<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 20, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
------------------------
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
IMAGEWARE SYSTEMS, INC.
(Name of small business issuer in its charter)
<TABLE>
<S> <C> <C>
CALIFORNIA 7373 33-0224167
(State or other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification No.)
Incorporation or Organization)
</TABLE>
10883 THORNMINT ROAD
SAN DIEGO, CALIFORNIA 92127
(858) 673-8600
(Address and telephone number of principal executive offices and principal place
of business)
S. JAMES MILLER, JR., PRESIDENT
IMAGEWARE SYSTEMS, INC.
10883 THORNMINT ROAD
SAN DIEGO, CALIFORNIA 92127
(858) 673-8600
(Name, address and telephone number of agent for service)
------------------------
COPIES TO:
<TABLE>
<S> <C>
ROBERT G. COPELAND, ESQ. THOMAS P. PALMER, ESQ.
DENNIS J. DOUCETTE, ESQ. Tonkon Torp LLP
Luce, Forward, Hamilton & Scripps LLP 1600 Pioneer Tower
600 West Broadway, Suite 2600 888 SW Fifth Avenue
San Diego, California 92101 Portland, Oregon 97204
(619) 699-2517 (503) 802-2018
(619) 645-5322 (fax) (503) 972-3718 (fax)
</TABLE>
------------------------
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SECURITY(1) PRICE FEE
<S> <C> <C> <C> <C>
Units, each consisting of(2)....... 1,725,000 $10.00 $17,250,000 $4,554
(i) one share of common stock,
and............................ 1,725,000 -- -- --
(ii) one warrant to purchase one
share of common stock.......... 1,725,000 -- -- --
Representative's warrants(3)....... 150,000 -- -- --
Units issuable upon exercise of
representative's warrants, each
consisting of.................... 150,000 $12.00 $1,800,000 $476
(i) one share of common stock,
and............................ 150,000 -- -- --
(ii) one warrant to purchase one
share of common stock.......... 150,000 -- -- --
Common stock issuable upon exercise
of warrants, including warrants
underlying representative's
warrants(4)...................... 1,875,000 $15.00 $28,125,000 $7,425
Total.............................. $47,175,000 $12,455
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(g) under the Securities Act of 1933.
(2) Includes 225,000 units which Paulson Investment Company, Inc., the
representative of the underwriters, has the option to purchase to cover
over-allotments, if any.
(3) In connection with the sale of the units, ImageWare Systems, Inc. will issue
to the representative warrants to purchase, in the aggregate, up to 150,000
units.
(4) Pursuant to Rule 416 under the Securities Act of 1933, there are also being
registered such additional shares and warrants as may be issuable pursuant
to the anti-dilution provisions of the public warrants and the
representative's warrants.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
PRELIMINARY PROSPECTUS
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
SUBJECT TO COMPLETION
DATED DECEMBER 20, 1999
1,500,000 UNITS
[LOGO]
This is an initial public offering of units by ImageWare Systems, Inc. Each
unit consists of one share of common stock and one redeemable public warrant to
purchase one share of common stock. We expect that the initial public offering
price will be between $8 and $10 per unit. Prior to this offering, there has
been no public market for our securities. We have filed an application to list
the units, the common stock and the public warrants on The Nasdaq SmallCap
Market under the symbols "IWSIU," "IWSI" and "IWSIW."
The common stock and warrants will trade only as a unit for at least
30 days following this offering. The representative of the underwriters will
then determine when the units separate, after which the common stock and the
public warrants will trade separately.
INVESTING IN THESE UNITS INVOLVES SIGNIFICANT RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 5.
<TABLE>
<CAPTION>
PER UNIT TOTAL
-------- -----------
<S> <C> <C>
Initial public offering price............................... $ . $
Underwriting discounts and commissions...................... $ . $
Proceeds to ImageWare Systems, Inc.......................... $ . $
</TABLE>
THE SECURITIES AND EXCHANGE COMMISSION AND STATE SECURITIES REGULATORS HAVE
NOT APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS
IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
Paulson Investment Company, Inc. is the representative of the underwriters.
We have granted the representative the option for a period of 45 days to
purchase up to an additional 225,000 units to cover over-allotments.
PAULSON INVESTMENT COMPANY, INC.
The date of this prospectus is , 1999.
<PAGE>
[artwork]
WE HAVE THE FOLLOWING REGISTERED TRADEMARKS:
IMAGEWARE-REGISTERED TRADEMARK-, C.R.I.M.E.S.-REGISTERED TRADEMARK-, SUSPECT
ID-REGISTERED TRADEMARK-, VEHICLE ID-REGISTERED TRADEMARK-, IMAGE
WIZARD-REGISTERED TRADEMARK-, PEOPLE POSTCARDS-REGISTERED TRADEMARK- AND
MORPHWIZARD-REGISTERED TRADEMARK-. WE ALSO HAVE THE FOLLOWING UNREGISTERED
TRADEMARKS: CRIME CAPTURE SYSTEM-TM-, FACE ID-TM-, CRIME LAB-TM-, CRIME WEB-TM-,
FACE INVESTIGATE-TM- AND FORCE FIELD 2000-TM-.
<PAGE>
PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY HIGHLIGHTS SELECTED INFORMATION CONTAINED IN THIS
PROSPECTUS. THIS SUMMARY DOES NOT CONTAIN ALL THE INFORMATION YOU SHOULD
CONSIDER BEFORE INVESTING IN THE UNITS. BEFORE MAKING AN INVESTMENT DECISION,
YOU SHOULD READ THE ENTIRE PROSPECTUS CAREFULLY, INCLUDING THE "RISK FACTORS"
SECTION, THE FINANCIAL STATEMENTS AND THE NOTES TO THE FINANCIAL STATEMENTS.
HISTORICAL INFORMATION REGARDING OUR SECURITIES HAS BEEN ADJUSTED TO REFLECT
A 5.275-TO-1 REVERSE STOCK SPLIT EFFECTED ON NOVEMBER 29, 1999. EXCEPT AS
OTHERWISE INDICATED, ALL INFORMATION IN THIS PROSPECTUS ASSUMES NO EXERCISE OF
THE REPRESENTATIVE'S OVER-ALLOTMENT OPTION OR THE REPRESENTATIVE'S WARRANTS.
REFERENCES TO "US," THE "COMPANY" OR "IMAGEWARE" INCLUDE IMAGEWARE
SYSTEMS, INC. AND OUR WHOLLY-OWNED SUBSIDIARY, XIMAGE CORPORATION, UNLESS
OTHERWISE INDICATED.
OUR COMPANY
We develop, sell and support a suite of modular software products that is
used by law enforcement and public safety agencies to manage criminal history
records. Our software systems and associated hardware allow our customers to
quickly capture, archive, search, retrieve and share digital photographs and
criminal history records. Our products are currently being used by government
agencies such as the New York City Police Department, the Los Angeles County
Sheriff's Department, the Arizona Department of Public Safety, the Montreal
Police Department and law enforcement agencies in Minneapolis, Portland,
Seattle, Indianapolis and Orlando.
The National Institute of Justice estimated in 1998 that there were
approximately 60 million criminal history records and that this number is
increasing by more than 20 million per year. Police, sheriffs, FBI officials,
airport police and many others all have a need to quickly access criminal
records to identify criminal suspects and offenders by visual descriptions. Many
law enforcement booking systems are still merely an inefficient file of paper
records which cannot be accessed quickly or from a remote location. In many
places, witnesses still flip through books of photographs to try to identify a
suspect. In light of these inefficiencies and the large number of criminal
records, many agencies are turning to new technologies to increase their ability
to quickly access these records to identify, locate and arrest criminal
suspects.
To take advantage of the growing law enforcement market for digital imaging
technology, we have developed a suite of modular software products known as the
Crime Reduction, Image Management and Enhancement System, or "C.R.I.M.E.S." The
C.R.I.M.E.S. system consists of the following software modules, which may also
be purchased individually: The Crime Capture System, Face ID, Suspect ID, Crime
Lab and Vehicle ID. To date, our products have been used by more than 450
customers.
The key elements of our business strategy include the following:
- Fully exploit the expanding law enforcement and public safety markets.
- Enhance existing products and develop new products to allow Internet and
wireless real-time access to criminal record databases.
- Expand into related public safety applications such as inmate control for
correctional facilities, remote check-in of parolees and probationers, gun
registration and the identification of missing children.
- Penetrate the access control and identification markets for large
customers such as corporations, hospitals, universities and government
agencies.
- Acquire other businesses in order to expand our customer base, increase
the range of products we offer to our customers and enter new markets.
1
<PAGE>
ImageWare Systems, Inc. was incorporated in California in February 1987 as
Practically Perfect Productions, Inc. and changed its name to ImageWare
Software, Inc. in July 1992. We first focused on the law enforcement and public
safety markets in 1994 and originally introduced our C.R.I.M.E.S. system in
August 1995. We acquired XImage Corporation in January 1998. We changed our name
to ImageWare Systems, Inc. in November 1999. Our headquarters are located at
10883 Thornmint Road, San Diego, California 92127, and our telephone number is
(858) 673-8600. Our website address is WWW.IWSINC.COM. Information contained on
our website or any other website does not constitute a part of this prospectus.
THIS OFFERING
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<S> <C>
Securities offered........................... 1,500,000 units. Each unit consists of one
share of common stock and one public warrant
to purchase an additional share of common
stock.
The common stock and public warrants will
trade only as a unit for at least 30 days
following this offering. The representative
of the underwriters will then determine when
the units separate, after which the common
stock and the public warrants will trade
separately.
Public warrants.............................. The public warrants included in the units
will be exercisable commencing 30 days after
the offering. The exercise price of a public
warrant is 120% of the initial public
offering price of the units during the first
year after the offering and 150% of the
initial public offering price of the units
thereafter. The public warrants expire on the
fifth anniversary of the closing of the
offering.
We have the right, commencing six months
after the closing of the offering, to redeem
the public warrants issued in the offering at
a redemption price of $0.25 per public
warrant, after providing 30 days prior
written notice to the public warrant holders,
if the average closing bid price of the
common stock equals or exceeds 200% of the
initial public offering price of the units
for ten consecutive trading days ending prior
to the date of the notice of redemption.
Common stock outstanding after this 2,655,482 shares
offering...................................
Use of proceeds.............................. Repayment of debt, sales and marketing,
research and development and working capital.
Proposed Nasdaq SmallCap Market symbols
Common stock............................... IWSI
Units offered in this offering............. IWSIU
Public warrants included in the units...... IWSIW
</TABLE>
2
<PAGE>
The number of shares of common stock outstanding after this offering is
based on 1,155,482 shares outstanding as of December 13, 1999, after a
5.275-to-1 reverse stock split effected November 29, 1999. The number of shares
of common stock outstanding after this offering assumes no exercise of the
underwriters' over-allotment option and does not include an aggregate of
2,685,141 shares of common stock that may become outstanding as follows:
- approximately 86,982 shares of common stock issuable upon voluntary
conversion of all of the outstanding shares of Series B Preferred Stock
plus accrued but unpaid dividends thereon;
- 431,610 shares of common stock issuable upon exercise of stock options
outstanding as of December 13, 1999, with a weighted average exercise
price of $6.96;
- 328,662 shares of common stock issuable upon exercise of warrants
outstanding as of December 13, 1999, with a weighted average exercise
price of $9.02;
- 37,887 shares of common stock issuable upon conversion of convertible
notes outstanding as of December 13, 1999;
- 1,500,000 shares of common stock issuable upon exercise of the public
warrants; and
- 300,000 shares of common stock issuable upon exercise of the
representative's warrants and the public warrants underlying the
representative's warrants.
3
<PAGE>
SUMMARY CONSOLIDATED FINANCIAL INFORMATION
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEARS ENDED DECEMBER 31, SEPTEMBER 30,
------------------------ -------------------------
1997 1998 1998 1999
---------- ----------- ----------- -----------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues
Product................................... $ 459,358 $ 2,708,856 $ 1,932,813 $ 2,531,144
Maintenance............................... 2,610 1,307,286 1,004,328 954,321
License and other......................... 2,434,108 220,175 150,978 9,319
---------- ----------- ----------- -----------
2,896,076 4,236,317 3,088,119 3,494,784
Cost of Revenues
Product................................... 77,584 1,354,920 764,122 943,004
Maintenance............................... -- 1,065,740 927,680 607,171
---------- ----------- ----------- -----------
Gross margin................................ 2,818,492 1,815,657 1,396,317 1,944,609
---------- ----------- ----------- -----------
Operating, general and administrative
expenses.................................. 1,436,447 2,265,312 1,676,542 1,874,811
Sales and marketing expenses................ 918,557 960,246 714,276 701,183
Research and development expenses........... 482,834 831,034 569,443 836,542
Depreciation and amortization............... 167,402 988,838 723,869 725,234
---------- ----------- ----------- -----------
3,005,240 5,045,430 3,684,130 4,137,770
---------- ----------- ----------- -----------
Loss from operations...................... (186,748) (3,229,773) (2,287,813) (2,193,161)
---------- ----------- ----------- -----------
Interest expense, net....................... 17,629 204,287 155,633 239,939
---------- ----------- ----------- -----------
Loss before income taxes.................. (204,377) (3,434,060) (2,443,446) (2,433,100)
---------- ----------- ----------- -----------
Provision for income taxes.................. 196,104 -- -- --
---------- ----------- ----------- -----------
Net loss.................................. $ (400,481) $(3,434,060) $(2,443,446) $(2,433,100)
========== =========== =========== ===========
Net loss per common share................... $ (.70) $ (4.08) $ (2.91) $ (2.56)
========== =========== =========== ===========
Basic and diluted weighted average shares... 680,273 861,875 860,674 974,283
========== =========== =========== ===========
</TABLE>
<TABLE>
<CAPTION>
SEPTEMBER 30, 1999
-------------------------
ACTUAL AS ADJUSTED
BALANCE SHEET DATA: ----------- -----------
(UNAUDITED)
<S> <C> <C>
Cash........................................................ $ 89,216 $ 6,785,946
Net intangible assets....................................... 2,115,284 2,115,284
Total assets................................................ 3,938,274 10,635,004
Total current liabilities................................... 6,428,765 1,754,731
Notes payable, net of current portion....................... 165,022 165,022
Total liabilities........................................... 6,593,787 1,919,753
Total shareholders' equity (deficit)........................ (2,655,513) 8,715,251
</TABLE>
The as adjusted balance sheet data reflects (1) debt incurred and portions
of loans repaid since September 30, 1999, (2) the receipt of the estimated net
proceeds from the sale of 1,500,000 units offered by us in this offering at an
assumed initial public offering price of $9.00 per unit (the midpoint of the
assumed $8-$10 range), after deducting underwriting discounts and commissions
and estimated offering expenses, and (3) the planned use of the net proceeds of
the offering.
4
<PAGE>
RISK FACTORS
THIS OFFERING INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD CAREFULLY CONSIDER
THE FOLLOWING RISK FACTORS AND ALL OTHER INFORMATION CONTAINED IN THIS
PROSPECTUS BEFORE PURCHASING ANY UNITS. ANY OF THE FOLLOWING RISKS COULD
MATERIALLY HARM OUR BUSINESS, OPERATING RESULTS AND FINANCIAL CONDITION AND
COULD RESULT IN A DECREASE IN THE TRADING PRICE OF OUR UNITS, COMMON STOCK OR
PUBLIC WARRANTS OR IN A COMPLETE LOSS OF YOUR INVESTMENT.
RISKS RELATED TO OUR BUSINESS
WE HAVE A HISTORY OF LOSSES AND EXPECT TO INCUR LOSSES IN THE FUTURE.
As of September 30, 1999, we had an accumulated deficit of $18,684,133, and
we expect to incur losses in the future. We expect to continue to incur
significant sales and marketing, research and development, and general and
administrative expenses. As a result, we will need to generate significant
revenues to achieve profitability. We may never achieve profitability.
WE SUBSTANTIALLY DEPEND ON SALES OF ONE PRODUCT.
Through September 30, 1999, we had derived approximately 85% of our product
revenue in 1999 from sales of our booking products. A decrease in the price of
or demand for the Crime Capture System, or its failure to achieve broad market
acceptance, would significantly harm our business, financial condition and
operating results.
WE DEPEND UPON A SMALL NUMBER OF LARGE SYSTEM SALES AND MAY FAIL TO ACHIEVE ONE
OR MORE LARGE SYSTEM SALES IN THE FUTURE.
In the past two years, we have derived a substantial portion of our revenues
from a small number of sales of large, relatively expensive systems, typically
ranging in price from $300,000 to $600,000. As a result, if we fail to receive
orders for these large systems in a given sales cycle on a consistent basis, our
business, financial condition and operating results could be significantly
harmed. Further, our quarterly results are difficult to predict because we
cannot predict in which quarter, if any, large system sales will occur in a
given year. As a result, we believe that quarter-to-quarter comparisons of our
results of operations are not a good indication of our future performance. In
some future quarters our operating results may be below the expectations of
securities analysts and investors, in which case the market price of our common
stock may decrease significantly.
OUR LENGTHY SALES CYCLE CAUSES US TO EXPEND SIGNIFICANT RESOURCES IN
ANTICIPATION OF A SALE.
When considering the purchase of a large computerized booking system, a
government agency may take as long as a year to evaluate different systems and
obtain approval for the purchase. Generally, agencies consider a wide range of
issues before committing to purchase our products, including product benefits,
ability to operate with their current systems, product reliability and their own
budget constraints. While potential customers are evaluating our products and
before they place an order with us, we may incur substantial selling costs and
expend significant management effort to accomplish a sale. If we fail to
complete a sale, we will have expended significant resources and received no
revenue in return.
MOST OF OUR CUSTOMERS ARE SUBJECT TO POLITICAL AND BUDGETARY CONSTRAINTS.
Most of our customers are government agencies. These agencies often do not
set their own budgets and therefore have little control over the amount of money
they can spend. In addition, these agencies experience political pressure which
may dictate the manner in which they spend money. As a result, even if an agency
wants to acquire our products, it may be unable to purchase them due to these
political and budgetary constraints. In addition, some government agency orders
may be canceled
5
<PAGE>
or substantially delayed, the receipt of revenues or payments may be
substantially delayed due to political and budgetary processes and other
scheduling delays may frequently occur relating to the contract or bidding
process.
WE EXPERIENCE RISKS RELATING TO GOVERNMENT CONTRACTS.
A substantial majority of our revenues is derived from the sale of products
and services to governmental agencies. These agencies frequently require
provisions in their contracts that are not customary in private commercial
transactions, such as bonding requirements, provisions permitting the purchasing
agency to modify or terminate at will the contract without penalty, provisions
requiring us to remain liable to the agency for unlimited losses relating to
year 2000 malfunctions, and provisions permitting the agency to perform
investigations or audits of our business practices. Our customers are subject to
these and other government agency contracting requirements which vary by
jurisdiction. Future sales to government agencies will depend on our ability to
meet these government contracting requirements, certain of which may be onerous
or impossible to meet, resulting in our inability to obtain a particular
contract. Moreover, if a government agency were to enforce such provisions
against us, our business, financial condition and results of operations would be
materially adversely effected.
OUR PRODUCTS HAVE NOT YET ACHIEVED BROAD ACCEPTANCE BY THE LAW ENFORCEMENT AND
PUBLIC SAFETY MARKETS AND MAY NOT BE ACCEPTED BY THE SECURITY MARKET.
We intend to offer our products to a broader segment of the law enforcement
and public safety markets as well as the security market. We have not yet had
significant sales in any markets. The acceptance of our products and systems may
be adversely affected by their relatively high cost and the reluctance of
agencies or corporations to adopt new technology. The failure of our products to
achieve broad acceptance among law enforcement officials and security personnel
would have a negative effect on our business, financial condition and operating
results.
WE MAY FAIL TO CREATE NEW APPLICATIONS FOR OUR PRODUCTS AND ENTER NEW MARKETS.
We believe our future success depends in part on our ability to develop and
market our technology for applications other than booking systems for the law
enforcement market. For example, we anticipate our technology may be developed
to create digital databases of facial images and picture identification cards
for employees of large corporations. We also intend to develop software to fully
integrate our products with the Internet. We intend to expend significant
resources to develop new products and enter new markets. However, we may fail to
develop our technology to create these new products or successfully sell new
products into other markets. If we fail in these goals, our business strategy
and ability to generate revenues and cash flow would be significantly impaired.
WE RELY ON OTHER COMPANIES TO MANAGE CERTAIN OF OUR LARGE PROJECTS AND THESE
COMPANIES MAY NOT PERFORM ADEQUATELY.
We are a subcontractor to certain systems integrators who manage large
projects incorporating our systems, particularly in foreign countries. We cannot
control these companies and they may decide not to promote our products or to
price their services in such a way as to make it unprofitable for us to continue
our relationship with them. Further, they may fail to perform under agreements
with their customers, in which case we might lose sales to these customers. If
we lose our relationships with these companies, our business, financial
condition and operating results could be significantly harmed.
WE FACE COMPETITION WHICH MAY REDUCE OUR MARKET SHARE OR MAKE OUR TECHNOLOGY
OBSOLETE.
Our products face competition. In particular, the Crime Capture System faces
strong competition from other makers of booking systems. Our existing
competitors may develop technology and products
6
<PAGE>
which are superior to and more successful than our products. In addition, other
companies or individuals may develop superior products and emerge rapidly as new
competitors by investing heavily in product development and marketing. The
development of technologies or products which are competitive with our products
or make our technology obsolete would significantly harm our business, financial
condition and operating results.
WE RELY ON LICENSES OF TECHNOLOGY FROM OTHER COMPANIES AND THESE LICENSES MAY BE
TERMINATED IN THE FUTURE.
We depend on a licensing arrangement with Visionics, Inc. for technology
related to the search engine used in our systems. Our present licensing
arrangement with Visionics expires in July 2001. If Visionics becomes unable or
unwilling to continue to license us this technology or renew the terms of this
license, we will have to identify or develop acceptable alternative sources of
this technology, which could take up to nine months or longer. Any significant
interruption in our ability to identify and contract with alternative providers
of similar technology or develop our own search engine would result in delivery
delays, which could harm our customer relationships and our business and
reputation.
WE MAY NOT BE ABLE TO PROTECT OUR INTELLECTUAL PROPERTY.
Our business is based in large part on our technology and our success
depends in part on our ability and efforts to protect our intellectual property
rights. We do not have patent protection for several of our products, including
the Crime Capture System. Our Crime Capture System is based upon proprietary
technology. The technology used in our Suspect ID, Crime Lab and Vehicle ID
products is protected by patents, copyrights and various trade secret
protections afforded to us by law. If we do not adequately protect our
intellectual property, our business, financial condition and operating results
will be seriously harmed.
We license certain elements of our trademarks, trade dress, copyright and
other intellectual property to third-parties. We attempt to ensure that our
rights in our trade names and the quality of third party uses of our names are
maintained by these third parties. However, these third parties may take actions
that could significantly impair the value of our intellectual property and our
reputation and goodwill. We also license our technology to Atlus Co., Ltd. Atlus
has the right to sublicense our technology and to use our technology to compete
with us. If Atlus chooses to use our technology to compete with us, our
business, financial condition and operating results could be significantly
harmed.
In addition, international intellectual property laws differ from country to
country. Any foreign rights we have in our technology are limited by what has
been afforded to us under the applicable foreign intellectual property laws.
Also, under the laws of certain foreign jurisdictions, in order to have
recognizable intellectual property rights, we may be required to file
applications with various foreign agencies or officials to register our
intellectual property. Although we do have a patent application pending in
Japan, we do not currently have corresponding foreign registrations pending or
issued for all our technology. Accordingly, our ability to operate and exploit
our technology overseas could be significantly hindered.
WE MAY BE HARMED BY YEAR 2000 PROBLEMS.
We cannot assure you that our products will be "Year 2000 compliant;" that
is, that the performance of our products will not be impaired by the change in
the date from the year 1999 to the year 2000. The Force Field 2000 product,
which we acquired in our acquisition of XImage Corporation, was found not to be
Year 2000 compliant. Consequently, we created a Year 2000 compliance update to
the Force Field 2000 software, which has been installed on most of our
customers' systems. We anticipate that such upgrade installations will be
complete by December 31, 1999. In the event we are not able to complete all
upgrade installations on all terminals, we may be liable to certain of these
7
<PAGE>
customers for breach of our Year 2000 representations and warranties that appear
in many of our customer agreements, which could have a material adverse effect
on our business, results of operations and financial condition.
In addition, we acquire off-the-shelf products from third parties, such as
computer hardware. We use these products in the internal operations of our
business and we provide these products to customers in conjunction with our
software products. The products provided by these third parties may not be Year
2000 compliant. Further, government agencies and other of our customers may use
computer systems and products that are not Year 2000 compliant and which may
disrupt the performance of our products. The failure of any of these products or
systems to be Year 2000 compliant could significantly disrupt our business and
impair our ability to generate revenues and cash flows.
OUR PLANNED EXPANSION TO INTERNATIONAL MARKETS WILL EXPOSE US TO RISKS INHERENT
TO INTERNATIONAL OPERATIONS.
While we have not yet had significant international sales, we plan to
continue to sell internationally in the future. If we cannot overcome the
challenges and risks inherent in international operations, our business strategy
and our ability to generate revenues will be significantly impaired. Some of
these challenges and risks are as follows:
- It may be more difficult for us to protect our intellectual property
rights in some countries.
- It may take longer for us to collect payment from our customers.
- We will have to enforce agreements through foreign legal systems with
which we are less familiar.
- We will face volatility and unpredictability in the political and economic
conditions of foreign countries.
CHANGES IN THE VALUE OF THE JAPANESE YEN COULD RESULT IN CURRENCY TRANSACTION
LOSSES FOR US.
We have agreed to repay a loan to a Japanese lender based upon the value of
the Japanese Yen, regardless of the change in the value of the Yen relative to
the U.S. dollar. As a result of this agreement, changes in the value of the Yen
relative to the U.S. dollar could cause currency transaction gains or losses. We
cannot predict the effect of the exchange rate fluctuations on this obligation.
We may experience significant currency exchange transaction losses when it is
time to repay such loan. To date, we have not hedged this loan transaction to
protect us from risks associated with foreign currency fluctuations.
RISKS RELATED TO THIS OFFERING
OUR MANAGEMENT MAY USE THE PROCEEDS FROM THIS OFFERING IN WAYS THAT DO NOT
IMPROVE OUR OPERATING RESULTS OR MARKET VALUE.
We intend to use the net proceeds from this offering for increased marketing
efforts, research and development and general corporate purposes. In addition, a
significant portion of the proceeds will be used to repay debt. The repayment of
debt will not directly result in the improvement of our operating results. Our
management will retain broad discretion and significant flexibility in applying
the net proceeds from this offering. If our management does not apply the
proceeds effectively, our business would be harmed.
8
<PAGE>
YOU WILL SUFFER IMMEDIATE DILUTION OF YOUR INVESTMENT AND MAY EXPERIENCE FURTHER
DILUTION IN THE FUTURE.
We anticipate that the initial public offering price of the units will be
substantially higher than the net tangible book value per share of our common
stock after this offering. As a result, you will incur immediate dilution of
approximately $6.56 in net tangible book value for each share of our common
stock included in the units you purchase. If any outstanding options or warrants
to purchase our common stock are exercised, your investment will be further
diluted.
THERE HAS BEEN NO PRIOR MARKET FOR OUR COMMON STOCK AND A PUBLIC MARKET FOR OUR
COMMON STOCK MAY NOT DEVELOP OR BE SUSTAINED.
Prior to this offering, you could not buy or sell our common stock publicly.
If an active public market for our common stock is not sustained after this
offering, the market price of our common stock may fall below the initial public
offering price of the units, and the liquidity of your investment may be
significantly harmed.
THE INITIAL PUBLIC OFFERING PRICE OF THE UNITS MAY NOT ACCURATELY REFLECT FUTURE
MARKET PERFORMANCE.
The initial public offering price of the units has been determined based on
negotiations between us and the representative of the underwriters. The initial
public offering price may not be indicative of future market performance and may
bear no relationship to the price at which our units, common stock or public
warrants will trade upon completion of this offering.
OUR STOCK PRICE, LIKE THOSE OF OTHER TECHNOLOGY COMPANIES, MAY BE VOLATILE.
The stock market has experienced significant price and volume fluctuations
and the market prices of securities of technology companies have been highly
volatile. Our stock price may fluctuate significantly in response to a number of
factors, including:
- Our quarterly results of operations;
- Changes in earnings estimates by analysts and whether our earnings meet or
exceed such estimates;
- Announcements of technological innovations by us or our competitors;
- Additions or departures of key personnel; and
- Other events or factors which may be beyond our control.
