exv10w56



 



EXHIBIT 10.56


INDEMNIFICATION AGREEMENT



     This Indemnification Agreement (the “Agreement”) is entered into as of
October 30, 2003 by and between Identix Incorporated, a Delaware corporation
(the “Company”), and           (“Indemnitee”).


BACKGROUND



     A.     The Company and Indemnitee recognize the increasing difficulty in
obtaining directors’ and officers’ liability insurance, the significant
increases in the cost of such insurance and the general reductions in the
coverage of such insurance.


     B.     The Company and Indemnitee further recognize the substantial increase
in corporate litigation in general, subjecting officers and directors to
expensive litigation risks at the same time as the availability and coverage of
liability insurance has been severely limited.


     C.     Indemnitee does not regard the current protection available under the
Company’s Certificate of Incorporation as adequate under the present
circumstances, and Indemnitee and other officers and directors of the Company
may not be willing to continue to serve as officers and directors without
additional protection against such risks of service to the Company.


     D.     The Company desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, to serve as officers and directors
of the Company and to indemnify its officers and directors so as to provide
them with the maximum protection permitted by law.


     E.     The Certificate of Incorporation of the Company provides for the
indemnification of directors, officers, employees and other agents of the
Company in certain circumstances. This Agreement shall, with respect to
Indemnitee, supersede the indemnification provisions of the Company’s
Certificate of Incorporation to the extent they are inconsistent with the terms
set forth in this Agreement.


AGREEMENT



     NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:


     1.     Indemnification.


          (a)     Third Party Proceedings. The Company shall indemnify Indemnitee, his
executors, administrators or assigns, if Indemnitee is or was a party or is
threatened to be made a party to any threatened, pending or completed action,
claim, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Company) by
reason of the fact that Indemnitee is or was a director, officer, employee,
agent or fiduciary of the Company, or any subsidiary of the Company, by reason
of any action or inaction on the part of Indemnitee while an officer or
director or by reason of the fact that Indemnitee is or was serving at the
request of the Company as a director, officer, employee, agent or fiduciary of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses,




 






 





including without limitation, attorney’s fees and
disbursements and costs of attachment or similar bonds, costs, damages,
judgments, investigations, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee in connection with such action or proceeding
if Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe Indemnitee’s conduct was unlawful. The termination of any action or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
(i) Indemnitee did not act in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company, or (ii) with respect to any criminal action or proceeding, Indemnitee
had reasonable cause to believe that Indemnitee’s conduct was unlawful.


          (b)     Proceedings by or in the Right of the Company. The Company shall
indemnify Indemnitee, his executors, administrators or assigns if Indemnitee
was or is a party or is threatened to be made a party to any threatened,
pending or completed action, claim, suit or proceeding by or in the right of
the Company or any subsidiary of the Company to procure a judgment in its favor
by reason of the fact that Indemnitee is or was a director, officer, employee,
agent or fiduciary of the Company, or any subsidiary of the Company, by reason
of any action or inaction on the part of Indemnitee while an officer or
director or by reason of the fact that Indemnitee is or was serving at the
request of the Company as a director, officer, employee or, agent or fiduciary
of another corporation, partnership, joint venture, trust or other enterprise,
against expenses, including without limitation, attorney’s fees and
disbursements and costs of attachment or similar bonds, costs, damages,
judgments, investigations, fines and amounts paid in settlement, in each case
to the extent actually and reasonably incurred by Indemnitee in connection with
the defense or settlement of such action or proceeding if Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company and its stockholders, except that
no indemnification shall be made in respect of any claim, issue or matter as to
which Indemnitee shall have been adjudged to be liable to the Company in the
performance of Indemnitee’s duty to the Company and its stockholders unless and
only to the extent that the court in which such action or proceeding is or was
pending shall determine upon application that, in view of all the circumstances
of the case, Indemnitee is fairly and reasonably entitled to indemnity for
expenses and then only to the extent that the court shall determine.



          (c)     Indemnification as a Witness. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee by reason of his position as a
director, officer, employee, agent or fiduciary of the Company, or a position
with another entity at the request of the Company, is a witness in any action,
suit or proceeding, Indemnitee shall be indemnified and held harmless against
all costs and expenses actually and reasonably incurred by Indemnitee on
Indemnitee’s behalf in connection therewith.



