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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
___________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of
Earliest Event Reported): December 16, 1998
IDENTIX INCORPORATED
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(Exact name of registrant as specified in its charter)
Delaware 01-09641 94-2842496
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(State of Incorporation (Commission (I.R.S. Employer
or Organization) File Number) Identification no.)
510 N. Pastoria Avenue, Sunnyvale, California 94086
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(Address of principal executive offices) (Zip Code)
Registrant's telephone no., including area code: (408) 731-2000
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NOT APPLICABLE
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(Former name or former address, if changed since last report)
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Item 5. OTHER EVENTS
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Effective December 16, 1998, Identix Incorporated, a California corporation
(the "Company") completed a statutory merger effected for the purpose of
changing its state of incorporation from California to Delaware by merging into
its wholly-owned subsidiary Identix Incorporated, a Delaware corporation
("Identix Delaware"). This change in the Company's state of incorporation was
approved by the holders of a majority of the Company's outstanding shares of
Common Stock at the Company's annual meeting of shareholders on October 29,
1998.
As a result of the merger, each outstanding share of the Company's Common
Stock was automatically converted into one share of Identix Delaware Common
Stock, $.01 par value. Each stock certificate representing issued and
outstanding shares of the Company's Common Stock will continue to represent the
same number of shares of Common Stock of Identix Delaware. The Identix Delaware
Common Stock will continue to be traded on the American Stock Exchange without
interruption under the symbol "IDX". Subject to preferences that may be
applicable to any outstanding Preferred Stock, the holders of outstanding shares
of Common Stock of Identix Delaware are entitled to receive dividends, when and
if declared by the board of directors, out of the assets of the Identix Delaware
which by law are available therefor, payable in cash, in property or in shares
of capital stock. Each stockholder is entitled to one vote for each share of
Common Stock held of record by that holder on the books of the Identix Delaware
for the election of directors and on all matters submitted to a vote of
stockholders of the corporation. Holders of Common Stock have no preemptive
rights and no right to convert their Common Stock into any other securities.
There are no redemption or sinking fund provisions applicable to the Common
Stock. In the event of liquidation, dissolution or winding up of the affairs of
Identix Delaware, after payment of claims of creditors and distribution in full
of the preferential amounts, if any, to be distributed to the holders of shares
of the Preferred Stock, holders of Common Stock shall be entitled to receive all
of the remaining assets of Identix Delaware of whatever kind available for
distribution to stockholders ratably in proportion to the number of shares of
Common Stock held by them.
Identix Delaware will continue to operate the business of the Company under
the name Identix Incorporated. The reincorporation will not result in any
change in the Company's business, assets or liabilities, will not cause the
Company's headquarters to be moved, and will not result in any relocation of
management or other employees.
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ITEM 7. EXHIBITS
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2.1 Agreement and Plan of Merger Between Identix Incorporated, a California
corporation, and Identix Incorporated, a Delaware corporation.
3.1 Certificate of Incorporation of Identix Incorporated, a Delaware
corporation.
3.2 Bylaws of Identix Incorporated, a Delaware corporation.
SIGNATURE
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned, hereunto duly authorized.
IDENTIX INCORPORATED
Date: December 17, 1998 By: /s/ JAMES P. SCULLION
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James P. Scullion,
Executive Vice President and
Chief Financial Officer
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EXHIBIT INDEX
Exhibit
No. Exhibit
- ------- -------
2.1 Agreement and Plan of Merger Between Identix Incorporated, a California
corporation, and Identix Incorporated, a Delaware corporation.
3.1 Certificate of Incorporation of Identix Incorporated, a Delaware
corporation.
3.2 Bylaws of Identix Incorporated, a Delaware corporation.
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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
BETWEEN
IDENTIX INCORPORATED,
a California corporation
and
IDENTIX INCORPORATED,
a Delaware corporation
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is dated as of December
16, 1998 between Identix Incorporated, a California corporation ("Identix
California"), and Identix Incorporated, a Delaware corporation ("Identix
Delaware"), a wholly owned subsidiary of Identix California.
BACKGROUND
A. Identix California is a corporation duly organized, validly existing
and in good standing under the laws of the State of California and, on the date
of this Agreement, has authority to issue 52,000,000 shares consisting of
50,000,000 shares of Common Stock, no par value, and 2,000,000 shares of
Preferred Stock, no par value, of which 25,426,211 shares of Common Stock and no
shares of Preferred Stock are issued and outstanding.
