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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 15, 1996
REGISTRATION NO. 333-4885
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------
IDENTIX INCORPORATED
(Exact name of registrant as specified in its charter)
CALIFORNIA 94-2842496
(State or other jurisdiction of (I.R.S. employer identification
incorporation or organization) number)
510 NORTH PASTORIA AVENUE, SUNNYVALE, CALIFORNIA 94086, (408) 739-2000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
RANDALL C. FOWLER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
510 NORTH PASTORIA AVENUE
SUNNYVALE, CALIFORNIA 94086
(408) 739-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service) with copies of all orders, notices and communications to:
RICHARD FRIEDMAN, ESQ.
HELLER EHRMAN WHITE & MCAULIFFE
525 UNIVERSITY AVENUE
PALO ALTO, CALIFORNIA 94301
(415) 324-7000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the Registration Statement becomes effective.
------------------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /x/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /________________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering.
/ /__________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED JULY 15, 1996
PROSPECTUS IDENTIX INCORPORATED
668,976 SHARES
Common Stock
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This Prospectus (the "Prospectus") covers the offer and sale of 668,976
shares (the "Shares") of Common Stock, no par value (the "Common Stock"), of
Identix Incorporated ("Identix" or the "Company") by the holders thereof named
in this Prospectus (the "Selling Shareholders"). The Shares offered by the
Selling Shareholders were issued to the Selling Shareholders in a private
transaction as consideration for the sale of all outstanding shares of
Fingerscan Pty Limited, an Australian corporation, by the Selling Shareholders
to Identix.
Some or all of the Shares may be offered for sale from time to time by the
Selling Shareholders at such prices and on such terms as may be then obtainable,
in negotiated transactions, or otherwise. This Prospectus may be used by the
Selling Shareholders or by any broker-dealer who may participate in sales of the
Shares. The Selling Shareholders will pay all commissions, transfer taxes, and
other expenses associated with the sales of the Shares by them. The Company will
pay the expenses of the preparation of this Prospectus.
The Common Stock is listed on the American Stock Exchange ("AMEX") under
the symbol "IDX" and on the Pacific Stock Exchange ("PSE"). On May 24, 1996, the
closing price on the AMEX was $15.50 per share.
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THE OFFERING INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" ON PAGES 3 TO 6.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is ____________, 1996.
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AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 under the Securities Act of
1933, as amended (the "Securities Act") with respect to the securities offered
by this Prospectus. As permitted by the rules and regulations of the Commission,
this Prospectus does not contain all of the information set forth in the
Registration Statement and the exhibits and schedules thereto. For further
information with respect to Identix and the securities offered hereby, reference
is made to the Registration Statement and the exhibits thereto, which may be
examined without charge at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, DC 20549, and
copies of which may be obtained from the Commission upon payment of the
prescribed fees. In addition, the Company is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information may be inspected at the public reference facilities of the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, DC 20549.
Copies of such material can be obtained at prescribed rates from the Public
Reference Section of the Commission at such address. Such reports, proxy
statements and other information can also be inspected at the Commission's
regional offices at 7 World Trade Center, Suite 1300, New York, New York 10048
and at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and at the
offices of the American Stock Exchange, Inc. at 86 Trinity Place, New York, New
York 10006.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated in this Prospectus by reference:
1. The Company's annual report on Form 10-K for the fiscal year ended
June 30, 1995;
2. The Company's quarterly reports on Form 10-Q for the quarters ended
September 30, 1995, December 31, 1995 and March 31, 1996;
3. The Company's Current Report on Form 8-K dated March 26, 1996, as
amended, and Current Report on Form 8-K, dated June 30, 1996; and
4. The description of the Common Stock contained in the Company's Form
8-A Registration Statement filed with respect to the Common Stock
pursuant to Section 12 of the Exchange Act.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering
of securities hereunder shall be deemed to be incorporated herein by reference
and shall be a part hereof from the date of the filing of such documents. Any
statements contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or replaced for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or replaces such statement. Any such statement so
modified or replaced shall not be deemed, except as so modified or replaced, to
constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a Prospectus is delivered, upon written or oral
request of such person, a copy of any document incorporated by reference in this
Prospectus and the Company's most recent definitive proxy statement filed with
the Commission, other than exhibits to such documents not specifically
incorporated by reference. Such requests should be directed to Identix
Incorporated, 510 North Pastoria Avenue, Sunnyvale, California 94086, Attention:
James P. Scullion, Chief Financial Officer (Telephone (408) 739-2000).
