PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents
filed by the Registrant with the Commission are incorporated by reference into
this Registration Statement:
(a)
The Registrants Annual Report on Form 10-K
for the year ended December 31, 2006 filed with the Commission on April 17,
2007, as amended pursuant to the Registrants Annual Report on Form 10-K/A
filed on each of April 30, 2007, May 7, 2007 and May 9, 2007,
which is the Registrants latest Annual Report on Form 10-K filed pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the Exchange Act), and which contains audited financial
statements for the Registrants latest fiscal year for which an Annual Report
on Form 10-K was required to have been filed;
(b) The
Registrants Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
2007 filed with the Commission on May 15, 2007;
(c) The
Registrants Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
2007 filed with the Commission on August 14, 2007;
(d) The
Registrants Quarterly Report on Form 10-Q for the fiscal quarter ended September 30,
2007 filed with the Commission on November 14, 2007;
(e) The
Registrants Current Reports on Form 8-K (other than information contained
in Current Reports on Form 8-K that is furnished, but not filed) filed
with the Commission on March 15, 2007, April 3, 2007, May 21,
2007, August 14, 2007, September 26, 2007, October 18, 2007, November 16,
2007, December 10, 2007 and December 21, 2007; and
(f) The
description of the Registrants Common Stock contained in the Registrants
Registration Statement on Form 8-A filed on March 21, 2000 (File No. 001-15757),
pursuant to Section 12(b) of the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All other reports and other
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference into this Registration Statement and
to be a part of this Registration Statement from the date of the filing of such
reports and documents, except as to any portion of any future annual or
quarterly report to stockholders or document or current report furnished under
current Items 2.02 or 7.01 of Form 8-K that is not deemed filed under such
provisions.
For the purposes of
this Registration Statement, any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded to the extent that a statement contained herein or
in any other subsequently filed document that also is or is 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.
You should rely only on the
information provided or incorporated by reference in this Registration
Statement or any related prospectus. The
Registrant has not authorized anyone to provide you with different
information. You should not assume that
the information in this Registration Statement or any related prospectus is
accurate as of any date other than the date on the front of the document.
2
You may contact the
Registrant in writing or orally to request copies of the above-referenced
filings, without charge (not including exhibits to such documents unless such
exhibits are specifically incorporated by reference into the information
incorporated into this Registration Statement).
Requests for such information should be directed to:
Corporate
Secretary
ImageWare
Systems, Inc.
10883
Thornmint Road
San
Diego, California 92127
(858)
673-8600
ITEM
4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5.
INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares
of Common Stock being offered by this prospectus and certain other legal
matters are being passed upon for the Registrant by Paul, Hastings, Janofsky &
Walker LLP, San Diego, California.
ITEM
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is
incorporated under the laws of the State of Delaware. Section 145 of the
Delaware General Corporation Law provides that a Delaware corporation may
indemnify any persons who are, or are threatened to be made, parties to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of such corporation), by reason of the fact that such person was an
officer, director, employee or agent of such corporation, or is or was serving
at the request of such person as an officer, director, employee or agent of
another corporation or enterprise. The indemnity may include expenses
(including attorneys fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided that such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the corporations
best interests and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his or her conduct was illegal. A Delaware
corporation may indemnify any persons who are, or are threatened to be made, a
party to any threatened, pending or completed action or suit by or in the right
of the corporation by reason of the fact that such person was a director,
officer, employee or agent of such corporation, or is or was serving at the request
of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit provided such person
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the corporations best interests except that no indemnification
is permitted without judicial approval if the officer or director is adjudged
to be liable to the corporation. Where an officer or director is successful on
the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him or her against the expenses that such officer or
director has actually and reasonably incurred. The Registrants amended and
restated certificate of incorporation and amended and restated bylaws provide
for the indemnification of the Registrants directors and officers to the
fullest extent permitted under the Delaware General Corporation Law.
The Registrants amended and
restated bylaws provide that expenses incurred by any officer or director in
defending any such action, suit or proceeding in advance of its final
disposition shall be paid by the Registrant, provided, however, that if
required by the Delaware General Corporation Law, such expenses shall be
advanced only upon delivery to the Registrant of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it
shall ultimately be determined that such director or officer is not entitled to
be indemnified by the Registrant.
3
Section 174 of the
Delaware General Corporation Law provides, among other things, that a director
who willfully or negligently approves of an unlawful payment of dividends or an
unlawful stock purchase or redemption may be held liable for such actions. A
director who was either absent when the unlawful actions were approved, or
dissented at the time, may avoid liability by causing his or her dissent to
such actions to be entered in the books containing minutes of the meetings of
the board of directors at the time such action occurred or immediately after
such absent director receives notice of the unlawful acts.
