As filed with the Securities and Exchange Commission on April 19,
2018
Registration
No. 333- _______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
IMAGEWARE SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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33-0224167
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(State or Other Jurisdiction of
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(I.R.S. Employer
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Incorporation or Organization)
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Identification No.)
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10815 Rancho Bernardo Road, Suite 310
San Diego, California 92127
(Address of Principal Executive Offices)
Amended and Restated 1999 Stock Award Plan
(Full title of the plan)
Wayne Wetherell
ImageWare Systems, Inc.
10815 Rancho Bernardo Road, Suite 310
San Diego, California 92127
(Name and address of agent for service)
(858) 673-8600
(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, California 92101
Tel: (619) 272-7050
Fax: (619) 330-2101
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2
of the Exchange Act.
Large
accelerated filer [ ]
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Accelerated
filer [X]
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Non-accelerated
filer [ ]
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Smaller
reporting company [ ]
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Emerging
growth company [ ]
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(Do not check if a smaller reporting company)
If
an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided Section 7(a)(2)(B) of the Securities Act.
[ ]
CALCULATION OF REGISTRATION FEE
Title
of Securities to be Registered
|
Amount
to be
Registered
(1)
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Proposed
Maximum Offering Price
per
Share
(2)
|
Proposed
Maximum
Aggregate
Offering
Price
(2)
|
Amount
of
Registration
Fee
|
Common Stock, par
value $0.01 per share: To be issued under the Amended and Restated
1999 Stock Award Plan
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631,046
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$
1.75
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$
1,104,330.50
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$
137.49
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Common Stock, par
value $0.01 per share: Outstanding options issued by the Registrant
under the Amended and Restated 1999 Stock Award Plan
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4,368,954
(3)
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$
1.75
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$
7,645,669.50
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$
951.89
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Total
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5,000,000
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$
8,750,000
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$
1,089.38
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(1)
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Shares available for issuance under our Amended and Restated 1999
Stock Award Plan (the “
Plan
”)
were previously registered on registration statements on
Form S-8 filed with the Securities and Exchange Commission
(“
SEC
”)
on April 18, 2012 (Registration No. 333-180809), January 11, 2008
(Registration No. 333-148615), November 27, 2001 (Registration
No. 333-74016) and December 6, 2000 (Registration
No. 333-51310). This Registration Statement on Form S-8 is
being filed to register an additional 5,000,000 shares of our
common stock, par value $0.01 per share (“
Common
Stock
”), underlying
options that may be issued or are currently outstanding under the
Plan.
In accordance with Rule
416 under the Securities Act of 1933, as amended, this Registration
Statement shall also be deemed to cover any additional securities
that may from time to time be offered or issued to prevent dilution
resulting from stock splits, stock dividends or similar
transactions.
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(2)
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Pursuant
to General Instruction E to Form S-8, a filing fee is only being
paid with respect to the registration of additional securities
under the Plan. Estimated solely for the purpose of
calculating the amount of the registration fee pursuant to Rules
457(c) and (h) under the Securities Act of 1933, as amended,
on the basis of the average of the high and low selling prices per
share of Common Stock of the Registrant on April 10, 2018, as
reported by the OTCQB Market.
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(3)
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Represents
4,368,954
shares of Common Stock
issuable upon exercise of outstanding options previously issued
under the Plan.
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EXPLANATORY NOTE
ImageWare Systems, Inc.
(the “
Company
”) has prepared this Registration Statement
in accordance with the requirements of Form S-8 under the
Securities Act of 1933, as amended
(the “
Securities
Act
”), to register an additional 5,000,000
shares of the Company’s common stock, par value $0.01 per
share (“
Common
Stock
”), issuable
pursuant to the Company’s Amended and Restated 1999 Stock
Award Plan (the “
Plan
”). The Plan provides for the grant of
incentive stock options, non-qualified stock options, shares of our
Common Stock, restricted shares of Common Stock, restricted stock
units, stock appreciation rights, dividend equivalent rights and
other stock-based awards (collectively, “
Awards
”). Awards, other than incentive stock
options, may be granted to the Company’s employees, officers,
directors and independent contractors.
The Company previously
registered shares available for issuance under the Plan on
registration statements on Form S-8 filed with the SEC on
April 18, 2012 (Registration No. 333-180809), January 11, 2008
(Registration No. 333-148615), November 27, 2001 (Registration
No. 333-74016) and December 6, 2000 (Registration
No. 333-51310).
Pursuant
to General Instruction E to Form S-8, the contents of the Prior
Registration Statements relating to the Plan, and all periodic
reports filed by the Company after the Prior Registration
Statements to maintain current information about the Company are
hereby incorporated by reference.
Part I of this Registration Statement includes a
reoffer prospectus (the “
Reoffer
Prospectus
”). The names
of certain persons who may, from time to time in the future, sell
shares under the Reoffer Prospectus and the amount of such shares
are set forth below under the caption “
Selling
Stockholders
.” In
addition, other affiliate selling stockholders may elect to sell
shares under the Reoffer Prospectus as they receive them from time
to time in the future in which case, as their names and amounts of
shares to be reoffered become known, we will supplement the Reoffer
Prospectus with that information. Any securities covered by the
Reoffer Prospectus which qualify for sale pursuant to Rule 144 may
be sold under Rule 144 rather than pursuant to the Reoffer
Prospectus.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
The
document(s) containing the information concerning the Plan
specified in Part I will be sent or given to participants of the
Plan as specified by Rule 428(b)(1). Such documents are not filed
as part of this Registration Statement in accordance with the Note
to Part I of the Form S-8 Registration Statement.
REOFFER PROSPECTUS
IMAGEWARE SYSTEMS, INC.