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RISK FACTORS
In addition to the other information in this Prospectus, the following risk
factors should be carefully considered in evaluating an investment in the Common
Stock offered hereby.
HISTORY OF LOSSES
At March 31, 1996, the Company had an accumulated deficit of approximately
$30,996,000. The Company experienced net losses in each year since inception,
including net losses of $715,000 for the year ended June 30, 1995. Although the
Company has recorded net profits in two of the last three quarters, there can be
no assurance that the Company will continue to achieve profitability in any
future periods.
UNCERTAINTY RELATED TO CONTRACTS WITH GOVERNMENT AGENCIES; UNPREDICTABLE REVENUE
CYCLE
A substantial portion of the Company's revenues are from government
agencies. As a result, economic and political conditions beyond the Company's
control will affect the performance of the Company. Government agencies are
subject to political and budgetary constraints and purchases of the Company's
products and services may be canceled or substantially delayed due to political
and budgetary processes. In addition, the Company's contracts with local
government agencies may be contingent upon availability of matching funds from
state or federal entities. Government agencies also frequently require
provisions in contracts that are not standard in private commercial
transactions, such as bonding requirements and provisions permitting the
purchasing agency to cancel the contract without penalty if funding for the
contract is no longer available or is not obtained. The nature of the law
enforcement market and the government procurement process has resulted in, and
is expected to continue to result in, an irregular and unpredictable revenue
cycle for the Company's products business. Accordingly, the Company's
performance in any one period is not necessarily indicative of sales trends or
future performance. In addition, sales to government agencies are contingent
upon the Company's ability to meet a number of government requirements.
DEPENDENCE OF SERVICES BUSINESS ON U.S. DEPARTMENT OF DEFENSE
During the fiscal year ended June 30, 1995 and the nine month period ended
March 31, 1996, the Company's services business derived approximately 79% and
74%, respectively, of its revenue from contracts relating to the Department of
Defense ("the DOD") and other United States government agencies. Because of
budget cuts affecting the DOD, services revenues from the DOD have been
declining. Government projections indicate a continuing decline in the levels of
DOD spending, which the Company believes will result in increased competition
and may result in a further decline in DOD revenues as a percentage of service
revenues. The Company has been expanding its services business to other
government agencies and commercial organizations, but there can be no assurance
that the results of these efforts will be substantial enough to offset any
further decline in revenue from the DOD. There can be no assurance that the
Company's services business will not be adversely affected by further cuts in
the DOD budget.
The Company's services business generates a significant amount of its
revenues from cost plus fixed fee ("CPFF") contracts under which the contracting
party is paid its allowable costs incurred plus a predetermined fee or profit.
During the fiscal year ended June 30, 1995 and the nine months ended March 31,
1996, the Company derived approximately 47% and 42% of its services revenues
from CPFF contracts. The Company's services business also generates revenue from
time-and-materials ("T&M") contracts and firm fixed-price ("FFP") contracts. T&M
contracts typically provide for payment of negotiated hourly rates for labor
incurred plus reimbursement of other allowable direct and indirect costs. FFP
contracts provide for a fixed price for stipulated services or products,
regardless of the costs incurred, which may result in losses from cost overruns.
The Company anticipates that revenues from CPFF contracts will continue to
decline as a percentage of its total services revenues and that the Company's
revenues from FFP and T&M contracts will increase as a percentage of its total
services revenues. The Company assumes greater performance risk on FFP and T&M
contracts and the failure to estimate accurately ultimate costs or to control
costs during performance of the work can result in reduced profit margins or
losses. There can be no assurance that the Company's services business will not
incur such overruns for any FFP contracts it is awarded.
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DEPENDENCE UPON NEW AND UNCERTAIN MARKETS
All of the Company's product revenues to date have been, and for the
foreseeable future are anticipated to be, derived from the sale of biometric
PVTs and products for law enforcement and other public sector applications. The
Company's success in the products business will depend upon the development and
expansion of the market domestically and internationally for such biometric
products. To date, biometric products have made only very limited penetration
into various potential markets and there can be no assurance that the size of
the market for these products will grow. If the market fails to grow or grows
more slowly than anticipated, the Company's business, financial condition and
results of operations would be materially adversely affected.
