EXHIBIT 4.4
EXHIBIT B
to Securities
Purchase
Agreement
THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER JURISDICTION. 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 PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THOSE LAWS.
Right to Purchase _______ shares
of Common Stock, $.01 par value per share
Date: July 1, 0000
XXXXXXX INCORPORATED
SERIES 2 STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, ______________________________, or its
registered assigns, is entitled to purchase from IDENTIX INCORPORATED, a
corporation organized under the laws of the State of Delaware (the "Company"),
at any time or from time to time during the Exercise Period (as defined in
Section 2 below), _______ fully paid and nonassessable shares of the Company's
common stock, $.01 par value per share (the "Common Stock"), at an exercise
price per share (the "Exercise Price") equal to $11.33. The number of shares
of Common Stock purchasable hereunder (the "Warrant Shares") and the Exercise
Price are subject to adjustment as provided in Section 4 hereof. The term
"Warrants" means this Warrant, the other Series 2 Warrants (the "Series 2
Warrants") and the Series 1 Warrants of the Company issued pursuant to that
certain Securities Purchase Agreement, dated as of June 30, 1999, by and among
the Company and the other signatories thereto (the "Securities Purchase
Agreement").
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This Warrant is subject to the following terms, provisions and conditions:
1. Manner of Exercise; Issuance of Certificates; Payment for Shares.
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Subject to the provisions hereof, including, without limitation, the limitations
contained in Section 7 hereof, this Warrant may be exercised at any time and
from time to time during the Exercise Period by the holder hereof, in whole or
in part, in accordance with the procedures set forth in this Section 1. In
order to exercise this Warrant, the holder shall (i) deliver in accordance with
Section 9 hereof, a copy of the fully executed exercise agreement in the form
attached hereto (the "Exercise Agreement"), to the Company by 11:59 p.m. San
Francisco, California time on the Exercise Date, (ii) surrender or cause to be
surrendered this Warrant along with a copy of the Exercise Agreement as soon as
practicable thereafter (but in any event within five (5) business days after the
Exercise Date) to the Company at the Company's principal executive offices (or
such other office or agency of the Company as it may designate by notice to the
holder hereof) and (iii), unless this Warrant is being exercised pursuant to the
cashless exercise provisions of Section 11(c) hereof, make payment to the
Company in cash, by certified or official bank check or by wire transfer for the
account of the Company, of the Exercise Price for the Warrant Shares specified
in the Exercise Agreement within three (3) business days after the Exercise
Date. The Warrant Shares so purchased shall be deemed to be issued to the
holder hereof or such holder's designee, as the record owner of such shares, as
of the close of business on the date on which this Warrant shall have been
surrendered and the completed Exercise Agreement shall have been delivered and
payment shall have been made for such shares as set forth above or, if such day
is not a business day, on the next succeeding business day. The Warrant Shares
so purchased, representing the aggregate number of shares specified in the
Exercise Agreement, shall be delivered to the holder hereof within a reasonable
time, not exceeding three business days, after this Warrant shall have been so
exercised (the "Delivery Period"). If the Company's transfer agent is
participating in the Depository Trust Company ("DTC") Fast Automated Securities
Transfer program, and so long as the certificates therefor are not required to
bear a legend and the holder is not obligated to return such certificate for the
placement of a legend thereon, the Company shall cause its transfer agent to
electronically transmit the Warrant Shares so purchased to the holder by
crediting the account of the holder or its nominee with DTC through its Deposit
Withdrawal Agent Commission system ("DTC Transfer"). If the aforementioned
conditions to a DTC Transfer are not satisfied, the Company shall deliver to
the holder physical certificates representing the Warrant Shares so purchased.
