As filed with the Securities and Exchange Commission on March
30
,
2017
Registration No. 333-214124
UNITED
STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
FORM
S-3/A
(Amendment
No. 3
)
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
IMAGEWARE
SYSTEMS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
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33-0224167
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification Number)
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10815 Rancho Bernardo Road, Suite 310
San Diego, California 92127
(858)
673-8600
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant’s Principal Executive
Offices)
S. James Miller, Jr.
President and Chief Executive Officer
ImageWare Systems, Inc.
10815 Rancho Bernardo Road, Suite 310
San Diego, California 92127
(858)
673-8600
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
Copies to
Daniel W. Rumsey, Esq.
Jessica R. Sudweeks, Esq.
Disclosure Law Group, a Professional Corporation
600 West Broadway, Suite 700
San Diego, CA 92101
(619) 272-7050
Approximate date of
commencement of proposed sale to the public
: From time to time after this registration
statement becomes effective, as determined by market conditions and
other factors.
If
the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. ☒
If
this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. ☐
If
this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same
offering. ☐
If
this form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule
462(e) under the Securities Act, check the following
box. ☐
If
this form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following
box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated
filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
Large accelerated filer
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☐
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Accelerated
filer
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☑
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Non-accelerated
filer
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☐
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Smaller reporting company
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☐
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CALCULATION OF REGISTRATION FEE
Title of each class of securities to
be registered
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Amount to be Registered
(1)(2)
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Proposed Maximum Aggregate Offering Price Per Unit
(1)(2)
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Proposed Maximum Aggregate
Offering Price
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Amount of
Registration
Fee
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Primary
Offering:
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Common
Stock, par value $0.01 per share
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—
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—
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$
—
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$
—
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Preferred
Stock, par value $0.01 per share
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—
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—
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—
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—
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Warrants
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—
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—
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—
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—
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Rights
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—
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—
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—
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—
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Total
Primary Offering
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—
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—
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$
15,000,000
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1,738.50
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(3)(7)
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Secondary
Offering:
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Series
G Convertible Preferred Stock, par value $0.01 per
share
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6,021
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$
1,000
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6,021,000
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$
697.83
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(7)
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Common
Stock, par value $0.01 per share
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6,111,238
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(5)
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$
1.05
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(6)
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6,416,800
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(6)
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743.71
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(7)
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(1)
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With
respect to the primary offering, such indeterminate number or
amount of common stock, preferred stock, and warrants to purchase
shares of common stock, or any combination of the foregoing
securities, and rights, as may from time to time be issued at
indeterminate prices, with an aggregate initial offering price not
to exceed $15,000,000. Securities registered hereunder may be sold
separately or together in any combination with other securities
registered hereunder.
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(2)
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Subject
to footnote (1), there are also being registered hereunder an
indeterminate number of shares of preferred stock or common stock
that may be issued upon conversion of, or in exchange for preferred
stock registered hereunder or upon exercise of warrants registered
hereunder, as the case may be.
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(3)
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With
respect to the primary offering, estimated solely for the purpose
of calculating the registration fee for a primary offering pursuant
to Rule 457(o) under the Securities Act of 1933, as amended (the
“
Securities
Act
”). Pursuant to Securities Act Rule 457(o) and
General Instruction II.D of Form S-3, the table does not specify by
each class information as to the amount to be registered or
proposed maximum offering price per unit.
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(4)
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Calculated
in accordance with Securities Act Rule 457(a).
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(5)
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Includes (i)
1,333,333 shares issuable upon conversion of shares of the
Registrant’s Series F Convertible Preferred Stock
(“
Series F
Preferred
”), (ii) 4,014,000 shares issuable upon
conversion of shares of the Registrant’s Series G Convertible
Preferred Stock (“
Series G
Preferred
”), (iii) an estimated 190,476 shares
issuable as payment of accrued dividends on shares of Series F
Preferred (“
Series F
Dividend Shares
”), and (iv) an estimated 573,429
shares issuable as payment of accrued dividends on shares of Series
G Preferred (“
Series G
Dividend Shares
”). Series F Dividend Shares and Series
G Dividend shares estimated based on the closing price of the
Registrant’s common stock on March 30, 2017, as reported on
the OTCQB Marketplace.
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(6)
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Estimated solely
for the purpose of calculating the registration fee for the
secondary offering pursuant to Securities Act Rule 457(c), based on
the average of the high and low prices of the Registrant’s
Common Stock on the OTCQB Marketplace on March 30,
2017.
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The Registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until the registration statement shall become effective on
such date as the Commission, acting pursuant to said section 8(a),
may determine.
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The information in
this prospectus is not complete and may be changed. Neither we nor
any selling stockholder may sell any of these securities until the
registration statement filed with Securities and Exchange
Commission is effective. This prospectus is not an offer to sell
these securities and is not soliciting an offer to buy these
securities in any state where the offer or sale is not
permitted.
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Subject to completion, dated March
30
, 2017
PRELIMINARY PROSPECTUS
$15,000,000
COMMON STOCK
PREFERRED STOCK
WARRANTS
RIGHTS
6,021 SHARES OF SERIES G CONVERTIBLE PREFERRED STOCK
AND
6,111,238 SHARES OF COMMON STOCK OFFERED
BY
SELLING STOCKHOLDERS
By this prospectus and accompanying prospectus
supplements, we may, from time to time, offer and sell, in one or
more offerings, shares of common stock and preferred stock, either
separately or represented by warrants or rights, either separately
or together in any combination, in one or more offerings. The
preferred stock and warrants may be convertible into or exercisable
or exchangeable for common stock or preferred stock.
The rights
may be exercisable for common or preferred
stock.
The
aggregate initial offering price of all securities sold by us under
this prospectus will not exceed
$15,000,000.
We
may offer and sell the securities described in this prospectus and
any prospectus supplement directly to investors or through
underwriters, dealers or agents. We will set forth the names of any
underwriters, dealers or agents and their compensation in the
accompanying prospectus supplement.
In addition, the stockholders identified in the
section titled “
Selling
Stockholders
” on page 9
of this prospectus, or any applicable prospectus supplement, from
time to time, offer and sell up to an aggregate of up to 6,021
shares of our Series G Convertible Preferred Stock and up to
6,111,238 shares of our common stock in one or more offerings.
Please see the section titled “
Selling
Stockholders
” on page 9
of this prospectus, for a more detailed description of the
securities that may be offered by the selling
stockholders.
This prospectus does not necessarily mean the
selling stockholders will offer or sell the securities identified
herein. We will receive no proceeds from any sale of
securities by the selling stockholders, but we have agreed to pay
certain expenses relating to the registration of such securities.
The selling stockholders may from time to time offer and resell,
transfer or otherwise dispose of any or all of the securities
covered by this prospectus through underwriters or dealers,
directly to purchasers or through broker-dealers or agents. See
“
Plan
of Distribution
” on page
11 below for more information.
Our common stock is quoted on the
OTCQB Marketplace under the symbol “IWSY”. The last
reported sale price of our common stock on March 30, 2017 was
$1.05
per
share.
Investing in our securities involves risks. See the section
entitled
“Risk
Factors”
in the accompanying prospectus supplement and
in the documents we incorporate by reference in this
prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is
[ ],
2017
IMAG
E
WARE SYSTEMS, INC.
TABLE OF CONTENTS
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PAGE
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1
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1
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3
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4
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9
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11
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11
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14
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14
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14
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15
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This prospectus is part of a
registration statement that we filed with the Securities and
Exchange Commission (the “
SEC
”) using a “shelf” registration,
or continuous offering, process. Under this shelf registration
process, we may, from time to time, offer and sell separately or
together in any combination the securities described in this
prospectus, in one or more offerings, for up to a maximum aggregate
offering price of $15,000,000. In addition to securities we may
offer and sell, the selling stockholders identified herein may,
from time to time, offer and sell up to an aggregate of 6,021
shares of our Series G Convertible Preferred Stock and up to
6,111,238 shares of our common stock in one or more
offerings.