B. Identix Delaware is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and, on the date of
this Agreement, has authority to issue 52,000,000 shares, consisting of
50,000,000 shares of Common Stock, $0.01 par value, and 2,000,000 shares of
Preferred Stock, $0.01 par value, of which one share of Common Stock is issued
and outstanding and owned by Identix California and no shares of Preferred Stock
are issued and outstanding.
C. The Board of Directors of each of Identix California and Identix
Delaware have determined that it is advisable and in the best interests of each
of such corporations that Identix California merge into Identix Delaware upon
the terms and subject to the conditions set forth in this Agreement, for the
purpose of effecting the reincorporation of Identix California in the State of
Delaware and have, by resolutions duly adopted, approved this Agreement and
directed that it be submitted to a vote of their respective stockholders and
executed by the undersigned officers.
THE PARTIES AGREE AS FOLLOWS:
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ARTICLE I
DEFINITIONS
When used in this Agreement (and in any Exhibit in which such terms are not
otherwise defined) the following terms shall have the following meanings:
"California Common Stock" shall mean shares of Common Stock, no par value,
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of Identix California.
"California Preferred Stock" shall mean shares of Preferred Stock, no par
--------------------------
value, of Identix California.
"Certificate of Merger" shall mean the Certificate of Merger of Identix
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California into Identix Delaware to be filed with the Secretary of State of the
State of Delaware
in substantially the form attached hereto as Exhibit 2.1.
"Delaware Common Stock" shall mean shares of Common Stock, $0.01 par value,
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of Identix Delaware.
"Delaware Preferred Stock" shall mean shares of Preferred Stock, $0.01 par
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value, of Identix Delaware.
"Effective Time" shall mean the time when the Certificate of Merger is
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filed with the Secretary of State of the State of Delaware and the Merger
becomes effective.
"Merger" shall mean the merger of Identix California into Identix Delaware.
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"Shareholders' Meeting" shall mean the annual meeting of shareholders of
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Identix California held on October 29, 1998 to approve and adopt this Agreement,
among other things.
"Surviving Corporation" shall mean Identix Delaware from and after the
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Effective Time.
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ARTICLE II
MERGER
2.1 Merger. At the Effective Time, the Merger shall become effective under
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Section 252 of the Delaware General Corporation Law and Section 1108(d) of the
California General Corporation Law, and Identix California shall merge into
Identix Delaware, the separate existence of Identix California shall cease and
Identix Delaware shall continue in existence as the surviving corporation under
the Delaware General Corporation Law.
2.2 Filings. On or prior to the Effective Time, Identix California and
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Identix Delaware shall cause:
(a) an executed counterpart of the Certificate of Merger to be filed with
the
Secretary of State of California; and
(b) the Certificate of Merger to be filed with the Secretary of State of
Delaware.
2.3 Effects of the Merger. At the Effective Time:
---------------------
(a) the separate existence of Identix California shall cease and Identix
California shall be merged into Identix Delaware;
(b) the Certificate of Incorporation of Identix Delaware shall continue as
the Certificate of Incorporation of the Surviving Corporation;
(c) the Bylaws of Identix Delaware shall continue as the Bylaws of the
Surviving Corporation;
(d) each officer and director of Identix California in office immediately
prior to the Effective Time shall serve in the same capacity as an officer or
director of the surviving Corporation immediately after the Effective Time;
(e) each share of California Common Stock outstanding immediately prior to
the Effective Time shall be converted into one share of Delaware Common Stock
pursuant to Article III;
(f) without further transfer, act, or deed, the separate existence of
Identix California shall cease and the Surviving Corporation shall possess all
the rights,
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privileges, powers and franchises, and shall be subject to all the restrictions,
disabilities and duties, of Identix California; and all property, real, personal
and mixed, and all debts due to Identix California on whatever account, as well
as stock subscriptions and all other things belonging to Identix California
shall be vested in the Surviving Corporation; and all property, rights,
privileges, powers and franchises, and all and every other interest of Identix
California shall be thereafter as effectually the property of the Surviving
Corporation as they were of Identix California, and the title to any real estate
vested by deed or otherwise in Identix California shall not revert or be in any
way impaired by reason of the Merger; and all rights of creditors of Identix
California and all liens upon any property of Identix California shall be
preserved unimpaired and all debts, liabilities and duties of Identix California
shall attach to the Surviving Corporation and may be enforced against it to the
same extent as if such debts, liabilities and duties had been incurred or
contracted by it.