Volatility in the market price of our stock could lead to claims against us.
Defending these claims could result in significant costs and a diversion of our
management's attention and resources.
FUTURE SALES OF OUR COMMON STOCK BY OUR EXISTING SHAREHOLDERS COULD DECREASE THE
TRADING PRICE OF OUR COMMON STOCK.
Sales of a large number of shares of our common stock in the public markets
after this offering, or the potential for such sales, could decrease the trading
price of our common stock and could impair our ability to raise capital through
future sales of our common stock. Upon completion of this offering, there will
be 2,655,482 shares of our common stock outstanding. The 1,500,000 shares of
common stock sold in this offering and the 1,500,000 shares of common stock
reserved for issuance upon exercise of the public warrants sold in this offering
are all freely tradeable without restrictions or further registration under the
Securities Act of 1933, unless such shares are purchased by our "affiliates," as
that term is defined in the Securities Act of 1933.
9
<PAGE>
An additional 2,685,141 shares of common stock are either currently
outstanding or may become outstanding upon exercise or conversion of options,
warrants or convertible securities currently outstanding or sold in this
offering. Moreover, substantially all of the holders of registration rights have
not waived such registration rights. As a result, the holders of an additional
460,900 shares of outstanding and issuable common stock may have rights under
certain circumstances to require us to register the shares within the next 12
months. If such holders exercise such registration rights, we could be required
to expend considerable resources to register such shares. All of these shares
may be sold in the future subject to compliance with securities laws and various
lock-up agreements to which certain of these shares are subject. The lock-up
agreements prohibit the sale in the public market of certain shares for one year
following the completion of this offering.
FUTURE COMPLIANCE WITH SECURITIES LAWS WILL BE NECESSARY TO MAINTAIN THE
TRADEABILITY OF THE SECURITIES.
We must maintain in effect the registration statement filed with the
Securities and Exchange Commission with respect to the units and must also
comply with the securities laws of each state in order for the units, and the
common stock and public warrants to be tradeable in that state. If we do not
comply with federal securities laws or the securities laws of various states,
your ability to sell the securities offered by this prospectus may be
significantly reduced.
CERTAIN OF OUR OFFICERS WILL PERSONALLY BENEFIT FROM THE USE OF THE PROCEEDS OF
THIS OFFERING.
Several of our officers have personally guaranteed loans made to us by
Imperial Bank and have also made loans to us directly. We intend to use some of
the proceeds of this offering to pay our debt to Imperial Bank in full, in which
case the guarantees will be released.
SOME OF THE STATEMENTS MADE IN THIS PROSPECTUS DISCUSS FUTURE EVENTS AND
DEVELOPMENTS, INCLUDING OUR FUTURE BUSINESS STRATEGY AND OUR ABILITY TO GENERATE
REVENUE, INCOME AND CASH FLOW. IN SOME CASES, YOU CAN IDENTIFY FORWARD-LOOKING
STATEMENTS BY TERMINOLOGY SUCH AS "MAY," "WILL," "SHOULD," "EXPECTS," "PLANS,"
"ANTICIPATES," "BELIEVES," "ESTIMATES," "PREDICTS," "POTENTIAL," "CONTINUE,"
"OUR FUTURE SUCCESS DEPENDS," "SEEK TO CONTINUE" OR THE NEGATIVE OF THESE TERMS
OR OTHER COMPARABLE TERMINOLOGY. THESE STATEMENTS ARE ONLY PREDICTIONS. ACTUAL
EVENTS OR RESULTS MAY DIFFER MATERIALLY. IN EVALUATING THESE STATEMENTS, YOU
SHOULD SPECIFICALLY CONSIDER VARIOUS FACTORS, INCLUDING THE RISKS OUTLINED UNDER
"RISK FACTORS." THESE FACTORS MAY CAUSE OUR ACTUAL RESULTS TO DIFFER MATERIALLY
FROM ANY FORWARD-LOOKING STATEMENT. ALTHOUGH WE BELIEVE THAT THE EXPECTATIONS
REFLECTED IN THE FORWARD-LOOKING STATEMENTS ARE REASONABLE, WE CANNOT GUARANTEE
FUTURE RESULTS, LEVELS OF ACTIVITY, PERFORMANCE OR ACHIEVEMENTS. MOREOVER,
NEITHER WE NOR ANY OTHER PERSON ASSUMES RESPONSIBILITY FOR THE ACCURACY AND
COMPLETENESS OF THESE STATEMENTS. WE ARE UNDER NO DUTY TO UPDATE ANY OF THE
FORWARD-LOOKING STATEMENTS AFTER THE DATE OF THIS PROSPECTUS TO CONFORM THESE
STATEMENTS TO ACTUAL RESULTS.
10
<PAGE>
USE OF PROCEEDS
We estimate that the net proceeds from the sale of the 1,500,000 units that
we are selling in this offering will be approximately $11,180,000 ($13,057,000
if the representative exercises its over-allotment option in full) based on an
assumed public offering price of $9.00 per unit and after deducting the
underwriting discount and estimated offering expenses payable by us.
<TABLE>
<CAPTION>
APPROXIMATE AMOUNT APPROXIMATE PERCENTAGE
OF NET PROCEEDS OF NET PROCEEDS
------------------ ----------------------
<S> <C> <C>
Repayment of Debt...................................... $ 3,183,500 28%
Accrued Liabilities and Dividends...................... 2,450,000 22%
Accounts Receivable and Inventories.................... 1,750,000 16%
Sales and Marketing.................................... 1,500,000 13%
Research and Development............................... 1,500,000 13%
Working Capital and General Corporate Purposes......... 796,500 8%
----------- ---
TOTAL:............................................... $11,180,000 100%
</TABLE>
Repayment of debt includes debt incurred and debt assumed with respect to
the XImage acquisition and the subsequent consolidation of the ImageWare and
XImage operations. Also included is debt incurred to provide working capital to
enable the company to maintain operations and fulfill customer orders over the
last two years. The debt we intend to repay includes short term notes in the
aggregate amount of $600,000 at an interest rate of prime plus 2%, short term
notes in the aggregate amount of $778,500 at an interest rate of 10%, a short
term note in the amount of $55,000 at an interest rate of prime plus 2%, a short
term note in the amount of $1,250,000 at an interest rate of 10%, and a short
term note in the amount of $500,000 at a variable interest rate initially at 9%.
Payment of accrued liabilities and dividends includes legal fees related to
past services, deferred compensation, past due payroll and sales taxes,
royalties, accumulated interest, accumulated but unpaid dividends on Series B
Preferred stock, past due trade payables, and other miscellaneous accrued
expenses.
Pending such uses of the proceeds from the offering, we intend to invest the
net proceeds in interest-bearing, investment grade securities.
The foregoing discussion is merely an estimate based on our current business
plan. Our actual expenditures may vary depending upon circumstances not yet
known, such as the time actually required to reach a positive cash flow, or to
successfully expand the market for our products.
11
<PAGE>
DIVIDEND POLICY
We have never declared or paid any cash dividends on our shares of common
stock and do not anticipate paying any cash dividends on our shares of common
stock in the foreseeable future. Currently, we intend to retain any future
earnings for use in the operation and expansion of our business. Any future
decision to pay cash dividends will be at the discretion of our board of
directors and will be dependent upon our financial condition, results of
operations, capital requirements and other factors our board of directors may
deem relevant.
Pursuant to the terms of our Series B Preferred Stock, we are obligated to
pay cumulative cash dividends from legally available funds at the annual rate of
$0.2125 per share, payable in two semi-annual installments of $0.10625 each. As
of December 13, 1999, accumulated but unpaid dividends payable on the Series B
Preferred Stock were approximately $173,569. We intend to use a portion of the
proceeds of this offering to pay these dividends.
12
<PAGE>
CAPITALIZATION
The following table sets forth our capitalization as of September 30, 1999:
- on an actual basis;
- as adjusted to give effect to:
(1) debt incurred, portions of loans repaid or converted to common stock
and common stock sold since September 30, 1999;
(2) the sale of 1,500,000 units in this offering at an assumed initial
public offering price of $9.00 per unit; and
(3) the planned use of the net proceeds of the offering.
This table should be read in conjunction with our financial statements
included elsewhere in this prospectus.
<TABLE>
<CAPTION>
SEPTEMBER 30, 1999
---------------------------
ACTUAL AS ADJUSTED
------------ ------------
(UNAUDITED)
<S> <C> <C>
LIABILITIES AND SHAREHOLDERS' DEFICIT
Current liabilities......................................... $ 6,428,765 $ 1,754,731
Notes payable to related parties, net of current portion.... 165,022 165,022
------------ ------------
Total liabilities....................................... $ 6,593,787 $ 1,919,753
------------ ------------
Shareholders' deficit
Preferred stock, $.01 par value, authorized 4,000,000
shares: Series B convertible redeeemable preferred
stock, designated 750,000 shares, 389,400 shares issued
and outstanding, $973,500 liquidation preference........ 3,894 3,894
Common stock, $.01 par value, 50,000,000 shares
authorized, 1,131,404 and 2,655,482 shares issued and
outstanding............................................. 11,314 26,555
Additional paid-in capital................................ 16,013,412 27,368,935
Accumulated deficit....................................... (18,684,133) (18,684,133)
------------ ------------
Total shareholders' equity (deficit).................... $ (2,655,513) $ 8,715,251
------------ ------------
$ 3,938,274 $ 10,670,004
============ ============
</TABLE>
13
<PAGE>
DILUTION
If you invest in our units, your interest will be diluted to the extent of
the difference between the public offering price per share of our common stock
and the as adjusted net tangible book value per share of our common stock after
this offering. For purposes of the dilution computation and the following
tables, we have allocated the full purchase price of a unit to the share of
common stock included in the unit and nothing to the warrant included in the
unit. As of September 30, 1999, our net tangible book value was $(4,770,797), or
$(4.22) per share of common stock. Net tangible book value per share represents
the amount of our total tangible assets reduced by the amount of our total
liabilities, divided by the total number of shares of common stock outstanding.
Dilution in net tangible book value per share represents the difference between
the amount per share paid by the purchasers of our units in this offering and
the net tangible book value per share of our common stock immediately
afterwards. Without taking into effect any changes in the net tangible book
value after September 30, 1999, other than to give effect to the sale of
1,500,000 units in the offering at the assumed initial public offering price of
$9.00 per unit and the application of the net proceeds of the offering, the net
tangible book value of ImageWare as of September 30, 1999 would have been
$6,409,433, or $2.44 per share. This represents an immediate increase of $6.66
per share of common stock to existing shareholders and an immediate dilution of
$6.56 per share of common stock to the new investors who purchase units in the
offering. The following table illustrates this per share dilution:
<TABLE>
<S> <C> <C>
Assumed initial public offering price....................... $9.00
Net tangible book value per share before the offering..... $(4.22)
Increase in net tangible book value per share attributable
to new investors........................................ 6.66
As adjusted net tangible book value per share after the
offering.................................................. 2.44
Dilution in tangible book value per share to new
shareholders.............................................. $6.56
</TABLE>
If the underwriters' over-allotment option is exercised in full, dilution
per share to new shareholders would be $6.11 per share of common stock.
The following table summarizes as of September 30, 1999 the differences
between the existing shareholders and the new shareholders with respect to the
number of shares of common stock included in the units purchased, the total
consideration paid, and the average price per share paid:
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION
-------------------- ---------------------- AVERAGE
NUMBER PERCENT AMOUNT PERCENT PRICE PER SHARE
--------- -------- ----------- -------- ---------------
<S> <C> <C> <C> <C> <C>
Existing shareholders... 1,131,404 43% $15,055,120 53% $13.31
New shareholders........ 1,500,000 57% 13,500,000 47% 9.00
--------- --- ----------- --- ------
Total............. 2,631,404 100% $28,555,120 100% $10.85
========= === =========== === ======
</TABLE>
The above computations assume no exercise of outstanding options or warrants
to purchase common stock, the underwriters' over-allotment option, the public
warrants included in units sold in the offering or the representative's
warrants. All of these outstanding securities are described in "Description of
Securities" on page 41. To the extent that these options and warrants are
exercised, there will be further dilution to new investors.
14
<PAGE>
SELECTED FINANCIAL INFORMATION
The selected financial information set forth below should be read in
conjunction with "Management's Discussion and Analysis of Financial Condition
and Results of Operations" included elsewhere in this prospectus. The statement
of operations data for the years ended December 31, 1997 and 1998 and the
balance sheet data at December 31, 1998 are derived from financial statements of
the company, which have been audited by PricewaterhouseCoopers LLP, independent
accountants, and are included elsewhere in this prospectus. The statement of
operations data for the nine-month periods ended September 30, 1998 and 1999 and
the balance sheet data at September 30, 1999 are derived from the unaudited
financial statements of the company included elsewhere in this prospectus.
Historical results are not necessarily indicative of the results to be expected
in the future, and the results of interim periods are not necessarily indicative
of results for the entire year.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEARS ENDED DECEMBER 31, SEPTEMBER 30,
------------------------ -------------------------
1997 1998 1998 1999
---------- ----------- ----------- -----------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues
Product................................... $ 459,358 $ 2,708,856 $ 1,932,813 $ 2,531,144
Maintenance............................... 2,610 1,307,286 1,004,328 954,321
License and other......................... 2,434,108 220,175 150,978 9,319
---------- ----------- ----------- -----------
2,896,076 4,236,317 3,088,119 3,494,784
Cost of Revenues
Product................................... 77,584 1,354,920 764,122 943,004
Maintenance............................... -- 1,065,740 927,680 607,171
---------- ----------- ----------- -----------
Gross margin................................ 2,818,492 1,815,657 1,396,317 1,944,609
---------- ----------- ----------- -----------
Operating, general and administrative
expenses.................................. 1,436,447 2,265,312 1,676,542 1,874,811
Sales and marketing expenses................ 918,557 960,246 714,276 701,183
Research and development expenses........... 482,834 831,034 569,443 836,542
Depreciation and amortization............... 167,402 988,838 723,869 725,234
---------- ----------- ----------- -----------
3,005,240 5,045,430 3,684,130 4,137,770
---------- ----------- ----------- -----------
Loss from operations...................... (186,748) (3,229,773) (2,287,813) (2,193,161)
---------- ----------- ----------- -----------
Interest expense, net....................... 17,629 204,287 155,633 239,939
---------- ----------- ----------- -----------
Loss before income taxes.................. (204,377) (3,434,060) (2,443,446) (2,433,100)
---------- ----------- ----------- -----------
Provision for income taxes.................. 196,104 -- -- --
---------- ----------- ----------- -----------
Net loss.................................. $ (400,481) (3,434,060) $(2,443,446) $(2,433,100)
========== =========== =========== ===========
Net loss per common share................... $ (.70) $ (4.08) $ (2.91) $ (2.56)
========== =========== =========== ===========
Basic and diluted weighted average shares... 680,273 861,875 860,674 974,283
========== =========== =========== ===========
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31, 1998 SEPTEMBER 30, 1999
----------------- ------------------
(UNAUDITED)
<S> <C> <C>
BALANCE SHEET DATA:
Cash........................................................ $ 45,793 $ 89,216
Net intangible assets....................................... 2,836,740 2,115,284
Total assets................................................ 4,384,005 3,938,274
Total current liabilities................................... 4,356,198 6,428,765
Notes payable, net of current portion....................... 165,022 165,022
Total liabilities........................................... 6,593,787 6,593,787
Total shareholders' deficit................................. (1,445,365) (2,655,513)
</TABLE>
15
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
THE FOLLOWING DISCUSSION OF OUR FINANCIAL CONDITION AND RESULTS OF
OPERATIONS SHOULD BE READ IN CONJUNCTION WITH THE FINANCIAL STATEMENTS AND
RELATED NOTES TO THE FINANCIAL STATEMENTS INCLUDED ELSEWHERE IN THIS PROSPECTUS.
THIS DISCUSSION CONTAINS FORWARD-LOOKING STATEMENTS THAT RELATE TO FUTURE EVENTS
OR OUR FUTURE FINANCIAL PERFORMANCE AND INVOLVE KNOWN AND UNKNOWN RISKS,
UNCERTAINTIES AND OTHER FACTORS THAT MAY CAUSE OUR OR OUR INDUSTRY'S ACTUAL
RESULTS, LEVELS OF ACTIVITY, PERFORMANCE OR ACHIEVEMENTS TO BE MATERIALLY
DIFFERENT FROM ANY FUTURE RESULTS, LEVELS OF ACTIVITY, PERFORMANCE OR
ACHIEVEMENTS EXPRESSED OR IMPLIED BY THESE FORWARD-LOOKING STATEMENTS. THESE
RISKS AND OTHER FACTORS INCLUDE, AMONG OTHER THINGS, THOSE LISTED UNDER "RISK
FACTORS" AND ELSEWHERE IN THIS PROSPECTUS.
OVERVIEW
ImageWare Systems, Inc. was founded in February 1987 as a photo novelty
company. From 1987 through 1994, the company's business consisted of building
and operating unmanned photo booths which sold postcards with digitally captured
images of customers combined with various background and foreground scenes. In
November 1994, a group of employees and outside investors acquired a controlling
interest in the company from its founders, discontinued the photo booth business
and redirected the company toward the development of image-based software
products for the law enforcement community. Through the date of the acquisition,
the founders had invested approximately $7.7 million into the company,
represented by stock and paid in capital, and the company had an accumulated
deficit of approximately $8.6 million.
Since the acquisition, we have devoted substantially all of our resources to
designing, developing, producing and marketing image-based software products for
law enforcement agencies. At September 30, 1999, we had raised additional equity
capital of approximately $8.3 million, bringing our total equity capital raised
since inception to approximately $16.0 million. From the date of the acquisition
through September 30, 1999, we accumulated an additional deficit of
approximately $10.1 million, bringing the total accumulated deficit since
inception to approximately $18.7 million.
In 1995 and 1996, we worked with law enforcement agencies to identify their
needs and develop the initial modules for our C.R.I.M.E.S. suite of products and
the integrated system in which they would operate. Our first three modules,
Suspect ID, Crime Lab, and Vehicle ID, were introduced during this period. In
1997, we completed the development of Face ID and the Crime Capture System,
which, when included in our C.R.I.M.E.S. suite, gave us a sufficient breadth of
products to begin marketing entire systems in addition to individual modules.
Cash generated from sales of the initial three modules in 1997 and 1998 was
limited due to their relatively low selling prices which ranged from $600 to
$5,000 per unit. The introduction of the Crime Capture System and Face ID in
late 1997 gave us the ability to sell systems with prices ranging from $25,000
to one million dollars or more per system. With this fully integrated, modular
suite of products, we were able to differentiate ourselves in the market from
competitors offering non-integrated products. Both the Crime Capture System and
Face ID create the potential for significant add-on sales, following the
installation of an initial system, through the sale of additional modules to
both the agency purchasing the system and other agencies that desire to access
that system. In addition, we expect a significant and growing stream of revenue
from the sale of customer support services, which are generally priced at
approximately 12-18% of the price paid for installed hardware and software. As
our installed base grows, we anticipate this revenue stream will grow.
In 1997, recognizing that we would be shifting to sales of systems rather
than individual modules, and recognizing that the sales cycle for sales to
government agencies is relatively long, we established a national sales force
and implemented a top-down sales plan to market our products first to the
largest agencies and then to smaller agencies. We attempted to develop contacts
and relationships at the
16
<PAGE>
federal, state and large county/municipality levels during 1997 to lay the
groundwork for larger systems orders. Our first significant system order was
received from the Arizona Department of Public Safety in January 1998.
In January 1998, we also acquired all of the outstanding stock of XImage
Corporation for a combination of approximately $2.1 million in cash and notes,
and warrants to purchase 61,611 shares of our common stock. XImage Corporation,
based in San Jose, California, was founded in 1987 and designed and marketed mug
shot systems to the law enforcement community. This acquisition enabled us to
gain a significant foothold in the digital mug shot market with a customer base
which included the New York City Police Department and law enforcement agencies
in Minneapolis, Portland, Seattle, Indianapolis, Orlando and Montreal. We
consolidated XImage Corporation's operations into our San Diego offices during
the second and third quarters of 1998.
BACKLOG
Although our backlog as of September 30, 1999 was approximately
$4.0 million compared to $775,000 as of September 30, 1998, we believe that such
backlog is the result, in part, of our inability to timely service orders due to
lack of working capital. After receiving the proceeds of this offering, we
expect to be able to ship most orders within three to four months. As a result,
our present backlog may not be indicative of our backlog in future periods.
REVENUE RECOGNITION
We recognize revenue from periodic license and maintenance agreements
ratably over the respective period covered thereunder. Our revenue from software
installation and implementation and from contract services is generally
recognized as the services are performed using the percentage of completion
method based on costs incurred to date compared to total estimated costs at
completion. Amounts received under contracts in advance of performance are
recorded as deferred revenue and generally recognized within one year from
receipt. Revenue from contract services for which we cannot reliably estimate
total costs are recognized upon completion.
COST OF REVENUES
Our principal product costs include:
- Hardware costs when a product is purchased as a "turnkey" system. The
majority of our system sales include equipment, which generally equates to
between 15% and 50% of the sales price. As our installed base grows and
add-on retrieval seats and investigative modules are purchased for use on
existing personal computers, we anticipate that hardware sales as a
percentage of revenue may decrease and gross margins may increase as
orders include a greater proportion of software and services.
- Third party software licensing fees for search engine technology
incorporated into our software. The amount of these fees depends on the
number of images in the customer's database.
- Costs of personnel, travel, and overhead associated with custom
integration work, hardware/ software configuration, site preparation,
installation, and training.
Our principal maintenance costs to deliver customer support services include
personnel, communications and overhead costs associated with maintaining a
7-day, 24-hour customer support desk and in-house and remote field service
personnel. These costs represent significant fixed costs. These costs are not,
however, anticipated to grow as fast as customer service revenues.
17
<PAGE>
RESULTS OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 1998 AND 1999
REVENUES. Product revenues increased 32% from $1.9 million for the nine
months ended September 30, 1998 to $2.5 million for the corresponding period in
1999. The increase reflected the further purchases of the Crime Capture System
with purchases by state and local agencies in Arizona to tie into the state-wide
system purchased and implemented by the Arizona Department of Public Safety in
1998. The increase also reflects system upgrades by most of our UNIX-based
customers who adopted our Windows-based Crime Capture System in 1999. Our
backlog of product orders increased significantly from approximately $775,000 at
September 30, 1998 to $4.0 million at September 30, 1999, indicating further
acceptance of our products. As in prior periods, our booking products
represented approximately 85% of our product revenues in the first nine months
of 1999.
Customer service revenues decreased 5% from $1.0 million for the nine months
ended September 30, 1998 to $954,000 for the corresponding period in 1999. In
1999, we offered our UNIX-based customers incentives to upgrade to the
Windows-based Crime Capture System. As part of the incentives, the customers
received reduced maintenance fees in 1999. The price reductions were justified
based upon the need to consolidate the number of versions of systems we would
have to support and to avoid the cost of bringing the older installations into
Y2K compliance. We do not expect to offer similar price reductions in the future
and expect customer service revenues to increase along with our expanded
installed base.
COST OF PRODUCTS AND MAINTENANCE. Cost of products and maintenance
decreased 6% from $1.7 million, or 55% of revenue, for the nine months ended
September 30, 1998 to $1.6 million, or 44% of revenue, for the corresponding
period in 1999. The decrease in the more recent period is primarily due to
higher than normal maintenance costs in the second and third quarters of 1998 as
we merged the maintenance functions of ImageWare and XImage. For a period of
time in 1998, two facilities were fully staffed and operational in order to
provide adequate time for training and to test systems to avoid any lapse in
service to our customers. Maintenance costs were approximately 92% of
maintenance revenues for the nine months ended September 30, 1998 compared to
64% for the corresponding period in 1999. Cost of products can vary as a
percentage of revenue from quarter to quarter depending upon product mix and the
hardware content included in systems installed during a given period.
The royalties received in 1998 and 1999 were from a patent license agreement
with Panasonic for a product which does not compete with any of ImageWare's
current or contemplated products. Panasonic has stopped using the technology and
is not expected to pay further royalties.
OPERATING, GENERAL AND ADMINISTRATIVE EXPENSES. Operating, general and
administrative expenses increased 12% from $1.7 million for the nine months
ended September 30, 1998 to $1.9 million for the corresponding period in 1999.
Approximately $275,000 of the increase was related to an evaluation of our
products for Y2K compliance and the related work performed to bring them into
compliance. An independent company performed the Y2K work under contract.
SALES AND MARKETING EXPENSES. Sales and marketing expenses decreased 2%
from $714,000 for the nine months ended September 30, 1998 to $701,000 for the
corresponding period in 1999. We were unable to accelerate our sales effort in
the first nine months of 1999 due to a lack of resources which limited our
ability to keep our sales force on the road and fully utilize trade publication
advertising and trade shows.
RESEARCH AND DEVELOPMENT. Research and development expenses increased 47%
from $569,000 for the nine months ended September 30, 1998 to $837,000 for the
corresponding period in 1999. The cost
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increase for research and development reflects an increase in personnel to
accelerate new product development and respond to customer requests for product
enhancements and custom integration work.
INTEREST EXPENSE. Interest expense increased 54% from $156,000 for the nine
months ended September 30, 1998 to $240,000 for the same period in 1999. The
increase reflects the cost of additional debt that the company issued to fund
the consolidation of XImage and ImageWare and to fund operations in 1999.
NET LOSS. The net loss was approximately $2.4 million for both the nine
months ended September 30, 1998 and the corresponding period in 1999. Gross
profits from the sale of products and maintenance services for the nine-month
period increased $548,000 from 1998 to 1999. Research and development expenses
for the nine-month period increased $542,000 from 1998 to 1999 due to $300,000
in non-recurring expenses related to Year 2000 compliance and increased
personnel costs in the more recent period. Operating, general and administrative
expenses for the nine-month period declined $77,000 from 1998 to 1999, offset by
an $84,000 increase in interest expense for the same period.
YEARS ENDED DECEMBER 31, 1997 AND 1998
REVENUES. Product revenues increased from $459,000 in 1997 to $2.7 million
in 1998. This increase reflects the company's shift from selling individual
modules to selling systems with the introduction of its Crime Capture System and
Face ID product lines. Sales of our Crime Capture System and the XImage
UNIX-based mug shot system accounted for the majority of the increase.
Customer service revenues increased from $3,000 in 1997 to $1.3 million in
1998. The increase was due to the acquisition of the XImage installed base of
mug shot systems and the XImage customer service contracts related to their
customer installations.
License and other revenues decreased 91% from $2.4 million in 1997 to
$220,000 in 1998. In 1997, we received approximately $2 million for a paid-up
license on certain of our patents from a Japanese company for use in markets
unrelated to those in which we operate.
COST OF PRODUCTS AND MAINTENANCE. Cost of products and maintenance
increased from $78,000 in 1997 to $2.4 million in 1998. The increase reflects
the shift in the product mix from primarily software in 1997 to systems and
customer service in 1998, with the introduction of new products and the
acquisition of XImage. The sale of systems generally involves the sale of
hardware as well as software in addition to providing services such as custom
integration, installation and training. The cost of hardware and associated
services can vary depending upon the extent to which the customer will utilize
pre-owned equipment or purchase equipment directly, and the complexity of the
systems into which our product must interconnect.
Cost of sales related to maintenance revenues were approximately
$1.1 million in 1998. Prior to 1998, we had virtually no maintenance revenue or
cost of sales since we had no installed mug shot systems. With the introduction
of the Crime Capture System and the acquisition of XImage in January 1998, we
began to provide 7-day, 24-hour customer service desk and field service to
perform on-site maintenance. In 1998, we had some duplication of costs for
maintenance during a portion of the second and third quarters until we combined
the operations of XImage and ImageWare into a single facility.
OPERATING, GENERAL AND ADMINISTRATIVE EXPENSES. Operating, general and
administrative expenses increased 64% from $1.4 million in 1997 to $2.3 million
in 1998. XImage was acquired in January 1998 and continued to run independently
until we closed the XImage facility and eliminated redundant overhead in
September 1998. The 1998 general and administrative expenses included the
operation of two facilities and two infrastructures for seven months, as well as
the cost of moving both XImage and ImageWare operations from their respective
facilities into a single facility.
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SALES AND MARKETING EXPENSES. Sales and marketing expenses increased 4.5%
from $919,000 in 1997 to $960,000 in 1998. In 1997, we completed staffing of our
in-house sales force and initiated a campaign to develop our markets and
establish relationships related to the development of future business. In 1997,
prior to our acquisition of XImage Corporation, XImage had virtually no activity
or expense for sales and marketing.