COMPETITION AND TECHNOLOGICAL CHANGE
The markets for personal identity verification products and live-scan
systems are subject to continuing technological change, both as a result of
technical developments exploited by competitors and as a result of the changing
technical needs of the customers. In order to compete effectively in this
environment, the Company must be able continually to develop and market new and
enhanced products. There can be no assurance that the Company will have
sufficient resources to continue to make such investments or that the Company
will be able to make the technological advances necessary to compete
successfully in its products business. Some of the Company's present and
potential competitors have financial, marketing and research resources vastly
greater than those of the Company. Existing and new competitors may enter or
expand their efforts against the Company's product markets, or develop new
products to compete against the Company's products. There can be no assurance
that the Company's products will be able to compete successfully with the
products of its competitors.
The Company faces substantial competition from professional services
providers of all sizes in the government professional services market. The
Company competes by positioning itself to support specialized market niches,
aligning with technology leaders and maintaining a competitive cost structure.
There can be no assurance that the Company will be able to compete successfully
in its services business.
DEPENDENCE ON NEW PRODUCT INTRODUCTIONS
To date, the Company's research, development and marketing efforts have
primarily concentrated on seven product types. The Company believes that the
success of its products business will depend on its ability to develop,
manufacture and sell new products and product enhancements. Failure to do so in
a timely fashion could harm the Company's competitive position. New product
introductions may contribute to fluctuations in quarterly operating results,
because customers may forego ordering the Company's existing products. If new
products have reliability or quality problems, then the Company may experience
reduced orders, higher manufacturing costs, delays in collecting accounts
receivable and additional service and warranty expense. There can be no
assurance that the Company will successfully develop and manufacture any new
products or product enhancements, or that new products or product enhancements
introduced by the Company will be accepted in the marketplace.
PROPRIETARY TECHNOLOGY
The success of the Company's products business will depend in part on its
proprietary technology. While the Company attempts to protect its proprietary
technology through patents, copyrights and trade secrets, it believes that its
success will depend more upon innovation, technological expertise and
distribution strength. There can be no assurance that the Company will be able
to protect its technology or that competitors will not be able to develop
similar technology independently. No assurance can be given that the claims
allowed on any patents held by the Company will be sufficiently broad to protect
the Company's technology. In addition, no assurance can be given that any
patents issued to the Company will not be challenged, invalidated or
circumvented or that the rights granted thereunder will provide competitive
advantages to the Company. The loss of patent protection on the Company's
technology or the circumvention of its patent protection by competitors could
have a material adverse effect on the Company's ability to compete successfully
in its products business.
The commercial success of Identix's products and processes will also depend
in part on not infringing patents or proprietary rights of third parties which
may relate to the Company's technologies and products. A competitor has filed a
lawsuit against the Company alleging that certain of the Company's TouchPrint
products violate the competitor's patent. Although the Company believes that it
will prevail in this litigation, there can be no assurance that the outcome of
this litigation will not have a material adverse effect on
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the Company's business, financial position or results of operations. In
addition, there can be no assurance that Identix has not or will not infringe
the patents or proprietary rights of others or that it will be able to obtain a
license to any third party technology that it may require to conduct its
business or that, if obtainable, such technology can be licensed at a reasonable
cost. Failure by the Company to obtain a license to any technology that it may
require to commercialize its technologies, processes or products may have a
material adverse effect on the Company.
Litigation, which could result in substantial cost to the Company, may also
be necessary to enforce any patents issued to Identix or to determine the scope
and validity of other parties' proprietary rights. If the outcome of any such
litigation is adverse to the Company, its business could be adversely affected.
To determine the priority of inventions, the Company may have to participate in
interference proceedings declared by the United States Patent and Trademark
Office or foreign patent offices which could result in substantial cost to the
Company.
The Company also relies on trade secrets and proprietary know-how which it
seeks to protect by confidentiality agreements with its employees and
consultants and with third parties. There can be no assurance that these
agreements will not be breached, that the Company will have adequate remedies
for any breach, or that its trade secrets and proprietary know-how will not
otherwise become known or be independently discovered by competitors.
SHARE HOLDINGS OF ASCOM HOLDING
As of March 31, 1996, Ascom Holding Inc. ("Ascom Holding"), a wholly owned
subsidiary of Ascom Holding AG, a Swiss Company ("Ascom"), beneficially owned
approximately 23% of the outstanding Common Stock. This concentration of
ownership may have the effect of delaying or preventing a change in control of
the Company. On September 2, 1994, the Company entered into a Voting Trust
Agreement ("Voting Trust Agreement") with Ascom whereby Ascom deposited all of
its 5,418,224 shares of the Company's Common Stock ("Voting Stock") into a
voting trust ("Voting Trust"). The Trustee has voting control of the Voting
Stock. The term of the Voting Trust Agreement is ten years.