4,368,954
Shares of Common
Stock
This Reoffer Prospectus relates to the sale of up
to
4,368,954
shares of our
common stock, par value $0.01 per share (“
Common
Stock
”), that may be
offered and resold from time to time in the future by existing
stockholders of the Company (the “
Selling
Stockholders
”) identified
in this Reoffer Prospectus for his or her own account issuable
pursuant to the Company’s Amended and Restated 1999 Stock
Award Plan (the “
Plan
”). The Plan provides for the grant of
incentive stock options, non-qualified stock options, shares of our
Common Stock, restricted shares of Common Stock, restricted stock
units, stock appreciation rights, dividend equivalent rights and
other stock-based awards (collectively, “
Awards
”). Awards, other than incentive stock
options, may be granted to the Company’s employees, officers,
directors and independent contractors. It is anticipated that
the Selling Stockholders will offer Common Stock for sale at
prevailing prices, as reported by the OTCQB Market on the date of
sale. We will receive no part of the proceeds from sales made under
this Reoffer Prospectus. The Selling Stockholders will bear all
sales commissions and similar expenses. Any other expenses incurred
in connection with the registration and offering of the shares will
be borne by the Company.
The
shares of Common Stock will be issued pursuant to stock options
previously granted under the Plan or granted in the future under
the Plan. This Reoffer Prospectus has been prepared for the
purposes of registering the Common Stock under the Securities Act
of 1933, as amended, to allow for future sales by the Selling
Stockholders on a continuous or delayed basis to the public without
restriction.
Our Common Stock currently listed for quotation on the OTCQB Market
under the symbol “IWSY.” The closing sales price for
our Common Stock on April 10, 2018 was $1.84 per
share.
Investing in our Common Stock
involves risks. See “
Risk
Factors
” on page
4
of this Reoffer
Prospectus.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED
IF THIS REOFFER PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Reoffer Prospectus is April
19
, 2018
IMAGEWA
R
E SYSTEMS, INC.
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You should rely only on the information contained in this Reoffer
Prospectus or any related prospectus supplement. We have not
authorized anyone to provide you with different information. If
anyone provides you with different or inconsistent information, you
should not rely on it. The information contained in this Reoffer
Prospectus or incorporated by reference herein is accurate only on
the date of this Reoffer Prospectus. Our business, financial
condition, results of operations and prospects may have changed
since such date. Other than as required under the federal
securities laws, we undertake no obligation to publicly update or
revise such information, whether as a result of new information,
future events or any other reason.
This Reoffer Prospectus is not an offer to sell, nor is it an offer
to buy, these securities in any jurisdiction where the offer or
sale is not permitted.
This summary highlights certain information that we present more
fully in the rest of this Reoffer Prospectus. This summary does not
contain all of the information you should consider before investing
in the securities offered pursuant to this Reoffer Prospectus. You
should read the entire prospectus carefully, including the section
titled “Risk Factors,” before making an investment
decision.
Except where the context otherwise requires and for purposes of
this Reoffer Prospectus only, “we,” “us,”
“our,” “Company,” “our
Company,” “ImageWare,” and “ImageWare
Systems” refer to ImageWare Systems, Inc., a Delaware
corporation, and its consolidated subsidiaries.
Overview
ImageWare Systems, Inc., a Delaware corporation
since 2005 and previously incorporated in California in 1987 as a
Utah corporation, has its principal place of business at 10815
Rancho Bernardo Road, Suite 310, San Diego, California 92127. Our
telephone number is (858) 673-8600. We maintain a corporate website
at
http://www.iwsinc.com
.
Our common stock, par value $0.01 per share
(“
Common
Stock
”), is currently
listed for quotation on the OTCQB Market under the symbol
“IWSY.” Unless the context otherwise requires, the
words “
we
,” “
us
,” “
our
,” “
ImageWare
,” “
ImageWare
Systems
,”
“
Company
” or “
our Company
” refers to ImageWare Systems, Inc. and all
of its subsidiaries.
We are a pioneer and leader in
the emerging market for biometrically enabled software-based
identity management solutions. Using those human characteristics
that are unique to us all, we create software that provides a
highly reliable indication of a person’s identity.
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 IWS
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 manage and issue secure credentials, including national
IDs, passports, driver licenses and access control credentials. Our
digital booking products provide law enforcement with integrated
mug shots, fingerprint LiveScan and investigative
capabilities. We also provide comprehensive authentication
security software using biometrics to secure physical and logical
access to facilities or computer networks or internet sites.
We are headquartered
in San Diego, California, with offices in Portland, Oregon, Mexico,
and Ottawa, Ontario.
We are also a leading developer of mobile and
cloud-based identity management solutions providing patented
biometric authentication solutions for the enterprise. We deliver
next-generation biometrics as an interactive and scalable
cloud-based solution. We bring together cloud and mobile technology
to offer multi-factor authentication for smartphone users, for the
enterprise, and across industries. We have introduced a set of
mobile and cloud solutions to provide biometric user
authentication, including the GoVerifyID® mobile application
and cloud-based SaaS solutions. These solutions include GoMobile
Interactive (“
GMI
”), which provides patented, secure, dynamic
messaging. More recently we have introduced GoVerifyID®
Enterprise Suite, which provides turnkey integration with Microsoft
Windows, Microsoft Active Directory, and security products from CA,
HPE, IBM, and SAP. These solutions are marketed and sold to
businesses across many industries. For the healthcare industry, we
also developed and market a patented, FDA-Cleared,
biometrically-secured, enterprise-level platform for patient
engagement and medication adherence.
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
(“
SKD
”) 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.
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 mug-books; 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. These products allow for 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 GoVerifyID products support multi-modal
biometric authentication including, but not limited to, face,
voice, fingerprint, iris, palm, and more. All the biometrics can be
combined with or used as replacements for authentication and access
control tools, including tokens, digital certificates, passwords,
and PINS, to provide the ultimate level of assurance,
accountability, and ease of use for corporate networks, web
applications, mobile devices, and PC desktop environments.
