<PAGE>
As filed with the Securities and Exchange Commission on December 17, 1998
Registration Nos. 33-4544,
33-53836, 33-74204,
333-04055 and 333-30693
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
POST-EFFECTIVE AMENDMENT NO. 1
TO FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
IDENTIX INCORPORATED
----------------------
(Exact name of registrant as specified in its charter)
Delaware 94-2842496
---------------------------- --------------
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification No.)
510 N. Pastoria Avenue, Sunnyvale, California 94086
----------------------------------------------------
(Address of principal executive offices)
EQUITY INCENTIVE PLAN
NONEMPLOYEE DIRECTORS STOCK OPTION PLAN
1992 EMPLOYEE STOCK OPTION PLAN
ANADAC, INC. 1984 INCENTIVE STOCK OPTION PLAN
---------------------------------------------
(Full title of the plan)
James P. Scullion
Identix Incorporated
510 N. Pastoria Avenue
Sunnyvale, California 94086
----------------------------------
(Name and address of agent for service)
(408) 731-2000
--------------------------------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================
<S> <C> <C> <C> <C>
Proposed Proposed
Title of Amount maximum maximum Amount of
securities to be offering aggregate registration
to be registered price per offering fee
registered share price
- -------------------------------------------------------------------------------------------------------
See below N/A* N/A* N/A* N/A*
=======================================================================================================
</TABLE>
* No additional securities are being registered and registration fees were
paid upon filing of the original registration statements. Therefore, no
further registration fee is required.
<PAGE>
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (the "Amendment") to the Registration
Statements on Form S-8 (File Nos. 33-4544, 33-53836, 33-74204, 333-04055 and
333-30693) (collectively the "Registration Statements") is being filed pursuant
to Rule 414 under the Securities Act of 1933, as amended (the "Securities Act"),
by Identix Incorporated, a Delaware corporation ("Identix Delaware" or the
"Registrant"), which is the successor to Identix Incorporated, a California
corporation ("Identix California"), following a statutory merger (the "Merger")
effective on December 16, 1998 (the "Merger") effected for the purpose of
changing Identix California's state of incorporation to Delaware. Prior to the
Merger, Identix Delaware had no assets or liabilities other than nominal assets
or liabilities. In connection with the Merger, Identix Delaware succeeded by
operation of law to all of the assets and liabilities of Identix California. The
Merger was approved by the shareholders of Identix California at a meeting for
which proxies were solicited pursuant to Section 14(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). In connection with the
Merger, Identix Delaware, by virtue of this Amendment, expressly adopts the
Registration Statements as its own registration statements for all purposes of
the Securities Act and the Exchange Act.
-2-
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the Commission by Identix
Incorporated are incorporated by reference in this registration statement:
(a) Identix California's Annual Report on Form 10-K for the fiscal year ended
June 30, 1998, filed pursuant to Section 13 of the Exchange Act;
(b) Identix California's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998, filed pursuant to Section 13 of the Exchange Act; and
(c) The description of the Common Stock of the registrant contained in the
registration statement filed by Identix California under the Exchange Act
registering such Common Stock under Section 12 of the Exchange Act, as
amended by the Registrant's report on Form 8-K filed on December 17, 1998.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered hereby have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be part
thereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to the Delaware General Corporation Law, the Registrant has
included in its Certificate of Incorporation provisions regarding the limitation
of liability and indemnification of officers and directors of the Registrant.
Articles NINTH and TENTH of the Registrant's Certificate of Incorporation
provide as follows:
NINTH. No director of the corporation shall be personally liable to
the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability: (a) for any breach of
the director's duty of loyalty to the corporation or its stockholders; (b)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (c) under
-3-
<PAGE>
Section 174 of the Delaware General Corporation Law; or (d) for any
transaction from which the director derived any improper personal benefit.
If the Delaware General Corporation Law is amended to authorize corporate
action further eliminating or limiting the personal liability of directors,
then the liability of a director of the corporation shall be eliminated or
limited to the fullest extent permitted by the Delaware General Corporation
Law, as so amended. Any repeal or modification of this paragraph shall not
adversely affect any right or protection of a director of the corporation
existing at the time of the repeal or modification.
TENTH.
A. RIGHT TO INDEMNIFICATION
Each person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "proceeding"), by reason of
the fact that he or she or a person of whom he or she is the legal
representative, is or was a director or officer of the corporation or is or
was serving at the request of the corporation as a director or officer,
employee or agent of another corporation, or of a partnership, joint
venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or
in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the corporation to the
fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the corporation
to provide broader indemnification rights than that law permitted the
corporation to provide before the amendment) against all expenses,
liabilities and losses including, without limitation, attorneys' fees,
judgments, fines, ERISA excise taxes and penalties and amounts paid or to
be paid in settlement) reasonably incurred or suffered by such person in
connection therewith. Such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of his or her heirs, executors and administrators. However,
the corporation shall indemnify any such person seeking indemnity in
connection with an action, suit or proceeding (or part thereof) initiated
by that person only if that action, suit or proceeding (or part thereof)
was authorized by the board of directors of the corporation. The rights set
forth in this Article TENTH shall be contract rights and shall include the
right to be paid expenses incurred in defending any such proceeding in
advance of its final disposition. However, the payment of such expenses
incurred by a director or officer of the corporation in his or her capacity
as a director or officer (and not in any other capacity in which service
was or is rendered by such person while a director or officer, including,
without limitation, service to an employee benefit
-4-
<PAGE>
plan) in advance of the final disposition of such proceeding shall be made
only upon delivery to the corporation of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it should be
determined ultimately that such director or officer is not entitled to be
so indemnified.
B. RIGHT OF CLAIMANT TO BRING SUIT
If a claim under Paragraph A of this Article TENTH is not paid in full
by the corporation within 90 days after a written claim has been received
by the corporation, the claimant may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim. If
successful in whole or in part, the claimant shall be entitled to be paid
the expense of prosecuting that claim. It shall be a defense to any such
action (other than an action an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any, has been tendered to
this corporation) that the claimant has not met the standards of conduct
which make it permissible under the Delaware General Corporation Law for
the corporation to indemnify the claimant for the amount claimed. However,
the burden of proving such defense shall be on the corporation. Neither the
failure of the corporation (including its board of directors, independent
legal counsel or its stockholders) to have made a determination before the
commencement of such action that indemnification of the claimant is proper
in the circumstances because he or she has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the corporation (including its board of directors,
independent legal counsel or its stockholders) that the claimant has not
met such applicable standard of conduct, shall be a defense to the action
or create a presumption that the claimant has not met the applicable
standard of conduct.
C. NON EXCLUSIVITY OF RIGHTS
The rights conferred on any person by Paragraphs A and B of this
Article TENTH shall not be exclusive of any other rights which such person
may have or hereafter may acquire under any statute, provision of the
Certificate of Incorporation, by law, agreement, vote of stockholders or of
disinterested directors, or otherwise.
D. EXPENSES AS A WITNESS
To the extent that any director, officer, employee, or agent of the
corporation is by reason of such position, or a position with another
entity at the request of the corporation, a witness in any action, suit or
proceeding, he or she
-5-
<PAGE>
shall be indemnified and held harmless against all costs and expenses
actually and reasonably incurred by him or her on his or her behalf in
connection therewith.
E. INDEMNITY AGREEMENTS
The corporation may enter into agreements with any director, officer,
employee or agent of the corporation or any person who serves at the
request of the corporation as a director, officer, employee, or agent of
another corporation or other enterprise, providing for indemnification to
the fullest extent permissible under the Delaware General Corporation Law
and the corporation's Certificate of Incorporation.
F. EFFECT OF REPEAL OR MODIFICATION
Any repeal or modification of this Article TENTH shall not adversely
affect any right of indemnification or advancement of expenses of a
director or officer, employee or agent of the corporation existing at the
time of such repeal or modification with respect to any action or omission
occurring before the repeal or modification.