Ascom has preemptive rights with respect to issuances of the Company's
securities and registration rights with respect to the securities it holds. The
Company's ability to obtain additional financing on favorable terms in the
future may be adversely affected by the existence of these preemptive rights and
registration rights.
DEPENDENCE ON KEY EMPLOYEES
The future success of the Company is dependent in part on its ability to
retain certain key personnel. The Company also needs to attract additional
skilled personnel in certain areas of its business to continue to grow. There
can be no assurance that the Company will be able to retain its existing
personnel or attract additional qualified employees in the future.
DEPENDENCE ON SUPPLIERS
Certain of the components included in Identix's personal identity
verification and live-scan systems are obtained from a single source or a
limited group of suppliers. Although Identix seeks to reduce dependence on these
sole and limited source suppliers, the partial or complete loss of certain of
these sources could result in delays and require the incurrence of development
costs to establish alternative sources which could have a material adverse
effect on the Company's results of operations and damage customer relationships.
Further, a significant increase in the price of one or more of these components
could adversely affect the Company's results of operations.
UNCERTAINTY OF MARKET ACCEPTANCE
The Company has strategic relationships regarding certain of its products
in an effort to enhance its marketing efforts. There can be no assurance that
such strategic relationships, such as the Company's joint marketing arrangement
with Oracle Corp., will generate meaningful sales growth in the future.
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In the services industry, ANADAC has begun to expand its marketing efforts
beyond the DOD to other government agencies and to the private sector because
the DOD has experienced budget cuts. There can be no assurance that ANADAC will
be able to compete successfully in these other markets.
REQUIREMENT FOR ADDITIONAL FUNDS
The Company has not yet achieved positive cash flow from operations of its
products business and may need additional financing to support operations of its
products business unless sales volume increases to a level sufficient to
generate positive cash flow. There can be no assurance that the Company will be
able to obtain such financing if needed, or that the terms of such financing
will be favorable to the Company. In the past, the Company has required waivers
from its banks regarding noncompliance with certain loan covenants and there can
be no assurance such waivers, if required, will be available in the future. The
Company believes that cash flow from operations, together with existing working
capital and two bank lines of credit maintained by the Company will be adequate
for its cash requirements through June 30, 1997.
PRODUCT RECALL AND PRODUCT LIABILITY
There is a risk, that for unforeseen reasons, Identix may be required to
repair or replace a substantial number of products in use or to reimburse
persons for products that fail. Any one of these circumstances could adversely
affect the Company's results of operations. The Company does carry product
liability insurance, but there can be no assurance that existing coverage is
adequate for current operations or will be adequate for future operations. The
Company's business could be adversely affected by the assertion of product
liability claims.
VOLATILITY OF MARKET PRICE OF COMMON STOCK
From July 1, 1993 through March 31, 1996, the Common Stock traded within a
range of $1.75 to $16.75 per share. The market price of the Common Stock is
subject to significant fluctuations in response to variations in quarterly
operating results and other factors such as the timing and volume of government
procurements for the Company's products or services, announcements of
technological innovations or new products or services by the Company or by the
Company's competitors and developments in patent or other proprietary rights. In
addition, the stock market has recently experienced significant price
fluctuations, often unrelated to the operating performance of the specific
companies whose stocks are traded. Broad market fluctuations, as well as
economic conditions generally and in the Company's products and services
industries specifically, may adversely affect the market price of the Common
Stock.
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USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of Shares by
the Selling Shareholders. See "Selling Shareholders."
PLAN OF DISTRIBUTION
Some or all of the Shares covered by this Prospectus will be offered by the
Selling Shareholders through broker-dealers who receive ordinary brokers'
commissions in connection with such sales. The Shares may be sold in privately
negotiated transactions or otherwise, and participating broker-dealers may act
as agents or principals, or both, in connection with such sales. Identix has not
entered into any agreements, arrangements or understandings for the sale of the
Shares covered by this Prospectus. The Selling Shareholders and any other
persons who participate in the resale of the Shares, may be deemed to be
underwriters under the Securities Act. Any commissions paid or any discounts or
concessions allowed by such person, any profits received on resale of the
Shares, may be deemed to be underwriting discounts and commissions under the
Securities Act. Identix is registering the Shares pursuant to contractual
obligations and has paid expenses of the preparation of the Prospectus.
