by the Purchaser to the Company in writing.
SECTION 10. Changes. This Agreement may not be modified or amended
except pursuant to an instrument in writing signed by the Company and the
Purchaser.
SECTION 11. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
SECTION 12. Severability. In case any provision contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
SECTION 13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York and the federal
law of the United States of America.
SECTION 14. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the day and year
first above written.
IDENTIX INCORPORATED
By ____________________________________________
Name:
Title:
Print or Type:
Name of Purchaser
(Individual or Institution):
-----------------------------------------------
Name of Individual representing Purchaser
(if an Institution):
-----------------------------------------------
Title of Individual
representing Purchaser
(if an Institution):
-----------------------------------------------
Signature by: Individual Purchaser or Individual
representing Purchaser:
-----------------------------------------------
Address: ___________________________
Telephone: ___________________________
Telecopier: ___________________________