Further, the holder may instruct the Company to deliver to the holder physical
certificates representing the Warrant Shares so purchased in lieu of delivering
such shares by way of DTC Transfer. Any certificates so delivered shall be in
such denominations as may be requested by the holder hereof, shall be registered
in the name of such holder or such other name as shall be designated by such
holder and, following the date on which the Warrant Shares have been registered
under the Securities Act pursuant to that certain Registration Rights Agreement,
dated as of June 30, 1999, by and between the Company and the other signatories
thereto (the "Registration Rights Agreement") or otherwise may be sold by the
holder pursuant to Rule 144(k) promulgated under the Securities Act (or a
successor rule), shall not bear any restrictive legend. If this Warrant shall
have been exercised only in part, then, unless this Warrant has expired, the
Company shall, at its expense, at the time of delivery of such certificates,
deliver to the holder a new Warrant representing the number of shares with
respect to which this Warrant shall not then have been exercised.
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If, at any time during the Investment Period, a holder of this Warrant
submits this Warrant, an Exercise Agreement and payment to the Company of the
applicable Exercise Price for each of the Warrant Shares specified in the
Exercise Agreement, and the Company fails for any reason to deliver, on or prior
to the tenth (10th) business day following the expiration of the Delivery Period
for such exercise, the number of shares of Common Stock to which the holder is
entitled upon such exercise (an "Exercise Default"), then the Company shall pay
to the holder payments ("Exercise Default Payments") for an Exercise Default in
the amount of (a) (N/365), multiplied by (b) the Market Price (as defined in
Section 4(i) hereof) on the date the Exercise Agreement giving rise to the
Exercise Default is transmitted in accordance with this Section 1 (the "Exercise
Default Date"), multiplied by (c) the number of shares of Common Stock the
Company failed to so deliver in such Exercise Default, multiplied by (d) .18,
where N = the number of days from the Exercise Default Date to the date that the
Company effects the full issuance and delivery of the Warrant Shares which gave
rise to the Exercise Default. The accrued Exercise Default Payment for each
thirty day period shall be paid in cash or Common Stock, at the holder's
election, as follows:
(x) In the event there is no mutual agreement regarding the payment of
any such default payment in Common Stock, cash payment shall be made to the
holder on the fifth day after the end of each successive thirty day (or shorter)
period during the continuance of the Exercise Default; and
(y) In the event the holder and the Company mutually agree that the
holder may take such payment in Common Stock rather than cash, the Company shall
issue to holder the number of shares of Common Stock equal to the amount of such
Exercise Default Payment divided by the Market Price (as defined in Section
4(i)) (as in effect at the time of conversion) on the fifth day after the end of
each thirty day (or shorter) period during the continuance of the Exercise
Default, which shares of Common Stock shall be delivered within two (2) business
days thereafter.
Nothing herein shall limit the holder's right to pursue actual damages for
the Company's failure to maintain a sufficient number of authorized shares of
Common Stock as required pursuant to the terms of Section 3(b) hereof or to
otherwise issue shares of Common Stock upon exercise of this Warrant in
accordance with the terms hereof, and the holder shall have the right to pursue
all remedies available at law or in equity (including a decree of specific
performance and/or injunctive relief).
2. Period of Exercise.
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(a) Subject to subsection (b) of this Section 2, this Warrant may be
exercised at any time or from time to time on or after the date hereof and on or
before 5:00 p.m., San Francisco, California time on the eighteen month
anniversary of the Closing Date (as defined in the Securities Purchase Agreement
(the "Exercise Period").
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(b) Notwithstanding the forgoing, any time beginning 9 months after
the Closing Date, in the event that (i) the closing bid price for the Company's
Common Stock has been greater than $14.81 (as adjusted for stock splits, reverse
stock splits, combinations and the like) on each of the 15 consecutive Trading
Days immediately preceding the date the Company delivers an Exercise Request (as
defined below), (ii) all of the Registrible Securities (as defined in the
Registration Rights Agreement) are registered for resale pursuant to a
registration statement that has been declared effective by the United States
Securities and Exchange Commission and remains effective and (iii) the Company
is not then in material breach of the Securities Purchase Agreement, the
Registration Rights Agreement or the Warrants, then the Company may deliver to
holder a written request to holder to exercise this Warrant (the "Exercise
Request"). Subject to the Company's compliance with the foregoing terms, the
Exercise Period shall expire at the end of the 10th day following the holder's
receipt of such Exercise Request.