RESEARCH AND DEVELOPMENT EXPENSES. Research and development expenses
increased 72% from $482,000 in 1997 to $831,000 in 1998. The increased expense
in 1998 reflects some redundancy in personnel required during the consolidation
of the two companies, combined with some personnel increases in late 1997 and
early 1998 related to the rollout of our new Crime Capture System and Face ID
product lines. We were required to maintain a number of the XImage research and
development staff through 1998 in order to complete several products which were
in development at the time we acquired XImage. As those projects were completed,
redundancies in staff were eliminated.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization increased 492%
from $167,000 in 1997 to $989,000 in 1998. The acquisition of XImage resulted in
ImageWare booking approximately $3.5 million in goodwill which we are amortizing
over four years at approximately $863,000 per year through 2001.
INTEREST EXPENSE. Interest expense increased from $18,000 in 1997 to
$204,000 in 1998. The increase reflects the significant additional debt that the
company incurred and assumed in connection with the acquisition of XImage in
late January 1998 and the funding of the subsequent consolidation of the two
companies.
PROVISION FOR INCOME TAXES. The 1997 provision for income taxes represented
foreign taxes withheld in Japan on the license revenue received from a Japanese
company, as required by Japanese law.
NET LOSS. The net loss increased from approximately $400,000 in 1997 to
$3.4 million in 1998. Gross profits from the sale of products and maintenance
services increased $1.2 million from 1997 to 1998. This increase in gross profit
was offset by a reduction in non-recurring license fee income of $2.0 million,
an increase of $821,000 in depreciation and amortization, an increase of
$829,000 in operating, general and administrative expenses, an increase of
$348,000 in research and development expenses and an increase of $187,000 in
interest expense. The higher operating, general and administrative expense and
the higher research and development expense in 1998 included the cost of
combining the XImage and ImageWare operations and the cost of eliminating
redundant facilities and resources.
LIQUIDITY AND CAPITAL RESOURCES
LIQUIDITY. We had negative working capital of $3.1 million at December 31,
1998 compared to $4.8 million at September 30, 1999. Cash used by operating
activities totaled $1.2 million for the nine months ended September 30, 1998 and
$752,000 for the nine months ended September 30, 1999.
For the nine months ended September 30, 1999, cash was principally used to
fund $2.4 million in losses offset by non-cash charges of $349,000 for
compensation and fees paid with stock and $725,000 in depreciation and
amortization. Cash used to fund losses was also offset by a $608,000 net
increase in current liabilities in excess of the increase in current assets. The
increase in current liabilities included a $399,000 increase in accounts payable
and a $434,000 increase in accrued expenses and interest, due both to our
increased volume of business and to our inability to meet the terms of our
vendor and debt obligations during the period. The offsetting increase in
current assets included an increase in accounts receivable of $206,000 and in
inventories of $126,000 due to increased business activity.
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Cash used by operating activities in 1998 totaled $1.9 million and was used
principally to fund $3.4 million in losses offset by non-cash charges of
$989,000 for depreciation and amortization and $522,000 for fees paid with
stock.
During 1998, we used an additional $2.1 million in cash for investing
activities to complete the acquisition of XImage.
CAPITAL RESOURCES. Prior to 1998, our primary sources of funds were
shareholder loans, private placements of stock and, to a lesser extent, cash
provided by operating activities. In 1998, we received $1.2 million in funds
from secured bank loans, in addition to $705,000 in loans from shareholders. In
the first nine months of 1999, we received $730,000 in loans from shareholders
and $300,000 from the sale of stock. During the corresponding period in 1999, we
repaid $200,000 in bank debt and $10,000 in shareholder debt.
Subsequent to September 30, 1999, we received an additional $1.25 million as
a loan from a Japanese shareholder with terms extending to the earlier of the
completion of our initial public offering or February 10, 2001. We have agreed
to assume any exchange rate risk in the repayment of this loan and have not
entered into any hedging transaction with respect to this potential obligation.
In the fourth quarter 1999, we also received an additional $500,000 as a loan
from the chairman of Paulson Investment Company, Inc. with terms extending to
the earliest of the demand of our lender, the closing of our initial public
offering, or April 3, 2000. We used $500,000 of the funds provided by these
fourth quarter 1999 financing activities to reduce our bank debt. We used an
additional $125,000 of the loan proceeds to reduce notes payable to shareholders
and pay officers for credit card debt. During the fourth quarter 1999, we
received an extension of the bank loan until March 3, 2000, and extensions on
shareholder debt totaling $803,500, subject to progressive principal payments on
a monthly payment schedule, with the balance due upon the completion of our
initial public offering.
We have not generated sufficient cash from operations to fund continued
operations or our growth plan, and will require significant additional future
funding. We believe that our 2000 operating and financing plans will, if carried
our successfully, be sufficient to meet our liquidity needs for the year, based
on our current expense calculations and our current and anticipated revenue
streams, including the proceeds of this offering. Our operating and financing
plans assume certain revenue projections can be met and our overall cost
structure remains stable, as to either of which there can not be any assurance.
There also can be no assurance that our working capital objectives will be
reached in the near future, if ever. In the event that additional capital is
required, we may seek to raise such capital though private or public equity
financing. There can be no assurance that such capital will be available on
favorable terms, if at all.
OTHER COMMITMENTS. In connection with the outstanding Series B Preferred
Stock, we are obligated to pay cumulative dividends at the rate of $0.2125 per
share per year. At September 30, 1999, dividends due aggregated approximately
$157,000. Dividends due at December 31, 1999 are estimated to be approximately
$178,000 and are to be paid from the proceeds from this offering.
The company has also entered into certain agreements for the payment of
debts out of the proceeds of this offering. See "Use of Proceeds".
YEAR 2000 COMPLIANCE
We have identified Year 2000 risks in three categories: internal business
operations software and hardware; software and hardware used in our products,
and software used by our external vendors and service suppliers.
With regard to our internal operations, we have relied on written
representations from our software and hardware vendors to confirm that the
versions of their products we are using are Year 2000 compliant. As a result of
our review we believe that substantially all of our existing systems,
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software and hardware are Year 2000 compliant. We anticipate compliance
activities to be complete not later than December 31, 1999. We have spent
between $15,000 and $25,000 in this area, and additional costs are not expected
to be more than $15,000. As part of our contingency plan in case our internal
systems are not enirely Year 2000 compliant, we regularly have all data backed
up in a form so as to ensure no loss of information and to enable a system
migration if necessary.
With regard to software and hardware used in our products, we have engaged
an independent firm to evaluate our products, identify areas of non-compliance,
develop a plan to bring the products into compliance and implement the plan to
bring all customers under maintenance contracts compliant by December 31, 1999.
The cost of such compliance activities is estimated to be approximately $400,000
and will be funded primarily through borrowings. Approximately $275,000 of such
amount was expended during the nine months ended September 30, 1999. The
implementation of our remediation plan has remained on schedule and is expected
to be completed by December 31, 1999.
We have not conducted independent inquiries regarding Year 2000 compliance
by providers of basic services such as those provided by our bank, utility
company, telecommunications and transportation providers. If such services are
interrupted, our operations would be materially adversely affected for the
duration of the service interruption. Based on communications initiated by such
providers to date, we do not anticipate service interruptions and we do not
expect to incur any material expense with respect to services provided by
external vendors. We have neither determined our most reasonably likely
worst-case scenario nor developed any contingency plans with respect to the
possible loss of such services.
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BUSINESS
COMPANY OVERVIEW
We develop, sell and support a suite of modular software products that is
used by law enforcement and public safety agencies to manage criminal history
records. Our software systems and associated hardware allow our customers to
quickly capture, archive, search, retrieve and share digital photographs and
criminal history records. Our products are currently being used by large
government agencies such as the New York City Police Department and the Los
Angeles County Sheriff's Department, as well as the Arizona Department of Public
Safety, the Montreal Police Department, the government of Kuwait, and law
enforcement agencies in Minneapolis, Portland, Seattle, Indianapolis and
Orlando.
INDUSTRY BACKGROUND
Police departments and other law enforcement and public safety agencies rely
on criminal history records to help fight crime. A criminal history record
includes personal information and a history of arrests, convictions and other
events, and may also include fingerprints and photographs. The National
Institute of Justice estimated in 1998 that there were 60 million criminal
history records and that this number is increasing by 20 million per year.
According to a 1989 recidivism study conducted by the U.S. Department of
Justice, of the 108,580 persons released from prisons in 11 states in 1983, an
estimated 62.5% were re-arrested for a felony or serious misdemeanor within
three years. Since many crimes are committed by recidivists, the ability to
quickly search criminal history records to identify a suspect is particularly
important.
Many law enforcement and public safety record-keeping systems are still
merely a file of paper records which cannot be searched quickly or from a remote
location. In many places, victims and witnesses still flip through books of
photographs to try to identify a criminal suspect. Even if paper records contain
pictures of criminals, they cannot be quickly searched based on selected
criteria such as eye color, first name or gang membership. To alleviate the
inadequacies of paper records, many agencies have moved to digital
record-keeping systems. However, many of these systems are merely a database of
criminal records that can be searched by record number only. While they reduce
the need for paper files and are easier to keep secure, they do not allow
officers to search for an unknown suspect in the database based on criteria such
as height, hair color, gang membership or other factors. Even agencies that have
installed searchable databases often do not yet have biometrics-based software
that would allow them to compare a digital facial photograph with photographs in
the database in order to match an unknown suspect with known criminals who have
similar physical characteristics. "Biometrics" refers to the method of
identifying a person by measuring distinctive biological characteristics, such
as facial features or fingerprints.
In view of the inefficiencies in traditional record keeping-systems, many
agencies are turning to new technologies to increase their ability to quickly
identify, locate and arrest criminal suspects. Costs have decreased for computer
hardware, bandwidth and communications infrastructures. The ability to transmit
large quantities of data, such as digital images, has increased, as has the use
of open architecture among systems, allowing agencies to share data more
effectively. The speed and accuracy of facial recognition technology is also
increasing, as are the capabilities for the transmission of digital images. As a
result of these factors, we believe law enforcement agencies will increasingly
seek to replace outdated methods, increase the size of their digital booking
systems and look for investigative products that allow them to effectively
search and share the information captured in their systems.
Further, we believe that, as computer technology becomes more common, law
enforcement agencies will increasingly use laptop computers and wireless data
communication. These technologies will eventually allow investigators and police
officers to access their agency's database and other information from the scene
of a crime or from a patrol car.
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MARKETS
THE LAW ENFORCEMENT AND PUBLIC SAFETY MARKETS
The United States law enforcement and public safety markets are composed of
federal, state and local law enforcement agencies. As of 1996, state and local
governments in the United States operated approximately 18,769 law enforcement
agencies consisting of 13,578 local police departments, 3,088 sheriffs'
departments and offices, 49 primary state law enforcement agencies, 1,316
special police agencies, and 738 county constable offices. As of 1996, the
federal market consisted of federal agencies, such as the Federal Bureau of
Investigation and the Drug Enforcement Administration, which in total employed
about 74,500 full-time employees, not including military agencies and their
personnel.
The federal government has promoted the development and use of nationwide
criminal history record databases called the Interstate Identification Index and
the National Crime Information Center 2000, or NCIC 2000, each consisting of
national and regional databases. The Interstate Identification Index is
maintained by the FBI and includes persons arrested for felonies or serious
misdemeanors. The FBI has indicated that this Index will accept photographs in
the future. NCIC 2000 is an on-line information system dedicated to serving
criminal justice agencies. In July 1999, NCIC 2000 replaced an older system to
allow for the sharing of digital images. We anticipate that the inclusion of
digital images in these databases will increase the value of digital booking
systems and the demand for facial recognition applications.
The Violent Crime Control and Law Enforcement Act of 1994 is expected to
contribute at least $130 million in grants to support technological improvements
for law enforcement agencies and other activities to improve law enforcement
training and information systems, which could include purchases of our products
and services. The Crime Identification Technology Act of 1998 authorized funding
of up to $250 million in each of the next five years to, among other things,
support integration of state and local justice system technology. Agencies are
eligible for grants under this program based on their initiatives to develop,
oversee, plan and implement integrated information technology, including
technology of the type produced by ImageWare. This act merely authorizes this
funding and is contingent on Congress passing legislation to appropriate the
funds each year.
OTHER APPLICATIONS AND MARKETS
We believe there are emerging applications for our products within the
public safety market beyond the needs of agencies to book and identify criminal
suspects. Variations on our system can be used to track inmate populations of
correctional facilities, to monitor the location of persons on parole or
probation without the need for them to visit their parole or probation officer
in person, to monitor gun registrations and allow gun retailers and distributors
to run more accurate background checks on potential buyers, and to help
authorities locate missing children.
Our technology also has emerging applications in markets related to access
control and identification. Organizations concerned with security issues can use
our products to create picture identification cards that can be instantly
checked against a database of facial images to prevent unauthorized access to
secure areas. Potential customers in these markets include large corporations,
hospitals, universities and government agencies.
PRODUCTS AND SERVICES
We believe our integrated suite of software products significantly reduces
the inefficiencies and expands the capabilities of traditional booking systems.
Using our products, an agency can create a digital database of thousands of
criminal history records, each including a full-color facial image, text
information and images of other distinctive physical features. This database can
be quickly searched using text queries or by using our facial recognition
technology to compare the face of an unknown
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suspect with facial images in the database. Our investigative software products
can also be used to create, edit and enhance digital images and to search
databases of other agencies to which the customer has access.
We believe our products allow our customers to achieve the following
benefits:
MORE QUICKLY BOOK AND IDENTIFY SUSPECTS. Because many officers can enter
information and images directly into the booking system simultaneously from
multiple locations, an agency can reduce the time required to book a
suspect. In addition, rather than flipping through books of mugshots, an
officer and witness can use our software to quickly compare the digital
image of a suspect with thousands of facial images in the booking system.
MORE ACCURATELY CAPTURE AND IDENTIFY FACES. Officers and witnesses can
together create and edit full-color, photograph-quality images to match the
facial image as closely as possible to the description of the suspect.
SEARCH THROUGH A GREATER NUMBER OF CRIMINAL RECORDS. As agencies are able
to access not only their own booking system but the databases of other
agencies as well, they will be able to access a far greater number of
criminal records than available through traditional booking systems.
MINIMIZE TRAINING TIME AND EXPENSE. Our products are designed to be used by
persons with minimal technical backgrounds. Our software programs ask simple
questions to create full-color facial images, book a suspect or search a
booking system.
INTEGRATE OUR PRODUCTS INTO A COMPLETE SYSTEM. Our system is made up of a
suite of six fully integratable software modules. A customer may purchase
all of the modules as a complete system or each module individually. Our
booking system can also be integrated with other information systems, such
as an automated fingerprint identification system.
SCALE OUR PRODUCTS FOR USE ON A SINGLE COMPUTER OR A LARGE NETWORK. Our
products are completely scalable, so that they may be used on one computer
terminal or with a client-server network including dozens of terminals or
more.
Our C.R.I.M.E.S. system consists of six software modules, which may also be
purchased individually. The Crime Capture System (including both the Capture
Module and the Retrieval Module) is our booking system and database. Our
investigative modules are Face ID, Suspect ID, Crime Lab and Vehicle ID.
CRIME CAPTURE SYSTEM. The Crime Capture System is a Windows-based digital
booking system made up of two distinct software modules and associated hardware
such as cameras and computer hardware as needed. The Crime Capture System allows
a customer to capture and store images and other information in a database and
search and retrieve records from the database. The Crime Capture System uses
off-the-shelf hardware and is designed to comply with open industry standards so
that it can operate on an array of systems ranging from a stand-alone personal
computer to a wide area network. To avoid duplication of entries, the system can
be integrated easily with several other information storage and retrieval
systems, such as a live scan fingerprint system, a records management system or
an automated fingerprint identification system. The first order for the Crime
Capture System occurred in January 1998. As of December 13, 1999, the Crime
Capture System is being used by 20 customers, including the Arizona Department
of Public Safety and the Los Angeles County Sheriff's Department. Each Crime
Capture System is scalable to suit each customer's needs and can be configured
to connect with systems which may already be in place. As a result, the price of
the system to the customer varies widely. Full installations of the Crime
Capture System have ranged from $25,000 for a stand-alone system to over
$1 million, and most commonly range from $150,000 to $400,000. Gross revenues
from sales of the Crime Capture System represented 62% of our year-to-date gross
revenues as of September 30, 1999.
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CCS CAPTURE. This software module allows a user to capture and store facial
images as well as images of distinguishing features such as scars, tattoos and
other marks. Each entry contains both images and text information in an
easy-to-view format made up of distinct fields. As of December 13, 1999, we had
installed CCS Capture at 59 sites. Current customers of this module range from
agencies that capture a few thousand mugshots per year to those that capture
over 600,000 mugshots per year. CCS Capture will generally replace our
UNIX-based booking system, ForceField 2000, which was originally introduced by
XImage Corporation in 1989 as a mugshot capture system. While a few of our
customers will continue to use ForceField 2000 for the foreseeable future, we
have upgraded most current customers from the ForceField 2000 to the Crime
Capture System.
CCS RETRIEVAL. This software module allows a user to search the database
created with CCS Capture. Officers can conduct text searches in many fields,
including file number, name, alias, distinctive features like "brown eyes" or
"tattoo," and other information such as gang membership, arrests and
convictions. CCS Retrieval creates a catalogue of possible matches, allowing
officers or witnesses to save time by looking only at mugshots that closely
resemble the description of the suspect. This module can also be used to create
a line-up of similar facial images from which a witness may identify the
suspect. CCS Retrieval can be used by a law enforcement agency's satellite
offices that need to access a database created and maintained at a central
location using CCS Capture. As of December 13, 1999, we had installed CCS
Retrieval at 240 sites. When purchased separately from CCS Capture, the CCS
Retrieval module is typically priced at approximately $6,750.
FACE ID. This software module uses biometric facial recognition and
retrieval technology to help authorities identify possible suspects. Images
taken from surveillance videos, digital sketches or photographs can be searched
against a digital database of facial images to retrieve any desired number of
faces with similar characteristics. This investigative module can also be used
at the time of booking to identify persons using multiple aliases. Using
biometrics-based technology, Face ID can search through thousands of facial
images in a matter of seconds, reducing the time it would otherwise take a
witness to flip through a paper book of photographs that may or may not be
similar to the description of the suspect. Face ID then creates a selection of
possible matches ranked in order of similarity to the suspect, and a percentage
confidence level is attributed to each possible match. Face ID incorporates
search engine technology which we license from Visionics, Inc. We first
introduced Face ID in late 1997. This module is comprised of a server, which is
typically priced at $25,000 or more, and a personal computer client, which is
typically priced at approximately $15,000.
SUSPECT ID. This software module allows officers and witnesses to quickly
create full-color, photo-realistic suspect composites. The digital composites
are constructed from libraries of facial features based upon actual color
photographs of such features. Suspect ID allows officers with minimal computer
training and artistic talent to create a suspect composite by pointing and
clicking with a mouse. This module can be installed on a laptop computer and
taken into the field, allowing officers to conduct interviews and create
composites before witnesses' memories fade. For rapid identification, officers
can distribute completed composites within minutes via fax or e-mail. Suspect ID
incorporates our patented object-layering technology. We first introduced
Suspect ID in 1995. This module is typically priced at approximately $5,000.
CRIME LAB. This software module allows officers to enhance and edit digital
images. Using Crime Lab, an officer can update old images, create
non-prejudicial line-ups, remove distracting backgrounds and enhance the quality
of surveillance videos. Crime Lab incorporates our patented object-layering and
color-masking technologies. We first introduced Crime Lab in 1995. This module
is typically priced at approximately $600.
VEHICLE ID. This software module helps officers identify motor vehicles
which may have been stolen or involved in a crime. Vehicle ID's comprehensive
database includes images and text information for over 1,000 vehicle makes and
models and can be searched using many fields, including
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physical features and Vehicle Identification Number. Images of vehicles similar
to the suspect vehicle can be viewed from front, rear, side or three quarter
angles and can be depicted in any color. A color copy of the suspect vehicle can
then be produced and immediately broadcast, printed or faxed to officers in the
field. Vehicle ID incorporates our patented object-layering technology. Vehicle
ID also incorporates Vehicle Identification Number software provided by the
National Insurance Crime Bureau. We first introduced Vehicle ID in 1996. This
module is typically priced at approximately $1,500.
MAINTENANCE AND CUSTOMER SUPPORT
We work directly with purchasers of our system to ensure that the system
they purchase will meet their unique needs. We configure and test the system
either at our facilities or on-site and conduct any customized programming
necessary to connect the system with any legacy systems already in place, such
as old booking system databases or other records management systems.
As part of our installation of a system, we train our customer's employees
in the effective use of our products. We also provide training on an ongoing
basis both on-site and at our facilities in San Diego, California. We provide
on-site hardware support to our customers, generally within 24 hours of the
customer request. Customers can use a toll free number to speak with our
technical support center, which provides software support and general assistance
24 hours a day, seven days a week. On-site customer support is coordinated by
our field personnel in New York, Minnesota, Washington and Arizona. Providing
customer support services typically provides us with annual revenue of 12% to
18% of the initial sales price of the system purchased by our customer.
SYSTEM CONFIGURATION AND FULFILLMENT
We directly employ computer programmers and also retain independent
programmers to develop our software and perform quality control. We provide
customers software which we specifically configure to operate on their existing
computer system. We can also provide customers with a complete computer hardware
system with our software already installed and configured. In either case, the
customer is provided with a complete "turn-key" system which can be used
immediately. When we provide our customers with a complete computer system
including hardware, we use "off-the-shelf" computers, cameras and other
components purchased from other companies such as IBM or Gateway 2000. Systems
are assembled and configured either at our facilities in San Diego, California,
or at the customer's location.
OUR STRATEGY
Key elements of our strategy for growth include the following:
FULLY EXPLOIT THE EXPANDING LAW ENFORCEMENT AND PUBLIC SAFETY MARKETS
We intend to use our successful installations with customers such as the
Arizona Department of Public Safety as reference accounts and to aggressively
market C.R.I.M.E.S. as a superior technological solution. The majority of our
recent and near term sales has been and will be from sales of the Crime Capture
System. Our sales effort in the near term will be to establish the Crime Capture
System as the mug shot system adopted in as many countries, states and large
county/municipalities as possible. Once we have a system installed in a region,
we intend to then sell additional systems or retrieval seats to other agencies
within the primary customer's region and in neighboring regions. In addition, we
will then market our complementary investigative modules to the customer,
including Face ID, Suspect ID, Crime Lab and Vehicle ID. As customer databases
of digital mug shots grow, we expect that the perceived value of our
investigative modules, and corresponding revenues from sales of those modules,
will also grow.
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EXPAND INTO RELATED APPLICATIONS WITHIN THE LAW ENFORCEMENT AND PUBLIC SAFETY
MARKETS
Our products can provide solutions to law enforcement and public safety
agencies beyond our core application of police booking systems and related
investigative products, with minimal adaptation. The technology behind our
C.R.I.M.E.S. product line can be used to create databases of missing children
and compare the facial image of a lost child to the images in the database. Our
system can be used to help correctional facilities track and control inmates.
Gun sellers could use our products to access available criminal databases and
help prevent the sale of guns to ineligible persons. Our technology can be used
to monitor persons on parole or probation without requiring them to travel to
their parole or probation officer. We anticipate that a parolee or probationer
will be able to have his photograph taken in a specially designed kiosk which
uses biometrics-based technology to identify the person and inform his parole or
probation officer of his location.
PENETRATE THE ACCESS CONTROL AND IDENTIFICATION MARKETS
We believe security issues are becoming increasingly important among public
agencies, corporations, hospitals, universities and similar organizations. Using
our products, an organization can create picture IDs that correspond to images
in a digital database. A security guard can stop an individual and accurately
check his identity against a database of authorized persons, and either allow or
deny access as required. Picture IDs cannot be faked in the system, and
authorized people are not delayed more than a moment. Our technology can also be
applied in other markets to facilitate activities such as voter registration,
immigration control and welfare fraud identification. Our system has been
adopted as the picture ID system for the government of Kuwait.
DEVELOP THE INTERNET AND WIRELESS CAPABILITIES OF OUR PRODUCTS
We are currently developing a new software module, called Crime Web, which
will allow users to use the Internet or secure Intranets to conduct
investigative searches of digital booking systems. Crime Web will include the
most frequently used investigative features of the Crime Capture System to allow
users to retrieve single images, conduct searches based on one or more
parameters, create digital line-ups and print retrieved records. We are also
currently developing an Internet-based version of Face ID that will allow
investigators to use the Internet to compare the digital image of an unknown
suspect with a database of images using biometrics-based technology. We believe
our Internet products will allow users to quickly access and share images via
the Internet while maintaining the security and integrity of databases, thereby
encouraging the widespread dissemination and sharing of criminal information
among law enforcement agencies. We intend to introduce Crime Web in the first
quarter of fiscal 2000.
We also intend to develop the wireless capabilities of our products. Public
safety agencies require information to be available to their agents in the
field. Vehicles are being outfitted with wireless terminals which will allow for
the receipt of more information, including color photographs and arrest records.
Additionally, public safety agencies are investigating the feasibility of
handheld devices which can operate outside of a vehicle and accompany
investigators wherever an investigation takes them. In order to facilitate the
transfer of arrest records and investigative tools to public safety employees in
the field, we plan to develop technology in cooperation with wireless
communications companies which will allow our products in the field to operate
over wireless systems.
ACQUIRE BUSINESSES THAT ENHANCE OUR STRATEGIC POSITION
We may in the future acquire businesses that will complement our growth
strategy and enhance our competitive position in our core markets and other
markets. However, we have no current plans for such acquisitions.
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<PAGE>
SALES AND MARKETING
We market and sell our products through our direct sales force and through
indirect distribution channels, including systems integrators. Our sales and
account representatives are based in Massachusetts, New Jersey, Georgia and
California.
As of December 13, 1999, our domestic sales organization included our
Director of Sales, our Director of Major Account Development, our Vice President
of Sales and Business Development and five regional managers. Our Director of
Major Account Development, based in Boston, coordinates relationships with
systems integrators and other strategic partners and is responsible for U.S.
federal accounts and European sales. Other international sales are coordinated
by our Vice President of Sales and Business Development. Our sales professionals
are supported by our technical experts who are available by telephone and
conduct on-site customer presentations.
The typical sales cycle for our Crime Capture System includes a pre-sale
process to define the potential customer's needs and budget, an on-site
demonstration, and conversations between the potential customer and existing
customers. Government agencies are typically required to purchase large systems
by including a list of requirements in a Request For Proposal (known as an
"RFP") and allowing several companies to openly bid for the project by
responding to the RFP. If our response is selected, we enter into negotiations
for the contract and, if successful, ultimately receive a purchase order from
the customer. This process can take anywhere from a few months to over a year.
In addition to our direct sales force, we have developed relationships with
a number of large systems integrators who contract with government agencies for
the installation and integration of large computer and communication systems. By
acting as a subcontractor to these systems integrators, we are able to avoid the
time-consuming and often expensive task of submitting proposals to government
agencies and also gain access to large clients who might not contract directly
with small companies. In this context, we provide agencies with digital image
booking systems and our related investigative software products. As of
December 13, 1999, we were a subcontractor to the following prime contractors:
- SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, for the New York City
Police Department.
- MORPHO SYSTEMES, S.A., a subsidiary of SAGEM, S.A., a French company, for
the national identification system of Kuwait.
- PRC, INC., for the Las Vegas Metropolitan Police Department.
- DIGITAL BIOMETRICS, INC., for the Los Angeles County Sheriff's Department.
We have also entered into agreements or arrangements with the following
companies to jointly bid on certain specific projects:
- SIEMENS BUSINESS SERVICES, S.A., a German company, to jointly bid on the
national booking and facial recognition systems for the Belgian police.
- HEWLETT-PACKARD SINGAPORE (SALES) PTE LTD., to jointly bid on the booking
and facial recognition system for the Singapore Police Department.
- INTELLIGENCE AND STRATEGIC PROCESSES PTY LTD., an Australian company, to
sell our booking system in Australia and New Zealand.
We also work with companies that offer complementary products, where value
is created through product integration. These teaming arrangements allow us to
both enhance our products and expand
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<PAGE>
our customer base through the relationships and contracts of our strategic
partners. We have entered into agreements with the following companies:
- POLAROID CORPORATION. In September 1999, we entered into an agreement to
jointly market centralized imaging and facial recognition technology to
law enforcement agencies in selected states where Polaroid has state
contracts for drivers' license systems.
- H.T.E., INC. In August 1999, we entered into an agreement to integrate our
Crime Capture System with the records management system and jail
management system of H.T.E., Inc.