GoVerifyID provides patented multi-modal biometric identity
authentication that can be used in place of passwords or as a
strong second factor authentication method. GoVerifyID is provided
as a cloud-based Software-as-a-Service (“
SaaS
”) solution; thereby, eliminating complex IT
deployment of biometric software and eliminating startup costs.
GoVerifyID works with existing mobile devices, eliminating the need
for specialized biometric scanning devices typically used with most
biometric solutions.
GoVerifyID
was built to work seamlessly with our patented technology
portfolio, including GoMobile Interactive®, the secure dynamic
messaging system, and the ultra-scalable IWS Biometric Engine that
provides anonymous biometric matching and storage. GoVerifyID is
secure, simple to use, and designed to provide instant identity
authentication by engaging with the biometric capture capabilities
of each user’s mobile device. GoVerifyID also provides a
fully open SDK for organizations that require the utmost in
flexibility.
Our
GoVerifyID Enterprise Suite for Windows easily and seamlessly
integrates with a user’s existing Microsoft
ecosystem/infrastructure to support the user’s extended
workforce. GoVerifyID Enterprise Suite secures corporate networks
from end-to-end – both applications and data – on
client, server, and cloud systems with flexible user login policies
to address varied trust requirements. Our GoVerifyID Enterprise
Suite works with the smart devices that the workforce already uses,
including iOS/Android smartphones and tablets.
Our GoVerifyID Enterprise Suite for Windows
provides biometric authentication for the Microsoft ecosystem that
secures enterprise security without compromising agility,
productivity, or user experience. Its comprehensive architecture
offers biometric authentication for the complete range of
enterprise stakeholders, delivering secure enterprise applications
and workspaces to internal employees, partners, suppliers and
vendors, even customers. Out-of-band authentication is provided via
universally available devices, such as smartphones and tablets.
In-band authentication can be enabled via fingerprint readers, iris
scanners, and any Windows Biometric Framework compatible device.
The server component provides easy centralized management of
biometric authentication policies for all users, using a standard
Snap-In to the Microsoft Management Console. It provides greater
user assurance and Single Sign-On (“
SSO
”) convenience for all corporate systems and
cloud applications. There is no compromise in agility or user
experience.
GoVerifyID Enterprise Suite also provides options
for seamless integration with leading Enterprise Identity and
Access Management (“
IAM
”) solutions including CA SSO, IBM Security
Access Manager (“
ISAM
”), SAP Cloud Platform, and HPE’s
Aruba ClearPass. These turnkey integrations provide multi-modal
biometric authentication to replace or augment passwords for use
with enterprise and consumer class systems.
Our
pillphone® Platform:
●
Improves
medication adherence and manages chronic conditions by enriching
the relationship between the care team and the patient via its
enterprise level, mobile communication platform;
●
Digitally
connects healthcare providers with patients and provides support
when the patients are outside of the medical facility;
●
Streamlines
workflows and improves care team communication and collaboration
with the patient by offering personalized, two-way interactive,
secure messaging and real-time remote medication monitoring;
and
●
Enhances
the human connection of the care team that is essential for quality
patient-centered care.
Selected Risks Associated with an Investment in Shares of Our
Common Stock
Our business is subject to substantial risk.
Please carefully consider the section titled
“
Risk
Factors
” on page 4
of this Reoffer Prospectus for a
discussion of the factors you should carefully consider before
deciding to purchase the securities offered by this Reoffer
Prospectus. These risks include, among others:
●
available
cash resource may be insufficient to provide for our working
capital needs, including repaying borrowings under our lines of
credit due on or before December 31, 2018, for the next twelve
months;
●
we have a history of significant recurring losses, and we expect
that we will continue to incur substantial operating losses for the
foreseeable future;
●
we
depend upon a small number of large system sales, and if we fail to
achieve one or more large system sales in the future, our business
could be significantly harmed;
●
one
customer accounts for a significant percent of our total revenues,
and loss of such customer could adversely affect our results of
operations and financial condition;
●
a
significant number of our customers and potential customers are
government agencies that are subject to unique political and
budgetary constraints and have special contracting requirements,
which may affect our ability to obtain new and retain current
government customers;
●
Our
lengthy sales cycle may cause us to expend significant resources
for one year or more in anticipation of a sale to certain
customers, yet we still may fail to complete the sale;
●
we face significant competition from companies with greater
resources, and if we are unable to compete effectively, we may not
be able to achieve or maintain significant market penetration or
improve our results of operations;
●
we
operate in foreign countries and are exposed to risks associated
with foreign political, economic and legal environments and with
foreign currency exchange rates;
●
our
Common Stock is subject to “penny stock rules, which may make
it more difficult for holders to sell shares of our Common Stock in
the secondary market; and
●
our
stock has been volatile, and your investment in our Common Stock
could suffer a decline in value.
Additional risks and uncertainties not presently known to us or
that we currently deem immaterial may also impair our business
operations. You should be able to bear a complete loss of your
investment.
By this Reoffer Prospectus, the Selling
Stockholders are offering up to
4,368,954
shares of our Common Stock, which are
issuable pursuant to our Plan. The Selling Stockholders are not
required to sell their shares, and any future sales of Common Stock
by the Selling Stockholders are entirely at the discretion of the
Selling Stockholders. We will receive no proceeds from any future
sale of the shares of Common Stock in this offering. However, upon
any exercise of outstanding stock options granted under the Plan
and any stock options granted in the future under the Plan, we will
receive proceeds associated with such
exercises.
Securities Registered:
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|
4,368,954
shares of common stock, par value $0.01 per share
|
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|
Shares of Common Stock Outstanding Prior to Completion of the
Offering:
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95,114,871
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OTCQB Symbol:
|
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IWSY
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Transfer Agent:
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Our transfer agent is ComputerShare. The transfer agent’s
address is 250 Royal Street, Canton, MA 02021
.