(c) The date on which this Warrant is exercised is the "Exercise
Date".
3. Certain Agreements of the Company. The Company hereby covenants and
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agrees as follows:
(a) Shares to be Fully Paid. All Warrant Shares will, upon issuance
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in accordance with the terms of this Warrant, be validly issued, fully paid and
nonassessable and free from all taxes, liens, claims and encumbrances.
(b) Reservation of Shares. During the period (the "Investment
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Period") beginning on the date hereof and ending on the termination of the
Exercise Period, the Company shall at all times have authorized, and reserved
for the purpose of issuance upon exercise of this Warrant, a sufficient number
of shares of Common Stock to provide for the exercise in full of this Warrant
(without giving effect to the limitations on exercise set forth in Section 7(g)
hereof).
(c) Listing. The Company has secured the listing of the shares of
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Common Stock issuable upon exercise of or otherwise pursuant to this Warrant
upon each national securities exchange or automated quotation system, if any,
upon which shares of Common Stock are then listed or become listed (subject to
official notice of issuance upon exercise of this Warrant) and shall maintain,
so long as any other shares of Common Stock shall be so listed, such listing of
all shares of Common Stock from time to time issuable upon the exercise of or
otherwise pursuant to this Warrant; and the Company shall so list on each
national securities exchange or automated quotation system, as the case may be,
and shall maintain such listing of, any other shares of capital stock of the
Company issuable upon the exercise of or otherwise pursuant to this Warrant if
and so long as any shares of the same class shall be listed on such national
securities exchange or automated quotation system.
(d) Certain Actions Prohibited. The Company will not avoid or seek to
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avoid the observance or performance of any of the terms to be observed or
performed by it hereunder, but will at all times in good faith assist in the
carrying out of all the provisions of this Warrant and in the taking of all such
action as may reasonably be requested by the holder of this Warrant
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in order to protect the economic benefit inuring to the holder hereof and the
exercise privilege of the holder of this Warrant against dilution or other
impairment, consistent with the tenor and purpose of this Warrant. Without
limiting the generality of the foregoing, the Company (i) will not increase the
par value of any shares of Common Stock receivable upon the exercise of this
Warrant above the Exercise Price then in effect, and (ii) will take all such
actions as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable shares of Common Stock upon the
exercise of this Warrant.
(e) Successors and Assigns. This Warrant will be binding upon any
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entity succeeding to the Company by merger, consolidation, or acquisition of all
or substantially all of the Company's assets.
(f) Blue Sky Laws. The Company shall, on or before the date of
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issuance of any Warrant Shares, take such actions as the Company shall
reasonably determine are necessary to qualify the Warrant Shares for, or obtain
exemption for the Warrant Shares for, sale to the holder of this Warrant upon
the exercise hereof under applicable securities or "blue sky" laws of the states
of the United States, and shall provide evidence of any such action so taken to
the holder of this Warrant prior to such date; provided, however, that the
Company shall not be required to qualify as a foreign corporation or file a
general consent to service of process in any such jurisdiction.
4. Antidilution Provisions. During the Investment Period, the Exercise
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Price and the number of Warrant Shares issuable hereunder shall be subject to
adjustment from time to time as provided in this Section 4.
In the event that any adjustment of the Exercise Price as required herein
results in a fraction of a cent, such Exercise Price shall be rounded up or down
to the nearest cent.
(a) Subdivision or Combination of Common Stock. If the Company, at
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any time during the Investment Period, subdivides (by any stock split, stock
dividend, recapitalization, reorganization, reclassification or otherwise) its
shares of Common Stock into a greater number of shares, then, after the date of
record for effecting such subdivision, the Exercise Price in effect immediately
prior to such subdivision will be proportionately reduced. If the Company, at
any time during the Investment Period, combines (by reverse stock split,
recapitalization, reorganization, reclassification or otherwise) its shares of
Common Stock into a smaller number of shares, then, after the date of record for
effecting such combination, the Exercise Price in effect immediately prior to
such combination will be proportionately increased.