2.4 Further Assurances. Identix California agrees that if, at any time
------------------
after the Effective Time, the Surviving Corporation shall consider or be advised
that any further deeds, assignments or assurances are necessary or desirable to
vest, perfect or confirm in the Surviving Corporation title to any property or
rights of Identix California, the Surviving Corporation and its officers and
directors may execute and deliver all such deeds, assignments and assurances and
do all other things necessary or desirable to vest, perfect or confirm title to
such property or rights in the Surviving Corporation and otherwise to carry out
the purposes of this Agreement, in the name of Identix California or otherwise.
ARTICLE III
CONVERSION OF STOCK
3.1 Conversion of Stock. At the Effective Time, the stock of Identix
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California shall be converted into stock of Identix Delaware, as follows:
(a) each share of California Common Stock issued and outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into one
share of Delaware Common Stock; and
(b) each share of Delaware Common Stock issued and outstanding immediately
prior to the Effective Time shall be canceled and retired and no stock shall be
issued in the Merger in respect thereof.
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3.2 Stock Certificates. At and after the Effective Time, all of the
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outstanding certificates which immediately prior to the Effective Time
represented shares of California Common Stock shall be deemed for all purposes
to evidence ownership of, and to represent, shares of Delaware Common Stock into
which the shares of California Common Stock formerly represented by such
certificates have been converted as provided in this Agreement. The registered
owner on the books and records of Identix Delaware or its transfer agent of any
outstanding stock certificate shall, until such certificate shall have been
surrendered for transfer or otherwise accounted for to Identix Delaware or its
transfer agents, have and be entitled to exercise any voting and other rights
with respect to, and to receive any dividends and other distributions upon, the
shares of Delaware Common Stock evidenced by such outstanding certificate as
provided above.
3.3 Stock Options. Each right or option to purchase shares of California
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Common Stock granted under the Identix Incorporated Equity Incentive Plan, the
Identix Incorporated 1992 Employee Stock Option Plan, the Identix Incorporated
Nonemployee Directors Stock Option Plan, the Identix Incorporated 1983 Incentive
Stock Option Plan, the ANADAC, Inc. 1984 Incentive Stock Option Plan, the
Identix Incorporated Employee Stock Purchase Plan and the Identix Incorporated
Foreign Subsidiary Stock Purchase Plan (collectively, the "Plans") which is
outstanding immediately prior to the Effective Time, shall by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into and become an option to purchase the same number of shares of Delaware
Common Stock at the same option price per share, and upon the same terms and
subject to the same conditions as in effect at the Effective Time. The same
number of shares of Delaware Common Stock shall be reserved for purposes of said
Plans as is equal to the number of shares of California Common Stock so reserved
as of the Effective Time. As of the Effective Time, Identix Delaware hereby
assumes the Plans and all obligations of Identix California under the Plans
including the outstanding options or awards or portions thereof granted pursuant
to the Plans.
3.4 Validity of Delaware Common Stock. All shares of Delaware Common Stock
---------------------------------
into which California Common Stock are to be converted pursuant to the Merger
shall not be subject to any statutory or contractual preemptive rights, shall be
validly issued, fully paid and nonassessable and shall be issued in full
satisfaction of all rights pertaining to such California Common Stock.
3.5 Rights of Former Holders. From and after the Effective Time, no
------------------------
holder of certificates which evidenced California Common Stock immediately prior
to the Effective Time shall have any rights with respect to the shares formerly
evidenced by those certificates, other than to receive the shares of Delaware
Common Stock into which such California Common Stock shall have been converted
pursuant to the Merger.
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ARTICLE IV
GENERAL
4.1 Consents. Each of Identix California and Identix Delaware shall use
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its best efforts to obtain the consent and approval of each person (other than
shareholders of Identix California in their capacities as such) whose consent or
approval shall be required in order to permit consummation of the Merger.
4.2 Governmental Authorizations. Each of Identix California and Identix
---------------------------
Delaware shall cooperate in filing any necessary reports or other documents with
any federal, state, local or foreign authorities having jurisdiction with
respect to the Merger.
4.3 Waiver and Amendment. This Agreement may be amended by action of the
--------------------
Board of Directors of each of Identix California and Identix Delaware without
action by the stockholders of the parties, except that (a) any amendment to
Section 3.1, (b) any amendment changing the terms, rights, powers or preferences
of the Delaware Common Stock, or (c) any amendment altering any terms of this
Agreement if such alteration would adversely affect the holders of California
Common Stock or Delaware Common Stock must be approved by a majority of the
voting power of the outstanding California Common Stock.
