exv10w58



 






	 	 	 	 	 


REDACTED COPY


EXHIBIT 10.58




LLC MEMBERSHIP INTEREST TRANSFER AGREEMENT





     THIS LLC MEMBERSHIP INTEREST TRANSFER AGREEMENT (this “Agreement”) is
entered into as of February 13, 2004, by and between Sylvan Learning Systems,
Inc., a Maryland corporation (“Sylvan”) and Identix Incorporated, a Delaware
corporation (“Identix”).



RECITALS




     WHEREAS, Sylvan and Identix are parties to Limited Liability Company
Agreement dated as of September 30, 1997 (the “LLC Agreement”).



     WHEREAS, the LLC Agreement addresses, among other things, the formation,
management and operation of Sylvan/Identix Fingerprinting Centers LLC, a
Delaware limited liability company (the “Company”).



     WHEREAS, Sylvan and Identix (each, a “Member” and together the “Members”)
are each members of the Company and the LLC Agreement allows for the transfer
of any Interest of one Member in the Company to another Member.



     WHEREAS, Identix (also referred to herein as “Buyer”), desires to purchase
from Sylvan (also referred to herein as “Seller”), and Seller desires to sell
to the Buyer, one-hundred percent (100%) of Seller’s total Interest in the
Company for an aggregate purchase price of $   , subject to the terms set
forth herein.



     NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:



AGREEMENT




     1. Definitions. Capitalized, terms not defined in this Agreement shall
be as defined in the LLC Agreement.



     2. Purchase and Sale of Membership Interest.



               (a) Buyer shall purchase from Seller, and Seller shall sell to Buyer, 100%
of Seller’s total Interest in the Company (the “Transferred Membership
Interest”) for the aggregate purchase price of $   (the “Purchase Price”).



               (b) The Purchase Price shall be payable by Buyer to Seller, and the
Transferred Membership Interest shall be transferred by Seller to Buyer, at
10:00 a.m. Central time on February 20, 2004 (the “Closing”).



               (c) The Purchase Price shall be payable by Buyer to Seller at the Closing
by wire transfer in immediately available funds to Seller’s account as follows:



 









 





               Bank Name and Address:



               Account Holder:



               Account Number:



               Routing Number:



               (d) Seller agrees and acknowledges that no certificate or certificates are
necessary to evidence the Transferred Membership Interest that is being
transferred by Seller to Buyer hereunder; such transfer shall be deemed
effective automatically, without further notice or instruction from Seller, at
the Closing.



     3. Representation and Warranties of Seller. Seller hereby represents and
warrants to Buyer that:



               (a) Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Maryland with full corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution, delivery, and performance by Seller of this
Agreement have been duly authorized by all necessary corporate action on the
part of Seller, and, this Agreement is legally binding upon Seller in
accordance with its terms;



               (b) The execution, delivery, and performance by Seller of this Agreement
and the transactions contemplated thereby will not (i) violate the provisions
of any order, judgment, or decree of any court or other governmental agency or
any arbitrator applicable to Seller or the Certificate of Incorporation or
Bylaws of Seller; or (ii) result in a material breach of or constitute (with
due notice or lapse of time or both) a material default under any contract or
agreement to which Seller is a party or by which Seller is bound; and



               (c) Seller is the sole beneficial and record holder of the Transferred
Membership Interest, and upon consummation of the transactions contemplated by
this Agreement, Seller shall have transferred to Buyer and Buyer shall have
obtained from Seller all right, title and interest in the Transferred
Membership Interest, free and clear of any and all liens, mortgages,
hypothecations, collateral assignments, charges, encumbrances, title defects,
security interests or claims (whether recorded or unrecorded) of any kind.



               (d) Seller has not retained any investment banker, broker, or finder in
connection with the transactions contemplated by this Agreement.



     4. Representations and Acknowledgments of Buyer. The Buyer hereby
represents and warrants to Seller that:



               (a) Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware with full corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution, delivery, and performance by Buyer of this Agreement
have been duly authorized by all necessary corporate



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action on the part of
Buyer, and, this Agreement is legally binding upon Buyer in accordance with its
terms;




               (b) The execution, delivery, and performance by Buyer of this Agreement
and the transactions contemplated thereby will not (i) violate the provisions
of any order, judgment, or decree of any court or other governmental agency or
any arbitrator applicable to Buyer or the Certificate of Incorporation or
Bylaws of Buyer; or (ii) result in a material breach of or constitute (with due
notice or lapse of time or both) a material default under any contract or
agreement to which Buyer is a party or by which Buyer is bound; and



               (c) Buyer has not retained any investment banker, broker, or finder in
connection with the transactions contemplated by this Agreement.



     5. Revised Membership Interests and Capital Accounts. Each Member’s
Interest in the Company, adjusted to reflect the transfer of the Transferred
Membership Interest by Seller to Buyer hereunder, is set forth below:



	 	 	 	 	 	 	 	 	 
	 	 	Percentage Interest in	 	 
	 	 	Company Prior to Sale of	 	Percentage Interest in Company
	 	 	Transferred Membership	 	Following Sale of Transferred
	 Member
	 	Interest
	 	Membership Interest

	Sylvan (Seller)
	 	 	50	%	 	 	0	%
	Identix (Buyer)
	 	 	50	%	 	 	100	%






The Capital Accounts of the Buyer and the Seller shall be adjusted to reflect
the transfer of the Transferred Membership Interest to the Buyer.