(b) Adjustment in Number of Shares. Upon each adjustment of the
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Exercise Price pursuant to the provisions of this Section 4, the number of
shares of Common Stock issuable upon exercise of this Warrant shall be increased
or decreased to equal the quotient obtained by dividing (i) the product of (A)
the Exercise Price in effect immediately prior to such adjustment, multiplied by
(B) the number of shares of Common Stock issuable upon exercise of this Warrant
immediately prior to such adjustment, by (ii) the adjusted Exercise Price.
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(c) Consolidation, Merger or Sale. In case of any consolidation of
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the Company with, or merger of the Company into, any other entity, or in case of
any sale or conveyance of all or substantially all of the assets of the Company
other than in connection with a plan of complete liquidation of the Company at
any time during the Investment Period, then as a condition of such
consolidation, merger or sale or conveyance, adequate provision will be made
whereby the holder of this Warrant will have the right to acquire and receive
upon exercise of this Warrant in lieu of the shares of Common Stock immediately
theretofore acquirable upon the exercise of this Warrant, such shares of stock,
securities, cash or assets as may be issued or payable with respect to or in
exchange for the number of shares of Common Stock immediately theretofore
acquirable and receivable upon exercise of this Warrant had such consolidation,
merger or sale or conveyance not taken place. In any such case, the Company
will make appropriate provision to insure that the provisions of this Section 4
will thereafter be applicable as nearly as may be in relation to any shares of
stock or securities thereafter deliverable upon the exercise of this Warrant.
The Company will not effect any consolidation, merger or sale or conveyance
unless prior to the consummation thereof, the successor entity (if other than
the Company) assumes by written instrument the obligations under this Warrant
and the obligations to deliver to the holder of this Warrant such shares of
stock, securities or assets as, in accordance with the foregoing provisions, the
holder may be entitled to acquire.
(d) Distribution of Assets. In case the Company shall declare or make
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any distribution of its assets (or rights to acquire its assets) to holders of
Common Stock as a partial liquidating dividend, stock repurchase, by way of
return of capital or otherwise (including any dividend or distribution to the
Company's shareholders of cash or shares (or rights to acquire shares) of
capital stock of a subsidiary) (a "Distribution"), at any time during the
Investment Period, then, upon exercise of this Warrant for the purchase of any
or all of the shares of Common Stock subject hereto, the holder of this Warrant
shall be entitled to receive its pro-rata amount of such assets (or rights) as
would have been payable to the holder had such holder been the holder of such
shares of Common Stock on the record date for the determination of shareholders
entitled to such Distribution.
(e) Notice of Adjustment. Upon the occurrence of any event which
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requires any adjustment of the Exercise Price, then, and in each such case, the
Company shall give notice thereof to the holder of this Warrant, which notice
shall state the Exercise Price resulting from such adjustment and the increase
or decrease in the number of Warrant Shares issuable upon exercise of this
Warrant, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based. Such calculation shall be certified
by the chief financial officer of the Company.
(f) Minimum Adjustment of Exercise Price. No adjustment of the
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Exercise Price shall be made in an amount of less than 1% of the Exercise Price
in effect at the time such adjustment is otherwise required to be made, but any
such lesser adjustment shall be carried forward and shall be made at the time
and together with the next subsequent adjustment which, together with any
adjustments so carried forward, shall amount to not less than 1% of such
Exercise Price.
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(g) No Fractional Shares. No fractional shares of Common Stock are to
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be issued upon the exercise of this Warrant, but the Company shall pay a cash
adjustment in respect of any fractional share which would otherwise be issuable
in an amount equal to the same fraction of the Market Price of a share of Common
Stock on the date of such exercise.