We promote our products through trade journal advertisements, direct mail,
and attendance at industry trade shows, including those sponsored by the
International Association for Law Enforcement, the International Association for
Identification, and the International Association of Chiefs of Police. We also
target other media through public relations efforts, including non-industry
publications, daily newspapers, local and national news programs, and television
programs related to law enforcement. Articles regarding our products have
appeared in BUSINESS WEEK, IMAGING MAGAZINE, THE WALL STREET JOURNAL and a
number of other publications.
CUSTOMERS
We have a broad range of domestic and international customers. Most of our
customers are government agencies at the federal, state and local levels in the
United States. Our products are also being used in Canada, the United Arab
Emirates, Kuwait, Mexico, Colombia, Venezuela, and the Philippines by over 450
customers, including the following:
<TABLE>
<S> <C>
New York City Police Department Los Angeles County Sheriff's Department
Arizona Department of Public Safety King County (Seattle), Washington
Orange County, Florida Sheriff's Office U.S. Army, Navy and Air Force
Hennepin County (Minneapolis), Minnesota Montreal Police Department
Government of Kuwait Milwaukee County, Wisconsin
City of San Antonio, Texas
</TABLE>
In addition to the major customers listed above, we also receive purchase
orders from or enter into contracts with cities or counties. We have agreed in
certain instances with the state agency, for example, the Arizona Department of
Public Safety, to provide our products and services to smaller cities within the
state at the price and on the terms offered to the state agency. When referring
to the number of our customers, we not only include the large entities such as
the Arizona Department of Public Safety, but also include the smaller cities (or
counties), such as Tempe and Scottsdale, which separately enter into contracts
with us or submit purchase orders for our products and services.
COMPETITION
Due to the fragmented nature of the law enforcement and public safety market
and the modular nature of our product suite, we face different degrees of
competition with respect to each C.R.I.M.E.S. module. We believe the principal
bases on which we compete with respect to all of our products are:
- The ability to integrate our modular products into a complete imaging and
facial recognition system.
- Our reputation as a reliable systems supplier.
- The usability and functionality of our products.
- The responsiveness, availability and reliability of customer support.
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<PAGE>
The Crime Capture System faces strong competition from other makers of
booking systems, including companies such as Printrak International, Inc. and
Digital Descriptors Systems, Inc. Other companies in this market include Identix
Corp., Dynamic Imaging, Inc. and Epic Solutions, Inc. Printrak serves over 250
customers, including the Philadelphia Police Department. Internationally, there
are a number of local companies offering booking solutions in most countries.
Most competitors' products in this niche offer basic image capture and storage
but lack the functionality of investigative products, including facial
recognition and image editing and enhancement.
We believe Face ID was the first facial recognition software produced and
sold to the law enforcement and public safety markets. As a result, we believe
it is the most widely recognized product in this niche, with the largest number
of installations. Identix Corp. has, through its subsidiary, developed products
with facial recognition capabilities.
Suspect ID faces competition primarily from Smith and Wesson and
Faces, Inc. Some agencies continue to employ sketch artists who develop
hand-drawn composites from witness interviews. Smith and Wesson has supplied
"acetate foil overlay" products for over 30 years. This method of creating
suspect composites requires a user to overlay sheets of clear plastic with
different facial features in order to produce a full picture. This method is
still the most widely used method for creating suspect composites, but its use
has declined since the introduction of computerized composite systems.
Crime Lab faces competition primarily from off-the-shelf image editing and
enhancement programs such as Photoshop from Adobe Systems. Photoshop is a well
known application, but was not specifically designed for the law enforcement and
public safety industry. As a result, it is not customized for use by law
enforcement agencies and cannot be easily integrated with other law enforcement
investigative software products.
Vehicle ID is, to our knowledge, the only software product using digital
images of motor vehicles to help law enforcement agencies locate and identify
stolen vehicles or vehicles involved in crimes.
INTELLECTUAL PROPERTY
We rely on patents, trademarks, trade secret and copyright laws, and
confidentiality agreements to protect our intellectual property. We own two
United States patents that are important to our business strategy. Our patented
"Color Masking System" allows a user to manipulate selected colors of an image
without affecting other colors of the image. Our patented "Object Layering"
technology allows a user to save each element of an image as a separate layer so
that edits can be made to certain elements without affecting other elements or
having to re-create the entire image. Our patented object layering technology is
used in Suspect ID, Crime Lab and Vehicle ID, and our patented color masking
technology is used in Crime Lab. These patents expire in 2012 and 2013,
respectively. We have several unregistered and federally registered trademarks,
as well as trademarks for which there are pending trademark registrations with
the United States Patent & Trademark Office, including the following marks:
<TABLE>
<S> <C>
C.R.I.M.E.S.-Registered Trademark- Crime Capture System-TM-
Image Crime Lab-TM-
Wizard-Registered Trademark-
ImageWare-Registered Trademark- Crime Web-TM-
Morphwizard-Registered Trademark- Face ID-TM-
People Face Investigate-TM-
Postcards-Registered Trademark-
Suspect ForceField 2000-TM-
ID-Registered Trademark-
Vehicle
ID-Registered Trademark-
</TABLE>
We license and depend on intellectual property from third parties. We
license certain facial recognition and retrieval technology from Excalibur
Technologies Corporation on a nonexclusive,
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worldwide basis. Under the agreement with Excalibur, we can create our own
intellectual property as a derivative of the Excalibur technology. Our license
from Excalibur with respect to certain technology will expire on April 29, 2001,
while our license with respect to other technology expired on October 29, 1999.
Under the license with Excalibur, we are currently paying royalties at rates
equal to 10% and 25% of the net sales price of the product depending on the
category of Excalibur's technology which is incorporated into the specific
product being sold. We license search engine technology from Viisage
Technology, Inc. and Visionics, Inc. Our license from Viisage Technology is a
nonexclusive license for the United States and expires on December 31, 2000. The
royalties payable by us under the license from Viisage are $5,000 for searches
of up to 40,000 images and $0.17 per image beyond 40,000 images. Our license
from Visionics is on a nonexclusive, worldwide basis and expires in July 2001.
The royalties payable by us under the license are based upon the number of
images on the database and the number of clients accessing the server. As of
December 13, 1999, we were actively using the technology licensed from Visionics
in our products. We believe that, prior to expiration of the Visionics license,
we will be able to either enter into a new license agreement with Visionics,
obtain similar search engine technology from another third party or develop our
own technology.
We also license certain of our technology to third parties. We entered into
a license agreement pursuant to which we granted Atlus Co., Ltd. an exclusive
license (except with respect to the license granted to American Photo
Booth, Inc.), for a one-time licensing fee of $1,961,039 received in 1997, to
use our patents and related technology in the entertainment photo booth market
and a nonexclusive license to use our patents and related technology in other
markets. The patents licensed to Atlus relate to only two of the six modules of
our C.R.I.M.E.S. suite of products, Suspect ID and Crime Lab. The remaining four
modules of the C.R.I.M.E.S. suite of products are not based on the patents or
technology which was the subject of this license agreement. The license
agreement also required that we first offer to Atlus, at a price and at terms
acceptable to us, the right to license all new technologies which we developed
before we could license such new technology to any third party. Atlus, in turn,
could only assign or sublicense its rights under the license agreement to an
affiliate or subsidiary of Atlus.
As of June 30, 1999, we entered into a settlement agreement and release with
Atlus in which we assigned to Atlus certain patents that were previously subject
to the license agreement mentioned above. In turn, Atlus has given us perpetual,
nonexclusive licenses to such assigned patents to use for applications other
than photo booth entertainment applications. The settlement agreement modifies
the license agreement with Atlus in that those patents which were assigned to
Atlus are no longer subject to the license agreement, and Atlus is now able to
freely sublicense to third parties the patents and intellectual property which
is still subject to the license agreement.
Pursuant to a license agreement with Panasonic Computer Peripheral Company,
Panasonic has the exclusive right to use our technology for the purpose of
bundling it with its motion printers and distributing the bundled product in the
United States and Canada. As of September 30, 1999, we had received payments
from Panasonic under this agreement of approximately $347,000, and Panasonic had
informed us that they have stopped using the technology for the time being. We
also granted to American Photo Booths Inc. a non-exclusive license to make and
sell entertainment photo booths using our "Color Masking" and "Object Layering"
technology pursuant to a Confidential License Agreement dated as of August 28,
1999. We do not receive royalties under this license agreement. We believe
certain of our patented technology may be currently used by third parties
without licenses from us and we intend to seek to enter into license agreements
with the parties similar to our arrangement with Panasonic.
RESEARCH AND DEVELOPMENT
Our research and development team is made up of 11 programmers, engineers
and other employees. We spent approximately $831,000 on research and development
in 1998 and $1.1 million in
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the first nine months of 1999. We continually work to increase the speed and
accuracy of our existing suite of products. Our research and development efforts
will continue to focus on technology and products for the law enforcement and
public safety markets. We intend to use the proceeds of this offering to expand
our research and development efforts related to other markets as well.
Currently, our principal projects include:
- Completing the development of the Crime Web product and enabling our
existing products to allow facial images and associated data to be
accessed over the Internet or an agency's Intranet.
- Completing the development of our "Real Time" facial recognition
application so that facial searches and resulting matches can be processed
within seconds of initial image capture.
- Adding wireless communications capabilities to our suite of products to
allow for the transmissions of images and text between agencies and their
officers in the field.
- Developing a standard interface template to allow for easier integration
of C.R.I.M.E.S. with the complementary applications of our strategic
partners, such as jail management and record keeping programs.
EMPLOYEES
As of December 13, 1999, we had a total of 48 full-time employees, including
nine in sales and marketing, 22 in customer support and installation, ten in
research and development and seven in administration. Our employees are not
covered by any collective bargaining agreement, and we have never experienced a
work stoppage. We believe that our relations with our employees are good.
FACILITIES
We conduct our operations from a 16,000-square-foot facility located in San
Diego, California. The monthly rent for this facility is approximately $22,000.
This lease expires on July 31, 2003. We believe this facility will meet our
needs for the next three years and that additional space will be available on
reasonable terms upon the expiration of our current lease or in the event we
need to expand our facilities.
LEGAL PROCEEDINGS
We are not aware of any pending legal proceedings against us that,
individually or in the aggregate, would have a material adverse effect on our
business, results of operations or financial condition.
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<PAGE>
MANAGEMENT
DIRECTORS, EXECUTIVE OFFICERS AND KEY EMPLOYEES
Our directors, executive officers and key employees are as follows:
<TABLE>
<CAPTION>
NAME AGE POSITION
- ---- -------- ----------------------------------------------------
<S> <C> <C>
S. James Miller, Jr.................. 46 Chairman, President and Chief Executive Officer
Vice President of Finance and Chief Financial
Wayne G. Wetherell................... 47 Officer
Paul J. Devermann.................... 44 Vice President of Sales and Business Development
Patricia E. Ryan..................... 35 Director of Major Account Development
William J. Ibbetson.................. 31 Chief Technical Officer
Patrick J. Downs..................... 63 Director
John L. Holleran..................... 73 Director
Yukuo Takenaka....................... 57 Director
</TABLE>
S. JAMES MILLER, JR. has served as our President and Chief Executive Officer
and as a director since 1990. From 1980 to 1990, Mr. Miller was an executive
with Oak Industries, Inc., a manufacturer of components for the
telecommunications industry. While at Oak Industries, Mr. Miller served as a
director and as General Counsel, Corporate Secretary and Chairman/President of
Oak Industries' Pacific Rim subsidiaries. Mr. Miller has a J.D. from the
University of San Diego School of Law and a B.A. from the University of
California, San Diego.
WAYNE G. WETHERELL has served as our Vice President of Finance and Chief
Financial Officer since 1996. From 1991 to 1996, Mr. Wetherell was the Vice
President and Chief Financial Officer of Bilstein Corporation of America, a
manufacturer and distributor of automotive parts. Mr. Wetherell holds a B.S. in
Management and a M.S. in Finance from San Diego State University.
PAUL J. DEVERMANN has served as our Vice President, Sales and Business
Development since 1997. From 1992 to 1997, Mr. Devermann was the Managing
Director and Founding Partner of Intra-International Trade and Transactions, an
international consulting and trading company which facilitates business
transactions between the U.S. and Japanese companies. He holds a B.S. degree in
Marketing from Northern Illinois University and an M.B.A. from the University of
Puget Sound.
PATRICIA E. RYAN has served as our Director of Major Account Development
since 1994. From 1992 to 1994, Ms. Ryan was an account executive of Noble
Broadcasting, Inc., where she was responsible for developing new business
through vendor and event marketing campaigns. Ms. Ryan holds a B.S. in Business
Administration and a B.A. in Economics from the University of New Hampshire.
WILLIAM J. IBBETSON joined us in 1992 as a field support technician and has
served as our Chief Technical Officer since April 1996. Mr. Ibbetson holds a
Certification in Computer Electronics Technology from Coleman College.
PATRICK J. DOWNS was elected to the Board in August 1994. He is a founding
shareholder of NTN Communications, Inc., a interactive gaming company whose
common stock is listed on the American Stock Exchange, and served as its
Chairman and Chief Executive Officer from 1983 to 1997. Mr. Downs is currently
Manager of Control Commerce, LLC, an Internet business.
JOHN L. HOLLERAN was elected to the Board in May 1996. For the last five
years, Mr. Holleran has been self-employed as a management and investment
consultant.
YUKUO TAKENAKA was elected to the Board in April 1997. Since 1989,
Mr. Takenaka has been President of Takenaka & Company LLC, an investment firm.
Mr. Takenaka is a director of Atlus
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Dream Entertainment Co., Ltd., which is majority owned by Atlus Holding, a
wholly owned subsidiary of our largest shareholder, Atlus Co., Ltd.
DIRECTOR COMPENSATION
In January 1998, for past services rendered as directors, we issued 2,844
shares of common stock to S. James Miller, 2,844 shares to Patrick Downs, 2,654
shares to William Guthner, 1,327 shares to John Holleran and 569 shares to Yukuo
Takenaka. Directors did not receive any other compensation in 1998. Beginning
November 1999, directors who are not also employees will receive $12,000
annually in return for their services as directors, payable in cash or our
common stock as determined by the company. We reimburse directors for travel and
other out-of-pocket expenses incurred in attending shareholder, Board and
committee meetings. Directors are also entitled to receive options under the
1994 Nonqualified Stock Option Plan and the 1999 Stock Option Plan.
COMMITTEES OF THE BOARD OF DIRECTORS
Our Board of Directors has a Compensation Committee consisting of Mr. Downs
(with a current vacancy) and an Audit Committee consisting of Mr. Takenaka and
Mr. Holleran. The Compensation Committee reviews and recommends to the Board of
Directors the compensation and benefits of our officers, reviews general policy
matters relating to compensation and benefits of our employees and administers
the issuance of stock options and discretionary cash bonuses to our officers,
employees, directors and consultants. The Audit Committee meets with management
and our independent public accountants to determine the adequacy of our internal
controls and other financial reporting matters. It is our intention to appoint
only independent directors to the Audit and Compensation Committees.
EXECUTIVE COMPENSATION
The following table sets forth information regarding compensation awarded
to, earned by or paid to our President and Chief Executive Officer and executive
officers whose annual compensation exceeded $100,000 in 1998 for all services
rendered to us during 1998, 1997 and 1996.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG TERM
COMPENSATION
ANNUAL COMPENSATION ------------
------------------------------------------------ SECURITIES
OTHER ANNUAL UNDERLYING
NAME AND PRINCIPAL POSITION YEAR SALARY BONUS COMPENSATION OPTIONS(#)
- --------------------------- -------- -------- -------- ------------ ------------
<S> <C> <C> <C> <C> <C>
S. James Miller, Jr. .................. 1998 $159,769 -- $ 9,000(3) --
President and Chief Executive Officer 1997 156,445(1) $15,000 10,320(2)(3) 9,479
1996 155,885 -- 9,000(3) 18,957
Wayne G. Wetherell .................... 1998 $108,606 -- -- 2,844
Vice President of Finance and 1997 108,127 $ 7,500 $ 1,320(2) 18,957
Chief Financial Officer 1996 32,277 -- -- --
Paul J. Devermann ..................... 1998 $101,300 $10,000 -- 2,844
Vice President of Sales and 1997 99,865 -- -- 18,957
Business Development 1996 -- -- -- --
</TABLE>
- ------------------------
(1) Includes cash and common stock.
(2) Includes a 401(k) matching contribution of $1,320.
(3) Includes an auto allowance of $750 per month.
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<PAGE>
OPTION GRANTS IN LAST FISCAL YEAR
The following table sets forth information regarding options granted to the
following executive officers during the year ended December 31, 1998.
<TABLE>
<CAPTION>
NUMBER OF PERCENT OF TOTAL
SECURITIES OPTIONS GRANTED
UNDERLYING TO EMPLOYEES IN EXERCISE PRICE
NAME OPTIONS GRANTED FISCAL YEAR ($/SHARE) EXPIRATION DATE
- ---- --------------- ---------------- -------------- ---------------
<S> <C> <C> <C> <C>
S. James Miller, Jr.................. -- -- -- --
Wayne G. Wetherell................... 2844 11.6% $5.28 April 8, 2003
Paul J. Devermann.................... 2844 11.6% $5.28 April 8, 2003
</TABLE>
FISCAL YEAR END OPTION VALUES
The following table sets forth information regarding the number and value of
unexercised options held by the following executive officers on December 31,
1998. None of these executive officers exercised options to purchase common
stock during 1998.
<TABLE>
<CAPTION>
NUMBER OF SECURITIES VALUE OF UNEXERCISED
UNDERLYING OPTIONS IN-THE-MONEY OPTIONS
AT FISCAL YEAR END(#) AT FISCAL YEAR END($)(1)
--------------------------- ---------------------------
NAME EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- ---- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C>
S. James Miller, Jr............................ 28,436 -- 0 0
Wayne G. Wetherell............................. 6,635 15,166 0 0
Paul J. Devermann.............................. 6,635 15,166 0 0
</TABLE>
- ------------------------
(1) Based on the estimated fair value of our common stock as of December 31,
1998, determined by our Board of Directors to be $5.28 per share (as
adjusted to reflect the 5.275-to-1 reverse stock split on November 29,
1999).
STOCK OPTION PLANS
We have three separate stock option plans: the 1994 Employee Stock Option
Plan, the 1994 Nonqualified Stock Option Plan, and the 1999 Stock Option Plan.
The 1994 Employee Stock Option Plan is an incentive stock option plan which
authorizes us to issue options to purchase up to 170,616 shares of our common
stock to our officers and key employees. Under this plan, we have issued options
to purchase 165,118 shares at a weighted average exercise price of $5.275 per
share. The plan is administered by our Board of Directors. Subject to the
provisions of this plan, the Board determines who will receive options, the
number of options granted, the manner of exercise and the exercise price of the
options. The term of the options granted under the plan may not exceed ten
years, or five years for options granted to an optionee owning more than 10% of
our common stock. No options may be granted after August 31, 2004. The exercise
price of the options granted under this plan must be equal to or greater than
the fair market value of the shares of our common stock on the date the option
is granted or, in the case of options granted to an optionee owning more than
10% of our voting stock, at a price equal to or greater than 110% of the fair
market value of our common stock on the date the option is granted.
The 1994 Nonqualified Stock Option Plan is a non-qualified stock option plan
which authorizes us to issue options to purchase up to 18,957 shares of our
common stock to our directors and consultants. Under this plan, we have issued
options to purchase 16,492 shares at an exercise price of $8.00. The plan is
administered by our Board of Directors. Subject to the provisions of this plan,
the Board
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<PAGE>
determines who will receive options, the number of options granted, the manner
of exercise and the exercise price of the options. The term of the options
granted under the plan may not exceed five years. No options may be granted
after August 31, 2004. The exercise price of the options granted under this plan
must be equal to or greater than 85% of the fair market value of the shares of
our common stock on the date the option is granted.
The 1999 Stock Option Plan is a combined incentive and non-qualified stock
option plan which authorizes us to issue options to purchase up to 350,000
shares of our common stock. Under this plan, we have issued options to purchase
250,000 shares at $8.00 per share, including 75,000 options to Mr. Miller,
50,000 options to Mr. Wetherell and 50,000 options to Mr. Devermann. The plan is
administered by our Board of Directors. Subject to the provisions of this plan,
the Board determines who will receive options, the number of options granted,
the manner of exercise and the exercise price of the options. The term of the
options granted under the plan may not exceed ten years, or five years for
options granted to an optionee owning more than 10% of our voting stock. No
options may be granted after December 17, 2009. The exercise price of an
incentive stock option granted under this plan must be equal to or greater than
the fair market value of the shares of our common stock on the date the option
is granted. The exercise price of a non-qualified option granted under this plan
must be equal to or greater than 85% of the fair market value of the shares of
our common stock on the date the option is granted. In either case, an option
granted to an optionee owning more than 10% of our voting stock must have an
exercise price equal to or greater than 110% of the fair market value of our
common stock on the date the option is granted.
In February 1999, all then-outstanding options were repriced so that the new
exercise price of these options became $5.28 per share (as adjusted to reflect
the 5.275-to-1 reverse stock split in November 1999).
EMPLOYMENT AGREEMENTS
S. JAMES MILLER, JR. In September 1997, we entered into an amended
employment agreement with Mr. Miller pursuant to which Mr. Miller will serve as
our President and Chief Executive Officer. This agreement is for an initial
three-year term ending December 31, 2001, which period is renewed annually on
January 1(st) of each year for a three-year term unless we give Mr. Miller
one-year prior notice of termination. This agreement provides for annual base
compensation in the amount of $155,000, which amount will be increased based on
cost-of-living increases, and a $750 per month auto allowance. Under this
agreement, we will reimburse Mr. Miller for reasonable expenses incurred in
connection with our business. If we terminate Mr. Miller's employment without
cause or if we move our principal offices out of San Diego, Mr. Miller will be
entitled to a lump sum amount equal to the full amount of his base salary for
the remainder of the term of the agreement. Upon a change in control of the
company or a material reduction of Mr. Miller's duties by the Board of
Directors, Mr. Miller may provide 30 days notice of the termination of his
employment and will be entitled to his entire unpaid base salary for the
remainder of the term of the agreement.
WAYNE G. WETHERELL. On March 1, 1999, we entered into an amended employment
agreement with Mr. Wetherell pursuant to which Mr. Wetherell will serve as our
Chief Financial Officer. This agreement is for a term ending April 30, 2002.
This agreement provides for annual base salary in the amount of $112,144, which
amount will be increased based on cost-of-living increases and may also be
increased based on performance reviews. Under this agreement, we will reimburse
Mr. Wetherell for reasonable expenses incurred in connection with our business.
If we terminate Mr. Wetherell's employment without cause, Mr. Wetherell will be
entitled to the full amount of his base salary for a period of one year after
termination. Upon a change in control of the company or a material reduction of
Mr. Wetherell's duties by the Board of Directors, Mr. Wetherell may provide
30 days notice of the termination of his employment and will be entitled to his
entire unpaid base salary for a period of one year from the date of termination.
37
<PAGE>
PAUL J. DEVERMANN. On March 1, 1999, we entered into an amended employment
agreement with Mr. Devermann pursuant to which Mr. Devermann will serve as our
Vice President, Sales and Business Development. This agreement is for a term
ending February 28, 2002. This agreement provides for annual base salary in the
amount of $103,731, which amount will be increased based on cost-of-living
increases and may also be increased based on performance reviews. Under this
agreement, we will reimburse Mr. Devermann for reasonable expenses incurred in
connection with our business. If we terminate Mr. Devermann's employment without
cause, Mr. Devermann will be entitled to a lump sum equal to the full amount of
his base salary for a period of one year after termination. Upon a change in
control of the company or a material reduction of Mr. Devermann's duties by the
Board of Directors, Mr. Deverman may provide 30 days notice of the termination
of his employment and will be entitled to his entire unpaid base salary for a
period of one year from the date of termination.
CERTAIN TRANSACTIONS
TRANSACTIONS WITH DIRECTORS AND OFFICERS
In connection with our acquisition of XImage in January 1998, we borrowed
$700,000 from Imperial Bank. On September 18, 1998, we borrowed an additional
$500,000 from Imperial Bank which has been paid in full. The maturity date of
the outstanding balance of the $700,000 loan has been extended until March 3,
2000. Both of the loans were personally guaranteed by Mr. Miller, Mr. Wetherell
and Mr. Devermann, and by William E. Guthner, one of our former directors. In
consideration of these guarantees, we issued to each of Mr. Miller,
Mr. Wetherell, Mr. Devermann and Mr. Guthner 27,014 shares of common stock,
warrants to purchase 3,317 shares of common stock at $15.825 per share, and
warrants to purchase 2,369 shares of common stock at $7.91 per share. These
guarantees will be released upon payment of the outstanding loan from Imperial
Bank. We intend to pay this loan in full with the proceeds of this offering.
Mr. Miller loaned us $267,500 pursuant to the terms of a convertible note
dated June 15, 1995. The note provides for quarterly payments of interest at an
annual rate of 8%, with the entire amount due and payable on June 15, 2000. The
amount due under the note may be converted, at Mr. Miller's election, into units
comprised of shares of Series B Preferred Stock and warrants to purchase common
stock on the same terms as sold to our current Series B Preferred shareholders
in a 1995 private placement.
As of September 30, 1999, we have an outstanding debt of approximately
$33,000 to Patrick J. Downs, a director of the company, pursuant to the terms of
a convertible note dated June 15, 1995. The note provides for quarterly payments
of interest at an annual rate of 8%, with the entire amount due and payable on
June 15, 2000. The amount due under the note may be converted, at Mr. Downs
election, into units comprised of shares of Series B Preferred Stock and
warrants to purchase common stock on the same terms as sold to our current
Series B Preferred shareholders in a 1995 private placement.
We also have an outstanding debt of $55,000 to the Nossaman, Guthner,
Knox & Elliot Profit Sharing & Savings Plan dated April 1, 1969 for the benefit
of W.E. Guthner, Jr., our former director, pursuant to the terms of a promissory
note dated November 5, 1998. The note provides for interest to accrue at the
rate of 10% with a payment of principal and interest which was due on
January 31, 1999. This note is secured by a security agreement granting a
security interest in all of our assets. The William Guthner Estate has not
enforced its rights with respect to repayment of the note. We intend to repay
this obligation from the proceeds of this offering.
We have entered into a letter agreement with Takenaka & Company LLC pursuant
to which Takenaka & Company has agreed to assist us in communicating with Atlus,
our largest shareholder. Pursuant to the terms of the letter agreement,
Takenaka & Company LLC will be compensated for its services on an hourly basis
ranging from $250 to $375 per hour depending on the level of experience of
38
<PAGE>
the professional staff involved. Mr. Takenaka is the president of Takenaka &
Company LLC and one of our directors.
TRANSACTIONS WITH ATLUS CO., LTD.
Atlus Co., Ltd., a Japanese corporation, owns approximately 31% of our
common stock. In conjunction with an investment by Atlus in March of 1997, we
entered into a Securities Purchase Agreement and a License Agreement. The
License Agreement is described in "BUSINESS--Intellectual Property." The
Securities Purchase Agreement entitled Atlus to purchase, at the end of each
quarter until the date of an initial public offering of the our common stock,
the number of warrants to purchase shares of common stock at $21.10 per share
which, if exercised, would result in Atlus owning 33 1/3% of our outstanding
common stock at the end of such quarter. The warrants granted to Atlus were to
be exercisable for a period of five years after their date of issuance. Atlus
did not purchase any warrants under the Securities Purchase Agreement. The
Securities Purchase Agreement also granted to Atlus a right of first refusal to
participate, on a pro rata basis, in future securities offerings, and the right
to approve of (i) any changes to our Articles of Incorporation, (ii) our
obtaining a controlling interest in any other entity, (iii) the sale of any of
our intellectual property, (iv) any change in the nature of our business, or
(v) the encumbrance of any of our material assets. The Securities Purchase
Agreement with Atlus will be terminated effective upon the completion of this
offering.
TRANSACTION WITH PRESIDENT OF ATLUS
Naoya Harano, the president of Atlus, loaned $1,250,000 to us pursuant to
the terms of a convertible promissory note dated November 10, 1999. The
convertible promissory note provides for payment upon the earlier of
February 10, 2001 or five days after the completion of this offering. The
repayment of the debt is in United States dollars, but the amount to be repaid
will be adjusted based upon the change in the exchange rate between the United
States dollar and the Japanese yen between the date of the promissory note and
the date of repayment. If the Convertible Promissory Note is not paid before
April 1, 2001, the holder may convert the outstanding balance due into our
common stock at $1.00 per share. The amount due under the convertible promissory
note accrues interest at the rate of 10% per year. In connection with this loan,
Mr. Harano received warrants to purchase 125,000 shares of our common stock
exercisable at $6.00 per share. These warrants are exercisable at any time after
January 1, 2001 and before November 10, 2004.