4.4 Termination. This Agreement may be terminated and the Merger and
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other transactions provided for by this Agreement abandoned at any time prior to
the Effective Time, whether before or after adoption and approval of this
Agreement at the Shareholders' Meeting, by action of the Board of Directors of
Identix California if the Board determines that the consummation of the
transactions contemplated by this Agreement would not, for any reason, be in the
best interests of Identix California and its shareholders.
4.5 Entire Agreement. This Agreement (including any exhibits), contains
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the entire agreement among the parties with respect to the Merger and supersedes
all prior and concurrent arrangements, letters of intent or understandings
relating to the Merger.
4.6 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be an original, but all of which when taken
together shall constitute one and the same agreement. This Agreement shall
become effective when one or more counterparts has been signed by each of the
parties and delivered to each of the other parties.
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4.7 Headings. The article, section and paragraph headings in this
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Agreement have been inserted for identification and reference and shall not by
themselves determine the meaning or interpretation of any provision of this
Agreement.
4.8 Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Delaware and, so far as applicable, the
merger provisions of the California General Corporation Law.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
IDENTIX INCORPORATED,
a California corporation
By: /s/ Randall C. Fowler
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Title: President
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By: /s/ James P. Scullion
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Title: Executive Vice President
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IDENTIX INCORPORATED,
a Delaware corporation
By: /s/ Randall C. Fowler
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Title: President
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By: /s/ James P. Scullion
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Title: Executive Vice President
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<PAGE>
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
IDENTIX INCORPORATED
The undersigned, for purposes of incorporating and organizing a corporation
under the General Corporation Law of the State of Delaware, does hereby certify
as follows:
FIRST. The name of the corporation is Identix Incorporated.
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SECOND. The name of its registered office in the State of Delaware is
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National Corporate Research, Ltd. The address of its registered agent in the
State of Delaware is 9 E. Loockerman Street, City of Dover, County of Kent,
Delaware 19901.
THIRD. The nature of the business or purposes to be conducted or
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promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of the State of Delaware.
FOURTH. The total number of shares of all classes of capital stock which
------
the corporation shall have authority to issue is 52,000,000 shares, comprised of
50,000,000 shares of Common Stock with a par value of $.01 per share (the
"Common Stock") and 2,000,000 shares of Preferred Stock with a par value of $.01
per share (the "Preferred Stock"). A description of the respective classes of
stock and a statement of the designations, preferences, voting powers (if any),
relative, participating, optional or other special rights and privileges and the
qualifications, limitations and restrictions of the Preferred Stock and Common
Stock are as follows:
A. PREFERRED STOCK
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1. In General. The Preferred Stock may be issued in one or more
----------
series at such time or times and for such consideration as the board of
directors may determine. Each series shall be designated so as to distinguish
the shares of that series from the shares of all other series and classes.
Except as may be expressly provided in this Certificate of Incorporation,
including any certificate of designation for a series of Preferred Stock,
different series of Preferred Stock shall not be construed to constitute
different classes of shares for the purpose of voting by classes.
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2. Certificates of Designation. The board of directors is
---------------------------
authorized, subject to any limitations prescribed by law, to provide for the
issuance of the shares of Preferred Stock in one or more series, and by filing a
certificate pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and rights of the shares
of each such series and any qualifications, limitations or restrictions thereof.
The number of authorized share of Preferred Stock may be increased or decreased
(but not below the number of shares thereof then outstanding) by the affirmative
vote of the holders of a majority of the Common Stock, without a vote of the
holders of the Preferred Stock, or of any series thereof, unless a vote of any
such holders is required pursuant to the certificate or certificates
establishing the series of Preferred Stock.
B. COMMON STOCK
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1. Relative Rights of Preferred Stock and Common Stock. Except as
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otherwise required by this Certificate of Incorporation, all powers, preferences
and rights and qualifications, limitations, or restrictions of the Common Stock
are subject to those that may be fixed with respect to any shares of the
Preferred Stock.
2. Voting Rights. Except as otherwise required by law or this
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Certificate of Incorporation, including any certificate of designation for a
series of Preferred Stock, each holder of Common Stock shall have one vote in
respect of each share of stock held of record by that holder on the books of the
corporation for the election of directors and on all matters submitted to a vote
of stockholders of the corporation.
3. Dividends. Subject to any preferential rights of the Preferred
---------
Stock, the holders of shares of Common Stock shall be entitled to receive, when
and if declared by the board of directors, out of the assets of the corporation
which by law are available therefor, dividends payable in cash, in property or
in shares of capital stock.