(h) Other Notices. In case at any time:
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(i) the Company shall declare any dividend upon the Common Stock
payable in shares of stock of any class or make any other distribution (other
than dividends or distributions payable in cash out of retained earnings
consistent with the Company's past practices with respect to declaring dividends
and making distributions and rights issued pursuant to any "poison pill" plan
adopted by the Board of Directors) to the holders of the Common Stock;
(ii) the Company shall offer for subscription pro rata to the
holders of the Common Stock any additional shares of stock of any class or other
rights;
(iii) there shall be any capital reorganization of the Company, or
reclassification of the Common Stock, or consolidation or merger of the Company
with or into another corporation or entity such that the holders of the
Company's capital stock immediately prior to such transaction or series of
related transactions hold less than 50% of the capital stock of the surviving
corporation or entity immediately after such transaction or series of
transactions, or sale of all or substantially all of the Company's assets to,
another corporation or entity; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company;
then, in each such case, the Company shall give to the holder of this Warrant
(a) notice of the date or estimated date on which the books of the Company shall
close or a record shall be taken for determining the holders of Common Stock
entitled to receive any such dividend, distribution, or subscription rights or
for determining the holders of Common Stock entitled to vote in respect of any
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up and (b) in the case of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up, notice of the date (or, if not then known, a reasonable estimate
thereof by the Company) when the same shall take place. Such notice shall also
specify the date on which the holders of Common Stock shall be entitled to
receive such dividend, distribution, or subscription rights or to exchange their
Common Stock for stock or other securities or property deliverable upon such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding-up, as the case may be. Such notice shall be given at
least twenty (20) days prior to the record date or the date on which the
Company's books are closed in respect thereto. Failure to give any such notice
or any defect therein shall not affect the validity of the proceedings referred
to in clauses (i), (ii), (iii) and (iv) above. Notwithstanding the foregoing,
the Company shall publicly disclose the events with respect to which any notice
delivered hereunder relates prior to delivery of such notice to the holder of
this Warrant.
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(i) Certain Events. If, at any time during the Investment Period, any
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event occurs of the type contemplated by the adjustment provisions of this
Section 4 but not expressly provided for by such provisions, the Company will
give notice of such event as provided in Section 4(g) hereof, and the Company's
Board of Directors will make an appropriate adjustment in the Exercise Price and
the number of shares of Common Stock acquirable upon exercise of this Warrant so
that the rights of the holder shall be neither enhanced nor diminished by such
event.
(j) Certain Definitions.
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(i) "business day" means any day, other than a Saturday or Sunday
or a day on which banking institutions in the State of California are authorized
or obligated by law, regulation or executive order to close.
(ii) "Common Stock," for purposes of this Section 4, includes the
Common Stock and any additional class of stock of the Company having no
preference as to dividends or distributions on liquidation, provided that the
shares purchasable pursuant to this Warrant shall include only Common Stock in
respect of which this Warrant is exercisable, or shares resulting from any
subdivision or combination of such Common Stock, or in the case of any
reorganization, reclassification, consolidation, merger, or sale of the
character referred to in Section 4(c) hereof, the stock or other securities or
property provided for in such Section.
(iii) "Market Price," as of any date, (i) means the average of the
closing bid prices for the shares of Common Stock as reported on The American
Stock Exchange ("AMEX") by Bloomberg Financial Markets ("Bloomberg") for the
five (5) consecutive Trading Days immediately preceding such date, or (ii) if
AMEX is not the principal trading market for the shares of Common Stock, the
average of the last reported bid prices as reported by Bloomberg on the
principal trading market for the Common Stock during the same period, or, if
there is no bid price for such period, the last reported sales price as reported
by Bloomberg for such period, or (iii) if market value cannot be calculated as
of such date on any of the foregoing bases, the Market Price shall be the
average fair market value as reasonably determined by an investment banking firm
selected by the Company and reasonably acceptable to the holder, with the costs
of the appraisal to be borne by the Company. The manner of determining the
Market Price of the Common Stock set forth in the foregoing definition shall
apply with respect to any other security in respect of which a determination as
to market value must be made hereunder.
(iv) "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.