39
<PAGE>
SECURITY OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding the beneficial
ownership of common stock as of December 13, 1999, and as adjusted to reflect
the sale of 1,500,000 units in this offering, by (i) each person or group of
affiliated persons known to be the beneficial owner of more than 5% of our
outstanding common stock, (ii) each of our directors, (iii) each our executive
officers, and (iv) all of our directors and executive officers as a group. As of
such date, there were 1,155,482 shares of common stock outstanding before giving
effect to the sale of units in the offering. The Company believes that, except
as otherwise listed below, each named beneficial owner has sole voting and
investment power with respect to the shares listed.
<TABLE>
<CAPTION>
PERCENT OF SHARES
BENEFICIALLY OWNED
------------------------
NUMBER OF SHARES BEFORE THIS AFTER THIS
NAME AND ADDRESS OF BENEFICIAL OWNER (1) BENEFICIALLY OWNED OFFERING OFFERING
- ---------------------------------------- ------------------ ----------- ----------
<S> <C> <C> <C>
Atlus Co., Ltd.......................................... 365,116(2) 30.9% 13.6%
S. James Miller, Jr..................................... 184,054(3) 15.1% 6.8%
R Squared Limited ...................................... 120,943 10.5% 4.6%
c/o Royal Bank of Canada Trust Co.
P.O. Box 1856
Cardinal Avenue, George Town, Grand Cayman
Cayman Islands, B.W.I.
Wayne G. Wetherell...................................... 49,716(4) 4.2% 1.9%
Paul J. Devermann....................................... 46,967(5) 4.0% 1.8%
Patrick J. Downs........................................ 61,426(6) 5.3% 2.3%
John L. Holleran........................................ 10,332(7) 0.9% 0.4%
Yukuo Takenaka.......................................... 4,076(8) 0.4% 0.2%
356,571(9) 28.1% 12.9%
All directors and executive officers as a group (6
persons)..............................................
</TABLE>
- ------------------------
(1) Unless otherwise indicated, the address of each person in this table is c/o
ImageWare Systems, Inc., 10833 Thornmint Road, San Diego, California 92127.
(2) Includes 26,540 shares subject to warrants that are exercisable within
60 days.
(3) Includes 60,663 shares subject to options, warrants or convertible
securities that are exercisable or convertible within 60 days, and 9,479
shares held by members of Mr. Miller's immediate family.
(4) Includes 19,953 shares subject to options or warrants that are exercisable
within 60 days.
(5) Includes 19,953 shares subject to options or warrants that are exercisable
within 60 days.
(6) Includes 7,397 shares subject to options or convertible securities that are
exercisable or convertible within 60 days.
(7) Includes 2,370 shares subject to options that are exercisable within
60 days.
(8) Includes 3,507 shares subject to options that are exercisable or convertible
within 60 days.
(9) Includes 113,843 shares subject to options, warrants or convertible
securities that are exercisable or convertible within 60 days.
40
<PAGE>
DESCRIPTION OF SECURITIES
Upon completion of the offering, our authorized capital stock will consist
of (1) 50,000,000 authorized shares of common stock, $0.01 par value, and
(2) 4,000,000 authorized shares of preferred stock, $0.01 par value, of which
there will be 2,655,482 shares of common stock and 389,400 shares of preferred
stock outstanding. The following description of our capital stock is a summary
and is qualified in its entirety by the provisions of the Amended and Restated
Articles of Incorporation and our Bylaws, copies of which have been filed as
exhibits to the registration statement of which this prospectus is a part.
UNITS
Each unit consists of one share of common stock and one public warrant to
purchase an additional share of common stock. The common stock and warrants will
trade only as a unit for at least 30 days following this offering. The
representative of the underwriters will then determine when the units separate,
after which the common stock and the public warrants will trade separately.
COMMON STOCK
Holders of our common stock are entitled to one vote for each share on all
matters submitted to a shareholder vote and, in the election of directors, may
upon proper notice cumulate their votes and cast them for one or more directors.
Holders of common stock are entitled to share in all dividends that the Board of
Directors, in its discretion, declares from legally available funds. In the
event of our liquidation, dissolution or winding up, each outstanding share
entitles its holder to participate pro rata in all assets that remain after
payment of liabilities and after providing for each class of stock, if any,
having preference over the common stock.
Holders of our common stock have no conversion, preemptive or other
subscription rights, and there are no redemption provisions applicable to our
common stock. The rights of the holders of common stock are subject to any
rights that may be fixed for holders of preferred stock. All outstanding shares
of common stock are, and the shares underlying all options and public warrants
will be, duly authorized, validly issued, fully paid and non-assessable upon our
issuance of these shares.
PREFERRED STOCK
The Amended and Restated Articles of Incorporation provide for the issuance
of up to 750,000 shares of Series B Preferred Stock. As of the date of this
prospectus, there are 389,400 outstanding shares of Series B Preferred Stock.
The Series B Preferred Stock have rights and preferences which are superior to
the rights of the holders of our common stock. These rights and preferences
include the right to receive a cumulative cash dividend of $0.2125 per share, a
preference in the distribution of our assets over the holders of Common Stock in
event of the liquidation or dissolution of the company, the right to convert to
shares of common stock, and the right to elect a director in the event we are in
default of the provisions of the Amended and Restated Articles of Incorporation
with respect to the Series B Preferred Stock. Subject to certain limitations
prescribed by law and the rights and preferences of the Series B Preferred
Stock, our Board of Directors is authorized, without further shareholder
approval, from time to time to issue up to an aggregate of 3,610,600 shares of
our preferred stock, in one or more additional series. Each new series of
preferred stock may have different rights and preferences that may be
established by our Board of Directors.
The rights and preferences of future series of preferred stock may include:
- number of shares to be issued;
- dividend rights and dividend rates;
- right to convert the preferred stock into a different type of security;
- voting rights attributable to the preferred stock;
41
<PAGE>
- right to receive preferential payments upon a liquidation of the company;
- right to set aside a certain amount of assets for payments relating to the
preferred stock; and
- prices to be paid upon redemption of the preferred stock.
PUBLIC WARRANTS
GENERAL
Each public warrant entitles the holder to purchase one share of our common
stock at an exercise price per share of 120% of the initial public offering
price of the units during the first year after the offering and 150% of the
initial public offering price of the units thereafter. The exercise price is
subject to adjustment upon the occurrence of certain events as provided in the
public warrant certificate and summarized below. Our public warrants may be
exercised at any time during the period commencing 30 days after this offering
and ending on the fifth anniversary date of the closing of the offering, which
is the expiration date. Those of our public warrants which have not previously
been exercised will expire on the expiration date. A public warrant holder will
not be deemed to be a holder of the underlying common stock for any purpose
until the public warrant has been properly exercised.
SEPARATE TRANSFERABILITY
Our public warrants will trade only as a unit for a period of at least 30
days following this offering. The representative of the underwriters will then
determine when the units separate, after which the common stock and the public
warrants will trade separately.
REDEMPTION
We have the right, commencing six months after the closing of this offering,
to redeem the public warrants issued in the offering at a redemption price of
$0.25 per public warrant after providing 30 days prior written notice to the
public warrant holders, if the average closing bid price of the common stock
equals or exceeds 200% of the initial public offering price of the units for ten
consecutive trading days ending prior to the date of the notice of redemption.
We will send the written notice of redemption by first class mail to public
warrant holders at their last known addresses appearing on the registration
records maintained by the transfer agent for our public warrants. No other form
of notice or publication or otherwise will be required. If we call the public
warrants for redemption, they will be exercisable until the close of business on
the business day next preceding the specified redemption date.
EXERCISE
A public warrant holder may exercise our public warrants only if an
appropriate registration statement is then in effect with the Securities and
Exchange Commission and if the shares of common stock underlying our public
warrants are qualified for sale under the securities laws of the state in which
the holder resides.
Our public warrants may be exercised by delivering to our transfer agent the
applicable public warrant certificate on or prior to the expiration date or the
redemption date, as applicable, with the form on the reverse side of the
certificate executed as indicated, accompanied by payment of the full exercise
price for the number of public warrants being exercised. Fractional shares will
not be issued upon exercise of our public warrants.
ADJUSTMENTS OF EXERCISE PRICE
The exercise price is subject to adjustment if we (i) declare any stock
dividend to shareholders, or (ii) effect any split or share combination with
respect to our common stock. Therefore, if we effect any stock split or stock
combination with respect to our common stock, the exercise price in effect
immediately prior to such stock split or combination will be proportionately
reduced or increased, as
42
<PAGE>
the case may be. Any adjustment of the exercise price will also result in an
adjustment of the number of shares purchasable upon exercise of a public warrant
or, if we elect, an adjustment of the number of public warrants outstanding.
PRIOR WARRANTS
As of the date of this prospectus, we had issued and outstanding warrants to
purchase 328,662 shares of our common stock at a weighted average exercise price
of $9.02, the forms of which have been filed as exhibits to the registration
statement of which this prospectus is a part. These warrants include warrants
issued to Imperial Bank to purchase 13,586 shares of our common stock. These
warrants grant to Imperial Bank the right to require us to purchase such
warrants from Imperial Bank for $70,000 on or after January 15, 2001 or within
20 days after a merger, consolidation or sale of assets of the company or the
liquidation, dissolution or winding up of the company.
REGISTRATION RIGHTS
GENERAL
We have granted certain registration rights with respect to 503,884 of our
securities. We will pay for all expenses incurred in connection with these
registrations, other than underwriting discounts and commissions. The following
is only a summary of certain of the terms and conditions of the agreements
involving parties which have registration rights. Copies of the actual
agreements have been filed with the Securities and Exchange Commission as
exhibits to the registration statement of which this prospectus is a part.
Substantially all of the holders of registration rights have not waived such
registration rights.
GRANTED TO THE SERIES B PREFERRED SHAREHOLDERS IN A 1995 PRIVATE PLACEMENT
We granted demand and incidental registration rights to our Series B
Preferred shareholders with respect to the shares underlying the Series B
Preferred shares and warrants issued to them in connection with the 1995 private
placement of our Series B units. Holders of Series B Preferred shares may demand
to have our common stock underlying their Series B Preferred shares registered
at any time after completion of this offering and before April 30, 2000. The
Series B warrants have expired. Additionally, if we register an issuance of any
of our equity securities, other than shares issuable under employee stock option
plans, at any time prior to April 30, 2000, the Series B Preferred shareholders
may request that such underlying common stock be included in the registration.
GRANTED TO ATLUS
We also granted demand and incidental registration rights to Atlus with
respect to all shares held by Atlus pursuant to the Securities Purchase
Agreement with Atlus. The Securities Purchase Agreement with Atlus will be
terminated effective upon the completion of this offering.
GRANTED TO FORMER XIMAGE SHAREHOLDERS
The former XImage shareholders have also been granted demand and incidental
registration rights with respect to shares underlying the warrants held by them.
The holders of a majority of all registrable securities owned by these
shareholders may demand registration for the resale of any or all of their
shares at any time after this offering and before November 30, 2003.
Additionally, if we register an issuance of our equity securities, other than
shares issuable under our employee stock option plans at any time prior to
November 30, 2003, these holders may request to include their shares in the
registration.
43
<PAGE>
GRANTED TO FORMER XIMAGE OFFICERS, NOTEHOLDERS AND OTHER INVESTORS
We have also granted certain former XImage officers, noteholders and other
investors "piggyback" registration rights under which they can request to be
included in a registration of our securities (other than a registration of
shares issuable under an employee stock option plan).
GRANTED TO OFFICERS, DIRECTORS AND OTHER PARTIES
Mr. Miller, Mr. Wetherell, Mr. Devermann and the William Guthner estate have
the same registration rights as the former XImage Shareholders described above.
Mr. Miller and Mr. Wetherell have agreed not to make a demand for registration
for a period of at least one year after this offering.
Mr. Miller and Mr. Downs also have registration rights with respect to their
convertible promissory notes. These registration rights are identical to the
registration rights which have been granted to the Series B Preferred
shareholders as described above.
William Guthner and related parties converted their convertible promissory
notes in December 1997 into shares of Series B Preferred Stock and warrants to
purchase common stock. The registration rights granted to these parties, which
apply to the shares and warrants they received upon conversion of their
convertible notes, are identical to the registration rights which have been
granted to the Series B Preferred shareholders as described above.
GRANTED TO IMPERIAL BANK
In January 1998 and September 1998, in connection with the credit line
extended to us, we granted demand and incidental registration rights to Imperial
Bank with respect to shares of common stock underlying the warrants held by
Imperial Bank. Imperial Bank has the same registration rights as the Series B
Preferred shareholders in the 1995 Private Placement described above.
GRANTED TO PAULSON
We have entered into a warrant agreement with Paulson Investment
Company, Inc. as representative of the underwriters of this offering. These
representative's warrants, as well as the shares of common stock and warrants
included in the units issuable upon exercise of the representative's warrants,
are being registered on the registration statement of which this prospectus is a
part. We will cause the registration statement to remain effective until the
earlier of the time that all of the representative's warrants have been
exercised and the date which is five years after the effective date of the
offering. The common stock and warrants issued to the representative upon
exercise of these warrants will be freely tradable. All expenses incurred in
connection with the registration of the shares of common stock and warrants
included in the units issuable upon the exercise of the representatives'
warrants will be borne by us. Under the warrant agreement, the parties will also
be bound by standard indemnification and contribution provisions with respect to
the registration of the warrant shares issuable upon the exercise of the
representative's warrants.
GRANTED TO R SQUARED LIMITED
In connection with a loan made to us, R Squared Limited has also been
granted the right to include their shares in any registration made by us.
GRANTED TO THE PRESIDENT OF ATLUS
In connection with a loan made to us, Mr. Harano has been issued warrants to
purchase common stock. Mr. Harano has been granted the same demand and
incidental registration rights with respect the common stock underlying these
warrants as we have granted to the former XImage shareholders.
44
<PAGE>
TRANSFER AGENT AND PUBLIC WARRANT AGENT
The transfer agent for our common stock and public warrants is American
Securities Transfer & Trust, Inc., Denver, Colorado.
SHARES ELIGIBLE FOR FUTURE SALE
THIS OFFERING
Upon completion of the offering, we expect to have 2,655,482 shares of
common stock outstanding, assuming no exercise of outstanding options or
warrants, or 2,880,482 shares if the underwriters' over-allotment is exercised
in full. Of these shares, the 1,500,000 shares of common stock issued as part of
the units sold in the offering will be freely tradeable without restrictions or
further registration under the Securities Act of 1933, except that any shares
purchased by our "affiliates", as that term is defined under the Securities Act,
may generally only be sold in compliance with the limitations of Rule 144 under
the Securities Act. The 1,500,000 shares of common stock underlying the public
warrants issued as part of the units sold in this offering will also be freely
tradeable, except for shares purchased by our affiliates.
OUTSTANDING RESTRICTED STOCK
The remaining 1,155,482 outstanding shares of common stock are restricted
securities within the meaning of Rule 144 and may not be sold in the absence of
registration under the Securities Act unless an exemption from registration is
available, including the exemption from registration offered by Rule 144.
Holders of 553,720 of our outstanding restricted shares of common stock have
agreed not to sell or otherwise dispose of any of their shares of common stock
for a period of one year after completion of the offering, without the prior
written consent of Paulson Investment Company, Inc., subject to certain limited
exceptions. Prior to the expiration of this lock-up period, 601,762 shares of
our outstanding restricted common stock may be sold in the public market
pursuant to Rule 144. After the expiration of this lock-up period, or earlier
with the prior written consent of Paulson Investment Company, Inc., all
1,155,482 of these outstanding restricted shares may be sold in the public
market pursuant to Rule 144.
In general, under Rule 144, as currently in effect, beginning 90 days after
the date of this prospectus, a person who has beneficially owned restricted
shares for at least one year, including a person who may be deemed to be our
affiliate, may sell within any three-month period a number of shares of common
stock that does not exceed a specified maximum number of shares. This maximum is
equal to the greater of 1% of the then outstanding shares of our common stock or
the average weekly trading volume in the common stock during the four calendar
weeks immediately preceding the sale. Sales under Rule 144 are also subject to
restrictions relating to manner of sale, notice and availability of current
public information about us. In addition, under Rule 144(k) of the Securities
Act, a person who is not our affiliate, has not been an affiliate of ours within
three months prior to the sale and has beneficially owned shares for at least
two years would be entitled to sell such shares immediately without regard to
volume limitations, manner of sale provisions, notice or other requirements of
Rule 144.
SERIES B PREFERRED STOCK
As of December 13, 1999, we had 389,400 shares of Series B Preferred Stock
outstanding. These shares, plus accrued but unpaid dividends, are convertible at
the option of the holders into an aggregate of approximately 86,982 shares of
our common stock. Any shares issued upon the conversion of the Series B
Preferred Stock will be eligible for sale pursuant to Rule 144.
45
<PAGE>
OPTIONS
Beginning 90 days after the date of this prospectus, certain shares issued
or issuable upon the exercise of options granted by us prior to the date of this
prospectus will also be eligible for sale in the public market pursuant to
Rule 701 under the Securities Act of 1933, except that 184,715 of these shares
are subject to the lock up agreements discussed under "Outstanding restricted
stock" above. Pursuant to Rule 701, persons who purchase shares upon exercise of
options granted under a written compensatory plan or contract may sell such
shares in reliance on Rule 144 without having to comply with the holding period
requirements of Rule 144, and in the case of non-affiliates, without having to
comply with the public information, volume limitation or notice provisions of
Rule 144. As of December 13, 1999, we had options outstanding to purchase
431,610 shares of common stock which have not been exercised and which become
exercisable at various times in the future. Any shares issued upon the exercise
of these options will be eligible for sale pursuant to Rule 701.
We intend to file registration statements on Form S-8 under the Securities
Act to register approximately 107,962 shares of our common stock issuable under
our stock option plans. These registration statements are expected to be filed
within three to six months after the completion of this offering. Shares of our
common stock issued upon the exercise of stock options after the effective date
of the Form S-8 registration statements will be eligible for resale in the
public market without restriction, subject to Rule 144 limitations and the
lock-up agreements discussed under "Outstanding restricted stock" above.
WARRANTS
As of December 13, 1999, we had warrants outstanding to purchase 328,662
shares of common stock which have not been exercised and which become
exercisable at various times in the future. Any shares issued upon the exercise
of these warrants will be eligible for sale pursuant to Rule 144, except that
37,914 of these shares are subject to the lock-up agreements discussed under
"Outstanding restricted stock" above.
REPRESENTATIVE'S WARRANTS
In connection with the offering, we have agreed to issue to the
representatives of the underwriters warrants to purchase 150,000 units. This
number is equal to 10% of the number of units being offered by this prospectus,
excluding over-allotment shares. The representatives' warrants will be
exercisable into units at any time during the four-year period commencing one
year after the effective date of the offering. We will cause the registration
statement to remain effective until the earlier of the time that all of the
representative's warrants have been exercised and the date which is five years
after the effective date of the offering. The common stock and warrants issued
to the representatives upon exercise of these warrants will be freely tradable.
REGISTRATION RIGHTS
As of December 13, 1999, holders of approximately 503,844 shares of our
outstanding or issuable common stock had the right to include their shares in
registration statements relating to our securities or to require us to register
their shares. Mr. Miller, Mr. Wetherell and Mr. Downs, which hold 42,944 of
these shares, have agreed to waive these registration rights for a period of one
year after this offering or shorter as determined by Paulson Investment
Company, Inc. Holders of registration rights may cause the price of our common
stock to fall by exercising their registration rights and causing a large number
of shares to be registered and sold in the public market. In addition, any
demand for future registration of these shares could have a material adverse
effect on our ability to raise needed capital. Please see "Description of
Securities--Registration rights."
46
<PAGE>
Prior to the offering, there has been no public market for our common stock
and there can be no assurance that a significant public market for the common
stock will develop or be sustained after the offering.
47
<PAGE>
UNDERWRITING
We and the underwriters named below have entered into an underwriting
agreement with respect to the units being offered. Subject to certain
conditions, the underwriters named below, for whom Paulson Investment
Company, Inc. is acting as representative, have severally agreed to purchase,
and we have agreed to sell to them in connection with this offering, the number
of units set forth opposite the names of such underwriters below:
<TABLE>
<CAPTION>
UNDERWRITERS NUMBER OF UNITS
- ------------ ---------------
<S> <C>
Paulson Investment Company, Inc.............................
---------
Total.....................................................
</TABLE>
The underwriting agreement provides that the underwriters are obligated to
purchase all of the units offered by this prospectus (other than those covered
by the over-allotment option) if any are purchased. The underwriting agreement
also provides that the obligations of the several underwriters to pay for and
accept delivery of the units offered hereby are subject to the approval of
certain legal matters by counsel and certain other conditions, including the
conditions that no stop order suspending the effectiveness of the registration
statement is in effect and that no proceedings for such purpose have been
instituted or threatened by the Securities and Exchange Commission.
The underwriters have advised us that they propose to offer our units to the
public initially at the offering price set forth on the cover page of this
prospectus and to selected dealers at such price less a concession of not more
than $ per unit. The underwriters and selected dealers may reallow a
concession to other dealers, including the underwriters, of not more than $
per unit. After completion of the initial public offering of the units, the
offering price, the concessions to selected dealers and the reallowance to their
dealers may be changed by the underwriters.
The underwriters have informed us that they do not expect to confirm sales
of our units offered by this prospectus to any accounts over which they exercise
discretionary authority.
OVER-ALLOTMENT OPTION
Pursuant to the underwriting agreement, we have granted to the
representative an option, exercisable for 45 days from the date of this
prospectus, to purchase up to an additional 225,000 units on the same terms as
the units being purchased by the underwriters from us. The representative may
exercise the option solely to cover over-allotments, if any, in the sale of the
units that the underwriters have agreed to purchase. If the over-allotment
option is exercised in full, the total public offering price, underwriting
discounts and commissions, and proceeds to the company before offering expenses
will be $15,525,000, $1,397,250 and $14,127,750, respectively based upon an
initial public offering price of $9.00 per unit.
STABILIZATION
Until the distribution of the units offered by this prospectus is completed,
rules of the Securities and Exchange Commission may limit the ability of the
underwriters to bid for and purchase units. As an exception to these rules, the
underwriters may engage in transactions that stabilize the price of the units.
The representative on behalf of the underwriters may engage in over-allotment
sales, stabilizing transactions, syndicate covering transactions and penalty
bids in accordance with Regulation M under the Securities Exchange Act of 1934.
- Over-allotment involves syndicate sales in excess of the offering size,
which creates a syndicate short position.
47
<PAGE>
- Stabilizing transactions permit bids to purchase the underlying security
so long as the stabilizing bids do not exceed a specified maximum.
- Syndicate covering transactions involve purchases of the common stock and
public warrants in the open market after the distribution has been
completed in order to cover syndicate short positions. The underwriters
may also elect to reduce any short position by exercising all or part of
the over-allotment option to purchase additional units as described above.
- Penalty bids permit the representative to reclaim a selling concession
from a syndicate member when the units originally sold by the syndicate
member are purchased in a syndicate covering transaction to cover
syndicate short positions.
In general, the purchase of a security to stabilize or to reduce a short
position could cause the price of the security to be higher than it might be
otherwise. These transactions may be effected on the Nasdaq SmallCap Market or
otherwise. Neither we nor the underwriters can predict the direction or
magnitude of any effect that the transactions described above may have on the
price of the units. In addition, neither we nor the underwriters can represent
that the underwriters will engage in these types of transactions or that these
types of transactions, once commenced, will not be discontinued without notice.
INDEMNIFICATION
The underwriting agreement provides for indemnification between us and the
underwriters against specified liabilities, including liabilities under the
Securities Act, and for contribution by us and the underwriters to payments that
may be required to be made with respect to those liabilities. We have been
advised that, in the opinion of the Securities and Exchange Commission,
indemnification for liabilities under the Securities Act of 1933 is against
public policy as expressed in the Securities Act and is therefore unenforceable.
EXPENSE ALLOWANCE
We have agreed to pay the underwriters' representative a nonaccountable
expense allowance equal to two percent of the gross proceeds from the sale of
the units offered by this prospectus, of which $35,000 has already been paid.
REPRESENTATIVE'S WARRANTS
We have agreed to issue warrants to the representative to purchase from us
up to 150,000 units at an exercise price per unit equal to 120% of the offering
price per unit. These warrants are exercisable during the four-year period
beginning one year from the date of effectiveness of the registration statement
of which this prospectus is a part. These warrants are not transferable for one
year from the date of issuance, except to an individual who is either a partner
or an officer of an underwriter, by will or by the laws of descent and
distribution and are not redeemable. These warrants will have registration
rights. We will cause the registration statement to remain effective until the
earlier of the time that all of the representative's warrants have been
exercised and the date which is five years after the effective date of the
offering. The common stock and warrants issued to the representative upon
exercise of these warrants will be freely tradable.
The holder of the representative's warrant will have, in that capacity, no
voting, dividend or other shareholder rights. Any profit realized by the
representative on the sale of the securities issuable upon exercise of the
representative's warrant may be deemed to be additional underwriting
compensation. The securities underlying the representative's warrant are being
registered on the registration statement of which this prospectus is a part.
During the term of the representative's warrant, the holder thereof is given the
opportunity to profit from a rise in the market price of our common stock. We
may find it
48
<PAGE>
more difficult to raise additional equity capital while the representative's
warrant is outstanding. At any time at which the representative's warrant is
likely to be exercised, we may be able to obtain additional equity capital on
more favorable terms.
LOAN BY CHESTER PAULSON
Chester L.F. Paulson, the chairman and indirect majority shareholder of
Paulson Investment Company, Inc., loaned $500,000 to us pursuant to a promissory
note and loan agreement dated November 24, 1999. Mr. Paulson has borrowed the
$500,000 which he has loaned to us from U.S. Bank National Association. Paulson
Investment Company, Inc. has agreed to indemnify Mr. Paulson against any default
by us. We are paying Paulson Investment Company, Inc. a $75,000 fee for
guaranteeing the loan.
We must repay the loan to Mr. Paulson upon the earlier of a demand for
payment by U.S. Bank, the completion of this offering, or April 3, 2000. If we
are unable to repay the loan, Paulson Investment Company, Inc. is entitled to
receive warrants to purchase one share of our common stock for each dollar which
Mr. Paulson must repay to U.S. Bank. If this offering is not completed, we must
offer to pay Paulson Investment Company, Inc. from the proceeds of any other
financing in excess of $575,000 which we complete prior to December 31, 2000.
Upon our offer of repayment, Paulson Investment Company, Inc. may either accept
such repayment and surrender the warrants issued to him or keep the warrants in
which case we will have no further obligations to Mr. Paulson under the
promissory note or loan agreement. The amount due under the promissory note
accrues interest at the same variable rate of interest which Mr. Paulson must
pay U.S. Bank, which is based on the prime lending rate. The initial interest
rate is 9%.
LOCK-UP AGREEMENT
Our officers, directors and certain of our shareholders also have agreed
that, for a period of one year from the date this registration statement becomes
effective, they will not sell, contract to sell, grant any option for the sale
or otherwise dispose of any of our equity securities, or any securities
convertible into or exercisable or exchangeable for our equity securities (other
than intra-family transfers or transfers to trusts for estate planning purposes)
without the consent of Paulson Investment Company, Inc., as representative of
the underwriters, which consent will not be unreasonably withheld.
EXPENSES
The following table sets forth an itemization of all expenses we will pay in
connection with the issuance and distribution of the securities being
registered. Except for the SEC registration fee, the NASD filing fee and the
Nasdaq listing fee, the amounts listed below are estimates:
<TABLE>
<CAPTION>
NATURE OF EXPENSE AMOUNT
- ----------------- --------
<S> <C>
SEC registration fee........................................ $ 12,455
NASD filing fees............................................ $ 5,218
Nasdaq listing fee.......................................... $ 8,000
Pacific Stock Exchange listing fee.......................... $ 25,500
Accounting fees and expenses................................ $150,000
Legal fees and expenses..................................... $250,000
Director and officer insurance expenses..................... $150,000
Printing and related expenses............................... $145,000
Blue sky legal fees and expenses............................ $ 65,000
Transfer agent fees and expenses............................ $ 1,250
Miscellaneous expenses...................................... $ 22,347
--------
TOTAL..................................................... $834,770
</TABLE>
49
<PAGE>
In addition, we have been advised that the representative will pay $50,000
to J. Michael Reisert for services as a finder in connection with the offering.