G. SEPARABILITY
Each and every paragraph, sentence, term and provision of this Article
TENTH is separate and distinct. If any paragraph, sentence, term or
provision is held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or
enforceability of any other such paragraph, sentence, term or provision. To
the extent required in order to make any such paragraph, sentence, term or
provision of this Article TENTH valid or enforceable, the corporation
shall, and the indemnitee or potential indemnitee may, request a court of
competent jurisdiction to modify the paragraph, sentence, term or provision
in order to preserve its validity and provide the broadest possible
indemnification permitted by applicable law.
H. INSURANCE
The corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss of the type referred to in this
Article TENTH, whether or not the corporation would have the power to
indemnify such person against such expense, liability or loss under
applicable law.
I. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION
-6-
<PAGE>
The corporation may, to the extent authorized from time to time by the
board of directors, grant rights to indemnification, and to the advancement
of expenses to any employee or agent of the corporation to the fullest
extent of the provisions of this Article with respect to the
indemnification and advancement of expenses of directors and officers of
the corporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
5 Opinion of Heller Ehrman White & McAuliffe
23.1 Consent of Heller Ehrman White & McAuliffe
(filed as part of Exhibit 5)
23.2 Consent of Independent Accountants
25 Power of Attorney (see pages 9 and 10)
99.1 Identix Incorporated Equity Incentive Plan
99.2 Nonemployee Directors Stock Option Plan
99.3 (1) 1992 Employee Stock Option Plan
99.4 (1) ANADAC, Inc. 1984 Incentive Stock Option Plan
- ----------------------------------------------------------
(1) Incorporated by reference to Registrant's registration statement no. 33-
55074.
ITEM 9. 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;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) 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;
(iii) 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;
-7-
<PAGE>
provided, however, that paragraphs A(1)(i) and A(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 15(d) of the Exchange Act that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 undersigned registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in the registration statement 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.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 6, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities 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 the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
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 whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
-8-
<PAGE>
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Sunnyvale, State of California, on this 17th day of
December, 1998.
IDENTIX INCORPORATED
By: /s/ James P. Scullion
------------------------------------------------
James P. Scullion, Executive Vice President,
Chief Operating Officer, Chief Financial Officer
and Secretary
POWER OF ATTORNEY TO SIGN AMENDMENTS
------------------------------------
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below does hereby constitute and appoint Randall C. Fowler and James P.
Scullion, and each of them, with full power of substitution and full power to
act without the other such person's true and lawful attorney-in-fact and agent
for such person in such person's name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement on Form S-8 and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same as fully, to all intents and purposes, as they
or such person might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, may lawfully do or cause
to be done by virtue hereof.
-9-
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Randall C. Fowler
____________________________ Chairman of the Board of Directors, December 17, 1998
Randall C. Fowler Chief Executive Officer and President
/s/ James P. Scullion
____________________________ Director, Executive Vice President, December 17, 1998
James P. Scullion Chief Operating Officer, Chief
Financial Officer and Secretary
/s/ Randall Hawks, Jr.
____________________________ Director December 17, 1998
Randall Hawks, Jr.
____________________________ Director December __, 1998
Patrick H. Morton
/s/ Charles W. Richion
____________________________ Director December 17, 1998
Charles W. Richion
____________________________ Director December __, 1998
Fred Sutter
/s/ Larry J. Wells
____________________________ Director December 17, 1998
Larry J. Wells
-10-
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Item No. Description of Item
- -------- -------------------
5 Opinion of Heller Ehrman White & McAuliffe
23.1 Consent of Heller Ehrman White & McAuliffe
(filed as part of Exhibit 5)
23.2 Consent of Independent Accountants
25 Power of Attorney (see pages 9 and 10)
99.1 Identix Incorporated Equity Incentive Plan
99.2 Nonemployee Directors Stock Option Plan
99.3 (1) 1992 Employee Stock Option Plan
99.4 (1) ANADAC, Inc. 1984 Incentive Stock Option Plan
______________________________________________________________
(1) Incorporated by reference to Registrant's registration statement
no. 33-55074.
<PAGE>
Exhibit 5
---------
December 17, 1998
17506-0001
Identix Incorporated
510 North Pastoria Avenue
Sunnyvale, California 94086
Post Effective Amendment to
Registration Statements on Form S-8
-----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Identix Incorporated, a Delaware corporation
(the "Company"), in connection with the Post Effective Amendment No. 1 (the
"Amendment") to the Registration Statements on Form S-8 (Registration Nos. 33-
4544, 33-53836, 33-74204, 333-04055 and 333-30693, the "Registration
Statements") which the Company proposes to file with the Securities and
Exchange Commission on or about December 17, 1998, in connection with the
reincorporation of Identix Incorporated, a California corporation ("Identix
California"), into the State of Delaware. The Amendment covers shares of
Common Stock of the Company (the "Shares") reserved for issuance pursuant to the
Equity Incentive Plan, Nonemployee Directors Stock Option Plan, 1992 Employee
Stock Option Plan, and ANANDAC, Inc. 1984 Incentive Stock Option Plan
(collectively, the "Plans"). The Company is assuming the Plans as part of the
reincorporation.
In connection with this opinion, we have assumed the authenticity of all
records, documents and instruments submitted to us as originals, the
genuineness of all signatures, the legal capacity of natural persons and the
conformity to the originals of all records, documents and instruments
submitted to us as copies. We have based our opinion upon our review of the
following records, documents and instruments:
(a) The Certificate of Incorporation of the Company, as amended to date,
certified by the Secretary of State of the State of Delaware as of
December 14, 1998 and certified to us by an officer of the Company as
being complete and in full force and effect as of the date of this
opinion;
<PAGE>
(b) The Bylaws of the Company, as amended to date, certified to us by
an officer of the Company as being complete and in full force and
effect as of the date of this opinion;
(c) A Certificate of an officer of the Company (i) attaching records
certified to us as constituting all records of proceedings and actions
of the Board of Directors and stockholders of the Company relating to
the adoption and approval of the Plans, and (ii) certifying as to
certain factual matters;
(d) A Certificate of ChaseMellon Shareholder Services, L.L.C., the
transfer agent of the Company, as to the number of shares of Common
Stock of the Company outstanding as of December 14, 1998; and
(e) The Plans.
This opinion is limited to the general corporation laws of the State of
Delaware. We disclaim any opinion as to any other statute, rule, regulation,
ordinance, order or other promulgation of any other jurisdiction or any regional
or local governmental body.
Based upon the foregoing and our examination of such questions of law as we
have deemed necessary or appropriate for the purpose of this opinion, and
assuming that (i) the Amendment becomes and remains effective during the period
when the Shares are offered, issued and sold, (ii) the Shares to be sold are
issued in accordance with the terms of the Plans, (iii) the Company receives the
full consideration for the Shares as stated in the Plans, (iv) the per share
consideration for each Share is greater than the par value of the Common Stock,
and (v) all applicable securities laws are complied with, it is our opinion that
the Shares covered by the Amendment, when issued by the Company, will be validly
issued, fully paid and nonassessable.
This opinion is rendered to you in connection with the Amendment and is
solely for your benefit. This opinion may not be relied upon by you for any
other purpose, or relied upon by any other person, firm, corporation or other
entity for any purpose, without our prior written consent. We disclaim any
obligation to advise you of any developments that occur after the date of this
opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Amendment.
Very truly yours,
/s/ HELLER EHRMAN WHITE & MCAULIFFE
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Post Effective
Amendment No. 1 to the Registration Statements on Form S-8 (File Nos. 33-4544,
33-53836, 33-74204, 333-04055 and 333-30693) of our report dated July 28, 1998
which appear on page 33 of the Identix Incorporated's Annual Report of Form 10-K
for the year ended June 30, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, California
December 10, 1998
<PAGE>
Exhibit 99.1
IDENTIX INCORPORATED
EQUITY INCENTIVE PLAN
SECTION 1. PURPOSE; DEFINITIONS.