5. Issue Tax. The issuance of certificates for Warrant Shares upon the
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exercise of this Warrant shall be made without charge to the holder of this
Warrant or such shares for any issuance tax or other costs in respect thereof,
provided that the Company shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
certificate in a name other than the holder of this Warrant.
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6. No Rights or Liabilities as a Shareholder. This Warrant shall not
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entitle the holder hereof to any voting rights or other rights as a shareholder
of the Company. No provision of this Warrant, in the absence of affirmative
action by the holder hereof to purchase Warrant Shares, and no mere enumeration
herein of the rights or privileges of the holder hereof, shall give rise to any
liability of such holder for the Exercise Price or as a shareholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
7. Transfer, Exchange, Redemption and Replacement of Warrant.
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(a) Restriction on Transfer. This Warrant and the rights granted to
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the holder hereof are transferable, in whole or in part, to any Permitted
Transferee (as defined in the Securities Purchase Agreement) upon surrender of
this Warrant, together with a properly executed assignment in the form attached
hereto, at the office or agency of the Company referred to in Section 7(e)
below, provided, however, that any transfer or assignment shall be subject to
the conditions set forth in Sections 7(f) and 7(g) hereof and to the provisions
of Sections 3(e) and 3(f) of the Securities Purchase Agreement. Until due
presentment for registration of transfer on the books of the Company, the
Company may treat the registered holder hereof as the owner and holder hereof
for all purposes, and the Company shall not be affected by any notice to the
contrary. Notwithstanding anything to the contrary contained herein, the
registration rights described in Section 8 hereof are assignable only in
accordance with the provisions of the Registration Rights Agreement.
(b) Warrant Exchangeable for Different Denominations. This Warrant is
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exchangeable, upon the surrender hereof by the holder hereof at the office or
agency of the Company referred to in Section 7(e) below, for new Series 2
Warrants of like tenor of different denominations representing in the aggregate
the right to purchase the number of shares of Common Stock which may be
purchased hereunder, each of such new Series 2 Warrants to represent the right
to purchase such number of shares as shall be designated by the holder hereof at
the time of such surrender.
(c) Replacement of Warrant. Upon receipt of evidence reasonably
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satisfactory to the Company of the loss, theft, destruction, or mutilation of
this Warrant and, in the case of any such loss, theft, or destruction, upon
delivery of an indemnity agreement reasonably satisfactory in form and amount to
the Company, or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Company, at its expense, will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
(d) Cancellation; Payment of Expenses. Upon the surrender of this
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Warrant in connection with any transfer, exchange, or replacement as provided in
this Section 7, this Warrant shall be promptly canceled by the Company. The
Company shall pay all taxes (other than securities transfer taxes or income
taxes) and all other expenses (other than legal expenses, if any, incurred by
the Holder or transferees) and charges payable in connection with the
preparation, execution, and delivery of Series 2 Warrants pursuant to this
Section 7.
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(e) Warrant Register. The Company shall maintain, at its principal
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executive offices (or such other office or agency of the Company as it may
designate by notice to the holder hereof), a register for this Warrant, in which
the Company shall record the name and address of the person in whose name this
Warrant has been issued, as well as the name and address of each transferee and
each prior owner of this Warrant.
(f) Exercise or Transfer Without Registration. If, at the time of the
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surrender of this Warrant in connection with any exercise, transfer, or exchange
of this Warrant, this Warrant (or, in the case of any exercise, the Warrant
Shares issuable hereunder), shall not be registered under the Securities Act and
under applicable state securities or blue sky laws, the Company may require, as
a condition of allowing such exercise, transfer, or exchange, (i) that the
holder or transferee of this Warrant, as the case may be, furnish to the Company
a written opinion of counsel (which opinion shall be in form, substance and
scope customary for opinions of counsel in comparable transactions) to the
effect that such exercise, transfer, or exchange may be made without
registration under the Securities Act and under applicable state securities or
blue sky laws, (ii) that the holder or transferee execute and deliver to the
Company an investment letter in form and substance reasonably acceptable to the
Company and (iii) that the transferee be an "accredited investor" as defined in
Rule 501(a) promulgated under the Securities Act; provided that no such opinion,
letter, or status as an "accredited investor" shall be required in connection
with a transfer pursuant to Rule 144 under the Securities Act.