With respect to the
shelf registration, this prospectus provides you with
a general description of the securities we may offer. Each time we
will provide a prospectus supplement that will contain specific
information about the terms of that offering and the offered
securities. Any prospectus supplement may also add, update
or change information contained in this prospectus. Any statement
that we make in this prospectus will be modified or superseded by
any inconsistent statement made by us in a prospectus supplement.
The registration statement we filed with the SEC includes exhibits
that provide more detail of the matters discussed in this
prospectus. You should read this prospectus and the related
exhibits filed with the SEC and any prospectus supplement, together
with additional information described under the heading
“
Where You Can Find More
Information
,” before
making your investment decision.
You
should rely only on the information contained or incorporated by
reference in this prospectus, and in any prospectus
supplement. We have not authorized any other person to
provide you with different information. If anyone
provides you with different or inconsistent information, you should
not rely on it. We are not making offers to sell or
solicitations to buy the securities in any jurisdictions in which
an offer or solicitation is not authorized, or in which the person
making that offer or solicitation is not qualified to do so or to
anyone to whom it is unlawful to make an offer or
solicitation. You should not assume that the information
in this prospectus or any prospectus supplement, as well as the
information we file or previously filed with the SEC that we
incorporate by reference in this prospectus or any prospectus
supplement is accurate as of any date other than its respective
date. Our business, financial condition, results of
operations and prospects may have changed since those
dates.
Investing in our securities involves risk. The
prospectus supplement relating to a particular offering will
contain a discussion of risks applicable to an investment in the
securities offered. Prior to making a decision about investing in
our securities, you should carefully consider the specific factors
discussed under the heading “
Risk
Factors
” in the
applicable prospectus supplement together with all of the other
information contained in the prospectus supplement or appearing or
incorporated by reference in this prospectus, including the risk
factors incorporated by reference from our most recent Annual
Report on Form 10-K. The occurrence of any of these risks
might cause you to lose all or part of your investment in the
offered securities.
We are
a pioneer and leader in the market for biometrically enabled
software-based identity management solutions. We develop mobile and
cloud-based identity management solutions providing biometric,
secure credential and law enforcement technologies. Our patented
biometric product line includes our flagship product, the Biometric
Engine®, a hardware and algorithm independent multi-biometric
engine that enables the enrollment and management of unlimited
population sizes. Our identification products are used
to create, issue and manage secure credentials, including national
IDs, passports, driver's licenses, smart cards and access control
credentials. Our digital booking products provide law enforcement
with integrated mug shots, fingerprint live scans, and
investigative capabilities. We are headquartered in San
Diego, California, with offices in Portland, Oregon, Mexico, and
Ottawa, Ontario.
Historically, we
have marketed our products to government entities at the federal,
state and local levels, however, the emergence of cloud based
computing - a mobile market that demands increased security and
interoperable systems, and the proven success of our products in
the government markets, has enabled us to enlarge our target market
focus to include the emerging consumer and non-government
enterprise marketplace.
Our
biometric technology is a core software component of an
organization’s security infrastructure and includes a
multi-biometric identity management solution for enrolling,
managing, identifying and verifying the identities of people by the
physical characteristics of the human body. We develop, sell and
support various identity management capabilities within government
(federal, state and local), law enforcement, commercial
enterprises, and transportation and aviation markets for
identification and verification purposes. Our IWS Biometric Engine
is a patented biometric identity management software platform for
multi-biometric enrollment, management and authentication, managing
population databases of virtually unlimited sizes. It is hardware
agnostic and can utilize different types of biometric
algorithms. It allows different types of biometrics to
be operated at the same time on a seamlessly integrated
platform. It is also offered as a Software Development
Kit based search engine, enabling developers and system integrators
to implement a biometric solution or integrate biometric
capabilities into existing applications without having to derive
biometric functionality from pre-existing
applications. The IWS Biometric Engine combined with our
secure credential platform, IWS EPI Builder, provides a
comprehensive, integrated biometric and secure credential solution
that can be leveraged for high-end applications such as passports,
driver licenses, national IDs, and other secure
documents.
We also
offer clients a cloud based biometric solution,
GoVerifyID, which
provides end-to-end, enterprise-ready, mobile biometric user
authentication. GoVerifyID is an ultra-scalable, multi-modal
Software-as-a-Service biometric engine that can process hundreds of
millions of transactions. GoVerifyID supports all current and
future biometric modalities for in-band and out-of-band
authentication. GoVerifyID requires no additional coding or
hardware, and requires only minimal IT resources. It ensures
user privacy and security via anonymous biometric matching in the
cloud.
Our law
enforcement solutions enable agencies to quickly capture, archive,
search, retrieve, and share digital images, fingerprints and other
biometrics as well as criminal history records on a stand-alone,
networked, wireless or Web-based platform. We develop, sell and
support a suite of modular software products used by law
enforcement and public safety agencies to create and manage
criminal history records and to investigate crime. Our IWS Law
Enforcement solution consists of five software modules: Capture and
Investigative modules, which provide a criminal booking system with
related databases as well as the ability to create and print mug
photo/SMT image lineups and electronic mugbooks; a Facial
Recognition module, which uses biometric facial recognition to
identify suspects; a Web module, which provides access to centrally
stored records over the Internet in a connected or wireless
fashion; and a LiveScan module, which incorporates LiveScan
capabilities into IWS Law Enforcement providing integrated
fingerprint and palm print biometric management for civil and law
enforcement use. The IWS Biometric Engine is also
available to our law enforcement clients and allows them to capture
and search using other biometrics such as iris or DNA.
Our secure credential solutions empower customers
to create secure and smart digital identification documents with
complete ID systems. We develop, sell and support software and
design systems which utilize digital imaging and biometrics in the
production of photo identification cards, credentials and
identification systems. Our products in this market consist of IWS
EPI Suite and IWS EPI Builder (“
SDK
”). These products allow for the
production of digital identification cards and related databases
and records and can be used by, among others, schools, airports,
hospitals, corporations or governments. We have added
the ability to incorporate multiple biometrics into the ID systems
with the integration of IWS Biometric Engine to our secure
credential product line.
Our enterprise authentication software includes
the IWS Desktop Security product which is a comprehensive
authentication management infrastructure solution providing added
layers of security to workstations, networks and systems through
advanced encryption and authentication technologies. IWS Desktop
Security is optimized to enhance network security and usability,
and uses multi-factor authentication methods to protect access,
verify identity and help secure the computing environment without
sacrificing ease-of-use features such as quick login. Additionally,
IWS Desktop Security provides an easy integration with various
smart card-based credentials including the Common Access Card
(“
CAC
”), Homeland Security Presidential Directive
12 (“
HSPD
-
12
”), Personal Identity Verification
(“
PIV
”) credential, and Transportation Worker
Identification Credential (“
TWIC
”) with an organization’s access
control process. IWS Desktop Security provides the crucial
end-point component of a Logical Access Control System
(“
LACS
”), and when combined with a Physical Access
Control System (“
PACS
”), organizations benefit from a complete
door to desktop access control and security
model.
S
PECIAL NOTE
REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking statements that
relate to future events or our future financial performance and
involve known and unknown risks, uncertainties and other factors
that may cause our actual results, levels of activity, performance
or achievements to differ materially from any future results,
levels of activity, performance or achievements expressed or
implied by these forward-looking statements. Words such as, but not
limited to, “believe,” “expect,”
“anticipate,” “estimate,”
“intend,” “plan,” “targets,”
“likely,” “will,” “would,”
“could,” and similar expressions or phrases identify
forward-looking statements. Forward-looking statements include, but
are not limited to, statements about:
●
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our
ability to implement our business strategy;
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anticipated
trends and challenges in our business and the markets in which we
operate;
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our
expected future financial performance;
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our
expectations regarding our operating expenses;
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our
ability to anticipate market needs or develop new or enhanced
products to meet those needs;
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our
expectations regarding market acceptance of our
products;
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our
ability to compete in our industry and innovation by our
competitors;
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our
ability to protect our confidential information and intellectual
property rights;
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our
ability to successfully identify and manage any potential
acquisitions;
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our
ability to manage expansion into international
markets;
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our
ability to maintain or broaden our business relationships and
develop new relationships with strategic alliances, suppliers,
customers, distributors or otherwise;
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●
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our
ability to recruit and retain qualified sales, technical and other
key personnel;
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our
ability to obtain additional financing; and
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our
ability to manage growth.