(a) Purpose. The purpose of the Plan is to provide selected eligible
-------
employees of, and consultants to, Identix Incorporated, a California
corporation, its subsidiaries and affiliates an opportunity to participate in
the Company's future by offering them an opportunity to acquire stock in the
Company so as to retain, attract and motivate them.
(b) Definitions. For purposes of the Plan, the following terms have the
-----------
following meanings:
(i) "Award" means any award under the Plan, including any Option,
Restricted Stock, Stock Purchase Right or Performance Share Award.
(ii) "Award Agreement" means, with respect to each Award, the
signed written agreement between the Company and the Plan participant setting
forth the terms and conditions of the Award.
(iii) "Board" means the Board of Directors of the Company.
(iv) "Change in Control" has the meaning set forth in Section 9(a).
(v) "Change in Control Price" has the meaning set forth in Section
9(c).
(vi) "Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor statute.
(vii) "Commission" means the Securities and Exchange Commission and
any successor agency .
(viii) "Committee" means the Committee referred to in Section 2, or
the Board in its capacity as administrator of the Plan in accordance with
Section 2.
(ix) "Company" means Identix Incorporated, a California
corporation.
(x) "Disability" means permanent and total disability as
determined by the Committee for purposes of the Plan.
(xi) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
1
<PAGE>
(xii) "Fair Market Value" means as of any given date (a) if the
Stock is listed on any established stock exchange or a national market system,
the closing sales price for the Stock or the closing bid if no sales were
reported, as quoted on such system or exchange, as reported in the Wall Street
Journal; or (b) in the absence of an established market for the Stock, the
fair market value of the Stock as determined by the Committee in good faith.
(xiii) "Incentive Stock Option" means any Option intended to be and
designated as an "incentive stock option" within the meaning of Section 422 of
the Code.
(xiv) "Nonqualified Stock Option" means any Option that is not an
Incentive Stock Option.
(xv) "Option" means an option granted under Section 5.
(xvi) "Performance Period" means the period determined by the
Committee under Section 8(a) .
(xvii) "Performance Share" means the equivalent, as of any time such
assessment is made, of the Fair Market Value of one share of Stock.
(xviii) "Performance Share Award" means an Award under Section 8.
(xix) "Plan" means this Identix Incorporated Equity Incentive
Plan, as amended from time to time.
(xx) "Restricted Stock" means an Award of Stock subject to
restrictions, as more fully described in Section 6.
(xxi) "Restriction Period" means the period determined by the
Committee under Section 6(b).
(xxii) "Rule 16b-3" means Rule 16b-3 under Section 16(b) of the
Exchange Act, as amended from time to time, and any successor rule.
(xxiii) "Stock" means the no par value Common Stock of the Company,
and any successor security.
(xxiv) "Stock Purchase Right" means an Award granted under Section 7.
(xxv) "Subsidiary" has the meaning set forth in Section 424 of the
Code.
(xxvi) "Tax Date" means the date defined in Section 10(f).
(xxvii) "Termination" means, for purposes of the Plan, with respect
to a participant, that the participant has ceased to be, for any reason,
employed by, or consulting to,
2
<PAGE>
the Company, a subsidiary or an affiliate; provided, that for purposes of this
definition, if so determined by the President of the Company, in his sole
discretion, Termination shall not include a change in status from an employee
of, to a consultant to, the Company or any subsidiary or affiliate, or vice
versa.
SECTION 2. ADMINISTRATION.
(a) Committee. The Plan shall be administered by the Board or, upon
---------
delegation by the Board, by a committee of the Board appointed by the Board that
will satisfy Rule 16b-3 and Section 162(m) of the Code, as in effect with
respect to the Company from time to time. In connection with the administration
of the Plan, the Committee shall have the powers possessed by the Board. The
Committee may act only by a majority of its members, except that the Committee
may from time to time select another committee or one or more other persons to
be responsible so long as such selection comports with the requirements of
Section 162(m) of the Code and Rule 16b-3. The Board at any time may abolish
the Committee and revest in the Board the administration of the Plan.
(b) Authority. The Committee shall grant Awards to eligible employees and
---------
consultants. In particular and without limitation, the Committee, subject to
the terms of the Plan, shall:
(i) select the officers, other key employees and consultants to
whom Awards may be granted;
(ii) determine whether and to what extent Awards are to be
granted under the Plan;
(iii) determine the number of shares to be covered by each Award
granted under the Plan;
(iv) determine the terms and conditions of any Award granted
under the Plan and any related loans to be made by the Company, based upon
factors determined by the Committee; and
(v) determine to what extent and under what circumstances any
Award payments may be deferred by a participant.
(c) Committee Determinations Binding. The Committee may adopt, alter and
--------------------------------
repeal administrative rules, guidelines and practices governing the Plan as it
from time to time shall deem advisable, may interpret the terms and provisions
of the Plan, any Award and any Award Agreement and may otherwise supervise the
administration of the Plan. Any determination made by the Committee pursuant to
the provisions of the Plan with respect to any Award shall be made in its sole
discretion at the time of the grant of the Award or, unless in contravention of
any express term of the Plan or Award, at any later time. All decisions made by
the Committee under the Plan shall be binding on all persons, including the
Company and Plan participants.
3
<PAGE>
SECTION 3. STOCK SUBJECT TO PLAN.
(a) Number of Shares. The total number of shares of Stock reserved and
----------------
available for issuance pursuant to Awards under this Plan shall be 3,000,000
shares. Such shares may consist, in whole or in part, of authorized and
unissued shares or treasury shares or shares reacquired in private
transactions or open market purchases, but all shares issued under the Plan,
regardless of source shall be counted against the 3,000,000-share limitation.
If any Option terminates or expires without being exercised in full or if any
shares of Stock subject to an Award are forfeited, or if an Award otherwise
terminates without a payment being made to the participant in the form of
Stock, the shares issuable under such Option or Award shall again be available
for issuance in connection with Awards. To the extent an Award is paid in
cash, the number of shares of Stock representing, at Fair Market Value on the
date of the payment, the value of the cash payment shall not be available for
later grant under the Plan. Any Award under this Plan shall be governed by the
terms of the Plan and any applicable Award Agreement.
(b) Adjustments. In the event of any merger, reorganization,
-----------
consolidation, recapitalization, stock dividend, stock split or other change in
corporate structure affecting the Stock, such substitution or adjustments shall
be made in the aggregate number of shares of Stock reserved for issuance under
the Plan, in the number and exercise price of shares subject to outstanding
Options, and in the number of shares subject to other outstanding Awards, as may
be determined to be appropriate by the Committee, in its sole discretion;
provided, however, that the number of shares subject to any Award shall always
be a whole number.
SECTION 4. ELIGIBILITY.
Awards may be granted to officers and other key employees of, and
consultants to, the Company, its subsidiaries and affiliates (excluding members
of the Committee and any person who serves only as a director).
SECTION 5. STOCK OPTIONS.
(a) Types. Any Option granted under the Plan shall be in such form as the
-----
Committee may from time to time approve. The Committee shall have the
authority to grant to any participant Incentive Stock Options, Nonqualified
Stock Options or both types of Options. Incentive Stock Options may be granted
only to employees of the Company, its parent (within the meaning of Section
424(e) of the Code) or Subsidiaries. Any portion of an Option that is not
designated as, or does not qualify as, an Incentive Stock Option shall
constitute a Nonqualified Stock Option.
(b) Terms and Conditions. Options granted under the Plan shall be subject
--------------------
to the following terms and conditions:
(i) Option Term. The term of each Option shall be fixed by the
-----------
Committee, but no Incentive Stock Option shall be exercisable more than ten
(10) years after the date the
4
<PAGE>
Option is granted, and no Nonqualified Stock Option shall be exercisable more
than fifteen (15) years after the date the Option is granted. If, at the time
the Company grants an Incentive Stock Option, the optionee owns directly or by
attribution stock possessing more than 10% of the total combined voting power
of all classes of stock of the Company, or any parent or Subsidiary of the
Company, the Incentive Stock Option shall not be exercisable more than five
(5) years after the date of grant.