(g) Additional Restrictions on Exercise or Transfer. Notwithstanding
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anything contained herein to the contrary, this Warrant shall not be
exercisable by a holder hereof to the extent (but only to the extent) that (a)
the number of shares of Common Stock beneficially owned by such holder and its
affiliates and (b) the number of shares of Common Stock issuable upon exercise
of this Warrant (or portion thereof) with respect to which the determination
described herein is being made, would result in beneficial ownership by such
holder and its affiliates of more than 9.99% of the outstanding shares of Common
Stock. To the extent the above limitation applies, the determination of whether
and to what extent this Warrant shall be exercisable with respect to other
securities owned by such holder shall be in the sole discretion of the holder
and submission of this Warrant for full or partial exercise shall be deemed to
be the holder's determination of whether and the extent to which this Warrant is
exercisable, in each case subject to such aggregate percentage limitation. No
prior inability to exercise the Warrants pursuant to this Section shall have any
effect on the applicability of the provisions of this Section with respect to
any subsequent determination of exercisability. For purposes of the immediately
preceding sentence, beneficial ownership shall be determined in accordance with
Section 13(d) of the Securities Exchange Act of 1934, as amended, and Regulation
13D-G thereunder. The restrictions contained in this Section 7(g) may not be
amended without the consent of the holder of this Warrant and the holders of a
majority of the Company's then outstanding Common Stock.
8. Registration Rights. The initial holder of this Warrant (and certain
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assignees thereof) is entitled to the benefit of such registration rights in
respect of the Warrant Shares as are set forth in the Registration Rights
Agreement, including the right to assign such rights to certain assignees, as
set forth therein.
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9. Notices. Any notices required or permitted to be given under the terms
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of this Warrant 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 one (1)
business day after being deposited with a nationally recognized overnight
delivery service, or immediately if delivered personally, by same-day courier or
by confirmed telecopy (such confirmation being conclusive proof of receipt and
delivery), in each case addressed to a party. The addresses for such
communications shall be:
If to the Company:
Identix Incorporated
000 X. Xxxxxxxx Xxx.
Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: President
If to the holder, at such address as such holder shall have provided in writing
to the Company, or at such other address as such holder furnishes by notice
given in accordance with this Section 9.
10. Governing Law; Jurisdiction. This Warrant shall be governed by and
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construed in accordance with the laws of the State of California applicable to
contracts made and to be performed in the State of California. Each of the
Company and the holder irrevocably consents to the jurisdiction of the United
States federal courts and state courts located in San Francisco, California in
any suit or proceeding based on or arising under this Warrant and irrevocably
agree that all claims in respect of such suit or proceeding shall be determined
in such courts. Each of the Company and the holder irrevocably waives any
objection to the laying of venue and the defense of an inconvenient forum to the
maintenance of such suit or proceeding. Each of the Company and the holder
further agrees that service of process upon it mailed by certified or registered
mail to the address set forth in Section 9 shall be deemed in every respect
effective service of process upon it in any such suit or proceeding. Nothing
herein shall affect the holder's right to serve process in any other manner
permitted by law. Each of the Company and the holder agrees 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.
11. Miscellaneous.
-------------
(a) Amendments. Except as provided in Section 7(g) hereof, this
----------
Warrant and any provision hereof may only be amended by an instrument in writing
signed by the Company and the holder hereof.
11
(b) Descriptive Headings. The descriptive headings of the several
--------------------
Sections of this Warrant are inserted for purposes of reference only, and shall
not affect the meaning or construction of any of the provisions hereof.