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All
forward-looking statements involve risks, assumptions and
uncertainties. The occurrence of the events described, and the
achievement of the expected results, depend on many events, some or
all of which are not predictable or within our control. Actual
results may differ materially from expected results. See the
section titled
“Risk
Factors”
and elsewhere in this prospectus for a more
complete discussion of these risks, assumptions and uncertainties
and for other risks and uncertainties. These risks, assumptions and
uncertainties are not necessarily all of the important factors that
could cause actual results to differ materially from those
expressed in any of our forward-looking statements. Other unknown
or unpredictable factors also could harm our results. In light of
these risks, uncertainties and assumptions, the forward-looking
events discussed in this prospectus might not occur.
Readers are cautioned not to place undue reliance on
forward-looking statements, as there can be no assurance that the
plans, intentions or expectations upon which they are based will
occur. By their nature, forward-looking statements involve numerous
assumptions, known and unknown risks and uncertainties, both
general and specific, that contribute to the possibility that the
predictions, forecasts, projections and other things contemplated
by the forward-looking statements will not occur. Forward-looking
statements in this prospectus are based on management’s
beliefs and opinions at the time the statements are made. The
forward-looking statements contained in this prospectus are
expressly qualified in their entirety by this cautionary statement.
The forward-looking statements included in this prospectus are made
as of the date of this prospectus and we undertake no obligation to
publicly update or revise any forward-looking statements to reflect
new information, future events or otherwise, except as required by
applicable securities laws.
DESCRIPTION OF THE
S
ECURITIES THAT MAY BE OFFERED
The
following summary of the rights a
ssociated
with capital stock is not
complete and is subject to and qualified in its entirety by
reference to our certificate of incorporation and bylaws, copies of
which are filed as exhibits to our Annual Report on Form 10-K for
the year ended December 31, 2016, filed with the SEC
on March 30,
2017.
Description of Common Stock
We
are authorized to issue 150,000,000 shares of our common stock,
$0.01 par value per share, and 4,000,000 shares of preferred stock,
$0.01 par value per share.
A
s of March 30, 2017 we had
91,863,795
shares of common stock outstanding.
Our authorized but unissued shares of common stock are available
for issuance without action by our stockholders. All shares of
common stock now outstanding are fully paid and
non-assessable.
The
holders of our common stock have equal ratable rights to dividends
from funds legally available, when, as and if declared by our Board
of Directors. To date, we have not paid any dividends on
our common stock. Holders of common stock are also entitled to
share ratably in all of our assets available for distribution to
holders of common stock upon liquidation, dissolution or winding up
of the affairs. The holders of our common stock have no preemptive
or conversion rights or other subscription rights. There are no
redemption or sinking fund provisions applicable to our common
stock.
The
holders of shares of common stock do not have cumulative voting
rights, which means that the holders of more than 50% of such
outstanding shares, voting for the election of directors, can elect
all of the directors to be elected, if they so choose and in such
event, the holders of the remaining shares will not be able to
elect any of our directors. The holders of 50% percent
of the outstanding common stock constitute a quorum at any meeting
of shareholders, and the vote by the holders of a majority of the
outstanding shares are required to effect certain fundamental
corporate changes, such as liquidation, merger or amendment of our
certificate of incorporation.
Description of Preferred Stock
Our
Board of Directors has the authority, without action by our
stockholders to designate and issue preferred stock in one or more
series and to designate the rights, preferences and privileges of
each series, which may be greater than the rights of our common
stock. It is not possible to state the actual effect of the
issuance of any shares of our preferred stock upon the rights of
holders of our common stock until our Board of Directors determines
the specific rights of the holders of our preferred stock. However,
the effects might include, among other things:
●
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restricting
dividends on our common stock;
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●
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diluting
the voting power of our common stock;
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●
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impairing
the liquidation rights of our common stock; or
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●
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delaying
or preventing a change in control of our company without further
action by our stockholders.
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As
of March 30, 2017, we had four series of preferred stock
outstanding: (i) Series B Convertible Redeemable Preferred Stock,
(ii) Series E Convertible Preferred Stock, (iii) Series F
Convertible Preferred Stock, and (iv) Series G Convertible
Preferred Stock.
Series B Convertible Redeemable Preferred Stock
In April 1995, the Company’s
Certificate of Incorporation was amended to designate 750,000
shares of Series B Convertible Redeemable Preferred Stock
(“
Series B
Preferred
”) for issuance.
Every 5.275 shares of Series B Preferred is convertible into one
share of the Company’s common stock.
The
holders of Series B Preferred are entitled to cumulative preferred
dividends payable at the rate of $0.2125 per share, per annum,
subject to legally available funds. Shares of Series B Preferred
and accrued but unpaid dividends are convertible at the option of
the holder into shares of common stock at a conversion price equal
to the original Series B Preferred issue price, as adjusted to
prevent dilution.
The
holders of Series B Preferred, on an as-converted basis, have the
same voting rights per share as common stock; provided, that the
holders of Series B Preferred have a special right to elect one
director if the Company defaults in the payment of any dividend to
the holders of Series B Preferred. The holders of Series B
Preferred are entitled to initial distributions of $2.50 per share
of Series B Preferred outstanding, upon liquidation and in
preference to common shares and any other series of preferred
stock plus all accrued but unpaid dividends.
The
Company presently has the right to redeem all or some of the
outstanding shares of Series B Preferred at a price equal to the
original issue price, plus all accrued but unpaid
dividends.
The Company had 239,400
shares of Series B Preferred outstanding as of
March 30, 2017, and cumulative undeclared dividends of
approximately $
20,907
.
Series E Convertible Preferred Stock
In January 2015, we filed the Certificate of
Designations, Preferences, and Rights of the Series E Convertible
Redeemable Preferred Stock (the “
Series E Certificate of
Designation
”), which
Series E Certificate of Designation was amended on December 26,
2016, designating 12,000 shares of our preferred stock as Series E
Convertible Preferred Stock (“
Series E
Preferred
”). Pursuant to
the amended Series E Certificate of Designation, shares of Series E
Preferred accrue dividends at a rate of 8% per annum if the Company
chooses to pay accrued dividends in cash, and 10% per annum of the
Series E Liquidation Preference (defined below) if the Company
chooses to pay accrued dividends in shares of common stock,
provided, however, that the Company may only make cash dividend
payments from positive cash flow received from
operations.
Each share of Series E Preferred has a liquidation
preference of $1,000 per share (the “
Series E Liquidation
Preference
”) and is
convertible, at the option of the holder, into that number of
shares of common stock equal to the Series E Liquidation
Preference, divided by $1.90.
Each
holder of the Series E Preferred is entitled to vote on all
matters, together with the holders of common stock, on an as
converted basis.
Any
time after the six-month period following the issuance date, in the
event the arithmetic average of the closing sale price of the
Company’s common stock is or was at least $2.85 for twenty
(20) consecutive trading days, the Company may redeem all or a
portion of the Series E Preferred outstanding upon thirty (30)
calendar days prior written notice in cash at a price per
share equal to 110% of the Series E Liquidation
Preference, plus all accrued and unpaid dividends. Also,
simultaneous with the occurrence of a Change of Control transaction
(as defined in the Series E Certificate of Designation), the
Company, at its option, shall have the right to redeem all or a
portion of the outstanding Series E Preferred in cash at a price
per share of Series E Preferred equal to 110% of the Series E
Liquidation Preference Amount plus all accrued and unpaid
dividends.
The Company had 12,000
shares of Series E Preferred outstanding as of
March 30, 2017, and cumulative undeclared dividends of
approximately $
234,082
,
assuming we pay the accrued dividends in cash, or
$292,603
, assuming we pay the accrued dividends in shares
of common stock.
Series F Convertible Preferred Stock
In September 2016, we filed the Certificate of
Designations, Preferences, and Rights of the Series F Convertible
Preferred Stock (the “
Series F Certificate of
Designation
”) with the
Delaware Division of Corporations, designating 2,000 shares of our
preferred stock as Series F Convertible Preferred Stock
(“
Series F
Preferred
”). Shares of
Series F Preferred rank junior to shares of Series B Preferred and
Series E Preferred, as well as our existing indebtedness, and
accrue dividends at a rate of 10% per annum of the Series F
Liquidation Preference (defined below), payable on a quarterly
basis in shares of common stock (the “
Series F Dividend
Shares
”).
