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As filed with the Securities and Exchange Commission on June 20, 2000
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
IDENTIX INCORPORATED
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(Exact name of registrant as specified in its charter)
Delaware 94-2842496
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(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
510 N. Pastoria Avenue, Sunnyvale, California 94086
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(Address of principal executive offices)
NEW EMPLOYEE STOCK INCENTIVE PLAN
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(Full title of the plan)
Mark S. Molina, Esq.
Identix Incorporated
510 N. Pastoria Avenue
Sunnyvale, California 94086
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(Name and address of agent for service)
(408) 731-2000
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum Maximum
securities Amount offering Aggregate Amount of
to be to be price per Offering registration
registered registered share (1) Price fee
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Common Stock,
$.01 par value 1,500,000 $15.3750 $23,062,500 $6,088.50
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(1) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(c) under the Securities Act of 1933 and based on
the average of the high and low prices reported on the American Stock
Exchange on June 16, 2000.
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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 Annual Report on Form 10-K for the fiscal year ended June 30, 1999,
filed pursuant to Section 13 of the Exchange Act;
(b) Identix Quarterly Reports on Form 10-Q for the quarters ended Sep. 30,
1999, Dec. 31, 1999, Mar. 31, 2000, filed pursuant to Section 13 of the
Exchange Act;
(c) The description of the Common Stock of the registrant contained in the
registration statement filed by Identix under the Exchange Act registering
such Common Stock under Section 12 of the Exchange Act, as amended.
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
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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
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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 the
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 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.
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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
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
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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
24 Power of Attorney (see page 8)
99 Identix Incorporated NEW EMPLOYEE STOCK INCENTIVE PLAN
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;
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
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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.
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SIGNATURES
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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 June 20,
2000.
IDENTIX INCORPORATED
By: /s/ James P. Scullion
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James P. Scullion, President, Chief Operating
Officer and Chief Financial Officer
POWER OF ATTORNEY TO SIGN AMENDMENTS
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below does hereby constitute and appoint James P. Scullion and Mark S. Molina,
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.
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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>
<S> <C> <C>
/s/ James P. Scullion Director, President, Chief Operating June 15, 2000
--------------------------------- Officer and Chief Financial Officer
James P. Scullion
Director
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Randall C. Fowler.
/s/ Randall Hawks, Jr. Director June 15, 2000
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Randall Hawks, Jr.
/s/ Patrick H. Morton Director June 15, 2000
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Patrick H. Morton
/s/ Charles W. Richion Director June 15, 2000
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Charles W. Richion
Director
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Fred Sutter
/s/ Larry J. Wells Director June 15, 2000
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Larry J. Wells
</TABLE>
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INDEX TO 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
24 Power of Attorney (see page 8)
99 Identix Incorporated NEW EMPLOYEE STOCK INCENTIVE PLAN
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