(ii) Grant Date. The Company may grant Options under the Plan at
----------
any time and from time to time before the Plan terminates. The Committee shall
specify the date of grant or, if it fails to, the date of grant shall be the
date of action taken by the Committee to grant the Option. However, if an
Option is approved in anticipation of employment, the date of grant shall be
the date the intended optionee is first treated as an employee for payroll
purposes.
(iii) Exercise Price. The exercise price per share of Stock
--------------
purchasable under an Option shall be equal to at least 85% of the Fair Market
Value on the date of grant, and in the case of Incentive Stock Options shall
be equal to at least the Fair Market Value on the date of grant; provided,
however, that if, at the time the Company grants an Incentive Stock Option,
the optionee owns directly or by attribution stock possessing more than 10% of
the total combined voting power of all classes of stock of the Company, or any
parent or Subsidiary of the Company, then the exercise price shall be not less
than 110% of the Fair Market Value on the date the Incentive Stock Option is
granted.
(iv) Exercisability. Subject to the other provisions of the Plan,
--------------
an Option shall be exercisable in its entirety at grant or at such times and in
such amounts as are specified in the Award Agreement evidencing the Option. The
Committee, in its absolute discretion, at any time may waive any limitations
respecting the time at which an Option first becomes exercisable in whole or in
part.
(v) Method of Exercise; Payment. To the extent the right to
---------------------------
purchase shares has accrued, Options may be exercised, in whole or in part,
from time to time, by written notice from the optionee to the Company stating
the number of shares being purchased, accompanied by payment of the exercise
price for the shares.
(vi) No Disqualification. Notwithstanding any other provision in
-------------------
the Plan, no term of the Plan relating to Incentive Stock Options shall be
interpreted, amended or altered nor shall any discretion or authority granted
under the Plan be exercised so as to disqualify the Plan under Section 422 of
the Code or, without the consent of the optionee affected, to disqualify any
Incentive Stock Option under such Section 422.
SECTION 6. RESTRICTED STOCK.
(a) Price. The Committee may grant to a participant Restricted Stock. The
-----
grantee shall pay no consideration therefor.
5
<PAGE>
(b) Restrictions. Subject to the provisions of the Plan and the Award
------------
Agreement, during the Restriction Period set by the Committee, commencing with,
and not exceeding ten (10) years from, the date of such Award, the participant
shall not be permitted to sell, assign, transfer, pledge or otherwise encumber
shares of Restricted Stock. Within these limits, the Committee may provide for
the lapse of such restrictions in installments and may accelerate or waive such
restrictions, in whole or in part, based on service, performance or such other
factors or criteria as the Committee may determine.
(c) Dividends. Unless otherwise determined by the Committee, with respect
---------
to dividends on shares of Restricted Stock, dividends payable in cash shall be
automatically reinvested in additional Restricted Stock, and dividends payable
in Stock shall be paid in the form of Restricted Stock.
(d) Termination. Except to the extent otherwise provided in the Award
-----------
Agreement and pursuant to Section 6(b), in the event of a Termination during the
Restriction Period, all shares still subject to restriction shall be forfeited
by the participant.
SECTION 7. STOCK PURCHASE RIGHTS.
(a) Price. The Committee may grant Stock Purchase Rights which shall
-----
enable the recipients to purchase Stock at a price equal to not less than 85% of
its Fair Market Value on the date of grant.
(b) Exercisability. Stock Purchase Rights shall be exercisable for a
--------------
period determined by the Committee not exceeding 30 days from the date of the
grant.
SECTION 8. PERFORMANCE SHARES.
(a) Awards. The Committee shall determine the nature, length and starting
------
date of the Performance Period for each Performance Share Award, which period
shall be at least one (1) year (subject to Section 9) and not more than six (6)
years. The consideration payable by a participant with respect to a
Performance Share Award shall be an amount determined by the Committee in the
exercise of the Committee's discretion at the time of the Award; provided,
that the amount of consideration may be zero and may in no event exceed 50% of
the Fair Market Value at the time of grant. The Committee shall determine the
performance objectives to be used in awarding Performance Shares and the
extent to which such Performance Shares have been earned. Performance Periods
may overlap and participants may participate simultaneously with respect to
Performance Share Awards that are subject to different Performance Periods and
different performance factors and criteria. At the beginning of each
Performance Period, the Committee shall determine for each Performance Share
Award subject to such Performance Period the number of shares of Stock (which
may consist of Restricted Stock) to be awarded to the participant at the end
of the Performance Period if and to the extent that the relevant measures of
performance for such Performance Share Award are met. Such number of shares of
Stock may be fixed or may vary in accordance with such performance or other
criteria as may be determined by the Committee. The Committee may provide that
(i) amounts equivalent to
6
<PAGE>
interest at such rates as the Committee may determine, or (ii) amounts
equivalent to dividends paid by the Company upon outstanding Stock shall be
payable with respect to Performance Share Awards.
(b) Termination. Except as otherwise provided in the Award Agreement or
-----------
determined by the Committee, in the event of a Termination during a Performance
Period, the participant shall not be entitled to any payment with respect to the
Performance Shares subject to the Performance Period.
(c) Form of Payment. Payment shall be made in the form of cash or whole
---------------
shares of Stock, as the Committee, in its discretion, shall determine.
SECTION 9. CHANGE IN CONTROL.
(a) Definition of "Change in Control". For purposes of Section 9(b), a
--------------------------------
"Change in Control" means the occurrence of any one of the following:
(i) Any "person", as such term is used in Sections 13(d) and
14(d) of the Exchange Act (other than the Company, a subsidiary, an affiliate,
or a Company employee benefit plan, including any trustee of such plan acting
as trustee) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the Company's then
outstanding securities;
(ii) the solicitation of proxies (within the meaning of Rule 14a-
1(k) under the Exchange Act and any successor rule) with respect to the
election of any director of the Company where such solicitation is for any
candidate who is not a candidate proposed by a majority of the Board in office
prior to the time of such election; or
(iii) the dissolution or liquidation (partial or total) of the
Company or a sale of assets involving 30% or more of the assets of the
Company, any merger or reorganization of the Company whether or not another
entity is the survivor, a transaction pursuant to which the holders, as a
group, of all of the shares of the Company outstanding prior to the
transaction hold, as a group, less than 70% of the shares of the Company
outstanding after the transaction, or any other event which the Board
determines, in its discretion, would materially alter the structure of the
Company or its ownership.
(b) Impact of Event. In the event of a "Change in Control" as defined in
---------------
Section 9(a), but only if and to the extent so specifically determined by the
Board in its discretion, which determination may be amended or reversed only by
the affirmative vote of a majority of the persons who were directors at the time
such determination was made, acceleration and valuation provisions no more
favorable to participants than the following may apply:
7
<PAGE>
(i) Subject to Section 5(b)(vi), any Options outstanding as of
the date such Change in Control is determined to have occurred and not then
exercisable and vested shall become fully exercisable and vested.
(ii) The restrictions and limitations applicable to any
Restricted Stock and Stock Purchase Rights shall lapse, and such Restricted
Stock shall become fully vested.
(iii) The value (net of any exercise price) of all outstanding
Options, Restricted Stock and Stock Purchase Rights, unless otherwise
determined by the Committee at or after grant and subject to Rule 16b 3, shall
be cashed out on the basis of the "Change in Control Price", as defined in
Section 9(c), as of the date such Change in Control is determined to have
occurred or such other date as the Board may determine prior to the Change in
Control.
(iv) Any outstanding Performance Share Awards shall be vested and
paid in full as if all performance criteria had been met.