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Risk Factors:
|
|
Our
business operations are subject to numerous risks. See
“
Risk Factors
”
beginning on page 4 of this Reoffer Prospectus for a discussion of
factors you should carefully consider before investing in our
securities.
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Use of Proceeds:
|
|
We will
not receive any proceeds from the sale of the shares of Common
Stock registered pursuant to this Reoffer Prospectus. However, upon
exercise of outstanding stock options granted under the Plan and
any stock options granted in the future under the Plan, we will
receive proceeds associated with such exercises. To the extent that
we receive any funds from the exercise of options or other awards
issued to the Selling Stockholders under the Plans, such funds will
be used for
general corporate purposes
including, but not limited to capital expenditures, repayment of
indebtedness, and additions to working capital
.
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Sales by Affiliates and Sales of Restricted Securities
|
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Selling
Stockholders who are considered “affiliates” of the
Company, as defined in Rule 405 under the Securities Act, or who
are selling “restricted securities,” as defined in Rule
144(a)(3) under the Securities Act, may not sell an amount of
shares pursuant to this Reoffer Prospectus which exceeds in any
three month period the amount specified in Rule 144(e) under the
Securities Act.
|
An investment in our
securities involves a high degree of risk. You should consider the
risks, uncertainties and assumptions described under Item 1A,
“
Risk
Factors
,” in our Annual
Report on Form 10-K for the fiscal year ended December 31, 2017,
which risk factors are incorporated herein by reference, and may be
amended, supplemented or superseded from time to time by other
reports we file with the SEC in the future. The risks and
uncertainties we have described in our Annual Report on Form 10-K
for the fiscal year ended December 31, 2017 are not the only ones
we face. Additional risks and uncertainties not presently known to
us or that we currently deem immaterial may also affect our
operations. The occurrence of any of these known or unknown risks
might cause you to lose all or part of your
investment.
CAUTIONARY
NOTES
REGARDING
FORWARD-LOOKING
STATEMENTS
This
Reoffer Prospectus contains forward-looking statements that involve
substantial risks and uncertainties. All statements contained in
this Reoffer Prospectus other than statements of historical facts,
including statements regarding our strategy, future operations,
future financial position, future revenue, projected costs,
prospects, plans, objectives of management and expected market
growth, are forward-looking statements. These statements involve
known and unknown risks, uncertainties and other important factors
that may cause our actual results, performance or achievements to
be materially different from any future results, performance or
achievements expressed or implied by the forward-looking
statements.
The
words “anticipate,” “believe,”
“estimate,” “expect,” “intend,”
“may,” “plan,” “predict,”
“project,” “target,”
“potential,” “will,” “would,”
“could,” “should,” “continue,”
and similar expressions are intended to identify forward-looking
statements, although not all forward-looking statements contain
these identifying words. These forward-looking statements include,
among other things, statements about:
●
the
availability of capital to satisfy our working capital
requirements;
●
the
accuracy of our estimates regarding expenses, future revenues and
capital requirements;
●
anticipated
trends and challenges in our business and the markets in which we
operate;
●
our ability to
implement our business strategy;
●
our
ability to anticipate market needs or develop new or enhanced
products to meet those needs;
●
our
expectations regarding market acceptance of our
products;
●
the
success of competing products by others that are or become
available in the market in which we sell our products;
●
our
ability to protect our confidential information and intellectual
property rights;
●
our
ability to manage expansion into international
markets;
●
our ability to
maintain or broaden our business relationships and develop new
relationships with strategic alliances, suppliers, customers,
distributors or otherwise;
●
developments
in the U.S. and foreign countries; and
●
other risks and uncertainties, including
those
described under Item
1A, “
Risk
Factors
,” in our Annual
Report on Form 10-K for the fiscal year ended December 31, 2017,
which risk factors are incorporated herein by
reference
.
These
forward-looking statements are only predictions and we may not
actually achieve the plans, intentions or expectations disclosed in
our forward-looking statements, so you should not place undue
reliance on our forward-looking statements. Actual results or
events could differ materially from the plans, intentions and
expectations disclosed in the forward-looking statements we make.
We have based these forward-looking statements largely on our
current expectations and projections about future events and trends
that we believe may affect our business, financial condition and
operating results. We have included important factors in the
cautionary statements included in this Reoffer Prospectus, as well
as certain information incorporated by reference into this Reoffer
Prospectus, that could cause actual future results or events to
differ materially from the forward-looking statements that we make.
Our forward-looking statements do not reflect the potential impact
of any future acquisitions, mergers, dispositions, joint ventures
or investments we may make.
You
should read this Reoffer Prospectus with the understanding that our
actual future results may be materially different from what we
expect. We do not assume any obligation to update any
forward-looking statements whether as a result of new information,
future events or otherwise, except as required by applicable
law.
USE OF PRO
CEEDS
This Reoffer Prospectus relates to shares of our
Common Stock that may be offered and sold from time to time in the
future by the Selling Stockholders. We will not receive any
proceeds from the sale of the shares of Common Stock registered
pursuant to this Reoffer Prospectus. However, upon any
exercise of outstanding stock options granted under the Plan and
any stock options granted in the future under the Plan, we will
receive proceeds associated with such exercises. To the extent
that we receive any funds from the exercise of options or other
awards issued to the Selling Stockholders under the Plan, such
funds will be used
for
general
corporate purposes including, but not limited to capital
expenditures, repayment of indebtedness, and additions to working
capital.
DETERMINATI
O
N OF OF
FERING PRICE
The
Selling Stockholders may, from time-to-time in the future, sell the
Common Stock issued to them from time-to-time upon exercise of
stock options granted to them under the Plan at prices and on terms
then prevailing or at prices related to the then current market
price, or in negotiated transactions.