SELLING SHAREHOLDERS
The following table sets forth certain information regarding the beneficial
ownership of the Company's Common Stock by the Selling Shareholders as of the
date of this Prospectus and as adjusted to reflect the sale by Selling
Shareholders of the Shares offered hereby. Except as otherwise indicated, the
Company believes that the beneficial owner of the securities listed below, based
on information furnished by such owner, has sole investment and voting power
with respect to the Common Stock shown as being beneficially owned by each of
the Selling Shareholders.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY Shares Beneficially
OWNED PRIOR TO Owned After
Offering (1) Shares to Offering
--------------------------- -----------------------
Selling Shareholders Number Percent be Sold Number Percent
- ------------------------------------------------- ----------- ---------- --------- -----------------------
<S> <C> <C> <C> <C> <C>
Caprica Pty Limited 348,637(2) 1.45% 348,637 0 0%
Permanent Trustee Australia Limited 311,101(3) 1.29% 311,101 0 0%
Roger Allen 9,238 * 9,238 0 0%
</TABLE>
- ---------------------------
* Less than 1%.
(1) Applicable percentage of ownership is based on 24,061,242 shares of Common
Stock outstanding as of April 30, 1996.
(2) 117,783 Shares of Common Stock offered by the Selling Shareholder are being
held in an escrow pursuant to the terms of the acquisition of Fingerscan
Pty Limited. Of such Shares, 58,891 will be subject to release on March 27,
1997 and the remaining 58,892 Shares will be subject to release on March
27, 1998. Mr. John Parselle, a majority shareholder of Caprica Pty Limited,
is the Managing Director of Fingerscan Pty Limited.
(3) All of the Shares of Common Stock offered by the Selling Shareholder are
being held in an escrow pursuant to the terms of the acquisition of
Fingerscan Pty Limited. Of such Shares, 192,456 Shares will be subject to
release on March 27, 1998 and 118,645 Shares will be subject to release
upon satisfaction of certain conditions set forth in the agreement for
acquisition of Fingerscan Pty Limited.
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LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for the
Company by Heller Ehrman White & McAuliffe, Palo Alto, California.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Annual Report on Form 10-K of Identix Incorporated for the year ended June
30, 1995 have been so incorporated in reliance on the report of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses in connection with the
sale and distribution of the securities being registered. All of the amounts
shown are estimates except the Securities and Exchange Commission registration
fee and the American Stock Exchange, Inc. and the Pacific Stock Exchange, Inc.
listing fees.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee.................. $3,590.00
American Stock Exchange, Inc. listing fee............................ 13,380.00
Pacific Stock Exchange, Inc. listing fee............................. 350.00
Legal fees and expenses.............................................. 7,000.00
Accounting fees and expenses......................................... 1,000.00
Miscellaneous........................................................ 500.00
----------
Total....................................................... $25,820.00
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 317 of the California Corporations Code permits a corporation to
include in its charter documents and in agreements between the corporation and
its directors and officers, indemnity in terms sufficiently broad to permit
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Securities Act").
Article Fourth of the registrant's Articles of Incorporation provides as
follows:
FOURTH: The liability of the directors of this corporation for monetary
damages shall be eliminated to the fullest extent permissible under
California law. This corporation is also authorized, to the fullest
extent permissible under California law, to indemnify its agents (as
defined in Section 317 of the California Corporations Code), whether by
bylaw, agreement or otherwise in excess of the indemnification
expressly permitted by Section 317 and to advance defense expenses to
its agents in connection with such matters, as they are incurred. If,
after the effective date of this Article, California law is amended in
a manner which permits a corporation to limit the monetary or other
liability of its directors or to authorize indemnification of, or
advancement of such defense expenses to, its directors or other
persons, in any such case to a greater extent than is permitted on such
effective date, the references in this Article to "California law"
shall to that extent be deemed to refer to California law as so
amended.