     6. Resignation as Member; Resignation of Seller’s Managers; Amendment of
Bylaws and LLC Agreement. The parties agree that, effective upon the Closing,
Seller will have no further rights as a Member in the Company, and immediately
prior to the execution of this Agreement, Seller will cause its designated
Managers to resign from the Company. The parties agree that upon the purchase
of Transferred Membership Interest pursuant to this Agreement, Buyer shall be
free to amend the Bylaws and the LLC Agreement, and to take any and all such
other actions, and amend any and all such other documents, agreements,
instruments or certificates, as may be necessary or appropriate to effectuate
and carry out the purpose and intent of the foregoing and the transactions
contemplated by this Agreement.



     7. Noncompetition Agreement. Commencing on the date hereof and
continuing for two years after the date of the Closing (such two year period,
the “Noncompetition Period”), Seller shall not directly or indirectly (other
than on behalf of Buyer), without the prior written consent of the CEO of
Buyer, engage in, or manage or direct persons engaged in, a Competitive
Business Activity (as defined below) anywhere in the world. For all purposes
hereof, the term “Competitive Business Activity” shall mean the business
previously conducted by the Company or proposed to be conducted by the Company
prior to the sale to Buyer, including without limitation, the use of biometrics
generally in any background or applicant screening business or process.



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     8. Nonsolicitation of Personnel. During the Noncompetition Period,
Seller shall not, directly or indirectly, solicit, induce or attempt to induce
any employee, consultant or services contractor of the Company or the Buyer or
any successor in interest to the Company or the Buyer to terminate his or her
employment or engagement with the Company or Buyer or any successor in interest
to the Company or Buyer.



     9. Termination of Associated Agreements. The parties agree that
effective upon the closing of the transactions contemplated by this Agreement,
any and all Associated Agreements shall immediately terminate and be void and
of no further force or effect.



     10. Release. At the Closing, the Buyer releases the Seller from any
liabilities and obligations, if any, under the Company’s 1998 Equity
Appreciation Rights Plan, and each party releases the other from any
further obligations, liabilities, damages or claims or any kind arising
out of or related to the LLC Agreement or the business or operations of
the Company.



     11. No Shop. From the date first above written until the date of Closing,
Seller will not, and will not permit its officers, directors, employees, agents
or representatives to, solicit, encourage, initiate, enter into, continue or
participate in any negotiations or discussions with, or provide information to,
any third party concerning the possible sale, disposition or other transfer of
the Transferred Membership Interest or the Company, or any other transaction
that would be inconsistent with the transactions contemplated by this
Agreement. Seller shall immediately cases and cause to be terminated any such
contacts or negotiations with third parties and shall immediately notify Buyer
if Seller learns of any such inquiry or proposal during such period.



     12. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been duly given on
the date of service if served personally or five days after mailing if mailed
by first class United States mail, certified or registered with return receipt
requested, postage prepaid, and addressed as follows:



               To Members: The address listed after their signatures below.



     13. Expenses. Except as otherwise expressly contemplated in this
Agreement, each party shall bear its own costs and expenses incurred in
connection with this Agreement and the Promissory Note and the transactions
contemplated hereby and thereby.



     14. Binding Effect. This Agreement shall be binding upon the legal
representatives and successors of the Seller and the Buyer and the Members;
provided, however, that the Members may not assign any rights or obligations
under this Agreement.



     15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts
entered into and to be performed entirely within the State of Delaware by
residents of the State of Delaware.



     16. Confidentiality; Publicity. Prior to the Closing, this Agreement and
the terms contained here are to be held in the strictest confidence by the
parties and are not to be disclosed by parties to any party other than their
respective directors, officers and financial and legal advisors; provided,
however, that the Buyer may discuss the



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transactions contemplated by this
Agreement with such employees of the Company as Buyer deems appropriate. Upon
and after the Closing, each of the parties shall be free to make such public
announcements of this Agreement and the transactions contemplated hereby as it
deems necessary or appropriate.




     17. Entire Agreement. This Agreement constitutes the entire agreement of the
parties pertaining to the sale of the Interest by the Seller and supersedes all
prior and contemporaneous agreements, representations, and understandings of
the parties with respect to such sale.



     18. Counterparts. This Agreement may be signed in counterparts with the
same effect as if the signature on each such counterpart were on the same
instrument. Facsimiles of signatures shall be deemed to be originals.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.

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

	 	 	 	 	 
	 	SYLVAN LEARNING SYSTEMS, INC.

 	 
	 	By
 	 
	 	  Name:	Sean R. Creamer	 
	 	  Title:	Senior Vice President & CFO	 
	 
	 	Address:	 1001 Fleet Street

Baltimore, Maryland 21202

Fax: (410) 843-8060 	 
	 



	 	 	 	 	 
	 	IDENTIX INCORPORATED

 	 
	 	By
 	 
	 	Name:  	Dr. Joseph J. Atick 	 
	 	Title:  	President and CEO	 
	 
	 	Address:	
 5600 Rowland Rd.

Minnetonka, MN 55343

Fax: (952) 979-8486 	 




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