     2.     Expenses; Indemnification Procedure.


          (a)     Advancement of Expenses. The Company shall advance all expenses
incurred by Indemnitee in connection with the investigation, defense,
settlement or appeal of any civil or criminal action or proceeding referenced
in Section 1(a) or 1(b) of this Agreement (but not




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amounts actually paid in
settlement of any such action or proceeding). Indemnitee hereby undertakes to repay such amounts advanced only if, and to the extent that,
it shall ultimately be determined that Indemnitee is not entitled to be
indemnified by the Company as authorized hereby. The advances to be made
hereunder shall be paid by the Company to Indemnitee within 20 days after
delivery of a written request therefor by Indemnitee to the Company.


          (b)     Notice and Cooperation by Indemnitee. Indemnitee shall, as a
condition precedent to his or her right to be indemnified under this Agreement,
give the Company notice in writing as soon as practicable of any claim made
against Indemnitee for which indemnification will or could be sought under this
Agreement. Notice to the Company shall be directed to the Chief Executive
Officer of the Company at the address set forth on the signature page of this
Agreement (or such other address as the Company shall designate in writing to
Indemnitee). Notice shall be deemed received three business days after the
date postmarked if sent by domestic certified or registered mail, properly
addressed; otherwise notice shall be deemed received upon actual receipt by the
Company. In addition, Indemnitee shall give the Company such information and
cooperation as it may reasonably require and as shall be within Indemnitee’s
power.



          (c)     Procedure. Any indemnification provided for in Section 1 shall be
made no later than 45 days after receipt of the written request of Indemnitee.
If a claim under this Agreement, under any statute, or under any provision of
the Company’s Certificate of Incorporation or Bylaws providing for
indemnification is not paid in full by the Company within 45 days after a
written request for payment thereof has been received by the Company,
Indemnitee may, at any time thereafter, bring an action against the Company to
recover the unpaid amount of the claim and, subject to Section 13 of this
Agreement, Indemnitee shall also be entitled to be paid for the expenses
(including attorneys’ fees) of bringing such action. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in connection with any action or proceeding in advance of its final
disposition) that Indemnitee has not met the standards of conduct which make it
permissible under applicable law for the Company to indemnify Indemnitee for
the amount claimed, but the burden of proving such defense shall be on the
Company, and Indemnitee shall be entitled to receive interim payments of
expenses pursuant to Subsection 2(a) unless and until such defense may be
finally adjudicated by court order or judgment from which no further right of
appeal exists. It is the parties’ intention that if the Company contests
Indemnitee’s right to indemnification, the question of Indemnitee’s right to
indemnification shall be for the court to decide, and neither the failure of
the Company (including its Board of Directors, any committee or subgroup of the
Board of Directors, independent legal counsel, or its stockholders) to have
made a determination that indemnification of Indemnitee is proper in the
circumstances because Indemnitee has met the applicable standard of conduct
required by applicable law, nor an actual determination by the Company
(including its Board of Directors, any committee or subgroup of the Board of
Directors, independent legal counsel, or its stockholders) that Indemnitee has
not met such applicable standard of conduct, shall create a presumption that
Indemnitee has or has not met the applicable standard of conduct.



          (d)     Notice to Insurers. If, at the time of the receipt of a notice of a
claim pursuant to Section 2(b) of this Agreement, the Company has directors’
and officers’ liability insurance in effect, the Company shall give prompt
notice of the commencement of such proceeding to the insurers in accordance
with the procedures set forth in the respective policies. The Company shall
thereafter take all necessary or desirable




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action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of such policies.


          (e)     Selection of Counsel. In the event the Company shall be obligated
under Section 2(a) hereof to pay the expenses of any proceeding against
Indemnitee, the Company, if appropriate, shall be entitled to assume the
defense of such proceeding, with counsel approved by Indemnitee, which approval
shall not be unreasonably withheld, upon the delivery to Indemnitee of written
notice of its election so to do. After delivery of such notice, approval of
such counsel by Indemnitee and the retention of such counsel by the Company,
the Company will not be liable to Indemnitee under this Agreement for any fees
of counsel subsequently incurred by Indemnitee with respect to the same
proceeding, provided that (i) Indemnitee shall have the right to employ his
counsel in any such proceeding at Indemnitee’s expense; and (ii) if (A) the
employment of counsel by Indemnitee has been previously authorized by the
Company, (B) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Company and Indemnitee in the conduct of any
such defense or (C) the Company shall not, in fact, have employed counsel to
assume the defense of such proceeding, then the fees and expenses of
Indemnitee’s counsel shall be borne by the Company.