DETERMINATION OF OFFERING PRICE
Before this offering, there has been no public market for the units and the
common stock and public warrants contained in the units. Accordingly, the
initial public offering price of the units offered by this prospectus and the
exercise price of the public warrants were determined by negotiation between us
and the underwriters. Among the factors considered in determining the initial
public offering price of the units and the exercise price of the public warrants
were:
- our history and our prospects,
- the industry in which we operate,
- the status and development prospects for our proposed products and
services,
- our past and present operating results,
- the previous experience of our executive officers, and
- the general condition of the securities markets at the time of this
offering.
The offering price stated on the cover page of this prospectus should not be
considered an indication of the actual value of the units. That price is subject
to change as a result of market conditions and other factors, and we cannot
assure you that the units, or the common stock and public warrants contained in
the units, can be resold at or above the initial public offering price.
LEGAL MATTERS
The validity of the securities being offered hereby will be passed upon on
our behalf by Luce, Forward, Hamilton & Scripps LLP, 600 West Broadway, Suite
2600, San Diego, CA 92101. Certain legal matters will be passed upon for the
underwriters by Tonkon Torp LLP, 1600 Pioneer Tower, 888 SW Fifth Avenue,
Portland, Oregon 97204.
EXPERTS
The financial statements for the years ended December 31, 1998 and 1997
included in this prospectus have been included in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
AVAILABLE INFORMATION
We have filed a registration statement on Form SB-2 under the Securities Act
with the Securities and Exchange Commission with respect to the units offered
hereby. This prospectus filed as part of the registration statement does not
contain all of the information contained in the registration statement and
exhibits thereto and reference is hereby made to such omitted information.
Statements made in this registration statement are summaries of the terms of
such referenced contracts, agreements or documents and are not necessarily
complete. Reference is made to each such exhibit for a more complete description
of the matters involved and such statements shall be deemed qualified in their
entirety by such reference. The registration statement and the exhibits and
schedules thereto filed with the Securities and Exchange Commission may be
inspected by you at the Securities and Exchange Commission's principal office in
Washington, D.C. Copies of all or any part of the registration statement may be
obtained from the Public Reference Section of the Securities and Exchange
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
commissions' regional offices located at Seven World Trade Center, 13(th)Floor,
New York, New York 10048 and Northwestern Atrium
50
<PAGE>
Center, 500 West Madison Street, Suite 11400, Chicago, Illinois 60661. The
commission also maintains a website (http://www.sec.gov) that contains reports,
proxy statements and information statements and other information regarding
registrants that file electronically with the Commission. For further
information pertaining to us and the units offered by this prospectus, reference
is made to the registration statement.
We intend to furnish our shareholders with annual reports containing
financial statements audited by our independent accountants.
51
<PAGE>
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
IMAGEWARE SYSTEMS, INC.:
Report of Independent Accountants........................... F-2
Consolidated Balance Sheets as of December 31, 1998 and
September 30, 1999 (unaudited)............................ F-3
Consolidated Statements of Operations for the Years Ended
December 31, 1997 and 1998 and the Nine Months Ended
September 30, 1998 and 1999 (unaudited)................... F-4
Consolidated Statements of Shareholders' Equity (Deficit)
for the Years Ended December 31, 1997 and 1998 and the
Nine Months Ended September 30, 1999 (unaudited).......... F-5
Consolidated Statements of Cash Flows for the Years Ended
December 31, 1997 and 1998 and the Nine Months Ended
September 30, 1998 and 1999 (unaudited)................... F-6
Notes to Consolidated Financial Statements.................. F-7
XIMAGE CORPORATION:
Report of Independent Accountants........................... F-21
Statement of Operations for the Year Ended December 31,
1997...................................................... F-22
Statement of Shareholders' Deficit for the Year Ended
December 31, 1997......................................... F-23
Statement of Cash Flows for the Year Ended December 31,
1997...................................................... F-24
Notes to Financial Statements............................... F-25
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors of
ImageWare Systems, Inc.
In our opinion, the accompanying consolidated balance sheet and the related
consolidated statements of operations, of shareholders' equity (deficit) and of
cash flows present fairly, in all material respects, the financial position of
ImageWare Systems, Inc. and its subsidiary at December 31, 1998 and the results
of their operations and their cash flows for each of the years ended December
31, 1997 and 1998 in conformity with generally accepted accounting principles.
These financial statements are the responsibility of the Company's management;
our responsibility is to express an opinion on these financial statements based
on our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above.
As discussed in Note 1, the Company has recurring losses from operations and
significant negative working capital at December 31, 1998. Until sufficient
revenues are generated, the Company will be required to obtain additional
financing to meet cash and working capital requirements. There can be no
assurance that additional financing will be available.
PricewaterhouseCoopers LLP
October 22, 1999, except as to Note 5,
which is as of December 13, 1999
F-2
<PAGE>
IMAGEWARE SYSTEMS, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30,
1998 1999
------------- --------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets
Cash...................................................... $ 45,793 $ 89,216
Accounts receivable, net.................................. 931,654 1,137,357
Inventories............................................... 43,386 169,133
Other current assets...................................... 256,838 231,280
------------ ------------
Total current assets.................................. 1,277,671 1,626,986
Property and equipment, net................................. 269,594 196,004
Intangible assets, net of accumulated amortization of
$852,408 and $1,573,863................................... 2,836,740 2,115,284
------------ ------------
$ 4,384,005 $ 3,938,274
============ ============
LIABILITIES AND SHAREHOLDERS' DEFICIT
Current liabilities
Accounts payable.......................................... $ 1,030,716 $ 1,429,749
Deferred revenue.......................................... 421,351 406,587
Accrued expenses.......................................... 1,342,901 1,588,559
Deferred compensation..................................... 261,015 261,015
Accrued interest.......................................... 300,440 414,930
Notes payable to bank..................................... 700,000 1,000,000
Notes payable to related parties.......................... 299,775 1,327,925
------------ ------------
Total current liabilities............................. 4,356,198 6,428,765
Notes payable to bank, net of current portion............... 500,000 --
Notes payable to related parties, net of current portion.... 973,172 165,022
------------ ------------
Total liabilities..................................... 5,829,370 6,593,787
------------ ------------
Commitments
Shareholders' deficit
Preferred stock, $.01 par value, authorized 4,000,000
shares:
Series B convertible redeemable preferred stock,
designated 750,000 shares, 389,400 shares issued and
outstanding, $973,500 liquidation preference.......... 3,894 3,894
Common stock, $.01 par value, 50,000,000 shares
authorized, 899,081 and 1,131,404 shares issued and
outstanding............................................. 8,991 11,314
Additional paid-in capital................................ 14,792,783 16,013,412
Accumulated deficit....................................... (16,251,033) (18,684,133)
------------ ------------
Total shareholders' deficit........................... (1,445,365) (2,655,513)
------------ ------------
$ 4,384,005 $ 3,938,274
============ ============
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-3
<PAGE>
IMAGEWARE SYSTEMS, INC.
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------- -------------------------
1997 1998 1998 1999
----------- ----------- ----------- -----------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C>
Revenues
Product.................................. $ 459,358 $ 2,708,856 $ 1,932,813 $ 2,531,144
Maintenance.............................. 2,610 1,307,286 1,004,328 954,321
License and other........................ 2,434,108 220,175 150,978 9,319
----------- ----------- ----------- -----------
2,896,076 4,236,317 3,088,119 3,494,784
Cost of revenues
Product.................................. 77,584 1,354,920 764,122 943,004
Maintenance.............................. -- 1,065,740 927,680 607,171
----------- ----------- ----------- -----------
Gross margin......................... 2,818,492 1,815,657 1,396,317 1,944,609
----------- ----------- ----------- -----------
Operating, general and administrative
expenses................................. 1,436,447 2,265,312 1,676,542 1,599,811
Sales and marketing expenses............... 918,557 960,246 714,276 701,183
Research and development expenses.......... 482,834 831,034 569,443 1,111,542
Depreciation and amortization.............. 167,402 988,838 723,869 725,234
----------- ----------- ----------- -----------
3,005,240 5,045,430 3,684,130 4,137,770
----------- ----------- ----------- -----------
Loss from operations................. (186,748) (3,229,773) (2,287,813) (2,193,161)
----------- ----------- ----------- -----------
Interest expense, net...................... 17,629 204,287 155,633 239,939
----------- ----------- ----------- -----------
Loss before income taxes............. (204,377) (3,434,060) (2,443,446) (2,433,100)
----------- ----------- ----------- -----------
Provision for income taxes................. 196,104 -- -- --
----------- ----------- ----------- -----------
Net loss............................. $ (400,481) $(3,434,060) $(2,443,446) $(2,433,100)
=========== =========== =========== ===========
Net loss per common share (see Note 2)..... $ (.70) $ (4.08) $ (2.91) $ (2.56)
=========== =========== =========== ===========
Basic and diluted common shares............ 680,273 861,875 860,674 974,283
=========== =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-4
<PAGE>
IMAGEWARE SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY (DEFICIT)
<TABLE>
<CAPTION>
SERIES B
CONVERTIBLE,
REDEEMABLE
PREFERRED COMMON STOCK ADDITIONAL
------------------- -------------------- PAID-IN ACCUMULATED
SHARES AMOUNT SHARES AMOUNT CAPITAL DEFICIT TOTAL
-------- -------- --------- -------- ----------- ------------ -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1996.... 341,000 $3,410 612,329 $ 6,123 $10,641,468 $(12,344,030) $(1,693,029)
Issuance of common stock for
cash, net of issuance costs... -- -- 202,976 2,030 3,170,867 -- 3,172,897
Conversion of notes payable to
common stock.................. -- -- 37,914 379 499,621 -- 500,000
Issuance of Series B preferred
stock for payment of debt..... 48,400 484 -- -- 120,516 -- 121,000
Dividends paid on Series B
preferred stock............... -- -- -- -- -- (72,462) (72,462)
Repurchase of shares............ -- -- (8,056) (80) (136,170) -- (136,250)
Net loss........................ -- -- -- -- -- (400,481) (400,481)
------- ------ --------- ------- ----------- ------------ -----------
Balance at December 31, 1997.... 389,400 3,894 845,163 8,452 14,296,302 (12,816,973) 1,491,675
Issuance of common stock for
loan guarantees............... -- -- 44,866 449 359,571 -- 360,020
Issuance of common stock for
payment of Board fees......... -- -- 10,236 102 161,898 -- 162,000
Repurchase of shares............ -- -- (1,184) (12) (24,988) -- (25,000)
Net loss........................ -- -- -- -- -- (3,434,060) (3,434,060)
------- ------ --------- ------- ----------- ------------ -----------
Balance at December 31, 1998.... 389,400 3,894 899,081 8,991 14,792,783 (16,251,033) (1,445,365)
Issuance of common stock for
loan guarantees (unaudited)... -- -- 73,465 735 348,044 -- 348,779
Issuance of common stock for
cash (unaudited).............. -- -- 37,914 379 299,619 -- 299,998
Conversion of note payable to
common stock (unaudited)...... -- -- 120,944 1,209 572,966 -- 574,175
Net loss (unaudited)............ -- -- -- -- -- (2,433,100) (2,433,100)
------- ------ --------- ------- ----------- ------------ -----------
Balance at September 30, 1999
(unaudited)................... 389,400 $3,894 1,131,404 $11,314 $16,013,412 $(18,684,133) $(2,655,513)
======= ====== ========= ======= =========== ============ ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-5
<PAGE>
IMAGEWARE SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------ -------------------------
1997 1998 1998 1999
---------- ----------- ----------- -----------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss.................................. $ (400,481) $(3,434,060) $(2,443,446) $(2,433,100)
Adjustments to reconcile net loss to net
cash used by operating activities
Depreciation and amortization......... 166,228 988,838 723,870 725,234
Deferred revenue...................... 16,000 (431,271) (261,486) 80,057
Noncash compensation and fees......... -- 522,020 372,000 348,779
Change in assets and liabilities
Accounts receivable, net............ 44,129 40,482 96,834 (205,702)
Inventory........................... -- 69,895 (133,099) (125,747)
Other current assets................ (331,494) 114,313 269,168 25,558
Accounts payable.................... 68,070 292,320 187,052 399,032
Accrued expenses.................... 128,825 (165,925) (156,132) 245,658
Accrued interest.................... (6,653) 61,344 112,269 188,666
---------- ----------- ----------- -----------
Total adjustments................. 85,105 1,492,016 1,210,476 1,681,535
---------- ----------- ----------- -----------
Net cash used by operating
activities...................... (315,376) (1,942,044) (1,232,970) (751,565)
---------- ----------- ----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of property and equipment........ (134,120) (68,991) (65,679) (25,010)
Purchase of patent........................ (236,611) -- -- --
Acquisition of business, net of cash
acquired................................ -- (2,129,331) (2,129,331) --
---------- ----------- ----------- -----------
Net cash used by investing
activities...................... (370,731) (2,198,322) (2,195,010) (25,010)
---------- ----------- ----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES
Dividends paid............................ (72,462) -- -- --
Principal repayments on amounts due
stockholders............................ (11,250) -- -- (10,000)
Proceeds from issuance of stock........... 3,172,897 -- -- 299,998
Repurchase of common stock................ (136,250) (25,000) (25,000) --
Proceeds from issuance of notes payable... -- 1,905,000 1,200,000 730,000
Repayment of loans........................ -- (3,700) -- (200,000)
---------- ----------- ----------- -----------
Net cash provided by financing
activities...................... 2,952,935 1,876,300 1,175,000 819,998
---------- ----------- ----------- -----------
Net increase (decrease) in cash... 2,266,828 (2,264,066) (2,252,980) 43,423
Cash at beginning of period................. 43,031 2,309,859 2,309,859 45,793
---------- ----------- ----------- -----------
Cash at end of period............. $2,309,859 $ 45,793 $ 56,879 $ 89,216
========== =========== =========== ===========
SUPPLEMENTAL CASH FLOWS INFORMATION
Cash paid for interest.................... $ 50,480 $ 99,079 $ 21,085 $ 125,449
========== =========== =========== ===========
Issuance of Series B preferred stock for
payment of debt......................... $ 121,000 $ -- $ -- $ --
========== =========== =========== ===========
Conversion of notes payable to common
stock................................... $ 500,000 $ -- $ -- $ 500,000
========== =========== =========== ===========
Issuance of common stock to loan
guarantors.............................. $ -- $ 360,020 $ 210,000 $ 348,779
========== =========== =========== ===========
Issuance of common stock for Board of
Director's fees......................... $ -- $ 162,000 $ 162,000 $ --
========== =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-6
<PAGE>
IMAGEWARE SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1997 AND 1998
1. DESCRIPTION OF BUSINESS AND OPERATIONS
ImageWare Systems, Inc. (the "Company"), formerly known as ImageWare
Software, Inc., was incorporated in the State of California on February 6,
1987 for the purpose of developing, manufacturing and distributing products
utilizing electronic imaging technology. The Company has developed the Crime
Reduction, Image Management and Enhancement System ("C.R.I.M.E.S.") and
several related products which are being marketed to law enforcement
agencies throughout the United States.
The Company has incurred losses of $400,481 and $3,434,060 for the years
ended December 31, 1997 and 1998, respectively. Additionally, the Company
has a net loss of $2,433,100 (unaudited) for the nine months ended September
30, 1999. The Company also has significant working capital deficiencies as
of December 31, 1998 and September 30, 1999.
The Company will be required to generate sufficient cash flow from increased
revenues or additional financing in order to meet its obligations on a
timely basis. However, there can be no assurance that additional financing
will be available or that an increase in revenues will improve the Company's
current financial condition.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company
and its wholly-owned subsidiary which was acquired on January 26, 1998 (see
Note 3). All significant intercompany transactions and balances have been
eliminated.
UNAUDITED INTERIM FINANCIAL DATA
The unaudited interim financial statements for the nine months ended
September 30, 1998 and 1999 have been prepared on the same basis as the
audited financial statements and, in the opinion of management, reflect all
adjustments, consisting only of normal recurring adjustments, necessary to
present fairly the financial information set forth therein, in accordance
with generally accepted accounting principles. The data disclosed in the
notes to the financial statements for these interim periods is unaudited.
Operating results for interim periods are not necessarily indicative of
operating results for an entire year.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements, and the reported amounts of revenue and expense during the
reporting period. Actual results could differ from estimates.
PROPERTY AND EQUIPMENT
Property and equipment, consisting of furniture and equipment, are stated at
cost and are being depreciated on a straight-line basis over the estimated
useful lives of the assets, which range from
F-7
<PAGE>
IMAGEWARE SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1997 AND 1998
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
three to five years. Maintenance and repairs are charged to expense as
incurred. Major renewals or improvements are capitalized. When assets are
sold or abandoned, the cost and related accumulated depreciation are removed
from the accounts and the resulting gain or loss is recognized.
Long-lived assets and identifiable intangibles are reviewed for impairment
whenever events or changes in circumstances indicate that the carrying
amount of an asset may not be recoverable. The Company has recorded no
impairment losses.
INTANGIBLE ASSETS
Intangible assets consist of patents and goodwill which are stated at cost.
Amortization is calculated using the straight-line method over five years
for patents and four years for goodwill.
CONCENTRATION OF CREDIT RISK
Financial instruments which potentially subject the Company to
concentrations of credit risk consist principally of trade accounts
receivable. Sales are typically made on credit and the Company generally
does not require collateral. The Company performs ongoing credit evaluations
of its customers' financial condition and maintains an allowance for
estimated potential losses. Accounts receivable are presented net of an
allowance for doubtful accounts of $10,000 at December 31, 1998 and
September 30, 1999.
For the year ended December 31, 1997, the Company received license revenue
of $1,961,000, or 68% of total revenues, from one customer. The Company had
combined sales to two major customers which represented 30% and 24%
(unaudited) of total revenues for the year ended December 31, 1998 and for
the nine months ended September 30, 1999, respectively.
As of December 31, 1998, the Company had amounts due from three major
customers which represented 41% of total accounts receivable. As of
September 30, 1999, the Company had amounts due from four major customers
which represented 31% (unaudited) of total accounts receivable.
STOCK-BASED COMPENSATION
The Company measures compensation costs related to stock option plans using
the intrinsic value method and provides pro forma disclosures of net income
(loss) and earnings (loss) per common share as if the fair value based
method had been applied in measuring compensation costs. Accordingly,
compensation cost for stock options is measured as the excess, if any, of
the fair value of the Company's common stock at the date of measurement over
the amount an employee must pay to acquire the stock and is amortized over
the vesting period, generally three years.
INCOME TAXES
Current income tax expense or benefit is the amount of income taxes expected
to be payable or refundable for the current year. A deferred income tax
asset or liability is computed for the expected future impact of differences
between the financial reporting and tax bases of assets and
F-8
<PAGE>
IMAGEWARE SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1997 AND 1998
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
liabilities and for the expected future tax benefit to be derived from tax
credits and loss carryforwards. Deferred tax assets are reduced by a
valuation allowance when, in the opinion of management, it is more likely
than not that some portion or all of the deferred tax assets will not be
realized.
REVENUE RECOGNITION
The Company's revenue from periodic software license and maintenance
agreements is generally recognized ratably over the respective license
periods. The Company's revenue from software and hardware installation and
implementation and from contract services is generally recognized as the
services are performed using the percentage of completion method based on
costs incurred to date compared to total estimated costs at completion.
Amounts received under contracts in advance of performance are recorded as
deferred revenue and are generally recognized within one year from receipt.
Contract losses are recorded as a charge to income in the period such losses
are first identified. Unbilled accounts receivable are stated at estimated
realizable value. Revenue from contract services for which the Company
cannot reliably estimate total costs are recognized upon completion.
Revenue from royalties is recognized in the period earned.
CAPITALIZED SOFTWARE COSTS
Software development costs incurred prior to the establishment of
technological feasibility are charged to research and development expense as
incurred. Technological feasibility is established upon completion of a
working model. Software development costs incurred subsequent to the time a
product's technological feasibility has been established, through the time
the product is available for general release to customers, are capitalized
if material. To date, the Company has not capitalized any software costs as
the period between achieving technological feasibility and the general
availability of the related products has been short and software development
costs qualifying for capitalization have been insignificant.
EARNINGS PER COMMON SHARE
Effective November 29, 1999, the Company declared a 5.275-for-1 reverse
stock split of common stock. All references to the number of shares, per
share amounts, conversion amounts and stock option data of the Company's
common stock have been restated to reflect this reverse stock split for all
periods presented.
Basic earnings per common share is calculated by dividing net income (loss)
available to common shareholders for the period by the weighted-average
number of common shares outstanding during the period. Diluted earnings per
common share is calculated by dividing net income (loss) available to common
shareholders for the period by the weighted-average number of common shares
outstanding during the period, increased to include, if dilutive, the number
of additional common shares that would have been outstanding if the
potential common shares had been issued. The dilutive effect of outstanding
stock options is included in the calculation of diluted earnings per common
share using the treasury stock method. During the years ended December 31,
1997
F-9
<PAGE>
IMAGEWARE SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1997 AND 1998
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
and 1998, and for the nine months ended September 30, 1998 and 1999, the
Company has excluded all convertible preferred stock and outstanding stock
options from the calculation of diluted loss per share, as their effect
would have been antidilutive.
The following table sets forth the computation of basic and diluted loss per
share:
<TABLE>
<CAPTION>
YEAR ENDED NINE MONTHS ENDED
DECEMBER 31, SEPTEMBER 30,
----------------------- -------------------------
1997 1998 1998 1999
--------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Numerator:
Net loss........................... $(400,481) $(3,434,060) $(2,443,446) $(2,433,100)
Less Series B preferred
dividends........................ (72,462) (82,748) (62,061) (62,061)
--------- ----------- ----------- -----------
Income available to common
shareholders..................... $(472,943) $(3,516,808) $(2,505,507) $(2,495,161)
--------- ----------- ----------- -----------
Denominator:
Weighted-average shares
outstanding...................... 680,273 861,875 860,674 974,283
========= =========== =========== ===========
Basic and diluted earnings per
share............................ $ (0.70) $ (4.08) $ (2.91) $ (2.56)
========= =========== =========== ===========
</TABLE>
COMPREHENSIVE INCOME
Effective January 1, 1998, the Company adopted SFAS No. 130, REPORTING
COMPREHENSIVE INCOME. This statement requires that all components of
comprehensive income be reported in the financial statements in the period
in which they are recognized. During the years ended December 31, 1997 and
1998, and for the nine months ended September 30, 1998 and 1999, the Company
did not have any components of comprehensive income.
SEGMENT INFORMATION
Effective January 1, 1998, the Company adopted SFAS No. 131, DISCLOSURES
ABOUT SEGMENTS OF AN ENTERPRISE AND RELATED INFORMATION. This statement
requires disclosure of certain information about the Company's operating
segments, products, geographic areas in which it operates and its major
customers. This statement also allows a company to aggregate similar
segments for reporting purposes. Management has determined that its
operations can be aggregated into one reportable segment. Additionally, as
the Company's products are sold primarily within the U.S., no segment
disclosures have been included in the accompanying notes to the consolidated
financial statements.
RECLASSIFICATIONS
Certain reclassifications were made to prior years' consolidated financial
statements to conform to the current year presentation.
F-10
<PAGE>
IMAGEWARE SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1997 AND 1998
3. ACQUISITION
On January 26, 1998, the Company completed the acquisition of all the
outstanding common stock of XImage Corporation ("XImage") located in San
Jose, California. XImage's principal business activity is the design,
implementation and maintenance of digital booking systems.
The Company paid approximately $2,150,000 in cash and incurred approximately
$310,000 in direct acquisition costs. The acquisition was accounted for as a
purchase with goodwill being amortized over four years.
The purchase price was allocated to identifiable assets and liabilities
based on their estimated fair values, with the excess of the purchase price
over the fair value of such net liabilities acquired reflected as goodwill,
as follows:
<TABLE>
<S> <C>
Current assets.............................................. $ 947,177
Property and equipment...................................... 53,132
Goodwill.................................................... 3,526,322
Liabilities assumed......................................... (2,069,100)
-----------
Purchase price.............................................. $ 2,457,531
===========
</TABLE>
The results of operations of XImage for the period from January 26, 1998
(acquisition) through December 31, 1998 are included in the Company's
consolidated statement of operations for the year ended December 31, 1998.
The unaudited pro forma results of operations below present the effect on
the Company's results of operations as if the acquisition had occurred on
January 1, 1997, instead of on the acquisition date.
<TABLE>
<CAPTION>
1997
(UNAUDITED)
------------------------------------------------------
HISTORICAL
----------------------- PRO FORMA
IMAGEWARE XIMAGE ADJUSTMENTS PRO FORMA
---------- ---------- ----------- -----------
<S> <C> <C> <C> <C>
Net revenues........................ 2,896,076 4,016,286 6,912,362
Cost of revenues.................... 77,584 2,504,146 2,581,730
---------- ---------- -----------
Gross margin...................... 2,818,492 1,512,140 4,330,632
---------- ---------- -----------
Operating expenses.................. 3,022,869 1,523,544 $992,596(a) 5,539,009
---------- ---------- -----------
Loss before income taxes.......... (204,377) (11,404) (1,208,377)
---------- ---------- -----------
Provision for income taxes.......... 196,104 -- 196,104
---------- ---------- -----------
Net loss.......................... $ (400,481) $ (11,404) $(1,404,481)
========== ========== ===========
Net loss per common share........... $ (2.06)
===========
</TABLE>
- ------------------------
(a) Adjusted for goodwill amortization and interest expense related to
acquisition indebtedness.
F-11
<PAGE>
IMAGEWARE SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1997 AND 1998
4. PROPERTY AND EQUIPMENT
Property and equipment consists of:
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30,
1998 1999
------------- --------------
(UNAUDITED)
<S> <C> <C>
Equipment........................................... $ 804,007 $ 825,813
Furniture........................................... 63,313 63,313
--------- ---------
867,320 889,126
Less accumulated depreciation....................... (597,726) (693,122)
--------- ---------
$ 269,594 $ 196,004
========= =========
</TABLE>
Total depreciation expense for the years ended December 31, 1997 and 1998
was $79,834 and $100,215, and depreciation expense for the nine months ended
September 30, 1998 and 1999 was $74,508 and $78,286 (unaudited),
respectively.
5. NOTES PAYABLE
Notes payable consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30,
1998 1999
------------ -------------
(UNAUDITED)
<S> <C> <C>
Short-term note payable to shareholder. Such note accrues
interest at prime and is due upon demand.................. $ 30,000 $ 30,000
8% convertible notes payable to shareholders due June 15,
2000. At the option of either the Company or the holder,
interest may be accrued and added to principal or paid.
The notes, at the option of the holders, shall be prepaid
to the extent of 20% of the Company's pre-tax income
earned subsequent to June 30, 1995. The principal amount
of the notes plus accrued interest shall be convertible,
at the option of the holder, at any time after date of
issuance, into units of Series B preferred stock and
common stock purchase warrants of the Company at $13.19
per unit, subject to adjustment........................... 208,150 208,150
8% convertible note payable to employee, due June 15, 2000.
At the option of either the Company or the holder,
interest may be accrued and added to principal or paid.
The principal amount of the note plus accrued interest
shall be convertible, at the option of the holder, at any
time after the date of issuance in common stock at $7.91
per share. The note automatically converts upon an initial
public offering of the Company's common stock............. -- 50,000
</TABLE>
F-12
<PAGE>
IMAGEWARE SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1997 AND 1998
5. NOTES PAYABLE (CONTINUED)
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30,
1998 1999
------------ -------------
(UNAUDITED)
<S> <C> <C>
Short-term notes payable to financial institution. Such
notes accrue interest at prime plus 2% and were due
April 15, 1999. Due date extended to November 7, 1999 for
$500,000 and March 3, 2000 for the remaining $500,000.