Article VI of the registrant's Bylaws provides as follows:
Section 1. INDEMNIFICATION. As authorized by the articles of
incorporation, to the fullest extent permissible under California law
and in excess of that which is expressly permitted by Section 317 of
the California Corporations Code (the "Code"), the corporation shall
indemnify its directors and officers against all expenses, judgments,
fines, settlements and other amounts actually and reasonably incurred
by them in connection with any proceeding, including an action by or in
the right of the corporation, by reason of the fact that such person is
or was a director or officer of the corporation, or is or was serving
at the request of the corporation as a director, officer, trustee,
employee or agent of anther corporation, or of a partnership, joint
venture, trust or other enterprise (including service with respect to
employee benefit plans. To the fullest extent permissible under
California law, expenses incurred by a director or officer seeking
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indemnification under this bylaw in defending any proceeding shall be
advanced by the corporation as they are incurred upon receipt by the
corporation of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that
the director or officer is not entitled to be indemnified by the
corporation for those expenses. If, after the effective date of this
bylaw, California law is amended in a manner which permits the
corporation to authorize indemnification of, or advancement of expenses
to, its directors or officers, in any such case to a greater extent
that is permitted on such effective date, the references in this bylaw
to "California law" shall to that extent be deemed to refer to
California law as so amended. The rights granted by this bylaw are
contractual in nature and, as such, may not be altered with respect to
any present or former director or officer without the written consent
of that person.
Section 2. PROCEDURE. Upon written request to the Board of Directors by
a person seeking indemnification under this bylaw, the Board shall
promptly determine in accordance with Section 317(e) of the Code
whether the applicable standard of conduct has been met and, if so, the
Board shall authorize indemnification. If the Board cannot authorize
indemnification because the number of directors who are parties to the
proceeding with respect to which indemnification is sought prevents the
formation of a quorum of directors who are not parties to the
proceeding, then, upon written request by the person seeking
indemnification, independent legal counsel (by means of a written
opinion obtained at the corporation's expense) or the corporation's
shareholders shall determine whether the applicable standard of conduct
has been met and, if so, shall authorize indemnification.
Section 3. DEFINITION. The term "proceeding" means any threatened,
pending or completed action or proceedings, whether civil, criminal,
administrative or investigative. The term "expenses" includes, without
limitation, attorneys' fees and any expenses of establishing a right to
indemnification.
ITEM 16. EXHIBITS
(a) Exhibits
* 5.1 Opinion of Heller Ehrman White & McAuliffe
*23.1 Consent of Heller Ehrman White & McAuliffe (contained in opinion
filed as Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP, Independent Accountants
*24.1 Power of Attorney
* Previously filed.
17. UNDERTAKINGS
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(b) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(c) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
II-2
<PAGE> 12
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offering herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the Registrant's Restated Articles of Incorporation
and Bylaws, and the California Corporations Code, the Registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act, and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in a
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person for liabilities arising under the Act in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against policy as expressed in the Act and will be
governed by the final adjudication of such issue.
II-3
<PAGE> 13
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Sunnyvale, California
on July 12, 1996.
IDENTIX INCORPORATED
By: /s/ JAMES P. SCULLION
---------------------
James P. Scullion,
Vice President Finance,
Chief Financial Officer and Secretary
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement on Form S-3 has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
* President, Chief Executive Officer and July 12, 1996
- ---------------------------------- Director (Principal Executive Officer)
Randall C. Fowler
/s/ JAMES P. SCULLION Vice President, Finance, Chief Financial July 12, 1996
- ---------------------------------- Officer and Secretary (Principal Financial
James P. Scullion and Accounting Officer)
* Director July 12, 1996
- ----------------------------------
Randall Hawks, Jr.
* Director July 12, 1996
- ----------------------------------
Patrick H. Morton
</TABLE>
<PAGE> 14
<TABLE>
<S> <C> <C>
* Director July 12, 1996
- ----------------------------------
Fred U. Sutter
* Director July 12, 1996
- ----------------------------------
Harrison N. Walther
* Director July 12, 1996
- ----------------------------------
Larry J. Wells
* Director July 12, 1996
- ----------------------------------
Ed Zschau
*By: /s/ JAMES P. SCULLION
- ----------------------------------
James P. Scullion
Attorney-in-Fact
</TABLE>
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 (Registration No.
333-4885) of our report dated July 31, 1995, which appears on page 32 of the
1995 Annual Report to Shareholders of Identix Incorporated, which is
incorporated by reference in Identix Incorporated's Annual Report on Form 10-K
for the year ended June 30, 1995. We also consent to the incorporation by
reference of our report on the Financial Statement Schedule, which appears on
page 19 of such Annual Report on Form 10-K. We also consent to the reference to
us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
San Jose, California
July 11, 1996