Each share of Series F Preferred has a liquidation
preference of $1,000 per share (“
Series F
Liquidation
Preferenc
e”), and is
convertible, at the option of the holder, into that number of
shares of the Company’s common stock equal to the Series F
Liquidation Preference, divided by $1.50 (the
“
Series F
Conversion
Shares
”).
Each
holder of the Series F Preferred is entitled to vote on all
matters, together with the holders of common stock, on an as
converted basis.
Any
time after the six-month period following the issuance date, in the
event the arithmetic average of the closing sales price of the
Company’s common stock is or was at least $2.50 for twenty
(20) consecutive trading days, the Company may redeem all or a
portion of the Series F Preferred outstanding upon thirty (30)
calendar days prior written notice in cash at a price per
share equal to 110% of the Series F Liquidation
Preference, plus all accrued and unpaid dividends. Also,
simultaneous with the occurrence of a Change of Control transaction
(as defined in the Series F Certificate of Designation), the
Company, at its option, shall have the right to redeem all or a
portion of the outstanding Series F Preferred in cash at a price
per share of Series F Preferred equal to 115% of the Series F
Liquidation Preference Amount plus all accrued and unpaid
dividends.
The
Company had
2,000
shares of Series F Preferred outstanding as of
March 30, 2017, and cumulative undeclared dividends of
approximately $
48,767
.
Series G Convertible Preferred Stock
In December 2016, we filed the Certificate of
Designations, Preferences, and Rights of the Series G Convertible
Preferred Stock (the “
Series G Certificate of
Designation
”) with the
Delaware Division of Corporations, designating 6,120 shares of our
preferred stock as Series G Convertible Preferred Stock
(“
Series G
Preferred
”). Shares of
Series G Preferred rank junior to shares of Series B Preferred,
Series E Preferred, Series F Preferred, as well as our existing
indebtedness, and accrue dividends at a rate of 10% per annum of
the Series G Liquidation Preference (defined below), payable on a
quarterly basis in shares of common stock (the
“
Series G Dividend
Shares
”).
Each share of Series G Preferred has a liquidation
preference of $1,000 per share (“
Series G
Liquidation
Preferenc
e”), and is
convertible, at the option of the holder, into that number of
shares of the Company’s common stock equal to the Series G
Liquidation Preference, divided by $1.50 (the
“
Series G
Conversion
Shares
”).
Each
holder of the Series G Preferred is entitled to vote on all
matters, together with the holders of common stock, on an as
converted basis.
Any
time after the six-month period following the issuance date, in the
event the arithmetic average of the closing sales price of the
Company’s common stock is or was at least $2.50 for twenty
(20) consecutive trading days, the Company may redeem all or a
portion of the Series G Preferred outstanding upon thirty (30)
calendar days prior written notice in cash at a price per
share equal to 110% of the Series G Liquidation
Preference, plus all accrued and unpaid dividends. Also,
simultaneous with the occurrence of a Change of Control transaction
(as defined in the Series G Certificate of Designation), the
Company, at its option, shall have the right to redeem all or a
portion of the outstanding Series G Preferred in cash at a price
per share of Series G Preferred equal to 115% of the Series G
Liquidation Preference Amount plus all accrued and unpaid
dividends.
T
he Company had
6,021
shares of Series G Preferred outstanding as of
March 30, 2017, and cumulative undeclared dividends of
approximately $146,813
.
Description of Warrants
We
may issue warrants for the purchase of our common
stock. As explained below, each warrant, if offered,
will entitle its holder to purchase our equity securities at an
exercise price set forth in, or to be determined as set forth in,
the related prospectus supplement. As explained below,
warrants may be issued separately or together with equity
securities as units.
The
particular terms of each issue of warrants will be described in the
applicable prospectus supplement, including, as
applicable:
●
|
the
title of the warrants;
|
●
|
the
initial offering price;
|
●
|
the
aggregate number of warrants and the aggregate number of shares of
common stock purchasable upon exercise of the
warrants;
|
●
|
the
date on which the right to exercise the warrants will commence and
the date on which the right will expire;
|
●
|
if
applicable, the minimum or maximum number of the warrants that may
be exercised at any one time;
|
●
|
anti-dilution
provisions of the warrants, if any;
|
●
|
redemption
or call provisions, if any, applicable to the
warrants;
|
●
|
any
additional terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants;
and
|
Holders
of warrants will not be entitled, solely by virtue of being
holders, to vote, to consent, to receive dividends, to receive
notice as stockholders with respect to any meeting of stockholders
for the election of directors or any other matter, or to exercise
any rights whatsoever as a holder of the common stock purchasable
upon exercise of the warrants.
Description of Rights
We
may issue rights to purchase common stock or preferred stock. This
prospectus and any accompanying prospectus supplement will contain
the material terms and conditions for each right. The accompanying
prospectus supplement may add, update or change the terms and
conditions of the rights as described in this
prospectus.
We
will describe in the applicable prospectus supplement the terms and
conditions of the issue of rights being offered, the rights
agreement relating to the rights and the rights certificates
representing the rights, including, as applicable:
|
●
|
|
the
title of the rights;
|
|
●
|
|
the
date of determining the stockholders entitled to the rights
distribution;
|
|
●
|
|
the
title, aggregate number of shares of common stock or preferred
stock purchasable upon exercise of the rights;
|
|
●
|
|
the
aggregate number of rights issued;
|
|
●
|
|
the
date, if any, on and after which the rights will be separately
transferable;
|
|
●
|
|
the
date on which the right to exercise the rights will commence and
the date on which the right will expire; and
|
|
●
|
|
any
other terms of the rights, including terms, procedures and
limitations relating to the distribution, exchange and exercise of
the rights.
|
Each
right will entitle the holder of rights to purchase for cash the
principal amount of shares of common stock or preferred stock at
the exercise price provided in the applicable prospectus
supplement. Rights may be exercised at any time up to the close of
business on the expiration date for the rights provided in the
applicable prospectus supplement. After the close of business on
the expiration date, all unexercised rights will be
void.
Holders
may exercise rights as described in the applicable prospectus
supplement. Upon receipt of payment and the rights certificate
properly completed and duly executed at the office indicated in the
prospectus supplement, we will, as soon as practicable, forward the
shares of common stock or preferred stock purchasable upon exercise
of the rights. If less than all of the rights issued in any rights
offering are exercised, we may offer any unsubscribed securities
directly to persons other than stockholders, to or through agents,
underwriters or dealers or through a combination of such methods,
including pursuant to standby underwriting arrangements, as
described in the applicable prospectus supplement.
Transfer Agent
Our transfer agent is ComputerShare. The transfer agent’s
address is 250 Royal Street, Canton, MA 02021.
Anti-Takeover Effects of Certain Provisions of Delaware Law and of
the Company’s Certificate of Incorporation and
Bylaws
Certain
provisions of Delaware law and our certificate of incorporation and
bylaws discussed below may have the effect of making more difficult
or discouraging a tender offer, proxy contest or other takeover
attempt. These provisions are expected to encourage persons seeking
to acquire control of our company to first negotiate with our Board
of Directors. We believe that the benefits of increasing our
ability to negotiate with the proponent of an unfriendly or
unsolicited proposal to acquire or restructure our company outweigh
the disadvantages of discouraging these proposals because
negotiation of these proposals could result in an improvement of
their terms.
Delaware Anti-Takeover Law.