The Selling Stockholders named in this Reoffer
Prospectus are offering up to
4,368,954
shares of our Common Stock, issuable
upon exercise of stock options granted to the Selling Stockholders
pursuant to the Plan.
The
following table provides, as of April 10, 2018, information
regarding the beneficial ownership of our Common Stock held by each
of the Selling Stockholders, including:
1.
|
the
number of shares of Common Stock beneficially owned by each Selling
Stockholder prior to this offering;
|
2.
|
the
total number of shares of Common Stock that are to be offered by
each Selling Stockholder;
|
3.
|
the
total number of shares of Common Stock that will be beneficially
owned by each Selling Stockholder upon completion of the offering;
and
|
4.
|
the
percentage beneficially owned by each Selling
Stockholder.
|
Information with respect to beneficial ownership is largely based
upon Company records, as well as information obtained from the
Selling Stockholders. Information with respect to “Shares
Beneficially Owned Prior to this Offering” includes the
shares issued pursuant to the Plan. Information with respect to
“Shares Beneficially Owned Upon Completion of this
Offering” assumes the sale of all shares of the Common Stock
offered by this Reoffer Prospectus and no other purchases or sales
of our Common Stock by the Selling Stockholders. Except as
described below and to our knowledge, each named Selling
Stockholder beneficially owns and has sole voting and investment
power over all Common Stock or rights to these shares of Common
Stock.
|
Position with the Company
|
Shares Beneficially Owned
Prior
to this Offering
(1)
|
Number of Shares Being
Offered
(2)
|
Shares Beneficially Owned
Upon
Completion of this Offering
|
|
|
|
|
|
|
|
James
Miller
|
Chief
Executive Officer, Chairman
|
2,417,062
|
2.5
%
|
700,000
|
1,717,062
|
1.8
%
|
Wayne
Wetherell
|
Senior
Vice President of Administration, Chief Financial Officer,
Secretary and Treasurer
|
658,794
|
*
|
210,000
|
448,794
|
*
|
David
Harding
|
Senior
Vice President, Chief Technical Officer
|
1,039,168
|
1.1
%
|
575,000
|
464,168
|
*
|
Robert
Brown
|
Vice
President, Sales and Business Development
|
312,500
|
*
|
450,000
|
-
|
*
|
David
Somerville
|
Senior
Vice President, Sales and Marketing
|
-
|
*
|
300,000
|
-
|
*
|
Charles
Crocker
|
Director
|
1,132,741
|
1.2
%
|
139,686
|
933,055
|
1.0
%
|
Charles
Frischer
|
Director
|
3,029,057
|
3.2
%
|
53,000
|
2,976,057
|
3.1
%
|
Dana
Kammersgard
|
Director
|
178,838
|
*
|
146,000
|
32,838
|
*
|
David
Carey
|
Director
|
235,522
|
*
|
129,686
|
105,836
|
*
|
David
Loesch
|
Director
|
263,730
|
*
|
129,686
|
134,044
|
*
|
Guy
Steve Hamm
|
Director
|
235,608
|
*
|
139,686
|
95,922
|
*
|
John
Cronin
|
Director
|
196,022
|
*
|
139,686
|
56,336
|
*
|
Neal
Goldman
|
Director
|
41,882,559
|
40.7
%
|
139,686
|
41,742,873
|
40.7
%
|
Robert
Clutterbuck
|
Director
|
2,142,348
|
2.3
%
|
53,000
|
2,089,348
|
2.2
%
|
Aaron
Pantuch
|
Employee
|
44,329
|
*
|
10,000
|
34,329
|
*
|
Adam
Robertson
|
Employee
|
7,500
|
*
|
3,000
|
4,500
|
*
|
Ali
Sheikh
|
Employee
|
13,336
|
*
|
21,500
|
-
|
*
|
Anand
Srinivasan
|
Employee
|
-
|
*
|
30,000
|
-
|
*
|
Anna
Brzozowski
|
Employee
|
10,000
|
*
|
10,000
|
-
|
*
|
Brenda
Wenger
|
Employee
|
-
|
*
|
5,000
|
-
|
*
|
Brett
Sullivan
|
Employee
|
4,250
|
*
|
3,000
|
1,250
|
*
|
Brian
Foott
|
Employee
|
67,668
|
*
|
45,000
|
22,668
|
*
|
Christopher
Stage
|
Employee
|
-
|
*
|
10,000
|
-
|
*
|
Cristina
Vasquez
|
Employee
|
4,584
|
*
|
7,000
|
-
|
*
|
Dale
Peek
|
Employee
|
41,168
|
*
|
45,000
|
-
|
*
|
Daniel
Scriber
|
Employee
|
5,002
|
*
|
12,000
|
-
|
*
|
Darren
Semmel
|
Employee
|
39,168
|
*
|
85,000
|
-
|
*
|
David
Mann
|
Employee
|
13,000
|
*
|
5,500
|
7,500
|
*
|
David
Tutt
|
Former
Employee
|
2,088
|
*
|
2,088
|
-
|
*
|
Eden
Celeste
|
Employee
|
10,500
|
*
|
5,000
|
5,500
|
*
|
Gavin
Jung
|
Employee
|
32,000
|
*
|
9,500
|
22,500
|
*
|
Gregg
Curry
|
Employee
|
4,052
|
*
|
3,000
|
1,052
|
*
|
Henry
Chan
|
Employee
|
10,000
|
*
|
15,000
|
-
|
*
|
Jackie
Williford
|
Employee
|
8,500
|
*
|
5,000
|
3,500
|
*
|
Jeffrey
Hotze
|
Employee
|
143,417
|
*
|
65,000
|
78,417
|
*
|
Jesse
Gomez
|
Employee
|
5,500
|
*
|
3,000
|
2,500
|
*
|
Jie
Feng Chen
|
Employee
|
4,168
|
*
|
7,000
|
-
|
*
|
John
Zetterberg
|
Employee