     3.     Additional Indemnification Rights; Nonexclusivity.


          (a)     Scope. Notwithstanding any other provision of this Agreement, the
Company hereby agrees to indemnify the Indemnitee to the fullest extent
permitted by law, notwithstanding that such indemnification is not specifically
authorized by the other provisions of this Agreement, the Company’s Certificate
of Incorporation, the Company’s Bylaws or by statute. In the event of any
change after the date of this Agreement in any applicable law, statute or rule
which expands the right of a Delaware corporation to indemnify a member of its
board of directors or an officer, such changes shall be, ipso facto, within the
purview of Indemnitee’s rights and the Company’s obligations under this
Agreement. In the event of any change in any applicable law, statute or rule
which narrows the right of a Delaware corporation to indemnify a member of its
board of directors or an officer, such changes, to the extent not otherwise
required by such law, statute or rule to be applied to this Agreement shall
have no effect on this Agreement or the parties’ rights and obligations
hereunder.



          (b)     Nonexclusivity. The indemnification provided by this Agreement shall
not be deemed exclusive of any rights to which Indemnitee may be entitled under
the Company’s Certificate of Incorporation, its Bylaws, any agreement, any vote
of stockholders or disinterested directors, the Delaware General Corporation
Law, or otherwise, both as to action in Indemnitee’s official capacity and as
to action in another capacity while holding such office. The indemnification
provided under this Agreement shall continue as to Indemnitee for any action
taken or not taken while serving in an indemnified capacity even though he may
have ceased to serve in such capacity at the time of any action or other
covered proceeding.



     4.     Partial Indemnification. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of Indemnitee’s position
as a director, officer, employee, agent or fiduciary of the Company, or a
position with another entity at the request of the Company, is a party to and
is successful, on the merits or otherwise, in any action, claim, suit or
proceeding, Indemnitee shall be indemnified against all expenses actually and
reasonably incurred by Indemnitee Indemnitee’s behalf in connection therewith.
If Indemnitee is not wholly successful in any such action, claim, suit or
proceeding but is successful, on the merits or


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otherwise, as to one or more but less than all claims, issues or matters
in any such action, claim, suit or proceeding, the Company shall indemnify
Indemnitee against all expenses actually and reasonably incurred by him or on
his behalf in connection with each successfully resolved claim, issue or
matter. For purposes of this Section and without limitation, the termination
of any claim, issue or matter in such an action, claim, suit or proceeding by
dismissal, with or without prejudice, shall be deemed to be a successful result
as to such claim.


     5.     Mutual Acknowledgement. Both the Company and Indemnitee acknowledge
that in certain instances, federal law or applicable public policy may prohibit
the Company from indemnifying its directors and officers under this Agreement
or otherwise. Indemnitee understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the Securities
and Exchange Commission to submit the question of indemnification to a court in
certain circumstances for a determination of the Company’s right under public
policy to indemnify Indemnitee.


     6.     Directors’ and Officers’ Liability Insurance. The Company shall obtain
and maintain a policy or policies of insurance with reputable insurance
companies providing the officers and directors of the Company with coverage for
losses from wrongful acts, and to ensure the Company’s performance of its
indemnification obligations under this Agreement. Among other considerations,
the Company will weigh the costs of obtaining such insurance coverage against
the protection afforded by such coverage. In all policies of directors’ and
officers’ liability insurance, Indemnitee shall be named as an insured in such
a manner as to provide Indemnitee the same rights and benefits as are accorded
to the most favorably insured of the Company’s directors, if Indemnitee is a
director; or of the Company’s officers, if Indemnitee is not a director of the
Company but is an officer; or of the Company’s key employees, if Indemnitee is
not an officer or director but is a key employee. Notwithstanding the
foregoing, the Company shall have no obligation to obtain or maintain such
insurance if the Company determines in good faith that such insurance is not
reasonably available, if the premium costs for such insurance are
disproportionate to the amount of coverage provided, if the coverage provided
by such insurance is limited by exclusions so as to provide an insufficient
benefit, or if Indemnitee is covered by similar insurance maintained by a
subsidiary or parent of the Company but, in that event, shall immediately
notify Indemnitee of such decision in advance of its implementation such that
Indemnitee does not take further actions in his capacity as a director or
officer without knowledge that insurance will not be provided or will be
reduced in the future period in question.


     7.     Severability. Nothing in this Agreement is intended to require or
shall be construed as requiring the Company to do or fail to do any act in
violation of applicable law. The Company’s inability, pursuant to court order,
to perform its obligations under this Agreement shall not constitute a breach
of this Agreement. The provisions of this Agreement shall be severable as
provided in this Section. If this Agreement or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify Indemnitee to the full extent permitted by
any applicable portion of this Agreement that shall not have been invalidated
(including without limitation, each portion of any Section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable,
that is not itself invalid, illegal or unenforceable), and the balance of this
Agreement not so invalidated shall be construed so as to give effect to the
intent manifested by
the provision held invalid, illegal and shall be enforceable in accordance
with its terms.