The notes are guaranteed by certain officers and directors
of the Company............................................ 1,200,000 1,000,000
Short-term notes payable to lending institution. Such notes
accrue at prime plus 2% and were due September 28,
1999...................................................... $ -- $ 180,000
Short-term notes payable to shareholders and other related
parties. Such notes accrue interest at 10% and are due on
the earlier of February 15, 1999 or the closing of
permanent financing....................................... 150,000 140,000
Short-term note payable to shareholder to accrue interest at
10%. Note due the earlier of January 31, 1999 (extended to
March 15, 2000) or the closing of permanent financing..... 55,000 55,000
Short-term notes payable to previous XImage employees. Such
notes accrue interest at prime plus 2% and were due
December 31, 1998. The notes' terms were revised to
include monthly payments through November 2000............ 600,000 600,000
Short-term notes payable to XImage officers. Such notes
accrue interest at 10% and were due upon the acquisition
of XImage. The note's terms were revised to include
monthly payments through November 2000.................... 152,500 152,500
Short-term note payable to prior XImage shareholder. Such
note accrues interest at 10% and was due upon acquisition
of XImage. The note's terms were revised to include
monthly payments through November 2000.................... 51,000 51,000
Short-term notes payable to certain vendors................. 26,297 26,297
---------- -----------
2,472,947 2,492,947
Less current portion........................................ (999,775) (2,327,925)
---------- -----------
Long-term notes payable..................................... $1,473,172 $ 165,022
========== ===========
</TABLE>
In February 1999, the Company issued a promissory note to a third party for
$500,000 at an interest rate of 9.75% to mature February 2000. In
conjunction with the note, the Company issued a warrant to purchase 324,300
shares of common stock at $4.75 per share. The fair value of the
F-13
<PAGE>
IMAGEWARE SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1997 AND 1998
5. NOTES PAYABLE (CONTINUED)
warrants was calculated using the minimum value method and was determined to
be de minimis. In August 1999, the note plus accrued interest was converted
into 120,944 shares of common stock.
In August 1999, the Company issued two $100,000 promissory notes at prime
plus 2%. Principal and interest was due September 28, 1999 and October 1,
1999 with a 30-day extension option. The Company has exercised the 30-day
extension options in exchange for warrants to acquire 10,000 shares of
common stock at $7.91 per share. In October 1999, the Company made a
principal payment of $20,000 on one of the promissory notes, and in November
1999 paid off the remaining balance on that note.
In September 1999, the Company issued a promissory note for $50,000 due June
15, 2000 to an employee with interest at 8%, convertible into common stock
at $7.91 at the option of the holder. The note automatically converts upon
an initial public offering of the Company's common stock.
In November 1999, the Company issued a convertible promissory note for
$1,250,000 at an interest rate of 10%, due the earlier of February 10, 2001
or five days following the closing of an IPO, to an individual affiliated
with Atlus Co. (which owns approximately 31% of the Company's common shares
outstanding). Under the terms of the note, the principal amount is fixed in
Japanese yen and shall be repaid in U.S. dollars at a fixed (104.55 Japanese
yen per U.S. dollar) conversion rate established on the date of issuance. If
the principal and interest has not been paid prior to June 1, 2000, the note
becomes convertible to common stock at $1.00 per share. In conjunction with
the note, the Company issued the individual a warrant to purchase 125,000
shares of common stock for $6.00 per share. The Company will record the note
net of a discount equal to the fair value of the beneficial conversion
feature of the note and the warrants issued.
In November 1999, the Company issued a $500,000 note to a third party with
interest payable monthly beginning on December 15, 1999. The note is due at
the earlier of (i) any written or oral demand by lender, (ii) the closing of
borrower's initial public offering or (iii) April 3, 2000.
In November 1999, the maturity date for the remaining $500,000 balance of
the note to financial institution was extended to March 3, 2000.
Additionally, approximately $800,000 in notes to shareholders and XImage
employees, officers and shareholders were revised to include payments
through November 2000.
In December 1999, the $140,000 of short-term notes to shareholders and other
related parties, plus accrued interest, were converted into 20,919 shares of
common stock.
At December 31, 1998 and September 30, 1999, approximately $0 and $320,000
(unaudited), respectively, of notes payable were in default for non-payment.
6. INCOME TAXES
Due to the Company's net loss position for the year ended December 31, 1998
and for the nine months ended September 30, 1999 and as the company has
recorded a full valuation allowance against deferred tax assets, there was
no provision for income taxes recorded.
The provision for income taxes for the year ended December 31, 1997 consists
of a 10% foreign tax withholding from certain license income earned under a
license agreement with a Japanese shareholder.
F-14
<PAGE>
IMAGEWARE SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1997 AND 1998
6. INCOME TAXES (CONTINUED)
The following is a reconciliation of the statutory federal income tax rate
to the Company's effective tax rate:
<TABLE>
<CAPTION>
NINE MONTHS
YEAR ENDED ENDED
DECEMBER 31, SEPTEMBER 30,
---------------------- --------------
1997 1998 1999
-------- -------- --------------
(UNAUDITED)
<S> <C> <C> <C>
Tax provision (benefit) at statutory rate.......... (34)% (34)% (34)%
State tax, net of federal tax benefit.............. (6) 5 (2)
Research credits................................... (8) (1) (2)
Foreign taxes...................................... 71 -- --
Goodwill amortization.............................. -- 8 9
Other permanent differences........................ 5 4 1
Net change in valuation allowance.................. 43 18 28
--- --- ---
71% 0% 0%
=== === ===
</TABLE>
The components of the net deferred tax assets at December 31, 1998 and
September 30, 1999 (unaudited) are as follows:
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30,
1998 1999
------------- --------------
(UNAUDITED)
<S> <C> <C>
Intangible assets.................................. $ 102,459 $ 124,544
Fixed assets....................................... (34,111) (32,480)
Reserves and accrued expenses...................... 65,694 72,428
Net operating loss carryforwards................... 3,836,515 4,546,554
Research credit carryforwards...................... 340,187 395,173
----------- -----------
4,310,744 5,106,219
Less valuation allowance........................... (4,310,744) (5,106,219)
----------- -----------
Net deferred tax asset............................. $ -- $ --
=========== ===========
</TABLE>
The Company has established a valuation allowance against its deferred tax
asset due to the uncertainty surrounding the realization of such asset.
Management periodically evaluates the recoverability of the deferred tax
asset. At such time as it is determined that it is more likely than not that
deferred tax assets are realizable, the valuation allowance will be reduced.
At December 31, 1998 and September 30, 1999, the Company had federal net
operating loss carryforwards of approximately $10,400,000 and $12,500,000
(unaudited), respectively, and state net operating loss carryforwards of
approximately $4,900,000 and $4,200,000 (unaudited), respectively, which may
be available to offset future taxable income for tax purposes. The federal
net operating loss carryforwards expire at various dates from 2003 through
2019. The California net operating loss carryforwards expire at various
dates through 2004.
F-15
<PAGE>
IMAGEWARE SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1997 AND 1998
6. INCOME TAXES (CONTINUED)
The Company also had federal research tax credit carryforwards of
approximately $226,000 and $280,000 (unaudited) and state research tax
credit carryforwards of approximately $122,000 and $167,000 (unaudited) for
tax purposes at December 31, 1998 and September 30, 1999, respectively.
These carryforwards will begin expiring, if unused, in 2005.
The Internal Revenue Code (the "Code") limits the availability of income tax
net operating losses and certain tax credits that arose prior to certain
cumulative changes in a corporation's ownership resulting in a change of
control of the Company. The Company's use of its net operating loss
carryforwards and tax credit carryforwards will be significantly limited
because the Company underwent "ownership changes" in 1991, 1995 and 1997.
Net operating loss carryforwards, which are subject to a limitation of
$165,000 per annum with respect to amounts generated through 1991, $411,000
per annum for amounts generated between 1991 and 1995, and $748,000 per
annum for amounts generated between 1995 and 1997, can be used to offset
taxable income. Net operating losses and tax credits that are unavailable in
any year as a consequence of this limitation may be carried forward for
future use subject to the restrictions of the Code.
7. COMMITMENTS
EMPLOYMENT AGREEMENTS
The Company has employment agreements with its President, Vice President of
Finance and Vice President of Sales and Business Development. The Company
may terminate the agreements with or without cause. Should the Company
terminate the agreements without cause, the President is entitled to
compensation for up to 36 months salary, and the Vice Presidents of Finance
and of Sales and Business Development are entitled to compensation equal to
12 months salary.
LICENSE AGREEMENTS
During 1998, the Company entered into certain license agreements related to
technology used in its products. Under the terms of the agreements, the
Company is required to pay royalties at fixed fees or percentages based upon
product sales. The agreements expire at various dates from October 1999
through October 2001.
LITIGATION
The Company is, from time to time, subject to legal proceedings and claims
which arise in the normal course of its business. In the opinion of
management, the amount of ultimate liability with respect to these actions
will not have a material adverse effect on the Company's financial position,
results of operations or cash flows.
LEASES
The Company entered into a 5-year operating lease for its office and
research and development facilities which commenced August 1998.
F-16
<PAGE>
IMAGEWARE SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1997 AND 1998
7. COMMITMENTS (CONTINUED)
At December 31, 1998, future minimum lease payments are as follows:
<TABLE>
<CAPTION>
OPERATING CAPITAL
YEAR ENDING DECEMBER 31, LEASES LEASES TOTAL
- ------------------------ --------- -------- --------
<S> <C> <C> <C>
1999............................................ $259,941 $8,496 $268,437
2000............................................ 270,338 8,496 278,834
2001............................................ 281,152 3,540 284,692
2002............................................ 292,398 -- 292,398
2003............................................ 174,480 -- 174,480
</TABLE>
Rental expense under operating leases for the year ended December 31, 1997
and 1998 was approximately $110,000 and $311,985, respectively.
8. EQUITY
The Company's Articles of Incorporation were amended effective August 31,
1994 and authorize the issuance of two classes of stock to be designated
"Common Stock" and "Preferred Stock," provide that both Common and Preferred
Stock shall have a par value of $.01 per share and authorize the Company to
issue 50,000,000 shares of Common Stock and 4,000,000 shares of Preferred
Stock. The Preferred Stock may be divided into such number of series and
with the rights, preferences, privileges and restrictions as the Board of
Directors may determine.
COMMON STOCK
Effective November 29, 1999, the Company declared a 5.275-for-1 reverse
stock split of common stock. All references to the number of shares, per
share amounts, conversion amounts and stock option data of the Company's
common stock have been restated to reflect this reverse stock split for all
periods presented.
In March 1997, the Company completed a transaction with a foreign investor
whereby the Company issued 34,058 shares of common stock at a price of
$15.83 per share. Contingent on the Company meeting certain targets, the
investor was required to purchase an additional 157,978 shares of common
stock at $15.83 per share. The specified targets were not met. In November
1997, the investor purchased the additional 157,978 shares of common stock
at $15.83 per share. In December 1997, the same foreign investor purchased,
from the holders, $500,000 of 8% convertible notes which were subsequently
converted into 200,000 shares of common stock at $13.19 per share.
During 1998, the Company issued 44,866 shares of common stock to certain
officers and directors as compensation for personally guaranteeing the
$1,200,000 bank note.
SERIES B CONVERTIBLE, REDEEMABLE PREFERRED STOCK
In April 1995, the Company's Articles of Incorporation were amended to
authorize 750,000 shares of Series B Convertible Redeemable Preferred Stock
("Series B").
F-17
<PAGE>
IMAGEWARE SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1997 AND 1998
8. EQUITY (CONTINUED)
The holders of Series B are entitled to cumulative preferred dividends
payable at the rate of $0.2125 per share per annum commencing April 30,
1996, subject to legally available funds. The Series B plus accrued but
unpaid dividends are convertible at the option of the holder into shares of
common stock at a conversion price equal to the original Series B issue
price as adjusted to prevent dilution. The Series B will automatically be
converted into shares of common stock upon the closing of a firm commitment
underwritten public offering at a price per common share of not less than
$31.65. If the public offering price is less than $31.65 but at least $21.10
per share, the conversion shall still be automatic upon written consent of a
majority of the then outstanding shareholders of Series B.
The Series B, on an as-converted basis, have the same voting rights per
share as the Company's common shares. The Series B are entitled to initial
distributions of $13.19 per share, upon liquidation and in preference to
common shares and any other series of preferred stock, except Series A, plus
all accrued but unpaid dividends.
Any time after December 31, 2000, the Company has the right to redeem all or
some of the outstanding shares of Series B at a price equal to the original
issue price, plus all accrued but unpaid dividends.
As of December 31, 1998 and September 30, 1999, the Company had cumulative
undeclared dividends of $94,825 and $156,885 (unaudited), respectively.
In December 1997, an existing shareholder and holder of a note exercised his
right in accordance with the terms of the note to convert the note to 48,400
shares of the Company's Series B stock.
WARRANTS
As of December 31, 1998, warrants to purchase 183,461 shares of common stock
at prices ranging from $7.90 to $31.65 were outstanding. All warrants are
exercisable as of December 31, 1998 and begin to expire in December 1999
through November 2004.
9. STOCK OPTION PLAN
On August 31, 1994, the directors of the Company adopted the Company's 1994
Employee Stock Option Plan (the "Plan") and the 1994 Nonqualified Stock
Option Plan (the "Nonqualified Plan"). The 1992 Stock Option Plan and
options previously granted were canceled by the Board of Directors.
The Plan provides that officers and other key employees may receive
nontransferable incentive stock options to purchase up to 170,616 shares of
the Company's common stock. The option price per share must be at least
equal to 100% of the market value of the Company's common stock on the date
of grant and the term may not exceed ten years.
The Nonqualified Plan provides that directors and consultants may receive
nontransferable options to purchase up to 18,957 shares of the Company's
common stock. The option price per share must be at least equal to 85% of
the market value of the Company's common stock on the date of grant and the
term may not exceed five years.
F-18
<PAGE>
IMAGEWARE SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1997 AND 1998
9. STOCK OPTION PLAN (CONTINUED)
Both the Plan and the Nonqualified Plan are administered by the Board of
Directors or a Committee of the Board which determines the employees,
directors or consultants which will be granted options and the terms of the
options, including vesting provisions which to date has been over a three
year period. Both the Plan and the Nonqualified Plan expire in ten years.
In February 1999, the exercise price of previously granted stock options was
repriced to $5.28 per share. Under proposed accounting rules, the Company
will be required to record compensation expense equal to the difference
between the estimated fair value of the common stock and the exercise price
of the repriced options.
In December 1999, the Company's Board of Directors adopted the ImageWare
Systems, Inc. Amended and Restated 1999 Stock Option Plan. Under the terms
of the 1999 Plan, the Company may issue up to 350,000 non-qualified or
incentive stock options to purchase common stock of the Company. The 1999
Plan has substantially the same terms as the 1994 Employee Stock Option Plan
and the 1994 Nonqualified Stock Option Plan and expires in ten years.
The Company has adopted the disclosure-only provisions of SFAS 123. Had
compensation cost for the Company's stock option plan been determined based
on the fair value at the grant date for awards consistent with the
provisions of SFAS No. 123, the Company's net losses would have been
increased to the pro forma amount indicated below:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------- --------------
1997 1998 1999
---------- ------------ --------------
(UNAUDITED)
<S> <C> <C> <C>
Net loss:
As reported............................ $(400,481) $(3,434,060) $(2,433,100)
Pro forma.............................. (616,253) (3,709,771) (2,714,919)
Earnings per common share:
As reported............................ $ (.70) $ (4.08) $ (2.56)
Pro forma.............................. (.91) (4.30) (2.79)
</TABLE>
The fair value of each option grant is estimated on the date of grant using
the minimum value method with the following weighted-average assumptions:
dividend yield of 0%, risk-free interest rate ranging from 5.4% to 6.6%, and
expected lives of five years.
F-19
<PAGE>
IMAGEWARE SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1997 AND 1998
9. STOCK OPTION PLAN (CONTINUED)
Stock option activity was as follows:
<TABLE>
<CAPTION>
WEIGHTED-
AVERAGE
OPTIONS PRICE
-------- ---------
<S> <C> <C>
Balance at January 1, 1997................................ 66,825 $5.28
Granted................................................. 95,261 $5.28
Expired/canceled........................................ (38,389) $5.28
-------
Balance at December 31, 1997.............................. 123,697 $5.28
Granted................................................. 24,455 $5.28
Expired/canceled........................................ --
-------
Balance at December 31, 1998.............................. 148,152 $5.28
Granted (unaudited)..................................... 34,028 $5.28
Expired/canceled (unaudited)............................ (17,062) $5.28
-------
Balance at September 30, 1999 (unaudited)................. 165,118 $5.28
=======
</TABLE>
At December 31, 1998, a total of 94,173 options were exercisable at a
weighted average price of $5.28 per share.
10. EMPLOYEE BENEFIT PLAN
During 1995, the Company adopted a defined contribution 401(k) retirement
plan ("the Plan"). All employees aged 21 years and older become participants
after completion of three months of employment. The Plan provides for annual
contributions determined at the discretion of the Board of Directors.
Participants may contribute up to 20% of their compensation.
Employees are fully vested in their share of the Company's contributions
after the completion of five years of service. For the year ended December
31, 1998 and the nine months ended September 30, 1999, there were no
contributions to the Plan by the Company.
11. SUBSEQUENT EVENTS
In July 1999, the Company sold 31,595 shares of common stock for $250,000.
In August 1999, the Company sold 6,319 shares of common stock for $50,000.
F-20
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors of
XImage Corporation
In our opinion, the accompanying statements of operations, of shareholders'
deficit and of cash flows present fairly, in all material respects, the results
of operations and cash flows of XImage Corporation for the year ended December
31, 1997, in conformity with generally accepted accounting principles. These
financial statements are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements based on
our audits. We conducted our audit of these statements in accordance with
generally accepted auditing standards, which require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audit provides a reasonable basis for the opinion expressed
above.
PricewaterhouseCoopers LLP
October 22, 1999
F-21
<PAGE>
XIMAGE CORPORATION
STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1997
<TABLE>
<S> <C>
Revenues
Product................................................... $2,886,799
Maintenance............................................... 1,129,487
----------
4,016,286
Cost of revenues
Product................................................... 1,745,066
Maintenance............................................... 759,080
----------
Gross margin............................................ 1,512,140
----------
Operating, general and administrative expenses.............. 1,314,353
Sales and marketing expenses................................ 7,023
Research and development expenses........................... 162,243
----------
Total operating expenses................................ 1,483,619
----------
Income from operations.................................. 28,521
----------
Interest expense, net....................................... 39,925
----------
Loss before income taxes................................ (11,404)
Provision for income taxes.................................. --
----------
Net loss................................................ $ (11,404)
==========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-22
<PAGE>
XIMAGE CORPORATION
STATEMENT OF SHAREHOLDERS' DEFICIT
FOR THE YEAR ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
COMMON STOCK
---------------------- ACCUMULATED
SHARES AMOUNT DEFICIT TOTAL
--------- ---------- ------------ ------------
<S> <C> <C> <C> <C>
Balance at December 31, 1996................ 1,629,554 $1,414,249 $ (2,838,802) $ (1,424,553)
Net loss.................................... -- -- (11,404) (11,404)
--------- ---------- ------------ ------------
Balance at December 31, 1997................ 1,629,665 $1,414,249 $ (2,850,206) $ (1,435,957)
========= ========== ============ ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-23
<PAGE>
XIMAGE CORPORATION
STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1997
<TABLE>
<S> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss.................................................. $ (11,404)
Adjustments to reconcile net loss to net cash used by
operating activities
Depreciation and amortization........................... 29,295
Deferred revenue........................................ (207,241)
Change in assets and liabilities
Accounts receivable, net.............................. (78,550)
Inventory............................................. 77,544
Prepaid and other current assets...................... 4,852
Accounts payable...................................... (146,384)
Accrued compensation and other expenses............... 53,266
Salary accrual........................................ 8,816
---------
Total adjustments................................... (258,402)
---------
Net cash used by operating activitiesu.............. (269,806)
---------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of property and equipment........................ (7,952)
---------
Net cash used by investing activities............... (7,952)
---------
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from issuance of notes payable................... 291,380
---------
Net cash provided by financing activities........... 291,380
---------
Net increase in cash................................ 13,622
Cash at beginning of year................................... 436
---------
Cash at end of year................................. $ 14,058
=========
SUPPLEMENTAL CASH FLOWS INFORMATION
Cash paid during the year for interest.................... $ --
=========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-24
<PAGE>
XIMAGE CORPORATION
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1997
1. ORGANIZATION
Ximage Corporation (the "Company") is a designer and distributor of image
viewing and communication systems (hardware and software) for the law
enforcement and identification industries. The Company markets and sells its
products worldwide. The Company was incorporated in January 1987.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements, and the reported amounts of revenue and expense during the
reporting period. Actual results could differ from estimates.
STOCK-BASED COMPENSATION
SFAS No. 123, ACCOUNTING FOR STOCK-BASED COMPENSATION, encourages, but does
not require, companies to record compensation cost for stock-based employee
compensation plans at fair value. The Company has elected to continue to
account for stock-based compensation using the intrinsic value method
prescribed in Accounting Principles Board Opinion No. 25, ACCOUNTING FOR
STOCK ISSUED TO EMPLOYEES, and related interpretations. Accordingly,
compensation cost for stock options is measured as the excess, if any, of
the estimated market price of the Company's stock at the date of grant over
the amount an employee must pay to acquire the stock.
REVENUE RECOGNITION
The Company's revenue from periodic software license and maintenance
agreements is generally recognized ratably over the respective license
periods. The Company's revenue from hardware and software installation and
implementation and from contract services is generally recognized as the
services are performed using the percentage of completion method based on
costs incurred to date compared to total estimated costs at completion.
Amounts received under contracts in advance of performance are recorded as
deferred revenue and are generally recognized within one year from receipt.
Contract losses are recorded as a charge to income in the period such losses
are first identified. Revenue from contract services for which the Company
cannot reliably estimate total costs are recognized upon completion.
INCOME TAXES
The Company is an S corporation and, as such, income for federal and state
income tax purposes is passed through directly to its shareholders who are
responsible for any resulting income tax liability or benefit.
F-25
<PAGE>
XIMAGE CORPORATION
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1997
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
RESEARCH AND DEVELOPMENT COSTS
Research and development costs are charged to operations when incurred.
Equipment used for research and development is charged to a capital account
and is depreciated over its estimated useful life.
DEPRECIATION
Property and equipment is stated at cost. Depreciation is provided using an
accelerated method of depreciation over the useful lives of the equipment
which range from three to seven years.
3. CONTINGENCIES
LEASES
The Company conducted its business from leased offices in San Jose,
California, under a noncancellable operating lease which expired in February
1999.
Rent expense for the year ended December 31, 1997 was $122,072.
4. STOCK OPTION PLAN
The Company maintained a stock option plan for eligible employees. Options
to purchase common stock were granted at a price set by a committee selected
by the Board of Directors. Options generally expire in ten years if not
exercised.
As of December 31, 1997, options to purchase 2,197,688 shares of common
stock were outstanding with a weighted average exercise price of $.79.
In conjunction with the subsequent sale of the Company (Note 5), all
outstanding options immediately vested and 2,051,193 options were exercised
at the following prices:
<TABLE>
<CAPTION>
SHARES EXERCISE PRICE
- ------ --------------
<S> <C>
1,194,693................................................... $0.50
856,500.................................................... $1.00
</TABLE>
As a result of the sale, the Company's stock option plan was cancelled.
5. SUBSEQUENT EVENT
On January 26, 1998, the Company completed the sale of all of its
outstanding common stock to ImageWage Software, Inc. for approximately
$2,150,000 and relocated its business to San Diego, California.
F-26
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS. WE
HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION DIFFERENT FROM THE
INFORMATION CONTAINED IN THIS PROSPECTUS. WE ARE OFFERING TO SELL, AND SEEKING
OFFERS TO BUY, UNITS ONLY IN JURISDICTIONS IN WHICH OFFERS AND SALES ARE
PERMITTED.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
Prospectus Summary.................... 1
Risk Factors.......................... 5
Use of Proceeds....................... 11
Dividend Policy....................... 12
Capitalization........................ 13
Dilution.............................. 14
Selected Financial Information........ 15
Management's Discussion and Analysis
of Financial Condition and Results
of Operations....................... 16
Business.............................. 23
Management............................ 34
Certain Transactions.................. 38
Security Ownership of Certain
Beneficial Owners and Management.... 40
Description of Securities............. 41
Shares Eligible for Future Sale....... 45
Underwriting.......................... 47
Legal Matters......................... 50
Experts............................... 50
Available Information................. 50
Index to Consolidated Financial
Statements.......................... F-1
</TABLE>
------------------------
UNTIL , 2000 (25 DAYS AFTER THE DATE OF THIS PROSPECTUS), ALL
BROKER-DEALERS THAT EFFECT THE TRANSACTIONS IN THESE SECURITIES, WHETHER OR NOT
PARTICIPATING IN THIS OFFERING, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS
IN ADDITION TO THE DEALERS' OBLIGATION TO DELIVER A PROSPECTUS WHEN ACTING AS
UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
1,500,000 UNITS
[LOGO]
---------------------
PROSPECTUS
---------------------
PAULSON INVESTMENT
COMPANY, INC.
, 2000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 204 of the California General Corporation Law permits a corporation
to include in its Articles of Incorporation provisions eliminating or limiting
the personal liability of directors for monetary damages in an action brought by
or in the right of the corporation for breach of a director's fiduciary duties,
subject to certain limitations. Section 317 of the California General
Corporation Law requires a corporation to indemnify its directors and other
agents to the extent they incur expenses in successfully defending lawsuits
brought against them by reason of their status as directors or agents.
Section 317 also permits a corporation to indemnify its directors and other
agents to a greater extent than specifically required by law.
Our Amended and Restated Articles of Incorporation eliminate the personal
liability of our directors for monetary damages upon breach of fiduciary duties
as a director except: (i) for acts or omissions that involve intentional
misconduct or a knowing and culpable violation of law; (ii) for acts or
omissions that the director believes to be contrary to the best interests of the
corporation or its shareholders or that involve the absence of good faith;
(iii) for any transaction from which a director derived an improper personal
benefit; (iv) for acts or omissions that show a reckless disregard for the
director's duty in circumstances in which the director was aware, or should have
been aware, of a risk of serious injury to the corporation or its shareholders;
(v) for an unexcused pattern of inattention that amounts to an abdication of the
director's duty; (vi) for unlawful dividends or distributions; and (vii) for
unlawful interested director transactions.
Article VI of our bylaws permits us to indemnify any of our directors,
officers and other agents who is a party, or is threatened to be made a party,
to any proceeding by reason of his or her status as our agent. In such a case,
we may indemnify the agent against expense, liability and loss actually and
reasonably incurred by the agent in connection with such a proceeding if he or
she acted in good faith and in a manner he or she reasonably believed to be in
the best interests of the corporation, and, with respect to any criminal
proceeding, had no reasonable cause to believe that the conduct was unlawful.
If such a proceeding is brought by or on behalf of the corporation in the
form of a derivative suit, the agent may be indemnified against expenses
actually and reasonably incurred if the agent acted in good faith, in a manner
reasonably believed to be in the best interests of the corporation, and with
reasonable care. There can be no indemnification with respect to any matter as
to which the agent is adjudged to be liable to the corporation unless and only
to the extent that the court in which such proceeding was brought determines
upon application that, in view of all of the circumstances of the case, the
agent is fairly and reasonably entitled to indemnity for such expenses as the
court shall deem proper.
Where an agent is successful in any such proceeding, the agent is entitled
to be indemnified against expenses actually and reasonably incurred by him or
her. In all other cases (unless by court order), indemnification is made by the
corporation upon determination by it that indemnification of the agent is proper
in the circumstances because the agent has met the applicable standard of
conduct. We may advance expenses incurred in defending any such proceeding upon
receipt of an undertaking to repay any amount so advanced if it is ultimately
determined that the agent is not eligible for indemnification.
Our bylaws also provide that we may purchase and maintain liability
insurance on behalf of any of our directors, officers, employees and agents. As
of the date of this registration statement, we do not maintain such policies of
insurance. We intend to purchase director and officer insurance for the benefit
of our directors and officers.
II-1
<PAGE>
We have entered into indemnification agreements with each of our directors
and officers, a form of which is attached as Exhibit 10.4 to this registration
statement. We intend to enter into indemnification agreements with any new
directors and officers in the future. The indemnification agreements require us
to indemnify our directors and officers to the extent permitted by our bylaws
and to advance their expenses incurred in connection with a proceeding with
respect to which they are entitled to indemnification.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth an itemization of all estimated expenses, all
of which we will pay, in connection with the issuance and distribution of the
securities being registered:
<TABLE>
<CAPTION>
NATURE OF EXPENSE AMOUNT
- ----------------- --------
<S> <C>
SEC Registration fee........................................ $ 12,455
NASD Filing fees............................................ $ 5,218
Nasdaq Listing fee.......................................... $ 8,000
Pacific Stock Exchange listing fee.......................... $ 25,500
Accounting fees and expenses................................ $150,000
Legal fees and expenses..................................... $250,000
Directors and officers insurance expenses................... $150,000
Printing and related expenses............................... $145,000
Blue sky legal fees and expenses............................ $ 65,000
Transfer agent fees and expenses............................ $ 1,250
Miscellaneous expenses...................................... $ 22,347
--------
TOTAL..................................................... $834,770
========
</TABLE>
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES.
We have issued the following securities within the last three years. The
following information regarding our securities has been adjusted to reflect a
5.275-to-1 reverse stock split effected on November 29, 1999.