We
are subject to Section 203 of the Delaware General Corporation
Law. Section 203 generally prohibits a public Delaware
corporation from engaging in a “business combination”
with an “interested stockholder” for a period of three
years after the date of the transaction in which the person became
an interested stockholder, unless:
●
|
prior
to the date of the transaction, the Board of Directors of the
corporation approved either the business combination or the
transaction which resulted in the stockholder becoming an
interested stockholder;
|
●
|
upon
consummation of the transaction that resulted in the stockholder
becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding
specified shares; or
|
●
|
at or
subsequent to the date of the transaction, the business combination
is approved by the Board of Directors and authorized at an annual
or special meeting of stockholders, and not by written consent, by
the affirmative vote of at least 66 2/3% of the outstanding
voting stock which is not owned by the interested
stockholder.
|
Section 203
defines a “business combination” to
include:
●
|
any
merger or consolidation involving the corporation and the
interested stockholder;
|
●
|
any
sale, lease, exchange, mortgage, pledge, transfer or other
disposition of 10% or more of the assets of the corporation to or
with the interested stockholder;
|
●
|
subject
to exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested stockholder;
|
●
|
subject
to exceptions, any transaction involving the corporation that has
the effect of increasing the proportionate share of the stock of
any class or series of the corporation beneficially owned by the
interested stockholder; or
|
●
|
the
receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided
by or through the corporation.
|
In
general, Section 203 defines an “interested
stockholder” as any person that is:
●
|
the
owner of 15% or more of the outstanding voting stock of the
corporation;
|
●
|
an
affiliate or associate of the corporation who was the owner of 15%
or more of the outstanding voting stock of the corporation at any
time within three years immediately prior to the relevant date;
or
|
●
|
the
affiliates and associates of the above.
|
Under
specific circumstances, Section 203 makes it more difficult
for an “interested stockholder” to effect various
business combinations with a corporation for a three-year period,
although the stockholders may, by adopting an amendment to the
corporation’s certificate of incorporation or bylaws, elect
not to be governed by this section, effective 12 months after
adoption.
Our
certificate of incorporation and bylaws do not exclude us from the
restrictions of Section 203. We anticipate that the provisions
of Section 203 might encourage companies interested in
acquiring us to negotiate in advance with our Board of Directors
since the stockholder approval requirement would be avoided if a
majority of the directors then in office approve either the
business combination or the transaction that resulted in the
stockholder becoming an interested stockholder.
Certificate of Incorporation and Bylaws.
Provisions
of our certificate of incorporation and bylaws may delay or
discourage transactions involving an actual or potential change of
control or change in our management, including transactions in
which stockholders might otherwise receive a premium for their
shares, or transactions that our stockholders might otherwise deem
to be in their best interests. Therefore, these provisions could
adversely affect the price of our common stock. Among other things,
our certificate of incorporation and bylaws:
●
|
permit
our Board of Directors to issue up to 4,000,000 shares of preferred
stock, with any rights, preferences and privileges as they may
designate (including the right to approve an acquisition or other
change of control);
|
●
|
provide
that the authorized number of directors may be changed only by the
vote of a majority of the Company’s shareholders at a
properly convened annual meeting, or by the written consent of a
majority of the Company’s shareholders, or by the Board of
Directors;
|
●
|
provide
that all vacancies, including newly created directorships, may,
except as otherwise required by law, be filled by the affirmative
vote of a majority of directors then in office, even if less than a
quorum;
|
●
|
provide
that stockholders seeking to present proposals before a meeting of
stockholders or to nominate candidates for election as directors at
a meeting of stockholders must provide advance notice in writing,
and also specify requirements as to the form and content of a
stockholder’s notice; and
|
●
|
do not
provide for cumulative voting rights (therefore allowing the
holders of a majority of the shares of common stock entitled to
vote in any election of directors to elect all of the directors
standing for election, if they should so choose).
|
Th
is
prospectus also relates to the resale by the stockholders
identified below of up to 6,120 shares of Series G Preferred and up
to 6,111,238 shares of our common stock, of which 1,333,333 shares
are issuable as Series F Conversion Shares, an estimated 190,476
may be issued as Series F Dividend Shares, 4,014,000 are issuable
as Series G Conversion Shares and an estimated 573,429 may be
issued as Series G Dividend Shares. Shares of our Series F
Preferred and Series G Preferred were offered and sold in private
placement transactions in September 2016 and December 2016,
respectively, each of which are further described
below.
Series F Private Placement
On
September 7, 2016, we entered into a Securities Purchase Agreement
pursuant to which we issued 2,000 shares of Series F Preferred to a
single accredited investor for $1,000 per share. As a part of this
offering, we agreed to register the shares of common stock issuable
as Series F Conversion Shares, as well as Series F Dividend Shares
issuable during the 12-month period following the issuance of the
shares of Series F Preferred.
Series G Private Placement and Share Exchange
On December 29, 2016, the Company accepted
subscription forms from certain accredited investors (the
“
Series G
Investors
”) to purchase a
total of 1,625 shares of Series G Preferred for $1,000 per share.
In addition, the Company received executed exchange agreements from
the Series G Investors pursuant to which the Company exchanged an
aggregate total of approximately 3.3 million shares of common stock
held by the Series G Investors for an aggregate total of 4,396
shares of Series G Preferred.
As
a part of these transactions, we agreed to register, on behalf of
the Series G Investors, (i) all shares of Series G
Preferred issued to the Series G Investors, (ii) the shares of
common stock issuable as Series G Conversion Shares, and (iii)
Series G Dividend Shares for the 12 month period following the
issuance of the shares of Series G Preferred.
Selling
Stockholder Table
The
selling stockholders identified below may sell the securities
registered pursuant to the registration statement of which this
prospectus forms a part. This prospectus covers the resale of up
to: (i) 6,120 shares of Series G Preferred; (ii) 6,111,238 shares
of our common stock, of which 1,333,333 shares are issuable as
Series F Conversion Shares, an estimated 190,476 may be issued as
Series F Dividend Shares, 4,014,000 are issuable as Series G
Conversion Shares and an estimated 573,429 may be issued as Series
G Dividend Shares. The selling stockholders are not required to
offer any of the securities covered by this prospectus for resale.
Since the selling stockholders may sell all, some or none of their
securities, we cannot estimate the aggregate number of securities
that the selling stockholders will offer pursuant to this
prospectus or that the selling stockholders will own upon
completion of the offering to which this prospectus
relates.
Information
about additional selling stockholders may be set forth in a
pre-effective and/or post-effective amendment to the registration
statement of which this prospectus forms a part, a prospectus
supplement, or in filings that we make with the SEC under the
Exchange Act, which are incorporated by reference in this
prospectus. Unless otherwise indicated below, no selling
stockholder is considered a broker-dealer or affiliated with a
broker-dealer.
The
following table sets forth information with respect to our common
stock beneficially owned by the selling stockholders as of March
30, 2017:
|
Shares Beneficially
Owned Prior to
Resale
|
|
Conversion Shares Offered
for Resale
|
Dividend
Shares Offered
for
Resale
|
|
|
Series
G
|
Common
|
Shares of Series G
Preferred
Offered for
|
Series
F
Conversion
|
Series
G
Conversion
|
Series
F
Dividend
|
Series
G
Dividend
|
Series
G
Preferred
(6)
|
Common
Stock (7)
|
Name of Selling
Stockholder
|
|
|
|
|
|
|
|
Shares
|
%
|
Shares
|
%
|
CAP
I LLC (8)
|
-
|
1,381,846
|
-
|
1,333,333
|
-
|
190,476
|
-
|
-
|
*
|
48,513
|
*
|
CF
Special Situation Fund I LP (9)
|
3,380
|
3,468,786
|
3,380
|
-
|
2,253,333
|
-
|
321,905
|
-
|
*
|
1,215,453
|
*
|
CF
Special Situation Fund II LP (10)
|
223
|
226,257
|
223
|
-
|
148,667
|
-
|
21,238
|
-
|
*
|
77,590
|
*
|
Charles
Frischer
|
469
|
2,014,215
|
469
|
-
|
312,667
|
-
|
44,667
|
-
|
*
|
1,701,548
|
*
|
Ryan
R. Crane and Kimberly C. Crane
|
75
|
114,591
|
75
|
-
|
50,000
|
-
|
7,143
|
-
|
*
|
64,591
|
*
|
Kimberly
C. Crane
|
6
|
36,278
|
6
|
-
|
4,000
|
-
|
571
|
-
|
*
|
32,278
|
*
|
Ryan
R. Crane 401K (11)
|
78
|
52,049
|
78
|
-
|
52,000
|
-
|
7,429
|
-
|
*
|
49
|
*
|
Robert
C. Clutterbuck Trust (12)
|
178
|
118,779
|
178
|
-
|
118,667
|
-
|
16,952
|
-
|
*
|
112
|
*
|
Robert
T. Clutterbuck Trust (13)
|
1,553
|
1,036,305
|
1,553
|
-
|
1,035,333
|
-
|
147,905
|
-
|
*
|
972
|
*
|
Robert
T. Clutterbuck 401K (14)
|
59
|
39,370
|
59
|
-
|
39,333
|
-
|
5,619
|
-
|
*
|
37
|
*
|
|
|
|
6,021
|
1,333,333
|
4,014,000
|
190,476
|
573,429
|
|
|
|
|
*
|
Represents less
than 1%
|
(1)
|
Beneficial
ownership amounts and percentages are calculated in accordance with
Rule 13d-3 of the Exchange Act.