4. Dissolution, Liquidation or Winding Up. In the event of any
--------------------------------------
dissolution, liquidation or winding up of the affairs of the corporation, after
distribution in full of the preferential amounts, if any, to be distributed to
the holders of shares of the Preferred Stock, holders of Common Stock shall be
entitled, unless otherwise provided by law or this Certificate of Incorporation,
including any certificate of designation for a series of Preferred Stock, to
receive all of the remaining assets of the corporation of whatever kind
available for distribution to stockholders ratably in proportion to the number
of shares of Common Stock held by them.
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FIFTH. The corporation is to have perpetual existence.
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SIXTH. Any action required or permitted to be taken by the stockholders
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of the corporation must be effected at an annual or special meeting of
stockholders of the corporation and may not be effected by any consent in
writing of the stockholders. Special meetings of stockholders of the
corporation may be called only by the corporation's Board of Directors, its
Chair of the Board of Directors or its President. Business transacted at
special meetings shall be confined to the purpose or purposes stated in the
notice of meeting.
SEVENTH.
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A. In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the board of directors of the corporation is
expressly authorized to adopt, amend or repeal the by-laws of the corporation.
B. Elections of directors need not be by written ballot unless the
by-laws of the corporation so provide.
C. The books of the corporation may be kept at such place within or
without the State of Delaware as the by-laws of the corporation may provide or
as may be designated from time to time by the board of directors of the
corporation.
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EIGHTH. Whenever a compromise or arrangement is proposed between this
------
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
Section 279 of Title 8 of the Delaware Code, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, to be summoned in such manner as that court
directs. If a majority in number representing three fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this corporation as a consequence of
such compromise or arrangement, the compromise or arrangement and the
reorganization shall, if sanctioned by the court to which the application has
been made, be binding on all the creditors or class of creditors, and/or on all
the stockholders or class of stockholders, of this corporation, as the case may
be, and also on this corporation.
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 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.
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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
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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 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
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
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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 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
--------------------------------
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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
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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
----------------------------------------------------------
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.
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ELEVENTH. The corporation reserves the right to amend or repeal any
--------
provision of this Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon any stockholders by this
Certificate of Incorporation are granted subject to this reservation.
TWELFTH. The powers of the incorporator are to terminate upon the filing
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of this Certificate of Incorporation with the Secretary of the State of
Delaware. The name and mailing address of the person who is to serve as the
initial director of the corporation until the first annual meeting of
stockholders of the corporation, or until his successor is elected and qualified
is: James P. Scullion, Identix Incorporated, 510 North Pastoria Avenue,
Sunnyvale, CA 94086
The undersigned incorporator hereby acknowledges that the foregoing
Certificate of Incorporation is his act and deed on this 16th day of September,
1998.
/s/ James. P. Scullion
-------------------------------
James P. Scullion, Incorporator
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<PAGE>
EXHIBIT 3.2
BYLAWS OF
IDENTIX INCORPORATED
OFFICES
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1. Registered Office. The registered office of the corporation shall be
-----------------
in the City of Dover, County of Kent, State of Delaware.
2. Other Offices. The corporation may also have offices at such other
-------------
places both within and without the State of Delaware as the board of directors
may from time to time determine or the business of the corporation may require.
STOCKHOLDERS
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3. Annual Meeting. Unless the board of directors or the President of the
--------------
corporation selects a different time or date, the annual meeting of stockholders
shall be held at 2:00 p.m. on the last Thursday of the fourth calendar month
following the end of the corporation's fiscal year. The annual meeting shall be
for the purpose of electing a board of directors and transacting such other
business as may properly be brought before the meeting.
4. Special Meeting. Special meetings of stockholders may be called at any
---------------
time by the board of directors, the Chairman of the Board or the President of
the corporation.
5. Place. Meetings of stockholders shall be held at the principal
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executive office of the corporation or at any other place, within or without
California, which is designated by the board of directors or the President.
6. Notice.
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(a) Annual and Special Meetings. A written notice of each meeting of
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stockholders shall be given not more than 60 days and, except as provided below,
not less than ten days before the meeting to each stockholder entitled to vote
at the meeting. The
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notice shall state the place, date and hour of the meeting and, if directors are
to be elected at the meeting, the names of the nominees intended to be presented
by management for election. The notice shall also state (i) in the case of an
annual meeting, those matters which the board of directors intends to present
for action by the stockholders, and (ii) in the case of a special meeting, the
general nature of the business to be transacted and that no other business may
be transacted. Notice shall be delivered personally, by mail or other means
addressed to the stockholder at the address of such stockholder appearing on the
books of the corporation, the address given by the stockholder to the
corporation for the purpose of notice or as otherwise provided by law.