|
14,332
|
*
|
17,000
|
-
|
*
|
Jonathan
Nichols
|
Employee
|
90,834
|
*
|
55,000
|
35,834
|
*
|
Kevin
Cordel
|
Independent
Contractor
|
56,250
|
*
|
50,000
|
6,250
|
*
|
Laura
Frease
|
Employee
|
-
|
*
|
20,000
|
-
|
*
|
Lisa
Caccamese
|
Employee
|
14,500
|
*
|
3,000
|
11,500
|
*
|
Mark
Virnig
|
Employee
|
36,668
|
*
|
75,000
|
-
|
*
|
Matthew
Klep
|
Employee
|
61,064
|
*
|
39,000
|
22,064
|
*
|
Matthew
Saporito
|
Employee
|
-
|
*
|
2,500
|
-
|
*
|
Michael
Campbell
|
Employee
|
7,500
|
*
|
9,500
|
-
|
*
|
Mike
Rerick
|
Employee
|
13,000
|
*
|
3,000
|
10,000
|
*
|
Patrick
Anderson
|
Employee
|
10,000
|
*
|
7,500
|
2,500
|
*
|
Paul
Curry
|
Employee
|
8,000
|
*
|
5,000
|
3,000
|
*
|
Peter
Storli
|
Employee
|
-
|
*
|
2,500
|
-
|
*
|
Phillip
Brown
|
Employee
|
8,000
|
*
|
5,000
|
3,000
|
*
|
Phillipp
Debus
|
Employee
|
7,000
|
*
|
3,500
|
3,500
|
*
|
Quang
Vu
|
Employee
|
21,000
|
*
|
7,500
|
13,500
|
*
|
Raisa
Pantuch
|
Employee
|
76,903
|
*
|
50,000
|
26,903
|
*
|
Randy
Singh
|
Employee
|
5,500
|
*
|
3,000
|
2,500
|
*
|
Rebekah
Folsom
|
Employee
|
10,500
|
*
|
12,500
|
-
|
*
|
Richard
Johnson
|
Employee
|
15,002
|
*
|
21,500
|
-
|
*
|
Robb
Wijnhausen
|
Employee
|
26,000
|
*
|
14,500
|
11,500
|
*
|
Robert
Nies
|
Employee
|
13,336
|
*
|
30,000
|
-
|
*
|
Scott
Wallace
|
Employee
|
15,500
|
*
|
2,500
|
13,000
|
*
|
Sharon
Hall
|
Employee
|
3,586
|
*
|
3,000
|
586
|
*
|
Sheryl
Edward
|
Employee
|
112,500
|
*
|
60,000
|
52,500
|
*
|
Steve
Timm
|
Employee
|
75,000
|
*
|
54,000
|
21,000
|
*
|
Svetla
Iovtcheva
|
Employee
|
27,168
|
*
|
8,000
|
19,168
|
*
|
Tom
Evangelisti
|
Employee
|
125,185
|
*
|
25,000
|
100,185
|
*
|
Tom
Leinberger
|
Former
Employee
|
62,500
|
*
|
56,250
|
6,250
|
*
|
William
Moore
|
Employee
|
-
|
*
|
9,500
|
-
|
*
|
Yang
Zhang
|
Employee
|
3,000
|
*
|
2,500
|
500
|
*
|
* less than 1%
(1)
The
number and percentage of shares beneficially owned is determined in
accordance with Rule 13d-3 of the Securities Exchange Act of 1934,
as amended, and the information is not necessarily indicative of
beneficial ownership for any other purpose. Under such rule,
beneficial ownership includes any shares as to which the Selling
Stockholder has sole or shared voting power or investment power and
also any shares, which the Selling Stockholder has the right to
acquire within 60 days from April 10, 2018. “
Shares Beneficially Owned Upon Completion of
this Offering
” assumes the sale of all of the Common
Stock offered by this Reoffer Prospectus and no other purchases or
sales of our Common Stock by the Selling stockholders.
(2)
Includes shares
that are issuable upon exercise of stock options issued pursuant to
the Plans, some of which are not, and will not become vested within
60 days from April 10, 2018, and are not included in the
calculation of “
Shares
Beneficially Owned Prior to this Offering
.”
(3)
Applicable
percentage ownership is based on 95,114,871 shares of Common Stock
outstanding as of April 10, 2018, together with securities
exercisable or convertible into shares of Common Stock within 60
days of April 10, 2018 for each stockholder, including, for
purposes of the shares beneficially owned prior to the Offering,
the shares offered for resale pursuant to this Reoffer
Prospectus.
Beneficial
ownership is determined in accordance with the rules of the SEC and
generally includes voting or investment power with respect to
securities. Shares of Common Stock that are currently exercisable
or exercisable within 60 days of April 10, 2018, are deemed to be
beneficially owned by the person holding such securities for the
purpose of computing the percentage of ownership of such person,
but are not treated as outstanding for the purpose of computing the
percentage ownership of any other person.
Timing of Sales
Subject
to the foregoing, the Selling Stockholders may elect to offer and
sell the shares covered by this Reoffer Prospectus at various times
in the future. The Selling Stockholders will act independently of
our Company in making decisions with respect to the timing, manner
and size of each sale.
No Known Agreements to Resell the Shares
To
our knowledge, no Selling Stockholder has any agreement or
understanding, directly or indirectly, with any person to resell
the Common Stock covered by this Reoffer Prospectus.