As permitted by the Delaware
General Corporation Law, the Registrant has entered into indemnity agreements
with each of its directors and executive officers that require the Registrant
to indemnify such persons against any and all expenses including attorneys,
witness or other professional fees and related disbursements and other
out-of-pocket costs incurred by such director or officer in connection with the
investigation, defense or appeal of a proceeding or establishing or enforcing a
right to indemnification under the indemnity agreements, Delaware General
Corporation Law or otherwise, and amounts paid in settlement by or on behalf of
such director or officer, but will not include any judgments, fines or
penalties actually levied against such director or officer for such individuals
violations of law. Proceedings that are covered by the indemnity
agreements include any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed proceeding
(including an action by or in the Registrants right), and whether civil,
criminal, administrative or investigative in nature to which such director or
officer is, was or at any time will be involved as a party, or is threatened to
be made a party, by reason of the fact: (i) that such director or officer
is or was a director or officer; or (ii) that such director or officer is
or was serving at the Registrants request as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, whether or not serving in such capacity at
the time any liability or expense is incurred for which indemnification,
reimbursement, or advancement of expenses may be provided under the indemnity
agreements.
Such additional indemnity is
not available, however, with respect to: (i) a final judgment rendered
against such director or officer for an accounting, disgorgement or repayment
of profits made from the purchase or sale by such individual of securities of
the Registrant against such individual or in connection with a settlement by or
on behalf of such individual to the extent it is acknowledged by him or her and
the Registrant that such amount paid in settlement resulted from the individuals
conduct from which the individual received monetary personal profit, pursuant
to the provisions of Section 16(b) of the Exchange Act or other
provisions of any federal, state or local statute or rules and regulations
thereunder; (ii) a final judgment that such director or officers conduct
was in bad faith, knowingly fraudulent or deliberately dishonest or constituted
willful misconduct (but only to the extent of such specific determination); (iii) on
account of conduct that is established by a final judgment as constituting a
breach of such director or officers duty of loyalty to the Registrant or
resulting in any personal profit or advantage to which such individual is not
legally entitled; (iv) claims for which payment is actually made to such
director or officer under a valid and collectible insurance policy or under a
valid and enforceable indemnity clause, bylaw or agreement, except in respect
of any excess beyond payment under such insurance, clause, bylaw or agreement;
or (v) remuneration paid to such director or officer, if it is determined
by final judgment that such remuneration was in violation of law (and, in this
respect, both the Registrant and such individual have been advised that the
Commission believes that indemnification for liabilities arising under the
federal securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be submitted to
appropriate courts for adjudication). Nor do the indemnity agreements
provide for additional indemnity with respect to proceedings or claims
initiated or brought by such director or officer against the Registrant or its
directors, officers, employees or other agents, except with respect to: (a) indemnification
required by applicable law; (b) proceedings authorized by the Registrants
board of directors; (c) indemnification provided by the Registrant in its
sole discretion pursuant to its powers under the Delaware General Corporation
Law; or (d) proceedings brought to enforce a right to indemnification
under the indemnity agreements. The indemnity agreements do not obligate
the Registrant to pay for any amounts paid in settlement of a proceeding
effected without the Registrants written consent. The
indemnification agreements also set forth certain procedures that will apply in
the event of a claim for indemnification thereunder.
The Registrant has an
insurance policy covering its officers and directors with respect to certain
liabilities, including liabilities arising under the Securities Act or
otherwise.
4
(1) Incorporated
by reference to Exhibit 4.1 to the Registration Statement for Small
Business Issuers, Form SB-2, filed December 20, 1999.
(2) Incorporated
by reference to Annex B to the Definitive Proxy Statement on
Schedule 14A, filed November 15, 2005.
(3) Incorporated
by reference to Annex C to the Definitive Proxy Statement on Schedule 14A,
filed November 15, 2005.
(4) Incorporated
by reference to Exhibit 3.1 to the Current Report on Form 8-K, filed November 20,
2006.
(5) Incorporated
by reference to Exhibit 3.1 to the Current Report on Form 8-K, filed March 15,
2007.
(6) Incorporated
by reference to Exhibit 10.1 to the Current Report on Form 8-K, filed
November 20, 2006.
(7) Incorporated
by reference to Exhibit 10.2 to the Current Report on Form 8-K, filed
November 20, 2006.
(8) Incorporated
by reference to Exhibit 10.1 to the Current Report on Form 8-K, filed
March 15, 2007.
(9) Incorporated
by reference to Exhibit 10.2 to the Current Report on Form 8-K, filed
March 15, 2007.
(10) Incorporated
by reference to Exhibit 10.1 to the Current Report on Form 8-K, filed
September 26, 2007.
(11) Incorporated
by reference to Exhibit 10.2 to the Current Report on Form 8-K, filed
September 26, 2007.
(12) Incorporated
by reference to Appendix B to the Definitive Proxy Statement on
Schedule 14A, filed November 21, 2007.
ITEM 9. UNDERTAKINGS.
(a)
The 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 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 this Registration Statement;
and
(iii)
To include any material information with respect to the plan of distribution
not previously disclosed in this Registration Statement or any material change
to such information in this Registration Statement;
Provided, however, that:
(A) paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in this Registration
Statement
(2) That, for the
purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from
registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
(b) The
Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the Registrants annual report
pursuant to Section 13(a) or 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.