(c) Change in Control Price. For purposes of this Section 9, "Change in
-----------------------
Control Price" means the highest price per share paid in any transaction
reported on the American Stock Exchange or paid or offered in any bona fide
transaction related to a potential or actual Change in Control of the Company at
any time during the preceding 60 day period as determined by the Board, except
that, in the case of Incentive Stock Options, such price shall be based only on
transactions reported for the date on which the Board decides to cash out such
Options.
SECTION 10. GENERAL PROVISIONS.
(a) Award Grants. Any Award may be granted either alone or in addition to
------------
other Awards granted under the Plan. Subject to the terms and restrictions set
forth elsewhere in the Plan, the Committee shall determine the consideration, if
any, payable by the participant for any Award and, in addition to those set
forth in the Plan, any other terms and conditions of the Awards. The Committee
may condition the grant or payment of any Award upon the attainment of specified
performance goals or such other factors or criteria, including vesting based on
continued employment or consulting, as the Committee shall determine.
Performance objectives may vary from participant to participant and among groups
of participants and shall be based upon such Company, subsidiary, group or
division factors or criteria as the Committee may deem appropriate, including,
but not limited to, earnings per share or return on equity. The other
provisions of Awards also need not be the same with respect to each recipient.
Unless specified otherwise in the Plan or by the Committee, the date of grant of
an Award shall be the date of action by the Committee to grant the Award. The
Committee may also substitute new Options for previously granted Options,
including previously granted Options having higher exercise prices.
(b) Award Agreement. As soon as practicable after the date of an Award
---------------
grant, the Company and the participant shall enter into a written Award
Agreement identifying the date of grant, and specifying the terms and conditions
of the Award. Options are not exercisable until
8
<PAGE>
after execution of the Award agreement by the Company and the Plan
participant, but a delay in execution of the agreement shall not affect the
validity of the Option grant.
(c) Certificates. All certificates for shares of Stock or other
------------
securities delivered under the Plan shall be subject to such stock transfer
orders, legends and other restrictions as the Committee may deem advisable
under the rules, regulations and other requirements of the Commission, any
market in which the Stock is then traded and any applicable federal, state or
foreign securities law.
(d) Termination. Unless otherwise provided in the applicable Award
-----------
Agreement or by the Committee, in the event of Termination for any reason other
than death, retirement or Disability, Awards held at the date of Termination
(and only to the extent then exercisable or payable, as the case may be) may be
exercised in whole or in part at any time within three (3) months after the date
of Termination, or such lesser period specified in the Award Agreement (but in
no event after the expiration date of the Award), but not thereafter. If
Termination is due to retirement or to death or Disability, Awards held at the
date of Termination (and only to the extent then exercisable or payable, as the
case may be) may be exercised in whole or in part by the participant in the case
of retirement or Disability, by the participant's guardian or legal
representative or by the person to whom the Award is transferred by will or the
laws of descent and distribution, at any time within two (2) years from the date
of Termination or any lesser period specified in the Award Agreement (but in no
event after the expiration of the Award).
(e) Delivery of Purchase Price. If and only to the extent authorized by
--------------------------
the Committee, participants may make all or any portion of any payment due to
the Company
(i) with respect to the consideration payable for an Award,
(ii) upon exercise of an Award, or
(iii) with respect to federal, state, local or foreign tax payable
in connection with an Award,
by delivery of (x) cash, (y) check, or (z) any property other than cash
(including a promissory note of the participant or shares of Stock or
securities) so long as, if applicable, such property constitutes valid
consideration for the Stock under, and otherwise complies with, applicable law.
No promissory note under the Plan shall have a term (including extensions) of
more than five years or shall be of a principal amount exceeding 90% of the
purchase price paid by the borrower.
(f) Tax Withholding. Any shares or other securities so withheld or
---------------
tendered will be valued by the Committee as of the date they are withheld or
tendered; provided, however, that Stock shall be valued at Fair Market Value on
such date. The value of the shares withheld or tendered may not exceed the
required federal, state, local and foreign withholding tax obligations as
computed by the Company. Unless the Committee permits otherwise, the
participant shall pay to the Company in cash, promptly when the amount of such
obligations becomes determinable
9
<PAGE>
(the "Tax Date"), all applicable federal, state, local and foreign withholding
taxes that the Committee in its discretion determines to result, (i) from the
lapse of restrictions imposed upon an Award, (ii) upon exercise of an Award,
or (iii) from a transfer or other disposition of shares acquired upon exercise
or payment of an Award, or otherwise related to the Award or the shares
acquired in connection with an Award.
A participant who has received an Award or payment under an Award
may, to the extent, if any, authorized by the Committee in its discretion,
make an election to (x) deliver to the Company a promissory note of the
participant on the terms set forth in Section 10(e), or (y) tender any such
securities to the Company to pay the amount of tax that the Committee in its
discretion determines to be required to be withheld by the Company subject to
the following limitations:
(i) such election shall be irrevocable;
(ii) such election shall be subject to the disapproval of the
Committee;
(iii) in the case of participants subject to Section 16(b) of the
Exchange Act, such tender may not be made within six (6) months of the
acquisition of the securities to be tendered to satisfy the tax withholding
obligation (except that this limitation shall not apply in the event of death
or Disability of such person before the six month period expires); and
(iv) in the case of participants subject to Section 16(b) of the
Exchange Act, such election must be made in any ten day period beginning on
the third business day following the date of release for publication of
quarterly or annual summary statements of sales and earnings.
(g) No Transferability. No Award shall be assignable or otherwise
------------------
transferable by the participant other than by will or by the laws of descent and
distribution. During the life of a participant, an Award shall be exercisable,
and any elections with respect to an Award may be made, only by the participant
or participant's guardian or legal representative.
(h) Adjustment of Awards; Waivers. Subject to Section 5(b)(vi), the
-----------------------------
Committee may adjust the performance goals and measurements applicable to Awards
(i) to take into account changes in law and accounting and tax rules, (ii) to
make such adjustments as the Committee deems necessary or appropriate to reflect
the inclusion or exclusion of the impact of extraordinary or unusual items,
events or circumstances in order to avoid windfalls or hardships, and (iii) to
make such adjustments as the Committee deems necessary or appropriate to reflect
any material changes in business conditions. In the event of hardship or other
special circumstances of a participant and otherwise in its discretion, the
Committee may waive in whole or in part any or all restrictions, conditions,
vesting, or forfeiture with respect to any Award granted to such participant.
(i) Non-Competition. The Committee may condition its discretionary waiver
---------------
of a forfeiture, the acceleration of vesting at the time of Termination of a
participant holding any unexercised or unearned Award, the waiver of
restrictions on any Award, or the extension of the
10
<PAGE>
expiration period to a period not longer than that provided by the Plan upon
such participant's agreement (and compliance with such agreement) to (i) not
engage in any business or activity competitive with any business or activity
conducted by the Company and (ii) be available for consultations at the
request of the Company's management, all on such terms and conditions
(including conditions in addition to (i) and (ii)) as the Committee may
determine.
(j) Dividends. The reinvestment of dividends in additional Stock or
---------
Restricted Stock at the time of any dividend payment pursuant to Section 6(c)
shall only be permissible if sufficient shares of Stock are available under
Section 3 for such reinvestment (taking into account then outstanding Awards).
(k) Regulatory Compliance. Each Award under the Plan shall be subject to
---------------------
the condition that, if at any time the Committee shall determine that (i) the
listing, registration or qualification of the shares of Stock upon any
securities exchange or for trading in any securities market or under any state
or federal law, (ii) the consent or approval of any government or regulatory
body or (iii) an agreement by the participant with respect thereto, is necessary
or desirable, then such Award shall not be consummated in whole or in part
unless such listing, registration, qualification, consent, approval or agreement
shall have been effected or obtained free of any conditions not acceptable to
the Committee.