|
(2)
|
Assumes that the
selling stockholders will sell all securities saleable pursuant to
this prospectus. The registration of the securities identified
herein does not necessarily mean that the selling stockholders will
sell all or any portion of the shares covered by this
prospectus.
|
(3)
|
Includes shares of
common stock that may be issued as Series F Conversion Shares
and/or Series G Conversion Shares within 60 days of March 30, 2017,
but does not include shares that may be issued as Series F
Dividend
Shares or Series
G Dividend Shares, as such amount were not determinable at March
30, 2017.
|
(4)
|
Per the Series F
Certificate of Designation, the number of shares issuable as Series
F Dividend Shares are calculated by dividing the value of the
dividend payable a particular payment date, divided by the
average
closing sales price of the Company’s common stock for the
three consecutive trading days prior to the payment date, as
reported on the OTCQB Marketplace.
Since the aggregate
number of Series F Dividend Shares issuable within the 12 month
period following September 7, 2016 is not currently known, this
column identifies shares of common stock estimated to be issuable
as Series F Dividend Shares within 12 months of September 7, 2016,
based on the closing price of the Company’s common stock on
March 30, 2017.
|
(5)
|
Per the Series G
Certificate of Designation, the number of shares issuable as Series
G Dividend Shares are calculated by dividing the value of the
dividend payable a particular payment date, divided by the
average
closing sales price of the Company’s common stock for the
three consecutive trading days prior to the payment date, as
reported on the OTCQB Marketplace.
Since the aggregate
number of Series G Dividend Shares issuable within the 12 month
period following December 29, 2016 is not currently known, this
column identifies shares of common stock estimated to be issuable
as Series G Dividend Shares within 12 months of December 29, 2016,
based on the closing price of the Company’s common stock on
March 30, 2017.
|
(6)
|
Assumes that the selling stockholders will sell all of the
shares of Series G Preferred saleable pursuant to this prospectus.
The registration of these shares does not necessarily mean that the
selling stockholders will sell all or any portion of the shares
covered by this prospectus.
|
(7)
|
Assumes that the
selling stockholders will sell all of the shares of common stock
saleable pursuant to this prospectus, including the Series F
Conversion Shares, Series F Dividend Shares, Series G Conversion
Shares and Series G Dividend Shares. The registration of these
shares does not necessarily mean that the selling stockholders will
sell all or any portion of the shares covered by this
prospectus.
|
(8)
|
David Sackler,
President of CAP I LLC, may be deemed to have voting and investment
discretion over the securities identified
herein.
|
(9)
|
Robert T.
Clutterbuck, Managing Partner of CF Special Situation Fund I LP,
may be deemed to have voting and investment discretion over the
securities identified herein.
|
(10)
|
Robert T.
Clutterbuck, Managing Partner of CF Special Situation Fund II LP,
may be deemed to have voting and investment discretion over the
securities identified herein.
|
(11)
|
Ryan C. Crane may
be deemed to have voting and investment discretion over the
securities held by the Ryan C. Crane 401K.
|
(12)
|
Robert C.
Clutterbuck, Trustee of the Robert C. Clutterbuck Trust, may be
deemed to have voting and investment discretion over the securities
identified herein.
|
(13)
|
Robert T.
Clutterbuck, Trustee of the Robert T. Clutterbuck Trust, may be
deemed to have voting and investment discretion over the securities
identified herein.
|
(14)
|
Robert T.
Clutterbuck may be deemed to have voting and investment discretion
over the securities held by the Robert T. Clutterbuck
401K.
|
Unless
we state otherwise in an accompanying prospectus supplement, we
intend to use the net proceeds from the sale of the securities
offered by us under this prospectus and any related prospectus
supplement for general corporate purposes including, but not
limited to capital expenditures, repayment of indebtedness, and
additions to working capital. When a particular series of
securities is offered, the prospectus supplement relating to that
series will set forth our intended use for the net proceeds we
receive from the sale of the securities. Pending the application of
the net proceeds, we may invest the proceeds in short-term,
interest-bearing instruments or other investment-grade
securities.
We will not receive any of the proceeds from the any securities by
the selling stockholders.
Company Distributions
We
may sell the securities offered by this prospectus to one or more
underwriters or dealers for public offering and sale by them or to
investors directly or through agents. The accompanying prospectus
supplement will set forth the terms of the offering and the method
of distribution and will identify any firms acting as underwriters,
dealers or agents in connection with the offering,
including:
●
|
the name or names of any underwriters, dealers or
agents;
|
●
|
the purchase price of the securities and the proceeds to us from
the sale;
|
●
|
any underwriting discounts and other items constituting
compensation to underwriters, dealers or
agents;
|
●
|
any public offering price;
|
●
|
any discounts or concessions allowed or re-allowed or paid to
dealers; and
|
●
|
any securities exchange or market on which the securities offered
in the prospectus supplement may be listed.
|
Only
those underwriters identified in such prospectus supplement are
deemed to be underwriters in connection with the securities offered
in the prospectus supplement.
The
distribution of the securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be
changed, or at prices determined as the applicable prospectus
supplement specifies. The securities may be sold through an
at-the-market offering, a rights offering, forward contracts or
similar arrangements. In addition, we may enter into derivative
transactions with third parties, or sell securities not covered by
this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement so indicates,
in connection with those derivatives, the third parties may sell
securities covered by this prospectus and the applicable prospectus
supplement, including in short sale transactions. If so, the third
party may use securities pledged by us or borrowed from us or
others to settle those sales or to close out any related open
borrowings of stock, and may use securities received from us in
settlement of those derivatives to close out any related open
borrowings of stock. The third party in such sale transactions will
be an underwriter and, if not identified in this prospectus, will
be named in the applicable prospectus supplement (or a
post-effective amendment). In addition, we may otherwise loan or
pledge securities to a financial institution or other third party
that in turn may sell the securities short using this prospectus
and an applicable prospectus supplement. Such financial institution
or other third party may transfer its economic short position to
investors in our securities or in connection with a concurrent
offering of other securities.
In
connection with the sale of the securities, underwriters, dealers
or agents may be deemed to have received compensation from us in
the form of underwriting discounts or commissions and also may
receive commissions from securities purchasers for whom they may
act as agent. Underwriters may sell the securities to or through
dealers, and the dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters or
commissions from the purchasers for whom they may act as
agent.
We will provide in the applicable prospectus
supplement information regarding any underwriting discounts or
other compensation that we pay to underwriters or agents in
connection with the securities offering, and any discounts,
concessions or commissions that underwriters allow to dealers.
Underwriters, dealers and agents participating in the securities
distribution may be deemed to be underwriters, and any discounts,
commissions or concessions they receive and any profit they realize
on the resale of the securities may be deemed to be underwriting
discounts and commissions under the Securities Act of 1933, as
amended (the “
Securities
Act
”). Underwriters and
their controlling persons, dealers and agents may be entitled,
under agreements entered into with us, to indemnification against
and contribution toward specific civil liabilities, including
liabilities under the Securities Act. Some of the underwriters,
dealers or agents who participate in the securities distribution
may engage in other transactions with, and perform other services
for, us or our subsidiaries in the ordinary course of
business.