(d) HSR Act. The Company hereby acknowledges that exercise of this
-------
Warrant by holder may subject the Company and/or holder to the filing
requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx
"XXX Xxx") and that holder may be prevented from exercising this Warrant until
the expiration or early termination of all waiting periods imposed by the HSR
Act. The Company and the Holder each hereby covenants that it will use
reasonable commercial efforts to effect promptly all necessary or appropriate
registrations, filings and submissions that may be required pursuant to the HSR
Act in connection with the exercise of this Warrant.
(d) Cashless Exercise. At any time after the Registration Deadline
-----------------
(as defined in the Registration Rights Agreement), provided that there is then
no effective registration statement covering the sale of the Warrant Shares, and
notwithstanding anything to the contrary contained in this Warrant, this Warrant
may be exercised for the purchase of Warrant Shares any time or from time to
time, by presentation and surrender of this Warrant to the Company at its
principal executive offices with a written notice of the holder's intention to
effect a cashless exercise, including a calculation of the number of shares of
Common Stock to be issued upon such exercise in accordance with the terms hereof
(a "Cashless Exercise"). In the event of a Cashless Exercise, in lieu of paying
the Exercise Price in cash, the holder shall surrender this Warrant for that
number of shares of Common Stock determined by multiplying (i) the number of
Warrant Shares to which it would otherwise be entitled by (ii) a fraction, the
numerator of which shall be the difference between the then current Market Price
per share of the Common Stock and the Exercise Price, and the denominator of
which shall be the Market Price per share of Common Stock.
(e) Partial Exercise. Upon any partial exercise of this Warrant, the
----------------
Company shall cancel the Warrant upon surrender thereof, and shall, within 2
business days of such surrender, execute and deliver a new Warrant of like tenor
and date for the balance of the outstanding Warrant Shares
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer.
IDENTIX INCORPORATED
By: _________________________________
Name: ______________________
Title: _______________________
FORM OF EXERCISE AGREEMENT
(To be Executed by the Holder in order to Exercise the Warrant)
To: IDENTIX INCORPORATED
000 X. Xxxxxxxx Xxx.
Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: President
The undersigned hereby irrevocably exercises the right to purchase
_____________ shares of the Common Stock of Identix Incorporated, a corporation
organized under the laws of the State of Delaware (the "Company"), evidenced by
the attached Warrant and herewith makes payment of the Exercise Price with
respect to such shares in full, all in accordance with the conditions and
provisions of said Warrant.
The undersigned agrees not to offer, sell, transfer or otherwise dispose of
any Common Stock obtained on exercise of the Warrant, except under circumstances
that will not result in a violation of the Securities Act of 1933, as amended,
or any state securities laws.
[_] The undersigned requests that the Company cause its transfer agent to
electronically transmit the Common Stock issuable pursuant to this Exercise
Agreement to the account of the undersigned or its nominee (which is
_________________) with DTC through its Deposit Withdrawal Agent Commission
System ("DTC Transfer").
[_] In lieu of receiving the shares of Common Stock issuable pursuant to this
Exercise Agreement by way of DTC Transfer, the undersigned hereby requests
that the Company cause its transfer agent to issue and deliver to the
undersigned physical certificates representing such shares of Common Stock.
The undersigned requests that a Warrant representing any unexercised
portion hereof be issued, pursuant to the Warrant, in the name of the Holder and
delivered to the undersigned at the address set forth below:
Dated:_________________ _____________________________________
Signature of Holder
_____________________________________
Name of Holder (Print)
Address:
_____________________________________
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers
all the rights of the undersigned under the attached Warrant, with respect to
the number of shares of Common Stock covered thereby set forth hereinbelow, to:
Name of Assignee Address No of Shares
---------------- ------- ------------
, and hereby irrevocably constitutes and appoints ____________________________
as agent and attorney-in-fact to transfer said Warrant on the books of the
within-named corporation, with full power of substitution in the premises.
Dated: _____________________, ____
In the presence of
__________________
Name: ____________________________
Signature: ______________________
Title of Signing Officer or Agent
(if any):
________________________
Address: ________________________
________________________
Note: The above signature should
correspond exactly with the name on
the face of the within Warrant.