(l) Rights as Shareholder. Unless the Plan or the Committee expressly
---------------------
specifies otherwise, an optionee shall have no rights as a shareholder with
respect to any shares covered by an Award until the stock certificates
representing the shares are actually delivered to the optionee. Subject to
Sections 3(b) and 6(c), no adjustment shall be made for dividends or other
rights for which the record date is prior to the date the certificates are
delivered.
(m) Beneficiary Designation. The Committee, in its discretion, may
-----------------------
establish procedures for a participant to designate a beneficiary to whom any
amounts payable in the event of the participant's death are to be paid.
(n) Additional Plans. Nothing contained in the Plan shall prevent the
----------------
Company, a subsidiary or an affiliate from adopting other or additional
compensation arrangements for its employees and consultants.
(o) No Employment Rights. The adoption of the Plan shall not confer upon
--------------------
any employee any right to continued employment nor shall it interfere in any way
with the right of the Company, a subsidiary or an affiliate to terminate the
employment of any employee at any time.
(p) Rule 16b-3. Notwithstanding any provision of the Plan, the Plan shall
----------
always be administered, and Awards shall always be granted and exercised, in
such a manner as to conform to the provisions of Rule 16b 3.
(q) Governing Law. The Plan and all Awards shall be governed by and
-------------
construed in accordance with the laws of the State of California.
11
<PAGE>
(r) Use of Proceeds. All cash proceeds to the Company under the Plan
---------------
shall constitute general funds of the Company.
(s) Unfunded Status of Plan. The Plan shall constitute an "unfunded" plan
-----------------------
for incentive and deferred compensation. The Committee may authorize the
creation of trusts or arrangements to meet the obligations created under the
Plan to deliver Stock or make payments; provided, however, that unless the
Committee otherwise determines, the existence of such trusts or other
arrangements shall be consistent with the "unfunded" status of the Plan.
(t) Assumption by Successor. The obligations of the Company under the
-----------------------
Plan and under any outstanding Award may be assumed by any successor
corporation, which for purposes of the Plan shall be included within the
meaning of "Company".
(u) Limitation on Award Grants to Certain Executive Officers. The Company
--------------------------------------------------------
may not in any one fiscal year grant Awards under the Plan for more than 200,000
shares to any executive officer whose compensation is required to be disclosed
under Item 402 of Regulation S-K.
SECTION 11. AMENDMENTS AND TERMINATION.
The Board may amend, alter or discontinue the Plan or any Award, but no
amendment, alteration or discontinuance shall be made which would impair the
rights of a participant under an outstanding Award without the participant's
consent. In addition, to the extent required for the Plan to comply with Rule
16b-3 or, with respect to provisions solely as they relate to Incentive Stock
Options, to the extent required for the Plan to comply with Section 422 of the
Code, the Board may not amend or alter the Plan without the approval of a
majority of the voting power of the shares of the Company entitled to vote at a
duly held shareholders' meeting or by an action by written consent and, if at a
meeting, a quorum of the voting power of the Company is represented in person or
by proxy, where such amendment or alteration would:
(a) except as expressly provided in the Plan, increase the total number of
shares reserved for issuance pursuant to Awards under the Plan;
(b) except as expressly provided in the Plan, change the minimum price
terms of Section 5(b)(iii);
(c) change the class of employees and consultants eligible to participate
in the Plan;
(d) extend the maximum Option period under Section 5(b)(i); or
(e) materially increase the benefits accruing to participants under the
Plan.
SECTION 12. EFFECTIVE DATE OF PLAN.
12
<PAGE>
The Plan shall be effective on the date it is adopted by the Board but all
Awards shall be conditioned upon approval of the Plan (a) at a duly held
shareholders' meeting by the affirmative vote of the holders of a majority of
the voting power of the shares of the Company entitled to vote and represented
in person or by proxy at the meeting, or (b) by an action by written consent of
the holders of a majority of the voting power of the shares of the Company
entitled to vote.
SECTION 13. TERM OF PLAN.
No Award shall be granted on or after July 5, 2005, but Awards granted
prior to July 5, 2005 may extend beyond that date.
13
<PAGE>
Exhibit 99.2
IDENTIX INCORPORATED
NONEMPLOYEE DIRECTORS STOCK OPTION PLAN
1. Purpose.
-------
The purpose of this Plan is to offer Nonemployee Directors of Identix
Incorporated an opportunity to acquire a proprietary interest in the success of
the Company, or to increase such interest, by purchasing shares of the Company's
Common Stock. This Plan provides for the grant of Options to purchase Shares.
Options granted hereunder shall be "Nonstatutory Options," and shall not include
"incentive stock options" intended to qualify for treatment under Sections 421
and 422 of the Internal Revenue Code of 1986, as amended.
2. Definitions.
-----------
As used herein, the following definitions shall apply:
(a) "Administrator" shall mean the entity, either the Board or the
committee of the Board, responsible for administering this Plan, as provided in
Section 3.
(b) "Affiliate" means a parent or subsidiary corporation as defined in
the applicable provisions (currently, Sections 424(e) and (f), respectively) of
the Code.
(c) "Board" shall mean the Board of Directors of the Company, as
constituted from time to time.
(d) "Change in Control" shall mean the occurrence of any one of the
following:
(i) any "person", as such term is used in Sections 13(d) and
14(d) of the Exchange Act (other than the Company, an Affiliate, or a Company
employee benefit plan, including any trustee of such plan acting as trustee)
is or becomes the "beneficial owner" (as defined in Rule 13d 3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the Company's then
outstanding securities;
(ii) the solicitation of proxies (within the meaning of Rule
14a 1(k) under the Exchange Act and any successor rule) with respect to the
election of any director of the Company where such solicitation is for any
candidate who is not a
<PAGE>
candidate proposed by a majority of the Board in office prior to the time of
such election; or
(iii) the dissolution or liquidation (partial or total) of the
Company or a sale of assets involving 30% or more of the assets of the Company,
or any merger or reorganization of the Company, whether or not another entity is
the survivor, or other transaction pursuant to which the holders, as a group, of
all of the shares of the Company outstanding prior to the transaction hold, as a
group, less than 70% of the shares of the Company outstanding after the
transaction.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and any successor statute.
(f) "Company" shall mean Identix Incorporated, a California
corporation.
(g) "Common Stock" shall mean the Common Stock of the Company.
(h) "Disability" means permanent and total disability as determined by
the Administrator in accordance with the standards set forth in Section 22(e)(3)
of the Code.
(i) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
(j) "Expiration Date" shall mean the last day of the term of an Option
established under Section 6(c).
(k) "Fair Market Value" means as of any given date (a) the closing
price of the Common Stock on American Stock Exchange, Inc. as reported in the
Wall Street Journal; or (b) if the Common Stock is no longer quoted on American
Stock Exchange, Inc. but is listed on another established stock exchange or
quoted on any established interdealer quotation system, the closing price for
the Common Stock on such exchange or system, as reported in the Wall Street
Journal.
(l) "Nonemployee Director" shall mean any person who is a member of
the Board but is not an employee of the Company or any Affiliate of the Company
and has not been an employee of the Company or any Affiliate of the Company at
any time during the preceding twelve months. Service as a director does not in
itself constitute employment for purposes of this definition.
2
<PAGE>
(m) "Option" shall mean a stock option granted pursuant to this Plan.
Each Option shall be a nonstatutory option not intended to qualify as an
incentive stock option within the meaning of Section 422 of the Code.
(n) "Option Agreement" shall mean the written agreement described in
Section 6 evidencing the grant of an Option to a Nonemployee Director and
containing the terms, conditions and restrictions pertaining to such Option.
(o) "Optionee" shall mean a Nonemployee Director who holds an Option.
(p) "Plan" shall mean this Identix Incorporated Nonemployee Directors
Stock Option Plan, as it may be amended from time to time.
(q) "Section" unless the context clearly indicates otherwise, shall
refer to a Section of this Plan.