Offering Price
The
sales price offered by the Selling Stockholders to the public may
be:
1.
|
the
market price prevailing at the time of sale;
|
2.
|
a price
related to such prevailing market price; or
|
3.
|
such
other price as the selling stockholders determine from time to
time.
|
Manner of Sale
To the extent permissible, the shares of Common Stock may be sold
by means of one or more of the following methods:
1.
|
a block
trade in which the broker-dealer so engaged will attempt to sell
the Common Stock as agent, but may position and resell a portion of
the block as principal to facilitate the transaction;
|
2.
|
purchases
by a broker-dealer as principal and resale by that broker-dealer
for its account pursuant to this Reoffer Prospectus;
|
3.
|
ordinary
brokerage transactions in which the broker solicits
purchasers;
|
4.
|
through
options, swaps or derivatives;
|
5.
|
in
transactions to cover short sales;
|
6.
|
privately
negotiated transactions; or
|
7.
|
in a
combination of any of the above methods.
|
The
Selling Stockholders may, from time-to-time in the future, sell
their Common Stock directly to purchasers or may use brokers,
dealers, underwriters or agents to sell their Common Stock. Brokers
or dealers engaged by the selling stockholders may arrange for
other brokers or dealers to participate. Brokers or dealers may
receive commissions, discounts or concessions from the selling
stockholders, or, if any such broker-dealer acts as agent for the
purchaser of Common Stock, from the purchaser in amounts to be
negotiated immediately prior to the sale. The compensation received
by brokers or dealers may, but is not expected to, exceed that
which is customary for the types of transactions
involved.
Broker-dealers
may agree with a Selling Stockholder to sell a specified number of
Common Stock at a stipulated price per share, and, to the extent
the broker-dealer is unable to do so acting as agent for a selling
stockholder, to purchase as principal any unsold Common Stock at
the price required to fulfill the broker-dealer commitment to the
selling stockholder.
Broker-dealers
who acquire Common Stock as principal may thereafter resell the
Common Stock from time to time in transactions, which may involve
block transactions and sales to and through other broker-dealers,
including transactions of the nature described above, in the
over-the-counter market or otherwise at prices and on terms then
prevailing at the time of sale, at prices then related to the
then-current market price or in negotiated transactions. In
connection with resales of the Common Stock, broker-dealers may pay
to or receive from the purchasers of shares commissions as
described above.
If
the Selling Stockholders enter into arrangements with brokers or
dealers, as described above, we are obligated to file a
post-effective amendment to this registration statement disclosing
such arrangements, including the names of any broker-dealers acting
as underwriters.
The
Selling Stockholders and any broker-dealers or agents that
participate with the Selling Stockholders in the sale of the Common
Stock may be deemed to be “underwriters” within the
meaning of the Securities Act. In that event, any commissions
received by broker-dealers or agents and any profit on the resale
of the Common Stock purchased by them may be deemed to be
underwriting commissions or discounts under the Securities
Act.
Sales by Affiliates and Sales of Restricted Securities
Selling
Stockholders who are considered “affiliates” of the
Company, as defined in Rule 405 under the Securities Act, or who
are selling “restricted securities”, as defined in Rule
144(a)(3) under the Securities Act, may not sell an amount of
shares pursuant to this Reoffer Prospectus which exceeds in any
three month period the amount specified in Rule 144(e) under the
Securities Act.
Sales Pursuant to Rule 144
Any
shares of Common Stock covered by this Reoffer Prospectus which
qualify for sale pursuant to Rule 144 under the Securities Act may
be sold under Rule 144 rather than pursuant to this Reoffer
Prospectus.
Accordingly,
during such times as a Selling Stockholder may be deemed to be
engaged in a distribution of the Common Stock, and therefore be
considered to be an underwriter, the selling stockholder must
comply with applicable law and, among other things:
1.
|
may not
engage in any stabilization activities in connection with our
Common Stock;
|
2.
|
may not
cover short sales by purchasing shares while the distribution is
taking place; and
|
3.
|
may not
bid for or purchase any of our securities or attempt to induce any
person to purchase any of our securities other than as permitted
under the Exchange Act.
|
In
addition, we will make copies of this Reoffer Prospectus available
to the Selling Stockholders for the purpose of satisfying the
prospectus delivery requirements of the Securities
Act.
State Securities Laws
Under
the securities laws of some states, the Common Stock may be sold in
such states only through registered or licensed brokers or dealers.
In addition, in some states the Common Stock may not be sold unless
the stock has been registered or qualified for sale in the state or
an exemption from registration or qualification is available and is
complied with.
Expenses of Registration
We are bearing all costs relating to the registration of the Common
Stock which may be sold from time-to-time in the future by the
Selling Stockholders. These expenses are estimated to include, but
are not limited to, legal, accounting, printing and mailing fees.
The Selling Stockholders, however, will pay any commissions or
other fees payable to brokers or dealers in connection with any
future sale of their Common Stock pursuant to this Reoffer
Prospectus.
The validity of the Common Stock offered by this
Reoffer Prospectus will be passed upon by Disclosure Law Group, a
Professional Corporation, of San Diego, California
(“
DLG
”).
The consolidated
financial statements of ImageWare Systems, Inc. appearing in our
Annual Report on Form 10-K for the year ended December 31,
2017, and the effectiveness of ImageWare Systems, Inc.’s
internal control over financial reporting as of December 31,
2017, 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.
INCORPORATION OF CER
T
AIN DOCUMENTS BY REFERENCE
The
SEC allows us to “incorporate by reference” into this
Reoffer Prospectus the information that we file with the SEC. This
means that we can disclose important information to you by
referring you to those documents. Information incorporated by
reference is part of this Reoffer Prospectus. Until such time that
a post-effective amendment to this Reoffer Prospectus has been
filed which indicates that all securities offered hereby have been
sold or which deregisters all securities remaining unsold at the
time of such amendment, all documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, shall be deemed to be
incorporated by reference in this Reoffer Prospectus and to be a
part hereof from the date of filing of such documents. Information
that we file at a future date with the SEC will update and
supersede this information. For further information about the
Company and our Common Stock, please read the documents
incorporated by reference below.