To
facilitate the offering of securities, certain persons
participating in the offering may engage in transactions that
stabilize, maintain or otherwise affect the price of the
securities. This may include over-allotments or short sales of the
securities, which involve the sale by persons participating in the
offering of more securities than were sold to them. In these
circumstances, these persons would cover such over-allotments or
short positions by making purchases in the open market or by
exercising their over-allotment option, if any. In addition, these
persons may stabilize or maintain the price of the securities by
bidding for or purchasing securities in the open market or by
imposing penalty bids, whereby selling concessions allowed to
dealers participating in the offering may be reclaimed if
securities sold by them are repurchased in connection with
stabilization transactions. The effect of these transactions may be
to stabilize or maintain the market price of the securities at a
level above that which might otherwise prevail in the open market.
These transactions may be discontinued at any time.
Selling Stockholder Distributions
The
selling stockholders, which as used herein includes donees,
pledgees, transferees or other successors-in-interest selling
shares of common stock or interests in shares of common stock
received after the date of this prospectus from a selling
stockholder as a gift, pledge, partnership distribution or other
transfer, may, from time to time, sell, transfer or otherwise
dispose of any or all of their shares of common stock or interests
in shares of common stock on any stock exchange, market or trading
facility on which the shares are traded or in private transactions.
These dispositions may be at fixed prices, at prevailing market
prices at the time of sale, at prices related to the prevailing
market price, at varying prices determined at the time of sale, or
at negotiated prices.
The
selling stockholders may use any one or more of the following
methods when disposing of shares or interests therein:
●
|
ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
|
●
|
block trades in which the broker-dealer will attempt to sell the
shares as agent, but may position and resell a portion of the block
as principal to facilitate the transaction;
|
●
|
purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
|
●
|
privately negotiated transactions;
|
●
|
short sales effected after the date the registration statement of
which this prospectus is a part is declared effective by the
Securities and Exchange Commission;
|
●
|
through the writing or settlement of options or other hedging
transactions, whether through an options exchange or
otherwise;
|
●
|
broker-dealers may agree with the selling stockholders to sell a
specified number of such shares at a stipulated price per share;
and
|
●
|
a combination of any such methods of sale.
|
The
selling stockholders may, from time to time, pledge or grant a
security interest in some or all of the shares of common stock
owned by them and, if they default in the performance of their
secured obligations, the pledgees or secured parties may offer and
sell the shares of common stock, from time to time, under this
prospectus, or under an amendment or supplement to this prospectus
amending the list of selling stockholders to include the pledgee,
transferee or other successors in interest as selling stockholders
under this prospectus. The selling stockholders also may transfer
the shares of common stock in other circumstances, in which case
the transferees, pledgees or other successors in interest will be
the selling beneficial owners for purposes of this
prospectus.
In
connection with the sale of our common stock or interests therein,
the selling stockholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn
engage in short sales of the common stock in the course of hedging
the positions they assume. The selling stockholders may also sell
shares of our common stock short and deliver these securities to
close out their short positions, or loan or pledge the common stock
to broker-dealers that in turn may sell these securities. The
selling stockholders may also enter into option or other
transactions with broker-dealers or other financial institutions or
the creation of one or more derivative securities which require the
delivery to such broker-dealer or other financial institution of
shares offered by this prospectus, which shares such broker-dealer
or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
The
aggregate proceeds to the selling stockholders from the sale of the
common stock offered by them will be the purchase price of the
common stock less discounts or commissions, if any. Each of the
selling stockholders reserves the right to accept and, together
with their agents from time to time, to reject, in whole or in
part, any proposed purchase of common stock to be made directly or
through agents. We will not receive any of the proceeds from this
offering.
The
selling stockholders also may resell all or a portion of the shares
in open market transactions in reliance upon Rule 144 under the
Securities Act, provided that they meet the criteria and conform to
the requirements of that rule.
The
selling stockholders and any underwriters, broker-dealers or agents
that participate in the sale of the common stock or interests
therein may be “underwriters” within the meaning of
Section 2(11) of the Securities Act. Any discounts,
commissions, concessions or profit they earn on any resale of the
shares may be underwriting discounts and commissions under the
Securities Act. Selling stockholders who are
“underwriters” within the meaning of Section 2(11)
of the Securities Act will be subject to the prospectus delivery
requirements of the Securities Act. Underwriters and their
controlling persons, dealers and agents may be entitled, under
agreements entered into with us and the selling stockholders, to
indemnification against and contribution toward specific civil
liabilities, including liabilities under the Securities
Act.
To
facilitate the offering of the shares offered by the selling
stockholders, certain persons participating in the offering may
engage in transactions that stabilize, maintain or otherwise affect
the price of the common stock. This may include over-allotments or
short sales, which involve the sale by persons participating in the
offering of more shares than were sold to them. In these
circumstances, these persons would cover such over-allotments or
short positions by making purchases in the open market or by
exercising their over-allotment option, if any. In addition, these
persons may stabilize or maintain the price of the common stock by
bidding for or purchasing shares in the open market or by imposing
penalty bids, whereby selling concessions allowed to dealers
participating in the offering may be reclaimed if shares sold by
them are repurchased in connection with stabilization transactions.
The effect of these transactions may be to stabilize or maintain
the market price of the common stock at a level above that which
might otherwise prevail in the open market. These transactions may
be discontinued at any time.
Certain
legal matters in connection with this offering will be passed upon
for us by Disclosure Law Group, a Professional Corporation, of San
Diego, California.
The Company’s
consolidated financial statements of ImageWare Systems, Inc.
appearing in our Annual Report on Form 10-K for the year ended
December 31, 2016, and the effectiveness of
ImageWare Systems, Inc.’s internal control over financial
reporting as of December 31, 2016, have been
audited by Mayer Hoffman McCann P.C.
of San Diego, California
, an independent
registered public accounting firm, as set forth in their reports
thereon, included therein, and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by
reference in reliance upon such reports given on the authority of
such firm as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE
I
NFORMATION
We are a public company and file annual,
quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission (the
SEC
”). You may read and copy any document we
file at the SEC’s public reference room at 100 F Street, NE,
Washington, D.C. 20549. You can request copies of these documents
by writing to the SEC and paying a fee for the copying cost. Please
call the SEC at 1-800-SEC-0330 for more information about the
operation of the public reference room. Our SEC filings are also
available, at no charge, to the public at the SEC’s web site
at
http://www.sec.gov
.
INCORPORATION OF
C
ERTAIN INFORMATION BY
REFERENCE
The
following documents filed by us with the SEC are incorporated by
reference in this prospectus:
●
|
Annual Report on
Form 10-K for the fiscal year ended December 31, 2016, filed on
March 30, 2017;
|
●
|
Current Report on
Form 8-K, filed January 26, 2017;
|
●
|
Current Report on
Form 8-K, filed on February 16, 2017; and
|
●
|
The description of
our common stock contained in the Registration Statement on Form
8-A filed pursuant to Section 12(b) of the Exchange Act on March
21, 2000, including any amendment or report filed with the SEC for
the purpose of updating this description.
|
We
also incorporate by reference all documents we file pursuant to
Section 13(a), 13(c), 14 or 15 of the Exchange Act (other than any
portions of filings that are furnished rather than filed pursuant
to Items 2.02 and 7.01 of a Current Report on Form 8-K) after the
date of the initial registration statement of which this prospectus
is a part and prior to effectiveness of such registration
statement. All documents we file in the future pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this prospectus and prior to the termination of the offering are
also incorporated by reference and are an important part of this
prospectus.
Any
statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for the purposes of this registration statement to the
extent that a statement contained herein or in any other
subsequently filed document which also is or deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this registration statement.
We will provide to each person, including any beneficial owner, to
whom a prospectus is delivered, a copy of any or all of the
information that has been incorporated by reference in the
prospectus but not delivered with the prospectus. You may request a
copy of these filings, excluding the exhibits to such filings which
we have not specifically incorporated by reference in such filings,
at no cost, by writing to or calling us at:
ImageWare Systems, Inc.
Attn: Corporate Secretary
10815 Rancho Bernardo Road, Suite 310
San Diego, California 92127
(858) 673-8600
This
prospectus is part of a registration statement we filed with the
SEC. You should only rely on the information or representations
contained in this prospectus and any accompanying prospectus
supplement. We have not authorized anyone to provide information
other than that provided in this prospectus and any accompanying
prospectus supplement. We are not making an offer of the securities
in any state where the offer is not permitted. You should not
assume that the information in this prospectus or any accompanying
prospectus supplement is accurate as of any date other than the
date on the front of the document.