(r) "Shares" shall mean the shares of Common Stock subject to an
Option granted under this Plan.
(s) "Tax Date" means the date defined in Section 7(c).
(t) "Termination" means, for purposes of the Plan, with respect to an
Optionee, that the Optionee has ceased to be, for any reason, a director of the
Company.
(u) "Window Period" means any 10 day period beginning on the third
business day following the date of release for publication of the Company's
quarterly or annual summary statements of earnings or such other period as is
specified in Rule 16b-3(e) under the Exchange Act, as such rule may be amended
from time to time, or any successor to such rule.
3. Administration.
--------------
(a) Administrator. The Plan shall be administered by the Board or,
-------------
upon delegation by the Board, by a committee consisting of not less than two
directors (in either case, the "Administrator"). The Administrator shall have
no authority, discretion or power to select the Nonemployee Directors who will
receive Options hereunder or to set the number of shares to be covered by each
Option granted hereunder, the exercise price of such Option, the timing of the
grant of such Option or the period within which such Option may be exercised.
In connection with the administration of the Plan, the
3
<PAGE>
Administrator shall have the powers possessed by the Board. The Administrator
may act only by a majority of its members. The Administrator may delegate
administrative duties to such employees of the Company as it deems proper, so
long as such delegation is not otherwise prohibited by Rule 16b-3 under the
Exchange Act. The Board at any time may terminate the authority delegated to
any committee of the Board pursuant to this Section 3(a) and revest in the
Board the administration of the Plan.
(b) Administrator Determinations Binding. Subject to the limitations
------------------------------------
set forth in Section 3(a), the Administrator may adopt, alter and repeal
administrative rules, guidelines and practices governing the Plan as it from
time to time shall deem advisable, may interpret the terms and provisions of
the Plan, any Option and any Option Agreement and may otherwise supervise the
administration of the Plan. All decisions made by the Administrator under the
Plan shall be binding on all persons, including the Company and Optionees. No
member of the Administrator shall be liable for any action that he or she has
in good faith taken or failed to take with respect to this Plan or any Option.
4. Eligibility.
-----------
Only Nonemployee Directors may receive Options under this Plan.
5. Shares Subject to Plan.
----------------------
(a) Aggregate Number. Subject to Section 9, the total number of
----------------
shares of Common Stock reserved and available for issuance pursuant to Options
under this Plan shall be 410,000 shares. Such shares may consist, in whole or
in part, of authorized and unissued shares or shares reacquired in private
transactions or open market purchases, but all shares issued under the Plan
regardless of source shall be counted against the 410,000 share limitation. If
any Option terminates or expires without being exercised in full, the shares
issuable under such Option shall again be available for issuance in connection
with other Options. If shares of Common Stock issued pursuant to an Option are
repurchased by the Company, such Common Stock shall not again be available for
issuance in connection with Options. To the extent the number of shares of
Common Stock issued pursuant to an Option is reduced to satisfy withholding tax
obligations, the number of shares withheld to satisfy the withholding tax
obligations shall not be available for later grant under the Plan.
(b) No Rights as a Shareholder. An Optionee shall have no rights as a
--------------------------
shareholder with respect to any Shares covered by his or her Option until the
issuance (as evidenced by the appropriate entry on the books of the Company or
its duly authorized transfer agent) of a stock certificate evidencing such
Shares. Subject to Section 9, no adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash,
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<PAGE>
securities or other property), distributions, or other rights for which the
record date is prior to the date the certificate is issued.
6. Grant of Options.
----------------
(a) Mandatory Option Grants upon Adoption of the Plan. Subject to the
-------------------------------------------------
terms and conditions of this Plan, the Company shall, upon adoption of this
Plan, grant to each Nonemployee Director an Option to purchase 20,000 shares of
Common Stock at an exercise price equal to the Fair Market Value of such Shares
on the date of adoption.
(b) Mandatory Initial Option Grants. Subject to the terms and
-------------------------------
conditions of this Plan, if any person who is not, and has not been in the
preceding twelve months, an officer or employee of the Company is elected or
appointed as a member of the Board, then on the effective date of such
appointment or election the Company shall grant to such new Nonemployee
Director: (i) an Option to purchase 10,000 Shares at an exercise price equal to
the Fair Market Value of such Shares on the date of such option grant if less
than six months have elapsed since the Company's last annual meeting of the
shareholders and such person was elected to the Board on or prior to July 30,
1998 or (ii) an Option to purchase 5,000 shares of Common Stock if at least six
months have elapsed since the Company's last annual meeting of shareholders and
such person was elected to the Board on or prior to July 30, 1998, (iii) an
Option to purchase 20,000 Shares at an exercise price equal to the Fair Market
Value of such Shares on the date of such option grant if less than six months
have elapsed since the Company's last annual meeting of the shareholders and
such person was elected to the Board after July 30, 1998 or (ii) an Option to
purchase 10,000 shares of Common Stock if at least six months have elapsed since
the Company's last annual meeting of shareholders and such person was elected to
the Board after July 30, 1998.
(c) Mandatory Annual Option Grants. Subject to the terms and
------------------------------
conditions of this Plan, (i) on the date of the first meeting of the Board
immediately following the annual meeting of shareholders of the Company (even if
held on the same day as the meeting of shareholders) commencing with the annual
meeting of shareholders held in 1996 and ending the day prior to the annual
meeting of shareholders held in 1998, the Company shall grant to each such
Nonemployee Director then in office an Option to purchase 10,000 Shares at an
exercise price equal to the Fair Market Value of such Shares on the date of such
option grant, and (ii) on the date of the first meeting of the Board immediately
following the annual meeting of shareholders of the Company (even if held on the
same day as the meeting of shareholders) commencing with the annual meeting of
shareholders held in 1998, the Company shall grant to each such Nonemployee
Director then in office an Option to purchase 20,000 Shares at an exercise price
equal to the Fair
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<PAGE>
Market Value of such Shares on the date of such option grant.
(d) Terms; Vesting. Subject to the other provisions of this Plan,
--------------
each Option granted pursuant to this Plan shall be for a term of ten years.
Each Option granted under this Plan shall become exercisable with respect to one
fourth of the number of Shares covered by such Option for each three month
period which elapses after the date of grant, so that such Option shall be fully
exercisable on the first anniversary of the date such Option was granted.
(e) Limitation on Other Grants. The Administrator shall have no
--------------------------
discretion to grant Options under this Plan other than as set forth in Sections
6(a), 6(b) and 6(c).
(f) Option Agreement. As soon as practicable after the grant of an
----------------
Option, the Optionee and the Company shall enter into a written Option Agreement
which specifies the date of grant, the number of Shares, the option price, and
the other terms and conditions applicable to the Option.
(g) Transferability. No Option shall be transferable otherwise than
---------------
by will or the laws of descent and distribution, and an Option shall be
exercisable during the Optionee's lifetime only by the Optionee.
(h) Limits on Exercise. Subject to the other provisions of this Plan,
------------------
an Option shall be exercisable in such amounts as are specified in the Option
Agreement.
(i) Exercise Procedures. To the extent the right to purchase Shares
-------------------
has accrued, Options may be exercised, in whole or in part, from time to time,
by written notice from the Optionee to the Company stating the number of Shares
being purchased, accompanied by payment of the exercise price for the Shares,
and other applicable amounts, as provided in Section 7.
(j) Termination. In the event of Termination, Options held at the
-----------
date of Termination (and only to the extent then exercisable) may be exercised
in whole or in part at any time within three months after the date of
Termination (but in no event after the Expiration Date), but not thereafter.
Notwithstanding the foregoing, if Termination is due to retirement or to death
or Disability, Options held at the date of Termination (and only to the extent
then exercisable) may be exercised in whole or in part by the Optionee in the
case of retirement or Disability, by the participant's guardian or legal
representative or by the person to whom the Option is transferred by will or the
laws of descent and distribution, at any time within two years from the date of
Termination (but in no event
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<PAGE>
after the Expiration Date).