(b) Adjourned Meetings. Notice of an adjourned meeting need not be
------------------
given if (i) the meeting is adjourned for 30 days or less, (ii) the time and
place of the adjourned meeting are announced at the meeting at which the
adjournment is taken and (iii) no new record date is fixed for the adjourned
meeting. Otherwise, notice of the adjourned meeting shall be given as in the
case of an original meeting.
7. Record Date. The board of directors may fix in advance a record date
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for the determination of the stockholders entitled to notice of any meeting, to
vote, to receive any dividend or other distribution or allotment of rights or to
exercise any rights. The record date shall be not more than 60 nor less than
ten days prior to the date of the meeting nor more than 60 days prior to such
other action. If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the business day next preceding the day on which
notice is given, or, if notice is waived, the close of business on the business
day next preceding the day on which the meeting is held. Except as otherwise
provided by law, when a record date is fixed, as provided herein, only
stockholders on the record date are entitled to notice and to vote, to receive
the dividend, distribution or allotment of rights or to exercise rights, as the
case may be, notwithstanding any transfer of shares on the books of the
corporation occurring after the record date. Except as otherwise provided by
law, the corporation shall be entitled to treat the holder of record of any
shares as the holder in fact of such shares and shall not be bound to recognize
any equitable or other claim to or interest in such shares on the part of any
other person, whether or not the corporation shall have express or other notice
of such claim or interest. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting unless the board of directors fixes a new record date
8. Quorum. The holders of a majority of the stock issued and outstanding
------
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as
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otherwise provided by statute or by the certificate of incorporation. If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more
than 30 days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
9. Required Vote. When a quorum is present at any meeting, except with
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respect to the election of directors, the vote of the holders of a majority of
the stock having voting power present in person or represented by proxy shall
decide any question brought before such meeting, unless the question is one upon
which by express provision of statute or of the certificate of incorporation, a
different vote is required, in which case such express provision shall govern
and control the decision of such question.
10. Proxies and Voting. At any meeting of the stockholders, every
------------------
stockholder entitled to vote may vote in person or by proxy authorized by an
instrument in writing filed in accordance with the procedure established for the
meeting. Unless otherwise provided in the certificate of incorporation, each
stockholder shall at every meeting of the stockholders be entitled to one vote
in person or by proxy for each share of the capital stock having voting power
held by such stockholder, but no proxy shall be voted on after three years from
its date, unless the proxy provides for a longer period.
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<PAGE>
11. Notice of Stockholder Business. At an annual or special meeting of
------------------------------
the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before a meeting,
business must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (b) properly
brought before the meeting by or at the direction of the Board of Directors, or
(c) properly brought before an annual meeting by a stockholder and if, and only
if, the notice of a special meeting provides for business to be brought before
the meeting by stockholders, properly brought before the special meeting by a
stockholder. For business to be properly brought before a meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal offices of the corporation
no later than (i) in the case of an annual meeting, ninety (90) days before the
anticipated date of the next annual meeting, under the assumption that the next
annual meeting will occur on the same calendar day as the day of the most recent
annual meeting, and (ii) in the case of a special meeting, ten (10) days prior
to date of such meeting. A stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before the annual or
special meeting (1) a brief description of the business desired to be brought
before the annual or special meeting and the reasons for conducting such
business at the annual or special meeting, (2) the name and address, as they
appear on the corporation's books, of the stockholder proposing such business,
(3) the class and number of shares of the corporation which are beneficially
owned by the stockholder, and (4) any material interest of the stockholder in
such business. Notwithstanding anything in the Bylaws to the contrary, no
business shall be conducted at an annual or special meeting except in accordance
with the procedures set forth in this Section 11. The chairman of an annual or
special meeting shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting and in
accordance with the provisions of this Section 11, and if he should so
determine, he shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
12. Lost Stock Certificates. The corporation may cause a new stock
-----------------------
certificate to be issued in place of any certificate previously issued by the
corporation alleged to have been lost, stolen or destroyed. The corporation
may, at its discretion and as a condition precedent to such issuance, require
the owner of such certificate to deliver an affidavit stating that such
certificate was lost, stolen or destroyed or to give the corporation a bond or
other security sufficient to indemnify it against any claim that may be made
against it, including any expense or liability, on account of the alleged loss,
theft or destruction or the issuance of a new certificate.