PROSPECTUS
$15,000,000
COMMON STOCK
PREFERRED STOCK
WARRANTS
RIGHTS
6,021 SHARES OF SERIES G CONVERTIBLE PREFERRED STOCK
AND
6,111,238 SHARES OF COMMON STOCK OFFERED
BY
SELLING STOCKHOLDERS
[_____________], 2017
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND
DISTRIBUTION
We
estimate that our expenses in connection with this registration
statement will be as follows:
SEC Registration
Fee
|
$
3,180.04
|
Legal Fees and
Expenses*
|
$
15,000.00
|
Accounting Fees and
Expenses*
|
$
4,000.00
|
Printing and
Miscellaneous Expenses*
|
$
5,000.00
|
|
|
Total
|
$
27,180.04
|
* Estimated expenses
ITEM 15. INDEMNIFICATION OF OFFICERS AND
DIRECTORS
Our
certificate of incorporation and bylaws contain provisions relating
to the limitation of liability and indemnification of directors and
officers. Our certificate of incorporation provides that a director
will not be personally liable to us or our stockholders for
monetary damages for breach of fiduciary duty as a director, except
for liability:
●
|
for any
breach of the director’s duty of loyalty to us or our
stockholders;
|
●
|
for
acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
|
●
|
under
Section 174 of the Delaware General Corporation Law (the
“
DGCL
”);
or
|
●
|
for any
transaction from which the director derived any improper personal
benefit.
|
Our
certificate of incorporation also provides that if the DGCL is
amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of
our directors will be eliminated or limited to the fullest extent
permitted by the DGCL.
Our
bylaws provide that we will indemnify our directors and officers to
the fullest extent not prohibited by the DGCL; provided, however,
that we may limit the extent of such indemnification by individual
contracts with our directors and executive officers; and provided,
further, that we are not required to indemnify any director or
executive officer in connection with any proceeding (or part
thereof) initiated by such person or any proceeding by such person
against us or our directors, officers, employees or other agents
unless:
●
|
such
indemnification is expressly required to be made by
law;
|
●
|
the
proceeding was authorized by the Board of Directors;
or
|
●
|
such
indemnification is provided by us, in our sole discretion, pursuant
to the powers vested in us under the DGCL.
|
Our
bylaws provide that we shall advance, prior to the final
disposition of any proceeding, promptly following request therefor,
all expenses by any director or executive officer in connection
with any such proceeding upon receipt of any undertaking by or on
behalf of such person to repay said amounts if it should be
determined ultimately that such person is not entitled to e
indemnified under Article XI of our bylaws or otherwise.
Notwithstanding the foregoing, unless otherwise determined, no
advance shall be made by us if a determination is reasonably and
promptly made by the Board of Directors by a majority vote of a
quorum of directors who were not parties to the proceeding, or if
such a quorum is not obtainable, or even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in
a written opinion, that the facts known to the decision-making
party at the time such determination is made demonstrate clearly
and convincingly that such person acted in bad faith or in a manner
that such person did not believe to be in or not opposed to our
best interests.
Our
bylaws also authorize us to purchase insurance on behalf of any
person required or permitted to be indemnified pursuant to Article
XI of our bylaws.
Section
145(a) of the DGCL authorizes a corporation to indemnify any person
who was or is a party, or is threatened to be made a party, to a
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation), by reason of
the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action,
suit or proceeding, if the person acted in good faith and in a
manner the person reasonably believed to be in, or not opposed to,
the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
the person’s conduct was unlawful.
Section
145(b) of the DGCL provides in relevant part that a corporation may
indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit
by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that the person is or was a director,
officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust
or other enterprise against expenses (including attorneys’
fees) actually and reasonably incurred by the person in connection
with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation
and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action
or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
The
DGCL also provides that indemnification under Section 145(d) can
only be made upon a determination that indemnification of the
present or former director, officer or employee or agent is proper
in the circumstances because such person has met the applicable
standard of conduct set forth in Section 145(a) and
(b).
Section
145(g) of the DGCL also empowers a corporation to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any
such capacity, or arising out of such person’s status as
such, whether or not the corporation would have the power to
indemnify such person against such liability under Section 145 of
the DGCL.
Section
102(b)(7) of the DGCL permits a corporation to provide for
eliminating or limiting the personal liability of one of its
directors for any monetary damages related to a breach of fiduciary
duty as a director, as long as the corporation does not eliminate
or limit the liability of a director for acts or omissions which
(1) which breached the director’s duty of loyalty to the
corporation or its stockholders, (2) which were not in good faith
or which involve intentional misconduct or knowing violation of
law, (3) under Section 174 of the DGCL; or (4) from which the
director derived an improper personal benefit.
We
have obtained directors’ and officers’ insurance to
cover our directors and officers for certain
liabilities.
ITEM 16. EXHIBITS
5.1
|
Opinion
re: Legality
|
23.1
|
Consent
of Counsel (included in Exhibit 5.1)
|
23.2
|
C
onsent
of Independent Registered Public Accounting Firm - Mayer
Hoffman McCann P.C.
|
24.1
|
Power
of Attorney (included on the signature page of the Registration
Statement on Form S-3, filed on October 14, 2016)
|
ITEM 17. 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. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
20% change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the
effective 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), (a)(1)(ii) and (a)(1)(iii) of this section do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or
furnished to the SEC by the registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement, or is contained in a form
of prospectus filed pursuant to Rule 424(b) that is part of 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.
(4) That,
for the purpose of determining liability under the Securities Act
to any purchaser:
(i)
If the Registrant is relying on Rule 430B:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3)shall
be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the
registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5),
or (b)(7) as part of a registration statement in reliance on Rule
430B relating to an offering made pursuant to Rule 415(a)(1)(i),
(vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933, as amended shall be
deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any person
that is at that date an underwriter, such date shall be deemed to
be a new effective date of the registration statement relating to
the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date;
or
(ii)
If
the registrant is subject to Rule 430C, each prospectus filed
pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying
on Rule 430B or other than prospectuses filed in reliance on Rule
430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of
first use.
(5) That,
for the purpose of determining liability of the registrant under
the Securities Act to any purchaser in the initial distribution of
the securities: The undersigned registrant undertakes that in a
primary offering of securities of the undersigned registrant
pursuant to this Registration Statement, regardless of the
underwriting method used to sell the securities to the purchaser,
if the securities are offered or sold to such purchaser by means of
any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer
or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to
Rule 424;
(ii) Any
free-writing prospectus relating to the offering prepared by or on
behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii) The
portion of any other free-writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any 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 (and, where applicable,
each filing of an employee benefit plan’s annual report
pursuant to Section 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
herein, 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, as amended, may be permitted to directors,
officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised
that in the opinion of the SEC such indemnification is against
public policy as expressed in the 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
Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of San Diego,
California on March
30
, 2017.
|
IMAGEWARE SYSTEMS, INC.
|
|
|
|
|
By:
|
/s/ S. James
Miller, Jr.
|
|
|
S.
James Miller, Jr.
|
|
|
Chief
Executive Officer, President
(Principal
Executive Officer)
|
Pursuant
to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
Signature
|
Title
|
Date
|
|
|
|
*
S.
James Miller, Jr.
|
Chairman
of the Board, Chief Executive Officer and President
(Principal
Executive Officer)
|
March 30, 2017
|
|
|
|
*
Wayne
Wetherell
|
Chief
Financial Officer
(Principal
Financial Officer & Principal Accounting Officer)
|
|
|
|
|
*
David
Loesch
|
Director
|
|
|
|
|
*
Steve
Hamm
|
Director
|
|
|
|
|
*
David
Carey
|
Director
|
|
|
|
|
*
John
Cronin
|
Director
|
|
|
|
|
*
Neal
Goldman
|
Director
|
|
|
|
|
*
Charles
Crocker
|
Director
|
|
|
|
|
*
Dana
Kammersgard
|
Director
|
|
* By:
/s/ S. James Miller,
Jr.
Attorney-in-fact
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