7. Payment and Taxes upon Exercise of Options.
------------------------------------------
(a) Purchase Price. The purchase price of Shares issued under this
--------------
Plan shall be paid in full at the time an Option is exercised.
(b) Delivery of Purchase Price. Optionees may make all or any portion
--------------------------
of any payment due to the Company
(i) upon exercise of an Option, or
(ii) with respect to federal, state, local or foreign tax
payable in connection with the exercise of an Option, by delivery of (x) cash,
(y) check, or (z) a promissory note of the Optionee or shares of Common Stock
so long as, if applicable, such property constitutes valid consideration for
the Common Stock under, and otherwise complies with, applicable law. No
promissory note under the Plan shall have a term (including extensions) of
more than five years or shall be of a principal amount exceeding 90% of the
purchase price paid by the borrower. Exercise of an Option may be made
pursuant to a "cashless exercise/sale" procedure pursuant to which funds to
pay for exercise of the Option are delivered to the Company by a broker upon
receipt of stock certificates from the Company, or pursuant to which Optionees
obtain margin loans from brokers to fund the exercise of the Option.
(c) Tax Withholding. The Optionee shall pay to the Company in cash,
---------------
promptly upon exercise of an Option or, if later, the date that the amount of
such obligations becomes determinable (in either case, the "Tax Date"), all
applicable federal, state, local and foreign withholding taxes that the
Administrator, in its discretion, determines to result upon exercise of an
Option or from a transfer or other disposition of shares of Common Stock
acquired upon exercise of an Option or otherwise related to an Option or shares
of Common Stock acquired in connection with an Option.
A person who has exercised an Option may make an election (i) to
deliver to the Company a promissory note of the Optionee on the terms set
forth in Section 7(b), (ii) to tender to the Company previously-owned shares
of Common Stock held for at least six months, or (iii) to have shares of
Common Stock to be obtained upon exercise of the Option withheld by the
Company on behalf of the Optionee, to pay the amount of tax that the
Administrator, in its discretion, determines to be required to be withheld by
the Company. Any election pursuant to clause (iii) above by a Optionee subject
to Section 16 of the Exchange Act shall be subject to the following
limitations: (1) such election must be made at least six months before the Tax
Date and shall be
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<PAGE>
irrevocable; or (2) such election must be made in (or made earlier to take
effect in) any Window Period (and the withholding of the shares of Common
Stock shall take place during such Window Period) and shall be subject to
approval by the Board, which approval may be given any time after such
election has been made, and the Option must be held at least six months prior
to the Tax Date; provided, that, the election referenced in clause (2) above
may not be made unless (A) such election is consistent with Rule 16b-
3(c)(2)(ii) under the Exchange Act, and (B) the Company has been subject to
the reporting requirements of Section 13(a) of the Exchange Act for at least
one year and has filed all reports and statements required to be filed
pursuant to that section for that year. The right to so withhold shares of
Common Stock shall relate separately to each Option.
Any shares tendered to or withheld by the Company will be valued at
Fair Market Value on such date. The value of the shares of Common Stock
tendered or withheld may not exceed the required federal, state, local and
foreign withholding tax obligations as computed by the Company.
8. Use of Proceeds.
---------------
Proceeds from the sale of Shares pursuant to this Plan shall be used
for general corporate purposes.
9. Adjustment of Shares.
--------------------
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, stock split or other change in corporate
structure affecting the Common Stock, appropriate adjustments shall be made by
the Administrator in the aggregate number and kind of shares of Stock reserved
for issuance under the Plan and in the number, kind and exercise price of shares
subject to outstanding Options; provided, however, that the number of shares
subject to any Option shall always be a whole number.
10. Effect of Change in Control.
---------------------------
In the event of a "Change in Control," any Options outstanding as of
the date such Change in Control is determined to have occurred and not then
exercisable and vested shall become fully exercisable and vested.
11. No Right to Directorship.
------------------------
Neither this Plan nor any Option granted hereunder shall confer upon
any Optionee any right with respect to continuation of the Optionee's
membership on the Board or shall interfere in any way with provisions in the
Company's Articles of Incorporation and By-Laws relating to the election,
appointment, terms of office, and removal of members of the Board.
8
<PAGE>
12. Legal Requirements.
------------------
The Company shall not be obligated to offer or sell any Shares upon
exercise of any Option unless the Shares are at that time effectively
registered or exempt from registration under the federal securities laws and
the offer and sale of the Shares are otherwise in compliance with all
applicable securities laws and the regulations of any stock exchange on which
the Company's securities may then be listed. The Company shall have no
obligation to register the securities covered by this Plan under the federal
securities laws or take any other steps as may be necessary to enable the
securities covered by this Plan to be offered and sold under federal or other
securities laws. Upon exercising all or any portion of an Option, an Optionee
may be required to furnish representations or undertakings deemed appropriate
by the Company to enable the offer and sale of the Shares or subsequent
transfers of any interest in the Shares to comply with applicable securities
laws. Certificates evidencing Shares acquired upon exercise of Options shall
bear any legend required by, or useful for purposes of compliance with,
applicable securities laws, this Plan or the Option Agreements.
13. Duration and Amendments.
-----------------------
(a) Duration. This Plan shall become effective upon adoption by the
--------
Board provided, however, that no Option shall be exercisable unless and until
written consent of the shareholders of the Company, or approval of shareholders
of the Company voting at a validly called shareholders' meeting, is obtained
within 12 months after adoption by the Board. If such shareholder approval is
not obtained within such time, Options granted hereunder shall terminate and be
of no force and effect from and after expiration of such 12-month period.
(b) Amendment and Termination. The Board may amend, alter or
-------------------------
discontinue the Plan or any Option, but no amendment, alteration or
discontinuance shall be made which would impair the rights of an Optionee
under an outstanding Option without the Optionee's consent. In addition, the
Board may not amend or alter the Plan without the approval of shareholders of
the Company entitled to vote at a duly held shareholders' meeting or by an
action by written consent and, if at a meeting, a quorum of the voting power
of the Company is represented in person or by proxy, where such amendment or
alteration would, except as expressly provided in the Plan, increase the total
number of shares reserved for issuance pursuant to Options under the Plan or
in such other circumstances as the Board deems appropriate to comply with Rule
16b-3 under the Exchange Act or otherwise. Notwithstanding any other provision
of this Section 12(b), the provisions of the Plan governing (A) who is granted
Options, (B) the number of Shares to be covered by each Option, (C) the
exercise price of each Option, (D) the timing of the grant of each Option, or
(E) the period within which each Option may be
9
<PAGE>
exercised, shall not be amended more than once every six months, other than to
comport with changes in the Code or the rules thereunder or the Employee
Retirement Income Security Act of 1974, as amended, or the rules thereunder.
(c) Effect of Amendment or Termination. No Shares shall be issued or
----------------------------------
sold under this Plan after the termination hereof, except upon exercise of an
Option granted before termination. Termination or amendment of this Plan shall
not affect any Shares previously issued and sold or any Option previously
granted under this Plan.
14. Rule 16b-3.
----------
With respect to persons subject to Section 16 of the Exchange Act,
transactions under this Plan are intended to comply with the applicable
conditions of Rule 16b-3 under the Exchange Act. To the extent any provision
of this Plan or action by the Administrator fails to so comply, it shall be
adjusted to comply with Rule 16b-3, to the extent permitted by law and deemed
advisable by the Administrator. It shall be the responsibility of persons
subject to Section 16 of the Exchange Act, not of the Company or the
Administrator, to comply with the requirements of Section 16 of the Exchange
Act; and neither the Company nor the Administrator shall be liable if this
Plan or any transaction under this Plan fails to comply with the applicable
conditions of Rule 16b-3, or if any such person incurs any liability under
Section 16 of the Exchange Act.
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