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<PAGE>
BOARD OF DIRECTORS
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13. Number. The number of directors who shall constitute the whole board
------
not be less than five nor more than nine. The exact number of directors shall
be determined from time to time by resolution of the board of directors.
14. Powers. The business of the corporation shall be managed by or under
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the direction of its board of directors, which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these bylaws directed or required to
be exercised or done by the stockholders.
15. Election. Except as provided in Section 16, the directors shall be
--------
elected at the annual meeting of the stockholders by a plurality vote. Each
director elected shall hold office until his or her successor is elected and
qualified. Directors need not be stockholders.
16. Term of Office and Vacancies. Vacancies and newly created
----------------------------
directorships resulting from any increase in the authorized number of directors
elected by all of the stockholders having the right to vote as a single class
may be filled by a majority of the directors then in office, though less than a
quorum, or by a sole remaining director; whenever the holders of any class or
classes of stock or series thereof are entitled, pursuant to the certificate of
incorporation, to elect one or more directors, vacancies and newly created
directorships of such class or classes or series may be filled by a majority of
the directors elected by such class or classes or series then in office, or by a
sole remaining director so elected. The directors so chosen shall hold office
until the next annual election and until their successors are duly elected and
shall qualify, unless sooner displaced. If there are no directors in office,
then an election of directors may be held in the manner provided by statute.
17. Removal. Unless otherwise restricted by the certificate of
-------
incorporation, bylaws or statute, any director or the entire board of directors
may be removed, with or without cause, by the holders of a majority of shares
entitled to vote at an election of directors.
18. Resignation. Any director may resign by giving notice to the board of
-----------
directors, the Chairman of the Board, the President or the Secretary. The
resignation of a director shall be effective when given unless the director
specifies a later time. The resignation shall be effective regardless of
whether it is accepted by the corporation.
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<PAGE>
19. Compensation. Unless otherwise restricted by the certificate of
------------
incorporation or these bylaws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
20. Committees. The board of directors may, by resolution passed by a
----------
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board many
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any committee, to the extent provided in the resolution of the board
of directors, shall have and may exercise all the powers and authority of the
board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no committee shall have the power or authority
of the board of directors in reference to:
(a) amending the certificate of incorporation (except to the extent
provided in resolutions of the board of directors and permitted by the General
Corporation Law of the State of Delaware);
(b) adopting an agreement of merger or consolidation;
(c) recommending to the stockholders the sale, lease or exchange of
allor substantially all of the corporation's property and assets; or
(d) recommending to the stockholders a dissolution of the corporation
or a revocation of a dissolution.
Such committee or committees shall have such name or names as may be determined
from time to time by resolution adopted by the board of directors.
Each committee shall keep regular minutes of its meetings and report
the same to the board of directors when required.
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21. Time and Place of Meetings and Telephone Meetings. Unless the board
-------------------------------------------------
of directors determines otherwise, the board shall hold a regular meeting during
each quarter of the corporation's fiscal year. One such meeting shall take
place immediately following the annual meeting of stockholders. All meetings of
directors shall be held at the principal executive office of the corporation or
at such other place, within or without the State of Delaware, as shall be
designated in the notice of the meeting or in a resolution of the board of
directors. Directors may participate in a meeting through use of conference
telephone or similar communications equipment, provided that all members
participating in the meeting can hear each other.
22. Call. Meetings of the board of directors, whether regular or special,
----
may be called by the Chairman of the Board, the President, the Secretary, any
Vice President or any two directors.
23. Notice. Regular meetings of the board of directors may be held
------
without notice if the time of such meetings has been fixed by the board and
publicized among all directors. Special meetings shall be held upon four days'
notice by mail or 48 hours' notice delivered personally or by telephone or
telegraph, and regular meetings shall be held upon similar notice if notice is
required for such meetings. Neither a notice nor a waiver of notice must
specify the purpose of any regular or special meeting. Notice of the time and
place of holding an adjourned meeting need not be given to absent directors if
the time and place of the adjourned meeting is announced at the meeting at which
the adjournment is taken, but if a meeting is adjourned for more than 24 hours,
notice of the adjourned meeting shall be given prior to the time of such meeting
to the directors who were not present at the time of the adjournment.
24. Meeting Without Regular Call and Notice. The transactions of any
---------------------------------------
meeting of the board of directors, however called and noticed or wherever held,
are as valid as though had at a meeting duly held after regular call and notice
if a quorum is present and if, either before or after the meeting, each of the
directors not present signs a written waiver of notice. For such purposes, a
director shall not be considered present at a meeting if, although in attendance
at the meeting, the director protests the lack of notice prior to the meeting or
at its commencement.