6
(h) 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 Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
7
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, as amended, 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 January 11, 2008.
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IMAGEWARE SYSTEMS, INC.
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By:
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/s/ S. James Miller, Jr.
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S. James Miller, Jr.
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Chief Executive Officer and Chairman of the
Board of Directors
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POWER OF ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENTS
, that each person whose signature appears below constitutes and
appoints S. James Miller, Jr. and Wayne Wetherell, and each of them, his
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitutes or substitute, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, as amended, this Registration Statement has been
signed by the following persons in the capacities and on the dates indicated.
SIGNATURE
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TITLE(S)
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DATE
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/s/ S. James Miller, Jr.
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Chief Executive Officer and Chairman of the Board
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January 11, 2008
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S. James Miller, Jr.
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(Principal Executive Officer)
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/s/ Wayne Wetherell
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Senior Vice President, Administration and Chief
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Wayne Wetherell
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Financial Officer
(Principal Financial and
Accounting Officer)
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January 11, 2008
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/s/ John Callan
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Director
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John Callan
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January 11, 2008
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/s/ David Carey
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Director
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David Carey
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January 11, 2008
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/s/ Patrick J.
Downs
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Director
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Patrick J.
Downs
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January 11, 2008
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/s/ G. Steve Hamm
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Director
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G. Steve Hamm
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January 11, 2008
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/s/ John L. Holleran
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Director
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John L. Holleran
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January 11, 2008
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/s/ David Loesch
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Director
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David Loesch
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January 11, 2008
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EXHIBIT INDEX
Exhibit
Number
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Description
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4.1
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(1)
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Form of Common Stock certificate.
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4.2
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(2)
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Certificate of Incorporation.
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4.3
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(3)
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Bylaws.
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4.4
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(4)
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Certificate
of Designations of Preferences, Rights and Limitations of Series C 8%
Convertible Preferred Stock dated November 2, 2006, as amended.
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4.5
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(5)
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Certificate
of Designation of Preferences, Rights and Limitations of Series D 8%
Convertible Preferred Stock dated March 8, 2007.
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4.6
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(6)
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Securities Purchase Agreement, dated November 14, 2006 by and
among the Registrant, Gruber & McBaine Capital Management, LLC and
other investors.
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4.7
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(7)
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Registration Rights Agreement, dated November 14, 2006 by and
among the Registrant and certain investors.
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4.8
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(8)
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Securities Purchase Agreement, dated March 9, 2007, by and among
the Registrant and certain accredited investors.
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4.9
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(9)
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Registration Rights Agreement, dated March 9, 2007, by and among
the Registrant and certain accredited investors.
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4.10
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(10)
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Securities
Purchase Agreement dated September 25, 2007 by and among the Registrant
and certain accredited investors.
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4.11
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(11)
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Registration Rights Agreement dated September 25, 2007 by and
among the Registrant and certain accredited investors.
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4.12
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(12)
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Amended and Restated 1999 Stock Award Plan
and forms of agreements related thereto.
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5.1
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Opinion of Paul, Hastings, Janofsky & Walker LLP.
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23.1
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Consent of Independent Registered Public Accounting Firm.
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23.2
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Consent of Paul, Hastings, Janofsky & Walker LLP. Reference
is made to Exhibit 5.1.
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24.1
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Power of Attorney. Reference is made to the signature page of
this Registration Statement on Form S-8.
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(1) Incorporated
by reference to Exhibit 4.1 to the Registration Statement for Small
Business Issuers, Form SB-2, filed December 20, 1999.
(2) Incorporated
by reference to Annex B to the Definitive Proxy Statement on
Schedule 14A, filed November 15, 2005.
(3) Incorporated
by reference to Annex C to the Definitive Proxy Statement on
Schedule 14A, filed November 15, 2005.
(4) Incorporated
by reference to Exhibit 3.1 to the Current Report on Form 8-K, filed November 20,
2006.
(5) Incorporated
by reference to Exhibit 3.1 to the Current Report on Form 8-K, filed March 15,
2007.
(6) Incorporated
by reference to Exhibit 10.1 to the Current Report on Form 8-K, filed
November 20, 2006.
(7) Incorporated
by reference to Exhibit 10.2 to the Current Report on Form 8-K, filed
November 20, 2006.
(8) Incorporated
by reference to Exhibit 10.1 to the Current Report on Form 8-K, filed
March 15, 2007.
(9) Incorporated
by reference to Exhibit 10.2 to the Current Report on Form 8-K, filed
March 15, 2007.
(10) Incorporated
by reference to Exhibit 10.1 to the Current Report on Form 8-K, filed
September 26, 2007.
(11) Incorporated
by reference to Exhibit 10.2 to the Current Report on Form 8-K, filed
September 26, 2007.
(12) Incorporated
by reference to Appendix B to the Definitive Proxy Statement on Schedule 14A,
filed November 21, 2007.