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     8.     Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:


          (a)     Excluded Acts. To indemnify Indemnitee for any acts or omissions or
transactions from which a director may not be relieved of liability under the
Delaware General Corporation Law; or



          (b)     Claims Initiated by Indemnitee. To indemnify or advance expenses to
Indemnitee with respect to proceedings or claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except with respect to
proceedings brought to establish or enforce a right to indemnification under
this Agreement or any other statute or law or otherwise as required, under
Delaware General Corporation Law, but such indemnification or advancement of
expenses may be provided by the Company in specific cases if the Board of
Directors has approved the initiation or bringing of such suit; or



          (c)     Lack of Good Faith. To indemnify Indemnitee for any expenses incurred
by the Indemnitee with respect to any proceeding instituted by Indemnitee to
enforce or interpret this Agreement, if a court of competent jurisdiction
determines that each of the material assertions made by the Indemnitee in such
proceeding was not made in good faith or was frivolous; or



          (d)     Insured Claims. To indemnify Indemnitee for expenses or liabilities
of any type whatsoever (including, but not limited to, judgments, fines, ERISA
excise taxes or penalties, and amounts paid in settlement) which have been paid
directly to Indemnitee by an insurance carrier under a policy of directors’ and
officers’ liability insurance maintained by the Company; or



          (e)     Claims Under Section 16(b). To indemnify Indemnitee for expenses and
the payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of
1934, as amended, or any similar successor statute.



     9.     Effectiveness of Agreement. This Agreement shall be effective as of
the date set forth on the first page and may apply to acts or omissions of
Indemnitee which occurred prior to such date if Indemnitee was an officer,
director, employee, agent or fiduciary of the Company, or was serving at the
request of the Company as a director, officer, employee, agent or fiduciary of
another corporation, partnership, joint venture, trust or other enterprise, at
the time such act or omission occurred.


     10.     Construction of Certain Phrases.


          (a)     For purposes of this Agreement, references to the “Company” shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees or agents, so that if
Indemnitee is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or




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other enterprise, Indemnitee shall stand in the same position under the
provisions of this Agreement with respect to the resulting or surviving
corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.


          (b)     For purposes of this Agreement, references to “other enterprises”
shall include employee benefit plans or administrative committees thereof;
references to “fines” shall include any excise taxes assessed on Indemnitee
with respect to an employee benefit plan; and references to “serving at the
request of the Company” shall include any service as a director, officer,
employee or, agent or trustee of the Company which imposes duties on, or
involves services by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants, or beneficiaries.



     11.     Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.


     12.     Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns, and shall inure to the benefit of
Indemnitee and Indemnitee’s estate, heirs, legal representatives and assigns.


     13.     Attorneys’ Fees. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms
hereof, Indemnitee shall be entitled to be paid all court costs and expenses,
including attorneys’ fees, incurred by Indemnitee with respect to such action,
unless as a part of such action, the court of competent jurisdiction determines
that each of the material assertions made by Indemnitee as a basis for such
action were not made in good faith or were frivolous. In the event of an
action instituted by or in the name of the Company under this Agreement or to
enforce or interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including attorneys’ fees,
incurred by Indemnitee in defense of such action (including with respect to
Indemnitee’s counterclaims and cross claims made in such action), unless as a
part of such action the court determines that each of Indemnitee’s material
defenses to such action were made in bad faith or were frivolous.


     14.     Notice. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand, on the date of receipt, or (ii) if mailed by domestic
certified or registered mail properly addressed and with postage prepaid, on
the third business day after the date postmarked. Addresses for notice to
either party are as set forth on the signature page of this Agreement, or as
subsequently modified by written notice.


     15.     Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out
of or relates to this Agreement and agree that any action instituted under this
Agreement shall be brought only in the state courts of the State of Delaware.


     16.     Choice of Law. This Agreement shall be governed by and its provisions
construed and enforced in accordance with the laws of the State of Delaware as
applied to contracts between Delaware residents entered into and to be
performed entirely within Delaware.


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     17.     Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
no similar) nor shall such wavier constitute a continuing waiver.


     IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement as of the date first above written.



	 	 	 	 
	THE COMPANY:	Identix Incorporated
	 	
5600 Rowland Rd.
	 	
Minnetonka, MN 55343
	 	 	 	 
	 	 	 	 
	 	By	 	 
	 	 	

	 	 	
Name:
	 	 	
Title:
	 	 	 	 
	INDEMNITEE:	 	 	 
	 	By	 	 
	 	 	

	 	 	
Name:
	 	 	
Title:
	 	 	 	 
	 	
Address:
	 	 	 	

	 	 	 	





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