25. Action Without Meeting. Any action required or permitted to be taken
----------------------
by the board of directors may be taken without a meeting, if all of the members
of the board individually or collectively consent in writing to such action.
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26. Quorum and Required Vote. At all meetings of the board a majority of
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the total number of authorized directors shall constitute a quorum for the
transaction of business and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the board of
directors, except as may be otherwise specifically provided by statute or by the
certificate of incorporation. If a quorum shall not be present at any meeting
of the board of directors the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
27. Committee Meetings. The principles set forth in Sections 21 through
------------------
26 of these bylaws shall apply to committees of the board of directors and to
actions taken by such committees.
OFFICERS
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28. Titles and Relation to board of directors. The officers of the
-----------------------------------------
corporation shall include a Chairman of the Board or a President or both, a
Secretary and a Treasurer. The board of directors may also choose one or more
Vice Presidents, Assistant Secretaries, Assistant Treasurers or other officers.
Any number of offices may be held by the same person. All officers shall
perform their duties and exercise their powers subject to the direction of the
board of directors.
29. Election, Term of Office and Vacancies. At its regular meeting after
--------------------------------------
each annual meeting of stockholders, the board of directors shall choose the
officers of the corporation. The board may choose additional officers or fill
vacant offices at any other time. No officer must be a member of the board of
directors except the Chairman of the Board. The officers shall hold office
until their successors are chosen, except that the board of directors may remove
any officer at any time.
30. Resignation. Any officer may resign at any time upon notice to the
-----------
corporation without prejudice to the rights, if any, of the corporation under
any contract to which the officer is a party. The resignation of an officer
shall be effective when given unless the officer specifies a later time. The
resignation shall be effective regardless of whether it is accepted by the
corporation.
31. Chairman of the Board; President. If the board of directors elects a
--------------------------------
Chairman of the Board, such officer shall preside over all meetings of the board
of directors and of stockholders. If there be no Chairman of the Board, the
President shall perform such duties. The board of directors shall designate
either the Chairman of the
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Board or the President as the chief executive officer and may prescribe the
duties and powers of the chief executive officer. If there is no Chairman of the
Board, the President shall be the chief executive officer.
32. Secretary. Unless otherwise determined by the board of directors or
---------
the chief executive officer, the Secretary shall have the following powers and
duties:
(a) Record of Corporate Proceedings. The Secretary shall attend all
-------------------------------
meetings of stockholders and the board of directors and its committees and shall
record all votes and the minutes of such meetings in a book to be kept at the
principal executive office of the corporation or at such other place as the
board may determine. The Secretary shall keep at the corporation's principal
executive office, if in California, or at its principal business office in
California if the principal executive office is not in California, the original
or a copy of these bylaws, as amended.
(b) Record of Shares. Unless a transfer agent is appointed by the
----------------
board of directors to keep a share register, the Secretary shall keep a share
register at the principal executive office of the corporation showing the names
of the stockholders and their addresses, the number and class of shares held by
each, the number and date of certificates issued and the number and date of
cancellation of each certificate surrendered for cancellation.
(c) Notices. The Secretary shall give such notices as may be required
-------
by law or these bylaws.
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33. Treasurer. Unless the board of directors designates another chief
---------
financial officer, the Treasurer shall be the chief financial officer of the
corporation. Unless otherwise determined by the board of directors or the chief
executive officer, the Treasurer shall have custody of the corporate funds and
securities, shall keep adequate and correct accounts of the corporation's
properties and business transactions, shall disburse such funds of the
corporation as may be ordered by the board or the chief executive officer
(taking proper vouchers for such disbursements), and shall render to the chief
executive officer and the board, at regular meetings of the board or whenever
the board may require, an account of all transactions and the financial
condition of the corporation.
34. Other Officers. The other officers of the corporation, if any, shall
--------------
exercise such powers and perform such duties as the board of directors or the
chief executive officer shall prescribe.
35. Salaries. The board of directors shall fix the salary of the chief
--------
executive officer and may fix the salaries of other employees of the
corporation, including the other officers. If the board does not fix the
salaries of the other officers, the chief executive officer shall fix such
salaries.
AMENDMENT OF
BYLAWS
------
36. Bylaws may be adopted, amended or repealed by the affirmative vote of
a majority of the outstanding shares entitled to vote or by the board of
directors.
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