(a)
|
The
Registrant’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2017, as filed with the SEC on March 19,
2018;
|
(b)
(c)
|
The
Registrant’s Current Report on Form 8-K, as filed with the
SEC on February 13, 2018; 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
.
|
WHERE YOU
C
AN FIND
ADDITIONAL INFORMATION
This
Reoffer Prospectus is part of a registration statement on Form S-8
that we filed with the SEC. Certain information in the registration
statement has been omitted from this Reoffer Prospectus in
accordance with the rules of the SEC. We file annual, quarterly and
special reports, proxy statements and other information with the
SEC. You can inspect and copy the registration statement as well as
reports, proxy statements and other information we have filed with
the SEC at the public reference room maintained by the SEC at 100 F
Street N.E. Washington, D.C. 20549, You can obtain copies from the
public reference room of the SEC at 100 F Street N.E. Washington,
D.C. 20549, upon payment of certain fees. You can call the SEC at
1-800-732-0330 for further information about the public reference
room. We are also required to file electronic versions of these
documents with the SEC, which may be accessed through the
SEC’s website at http://www.sec.gov.
No
dealer, salesperson or other person is authorized to give any
information or to make any representations other than those
contained in this Reoffer Prospectus, and, if given or made, such
information or representations must not be relied upon as having
been authorized by us. This Reoffer Prospectus does not constitute
an offer to buy any security other than the securities offered by
this Reoffer Prospectus, or an offer to sell or a solicitation of
an offer to buy any securities by any person in any jurisdiction
where such offer or solicitation is not authorized or is unlawful.
Neither delivery of this Reoffer Prospectus nor any sale hereunder
shall, under any circumstances, create any implication that there
has been no change in the affairs of our company since the date
hereof.
DISCLOSURE OF COMMISS
I
ON POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers or persons controlling
us pursuant to the foregoing provisions, we have been informed that
in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is therefore
unenforceable. In addition, indemnification may be limited by state
securities laws.
IMAGEWARE SYSTEMS, INC.
4,368,954
shares of Common
Stock
Reoffer Prospectus
Dated, April 19, 2018
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
Incorporation
of Documents by Reference
The following
documents, which have been previously filed by the Registrant with
the Securities and Exchange Commission (the
“
SEC
”),
are hereby incorporated by reference in this Registration
Statement:
(a)
|
The
Registrant’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2017, as filed with the SEC on March 19,
2018;
|
(b)
(c)
|
The
Registrant’s Current Report on Form 8-K, as filed with the
SEC on February 13, 2018; 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
.
|
Until
such time that a post-effective amendment to this Registration
Statement has been filed which indicates that all securities
offered hereby have been sold or which deregisters all securities
remaining unsold at the time of such amendment, all documents
subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of
filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which is
also deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration
Statement.
Item 4.
Description of Securities
Not
applicable.
Item 5.
Interests of Named Experts and Counsel
Not
applicable.
Item 6.
Indemnification of Directors and Officers
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:
●
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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;
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●
|
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;
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●
|
the
proceeding was authorized by the Board of Directors;
or
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●
|
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 be
indemnified under Article XIII 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
XIII 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 7.
Exemption from Registration Claimed
Not
applicable.
Item 8.
Exhibits
Exhibit
No.
|
|
Document Description
|
|
Incorporation by Reference
|
|
|
Opinion
and Consent of Disclosure Law Group
|
|
Filed
herewith.
|
|
|
|
|
|
Consent
of
Mayer Hoffman McCann
P.C.
|
|
Filed
herewith.
|
|
|
|
|
|
|
|
Consent
of Disclosure Law Group (included as part of Exhibit
5.1)
|
|
|
|
|
|
|
|
Amended
and Restated 1999 Stock Award Plan
|
|
Filed
herewith.
|
Item 9.
Undertakings
(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act; and
(ii) To
reflect in the prospectus any facts or events arising after the
effective date of this 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; and
(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; and
(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; and
(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.
Provided
,
however
, that paragraphs (1)(i) and (1)(ii) above 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 Commission by the Company
pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act that are incorporated by reference in the Registration
Statement.
(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
Section 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 this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the 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
Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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-8 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,
State of California, on April 19, 2018.
|
|
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ImageWare Systems, Inc.
|
|
|
|
By:
/s/ S.
James Miller, Jr.
|
|
S. James Miller, Jr.
|
|
Chief Executive Officer, President, Chairman of the
Board
|
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(s)
|
|
Date
|
|
|
|
/s/ S. James
Miller, Jr.
S.
James Miller, Jr.
|
|
President,
Chief Executive Officer and Chairman
of the
Board
|
|
April
19, 2018
|
|
|
|
/s/ Wayne
Wetherell
Wayne
Wetherell
|
|
Chief
Financial Officer
|
|
April
19, 2018
|
|
|
|
/s/ David
Loesch
David
Loesch
|
|
Director
|
|
April
19, 2018
|
|
|
|
/s/ Steve
Hamm
Steve
Hamm
|
|
Director
|
|
April
19, 2018
|
|
|
|
/s/ David
Carey
David
Carey
|
|
Director
|
|
April
19, 2018
|
|
|
|
|
|
/s/ John
Cronin
John
Cronin
|
|
Director
|
|
April
19, 2018
|
/s/ Neal
Goldman
Neal
Goldman
|
|
Director
|
|
April
19, 2018
|
|
|
|
/s/ Charles
Crocker
Charles
Crocker
|
|
Director
|
|
April
19, 2018
|
|
|
|
/s/ Dana
Kammersgard
Dana
Kammersgard
|
|
Director
|
|
April
19, 2018
|
|
|
|
/s/ Robert T.
Clutterbuck
Robert
T. Clutterbuck
|
|
Director
|
|
April
19, 2018
|
|
|
|
|
|
/s/ Charles
Frischer
Charles
Frischer
|
|
Director
|
|
April
19, 2018
|
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