(1) During the last three years, we granted options to purchase a total of
431,610 shares of our common stock, at an average weighted exercise price of
$6.96 per share, to employees and consultants pursuant to our 1994 Employee
Stock Option Plan, our 1994 Nonqualified Stock Option Plan and our 1999 Stock
Option Plan. Each grant was made in reliance on Section 4(2) of the Securities
Act of 1933 and Rule 701 promulgated thereunder. All of these options were
granted in return for services provided to us by these employees and
consultants, and certain of these options were granted to replace options
granted earlier at a higher exercise price.
(2) In January 1997, pursuant to an exemption under Section 4(2) of the
Securities Act, we sold shares of our common stock as follows: 4,739 shares at
$21.10 per share for an aggregate purchase price of $100,000 to The Melvin Garb
Foundation; 1,896 shares at $21.10 per share for an aggregate purchase price of
$40,000 to The Harold Stern Trust; and 3,791 shares at $13.19 per share for an
aggregate purchase price of $50,000 to Private Asset Management Inc.
(3) In February 1997, in return for services rendered in relation to the
development of a business plan, we issued a warrant to purchase 9,479 shares of
our common stock, exercisable at $13.19 per share, to Mark Guthner pursuant to
an exemption under Section 4(2) of the Securities Act.
(4) In March 1997, we sold 34,058 shares of common stock at approximately
$15.82 per share for an aggregate purchase price of $538,961 to Atlus
Co., Ltd., pursuant to an exemption under Section 4(2) of the Securities Act.
II-2
<PAGE>
(5) In November 1997, we sold 157,978 shares of our common stock at
approximately $15.82 per share for an aggregate purchase price of $2,500,000 to
Atlus Co., Ltd., pursuant to an exemption under Section 4(2) of the Securities
Act.
(6) In December 1997, in connection with the conversion of a promissory
note, we issued 37,915 shares of our common stock to Atlus Co., Ltd. pursuant to
an exemption under Section 4(2) of the Securities Act.
(7) In December 1997, in connection with the conversion of a promissory
note, we issued four warrants to purchase an aggregate 9,175 shares of our
common stock, exercisable at $21.10 per share, to William Guthner, Jr., a former
director, and related parties pursuant to an exemption under Section 4(2) of the
Securities Act.
(8) In December 1997, in connection with the exercise of warrants to
purchase common stock, we sold 3,412 shares of our common stock at $6.07 per
share for an aggregate purchase price of $20,700 to J. Michael Reisert, Inc.,
pursuant to an exemption under Section 4(2) of the Securities Act.
(9) In December 1997, in connection with the conversion of a convertible
promissory note, we issued 48,400 shares of our Series B Preferred Stock to
William Guthner, Jr. and his related parties pursuant to an exemption under
Section 4(2) of the Securities Act.
(10) In December 1997, pursuant to an exemption under Section 4(2) of the
Securities Act, we issued 894 shares of our common stock to S. James Miller,
Jr., our President and Chief Executive Officer, in return for services rendered
as an executive officer.
(11) In January 1998, pursuant to an exemption under Section 4(2) of the
Securities Act, we issued shares of our common stock as follows in return for
services rendered as directors by the following directors: 2,844 shares to S.
James Miller, Jr.; 2,654 shares to William Guthner, Jr.; 2,844 shares to Patrick
Downs; 1,327 shares to John Holleran; and 569 shares to Yukuo Takenaka.
(12) In January 1998, in return for a $700,000 loan to assist in the purchase
of XImage Corporation, we issued a warrant to purchase 8,847 shares of our
common stock, exercisable at $7.91 per share, to Imperial Bank pursuant to an
exemption under Section 4(2) of the Securities Act.
(13) In January 1998, pursuant to an exemption under Section 4(2) of the
Securities Act, we issued 3,318 shares of our common stock to each of the
following employees and directors in return for the personal guarantee of the
$700,000 promissory note issued by us in favor of Imperial Bank: S. James
Miller, Jr.; Wayne Wetherell, our Vice President of Finance and Chief Financial
Officer; Paul Devermann, our Vice President of Sales and Business Development;
and William Guthner, Jr.
(14) In January 1998, pursuant to an exemption under Section 4(2) of the
Securities Act, we issued a warrant to purchase 3,318 shares of our common
stock, exercisable at $15.83 per share, to each of the following employees and
directors in return for the personal guarantee of the $700,000 promissory note
issued by us in favor of Imperial Bank: S. James Miller, Jr.; Wayne Wetherell;
Paul Devermann; and William Guthner, Jr.
(15) In January 1998, in connection with our acquisition of XImage
Corporation, we issued warrants to purchase a total of 61,611 shares of our
common stock, exercisable at $7.91 per share, to shareholders of XImage
Corporation, pursuant to an exemption under Section 4(2) of the Securities Act.
(16) In January 1998, in return for loans to us in the aggregate amount of
$500,000, we issued warrants to purchase a total of 9,479 shares of our common
stock, exercisable at $7.91 per share, to six former shareholder of XImage
Corporation, pursuant to an exemption under Section 4(2) of the Securities Act.
These loans were used in connection with our acquisition of XImage.
II-3
<PAGE>
(17) In February 1998, in connection with the conversion of a promissory
note, we issued a warrant to purchase 26,540 shares of our common stock,
exercisable at $21.10 per share, to Atlus Co., Ltd., pursuant to an exemption
under Section 4(2) of the Securities Act.
(18) In March 1998, as required by the agreement to acquire XImage
Corporation, we issued a warrant to purchase 948 shares of our common stock at
an exercise price of $7.91 to Jagdish Narasimhan and a warrant to purchase 948
shares of our common stock at an exercise price of $7.91 to Kenneth Fields, each
pursuant to an exemption under Section 4(2) of the Securities Act.
(19) In July 1998, in return for the extension of the time for payment on
promissory notes issued by us, we issued warrants to purchase a total of 9,479
shares of our common stock, exercisable at $7.91 per share, to former
shareholders of XImage Corporation pursuant to an exemption under Section 4(2)
of the Securities Act.
(20) In July 1998, in return for the extension of the time for payment on
promissory notes issued by us, we issued a warrant to purchase 948 shares of our
common stock, exercisable at $7.91 per share, to Jagdish Narasimhan and a
warrant to purchase 948 shares of our common stock, exercisable at $7.91 per
share, to Kenneth Fields, each pursuant to an exemption under Section 4(2) of
the Securities Act.
(21) In July 1998, pursuant to an exemption under Section 4(2) of the
Securities Act, we issued a warrant to purchase 2,370 shares of our common
stock, exercisable at $7.91 per share, to each of the following employees and
directors in return for the personal guarantee of loans made to us by Imperial
Bank: S. James Miller, Jr.; Wayne Wetherell; Paul Devermann; and William
Guthner, Jr.
(22) In September 1998, in return for a $500,000 loan, we issued a warrant to
purchase 4,739 shares of our common stock, exercisable at $7.91 per share, to
Imperial Bank pursuant to an exemption under Section 4(2) of the Securities Act.
(23) In November 1998, pursuant to an exemption under Section 4(2) of the
Securities Act, we issued 7,899 shares of our common stock to each of the
following employees and directors as follows in return for the personal
guarantee of a $500,000 promissory note issued by us in favor of Imperial Bank
and the extended $700,000 promissory note previously issued by us in favor of
Imperial Bank: S. James Miller, Jr.; Wayne Wetherell; Paul Devermann; and
William Guthner, Jr.
(24) In November 1998, pursuant to an exemption under Section 4(2) of the
Securities Act, we issued warrants to purchase shares of our common stock,
exercisable at $7.91 per share, to each of the following persons in return for a
$50,000 loan from each of them and for services provided by J. Michael
Reisert, Inc., as follows: warrant to purchase 6,872 shares to J. Michael
Reisert, Inc.; warrant to purchase 4,739 shares to Case Holding Company, Inc.;
and warrant to purchase 4,739 shares to William Boyd.
(25) In February 1999, pursuant to an exemption under Section 4(2) of the
Securities Act and Rule 504 promulgated thereunder, we issued a convertible
promissory note in the amount of $500,000 and a warrant to purchase 324,301
shares of our common stock, exercisable at $4.75 per share, to R Squared Limited
in return for an aggregate purchase price of $500,000.
(26) In April 1999, pursuant to an exemption under Section 4(2) of the
Securities Act, we issued 15,798 shares of our common stock to each of the
following employees and directors as follows in return for the personal
guarantee of the promissory notes previously issued by us in favor of Imperial
Bank: S. James Miller, Jr.; Wayne Wetherell; Paul Devermann; and William
Guthner, Jr.
(27) In April 1999, pursuant to an exemption under Section 4(2) of the
Securities Act, we issued shares of our common stock as follows in return for
loans made to us by the following employees and directors: 8,853 shares to S.
James Miller, Jr.; and 1,422 shares to Wayne Wetherell.
II-4
<PAGE>
(28) In July and August 1999, we sold 37,914 shares of common stock at
approximately $7.91 per share for an aggregate purchase price of $300,000 to
four accredited investors pursuant to an exemption under Section 4(2) of the
Securities Act.
(29) In August and September 1999, pursuant to an exemption under
Section 4(2) of the Securities Act, we issued warrants to purchase 4,739 shares
of our common stock, exercisable at $7.91 per share, to each of the Richard K.
Roberts Trust and Private Asset Management Inc. in return for a $100,000 loan
from each of them.
(30) In August 1999, R Squared Limited forgave an outstanding loan to us as
payment in connection with its exercise of a warrant to purchase our common
stock. In connection with the exercise of this warrant, we issued 120,943 shares
of our common stock to R Squared Limited pursuant to an exemption under
Section 4(2) of the Securities Act.
(31) In November 1999, in consideration of a $1,250,000 loan to us, we issued
a warrant to purchase 125,000 shares of our common stock, exercisable at $6.00
per share, to Naoya Harano, President of Atlus Co., Ltd., pursuant to an
exemption under Section 4(2) of the Securities Act.
(32) In December 1999, in connection with the conversion of debt, we issued
20,919 shares of common stock to three accredited investors pursuant to an
exemption under Section 4(2) of the Securities Act.
(33) In December 1999, we sold 3,160 shares of common stock at approximately
$7.91 per share for an aggregate purchase price of $25,000 to an accredited
investor pursuant to an exemption under Section 4(2) of the Securities Act.
(34) In December 1999, in consideration of services rendered, we issued a
warrant to purchase 6,161 shares of common stock, at an exercise price of $16.46
per share, to J. Michael Reisert, Inc. pursuant to an exemption under
Section 4(2) of the Securities Act.
As of the date of this prospectus, there are approximately 104 holders of
our common stock and 35 holders of our Series B Preferred Stock.
ITEM 27. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- ------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement
3.1 Amended and Restated Articles of Incorporation of ImageWare
Systems, Inc.
3.2 Bylaws of ImageWare Systems, Inc.
4.1 Form of Common Stock Certificate
4.2 Reference is made to pages 1-5 and 12-15 of Exhibit 3.2
4.3 Form of Public Warrant
4.4 Form of Representative's Warrant
4.5 Form of Warrant Agent Agreement*
5.1 Opinion of Luce, Forward, Hamilton & Scripps LLP
10.1 Employment Agreement with S. James Miller dated January 1,
1996, as amended September 1997
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- ------------------------------------------------------------
<C> <S>
10.2 Employment Agreement with Wayne G. Wetherell dated April 1,
1997, as amended March 1, 1999
10.3 Employment Agreement with Paul J. Devermann dated July 20,
1997, as amended March 1, 1999
10.4 Form of Indemnity Agreement entered into by the registrant
with its directors and executive officers
10.5 Letter Agreement with Takenaka & Company LLC
10.6 1994 Employee Stock Option Plan
10.7 1994 Nonqualified Stock Option Plan
10.8 1999 Stock Option Plan
10.9 Merger Agreement with XImage Corporation dated November 12,
1997
10.10 Promissory Note in favor of Chester L.F. Paulson dated
November 1999
10.11 Loan and Indemnification Agreement with Chester L.F. Paulson
10.12 Teaming Agreement with Hewlett-Packard Singapore (Sales) PTE
Ltd. dated April 30, 1999
10.13 Value Added Reseller Agreement with Intelligence and
Strategic Processes Pty. Ltd.
dated January 1, 1999
10.14 OEM and Development Agreement with Excalibur Technologies
Corporation
dated April 30, 1998
10.15 Lease between Thornmint I and the registrant dated June 9,
1998
10.16 Memorandum of Understanding with Siemens Business Services
S.A.
dated September 27, 1999
10.17 Teaming Agreement with PRC Inc. dated November 5, 1998
10.18 Memorandum of Understanding with Polaroid Corporation dated
September 13, 1999
10.19 Teaming Agreement with H.T.E., Inc. dated August 6, 1999
10.20 Software License and Services Subcontract with PRC Inc.
dated June 29, 1999
10.21 Agreement with Kitsap County dated June 28, 1999
10.22 Maintenance Agreement between Sagem S.A. and XImage
Corporation
dated January 31, 1994 for the portrait storage system of
Kuwait
10.23 Agreement with Law Enforcement Support Agency (County of
Pierce and City of Tacoma, Washington) dated April 23, 1999
10.24 Agreement with the State Procurement Office of Arizona dated
January 14, 1999
10.25 Agreement with the City of San Antonio dated September 2,
1999
10.26 Agreement with Milwaukee County dated June 21, 1999
10.27 Procurement Agreement with the Orange County Sheriff's
Office, Florida
dated August 2, 1999
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- ------------------------------------------------------------
<C> <S>
10.28 Subcontract Agreement between Science Applications
International Corporation and XImage Corporation dated
September 26, 1996 with regard to the City of New York
Police Department
10.29 Agreement with King County, Washington dated November 1,
1999
10.30 Agreement with County of Hennepin dated November 23, 1993
10.31 Agreement with Ventura County Sheriff's Department dated
October 12, 1999
10.32 Securities Purchase Agreement with Atlus Co., Ltd. dated
March 7, 1997
10.33 Notes and Security Agreements in favor of Imperial Bank
10.34 Convertible Promissory Note in favor of S. James Miller, Jr.
dated June 15, 1995
10.35 Convertible Promissory Note in favor of Naoya Harano dated
November 10, 1999
10.36 Convertible Promissory Note in favor of Patrick Downs dated
June 15, 1995
10.37 Stock Purchase Warrant in favor of Naoya Harano dated
November 10, 1999
10.38 Stock Purchase Warrant in favor of Torrey Pines Securities
10.39 Form of Warrant (Former XImage Shareholders)
10.40 Form of Warrant (Former XImage Officers, Noteholders and
Other Investors)
10.41 Form of Warrant (Officers and directors)
10.42 Warrant to Purchase Common Stock in favor of Imperial Bank
10.43 Registration Rights Agreement with R Squared Limited dated
February 1999
10.44 Form of Warrant (Purchasers of Series B units)
10.45 Relationship Agreement with the National Insurance Crime
Bureau dated January 20, 1997
10.46 License Agreement with Atlus Co., Ltd. dated March 7, 1997
10.47 Software Development and Technology License Agreement with
Panasonic Computer Peripherals Company dated October 20,
1998
10.48 Licensing Agreement with Viisage Technology, Inc. dated
November 16, 1998
10.49 Value Added Reseller Agreement with Visionics Corporation
dated October 7, 1998
10.50 Software License and Services Subcontract with Digital
Biometrics, Inc. dated July 23, 1999
21 XImage Corporation
23.1 Consent of PricewaterhouseCoopers LLP, independent auditors
23.2 Consent of Luce, Forward, Hamilton & Scripps LLP. Reference
is made to Exhibit 5.1
24 Power of Attorney. Reference is made to the signature page.
27 Financial Data Schedule
</TABLE>
- ------------------------
* To be filed.
II-7
<PAGE>
ITEM 28. UNDERTAKINGS.
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 Securities and Exchange 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.
The undersigned registrant hereby undertakes to:
(1) File, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) Reflect in the prospectus any facts or events which, individually
or together, represent a fundamental change in the information in the
registration statement; and notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the dollar value of the
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) under the Securities Act if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) Include any additional or changed material information on the plan
of distribution.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
(3) File a post-effective amendment to remove from registration any of the
securities that remain unsold at the end of the offering.
(4) For purposes of determining any liability under the Securities Act,
treat the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act as part of this registration statement as of the time
it was declared effective.
(5) For determining any liability under the Securities Act, treat each
post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration statement,
and that offering of the securities at that time as the initial bona fide
offering of those securities.
In addition, the undersigned registrant hereby undertakes to provide to the
underwriters at the closing specified in the underwriting agreements,
certificates in such denominations and registered in such names as required by
the underwriters to permit prompt delivery to each purchaser.
II-8
<PAGE>
SIGNATURES
In accordance with 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 of filing on Form SB-2 and authorized this registration
statement to be signed on its behalf by the undersigned, in the City of
San Diego, State of California, on December 20, 1999.
<TABLE>
<S> <C> <C>
IMAGEWARE SYSTEMS, INC.
BY: /S/ S. JAMES MILLER, JR.
-----------------------------------------
S. James Miller, Jr., PRESIDENT
</TABLE>
Know all men by these presents, that each person whose signature appears
below hereby constitutes and appoints S. James Miller, Jr. and Wayne Wetherell,
and each of them, his true and lawful attorneys-in-fact and agents, 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, or any registration
statement for the same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, 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 or necessary to be done in and about the premises,
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 either
of them, or their or his substitutes, may lawfully do or cause to be done by
virtue hereof.
In accordance with the requirements of the Securities Act of 1933, this
registration statement was signed by the following persons in the capacities and
on the dates stated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ S. JAMES MILLER, JR. President and Chief Executive
--------------------------------- Officer (Principal Executive December 20, 1999
S. James Miller, Jr. Officer) and Director
Vice President of Finance and Chief
/s/ WAYNE WETHERELL Financial Officer (Principal
--------------------------------- Financial Officer and Principal December 20, 1999
Wayne Wetherell Accounting Officer)
/s/ PATRICK J. DOWNS Director
--------------------------------- December 20, 1999
Patrick J. Downs
/s/ JOHN L. HOLLERAN Director
--------------------------------- December 20, 1999
John L. Holleran
/s/ YUKUO TAKENAKA Director
--------------------------------- December 20, 1999
Yukuo Takenaka
</TABLE>
II-9
<PAGE>
Exhibit 1.1
1,500,000 UNITS
IMAGEWARE SYSTEMS, INC.
UNDERWRITING AGREEMENT
__________, 2000
Paulson Investment Company, Inc.
As Representative of the
Several Underwriters
811 SW Naito Parkway, Suite 200
Portland, Oregon 97204
Gentlemen:
ImageWare Systems, Inc., a California corporation (the "Company"),
proposes to sell to the several underwriters (the "Underwriters") named in
Schedule I hereto for whom you are acting as Representative (the
"Representative") an aggregate of 1,500,000 Units (the "Firm Units"). Each Unit
will consist of one share of the Company's Common Stock ("Common Stock") and one
Redeemable Purchase Warrant substantially in the form filed as an exhibit to the
Registration Statement (as hereinafter defined) ("Warrants"). The respective
number of the Firm Units to be so purchased by the several Underwriters is set
forth opposite their names in Schedule I hereto. The Company also proposes to
grant to the Representative an option to purchase in the aggregate up to 225,000
additional Units, identical to the Firm Units (the "Option Units"), as set forth
below.
As the Representative, you have advised the Company (a) that you are
authorized to enter into this Agreement for yourself as Representative and on
behalf of the several Underwriters, and (b) that the several Underwriters are
willing, acting severally and not jointly, to purchase the number of Firm Units
set forth opposite their respective names in Schedule I. The Firm Units and the
Option Units (to the extent the aforementioned option is exercised) are herein
collectively called the "Units."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1
<PAGE>
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each of the Underwriters as
follows:
(a) A registration statement on Form SB-2 (File No. 333-_____)
with respect to the Units has been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the "Act"), and the
Rules and Regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has been filed with the
Commission. Copies of such registration statement, including any amendments
thereto, the preliminary prospectuses (meeting the requirements of the Rules and
Regulations) contained therein and the exhibits, financial statements and
schedules, as finally amended and revised, have heretofore been delivered by the
Company to you. Such registration statement, together with any registration
statement filed by the Company pursuant to Rule 462(b) of the Act, herein
referred to as the "Registration Statement," which shall be deemed to include
all information omitted therefrom in reliance upon Rule 430A and contained in
the Prospectus referred to below, has become effective under the Act and no
post-effective amendment to the Registration Statement has been filed as of the
date of this Agreement. "Prospectus" means (i) the form of prospectus first
filed with the Commission pursuant to Rule 424(b) or (ii) the last preliminary
prospectus included in the Registration Statement filed prior to the time it
becomes effective or filed pursuant to Rule 424(a) under the Act that is
delivered by the Company to the Underwriters for delivery to purchasers of the
Units, together with the term sheet or abbreviated term sheet filed with the
Commission pursuant to Rule 424(b)(7) under the Act. Each preliminary prospectus
included in the Registration Statement prior to the time it becomes effective is
herein referred to as a "Preliminary Prospectus."
(b) Each of the Company and its subsidiary has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of California, with corporate power and corporate authority to
own or lease its properties and conduct its business as described in the
Registration Statement. The Company does not own and never has owned a
controlling interest in any other corporation or other business entity, except
as disclosed in the Registration Statement. Each of the Company and its
subsidiary is duly qualified to transact business and is in good standing in all
jurisdictions in which the conduct of its business requires such qualification.
(c) The Company owns all of the outstanding capital stock of
its subsidiary free and clear of all claims, liens, charges and encumbrances.
The outstanding shares of each class or series of capital stock of each of the
Company and its subsidiary have been duly authorized and validly issued and are
fully paid and non-assessable and, except as disclosed in the Registration
Statement, have been issued and sold by the Company in compliance in all
material respects with applicable securities laws; the issuance and sale of the
Units, and the common stock and warrants included within the Units, have been
duly authorized by all necessary corporate action and, when issued and paid for
as contemplated herein, will be validly issued, fully paid and non-assessable;
and no preemptive rights of shareholders exist with respect to any security of
the Company or the issue and sale thereof. Except as set forth in the
Registration Statement, neither the filing of the Registration Statement nor the
offering or sale of the Units as contemplated by this Agreement
2
<PAGE>
give rise to any rights, other than those which have been waived or satisfied,
for or relating to the registration of any shares of Common Stock or other
securities of the Company.
(d) The information set forth under the caption
"Capitalization" in the Prospectus is true and correct. The Common Stock
conforms and the Warrants and the Representative's Warrant will conform to the
description thereof contained in the Registration Statement. The forms of
certificates for the securities comprising the Units conform to the requirements
of the corporate law of California. Except as described in the Registration
Statement, there are no outstanding securities of the Company or its subsidiary
convertible or exchangeable into or evidencing the right to purchase or
subscribe for any shares of capital stock of the Company and there are no
outstanding or authorized options, warrants or rights of any character
obligating the Company or its subsidiary to issue any shares of its capital
stock or any securities convertible or exchangeable into or evidencing the right
to purchase or subscribe for any shares of such stock.
(e) The Commission has not issued an order preventing or
suspending the use of any Prospectus relating to the proposed offering of the
Units nor instituted proceedings for that purpose. The Registration Statement
contains, and the Prospectus and any amendments or supplements thereto will
contain, all statements which are required to be stated therein by, and will
conform to, the requirements of the Act and the Rules and Regulations. The
Registration Statement and any amendment thereto do not contain, and will not
contain, any untrue statement of a material fact and do not omit, and will not
omit, to state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus and any amendments
and supplements thereto do not contain, and will not contain, any untrue
statement of material fact; and do not omit, and will not omit, to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that the Company makes no representations or
warranties as to information contained in or omitted from the Registration
Statement or the Prospectus, or any such amendment or supplement, in reliance
upon, and in conformity with, written information furnished to the Company by or
on behalf of any Underwriter through the Representative, specifically for use in
the preparation thereof.
(f) The financial statements of the Company and XImage
Corporation ("XImage"), the Company's wholly-owned subsidiary, together with
related notes and schedules as set forth in the Registration Statement, present
fairly the financial position, results of operations, cash flows and
shareholders equity of the Company and XImage at the indicated dates and for the
indicated periods. Such financial statements and related schedules have been
prepared in accordance with generally accepted accounting principles,
consistently applied throughout the periods involved, except as disclosed
therein, and all adjustments necessary for a fair presentation of results for
such periods have been made. The summary financial and statistical data of the
Company and XImage included in the Registration Statement presents fairly the
information shown therein and such data has been compiled on a basis consistent
with the financial statements presented therein and the books and records of the
Company and XImage. The pro forma financial information included in the
Registration Statement and the Prospectus presents fairly the information shown
therein, has been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements, has been properly
compiled on the pro forma bases described
3
<PAGE>
therein, and, in the opinion of the Company, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein.
(g) PricewaterhouseCoopers LLP, who have certified certain of
the financial statements filed with the Commission as part of the Registration
Statement, are independent public accountants as required by the Act and the
applicable published Rules and Regulations.
(h) There is no action, suit, claim or proceeding pending or,
to the knowledge of the Company, threatened against the Company or its
subsidiary before any court or administrative agency or otherwise which if
determined adversely to the Company or its subsidiary might result in any
material adverse change in the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise) or prospects of
the Company or its subsidiary or prevent the consummation of the transactions
contemplated hereby, except as set forth in the Registration Statement.
(i) Each of the Company and it subsidiary has good and
marketable title to all properties and assets, tangible and intangible,
reflected in the financial statements (or as described in the Registration
Statement) hereinabove described, subject to no lien, mortgage, pledge, charge
or encumbrance of any kind except those reflected in such financial statements
(or as described in the Registration Statement) or which are not material. Each
of the Company's and its subsidiary's ownership rights in its patents, patent
licenses and other material technology is consistent with (i) the description
thereof in the Registration Statement, and (ii) the business needs of the
Company and its subsidiary. The Company has sole and exclusive right, title and
interest to the all contracts and agreements acquired pursuant to the
acquisition of the subsidiary, and the Company has obtained all requisite
consents to the transfer of such contracts and agreements. All of the leases and
subleases under which each of the Company and its subsidiary holds properties,
tangible or intangible, are in full force and effect conforming in all respects
to the description thereof set forth in the Registration Statement. Neither the
Company nor its subsidiary have received notice of any claim that is materially
adverse to the rights of the Company or its subsidiary under any of such leases
or subleases.
(j) Other than past due payroll and sales taxes owing, in an
aggregate amount not to exceed $300,000, each of the Company and its subsidiary
has filed all federal, state, local and foreign income tax returns which have
been required to be filed and has paid all taxes indicated by said returns and
all assessments received by it to the extent that such taxes have become due and
are not being contested in good faith. All tax liabilities have been adequately
provided for in the financial statements of the Company, and each of the Company
and its subsidiary does not know of any actual or proposed additional material
tax assessments relating to any of its historical periods.
(k) Since the respective dates as of which information is
given in the Registration Statement, as it may have been amended or
supplemented, there has not been any material adverse change or any development
involving a prospective material adverse change in or affecting the earnings,
business, management, properties, assets, rights, operations, condition
4
<PAGE>
(financial or otherwise), or prospects of the Company or its subsidiary, whether
or not occurring in the ordinary course of business, and there has not been any
material transaction entered into or any material transaction that is probable
of being entered into by the Company or its subsidiary, other than transactions
in the ordinary course of business and changes and transactions described in the
Registration Statement, as it may be amended or supplemented. Neither the
Company nor its subsidiary has any material contingent obligations which are not
disclosed in the Company's financial statements or elsewhere in the Prospectus
which is included in the Registration Statement.
(l) Each of the Company and its subsidiary is not, nor, with
the giving of notice or lapse of time or both, will it be, in violation of or in
default under its Articles of Incorporation or Bylaws or under any agreement,
lease, contract, indenture or other instrument or obligation to which it is a
party or by which it, or any of its properties, is bound and which default is of
material significance in respect of the condition, financial or otherwise, of
the Company or its subsidiary or the business, management, properties, assets,
rights, operations, condition (financial or otherwise) or prospects of the
Company or its subsidiary. The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated and the fulfillment of the
terms hereof will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, material contract or other agreement or instrument to which the Company
or its subsidiary is a party or by which its assets may be bound, or of the
Articles of Incorporation or Bylaws of the Company or its subsidiary or any
order, rule or regulation applicable to the Company or its subsidiary of any
court or of any regulatory body or administrative agency or other governmental
body having jurisdiction.
(m) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required by the Commission,
the National Association of Securities Dealers, Inc. (the "NASD") or such
additional steps as may be necessary to qualify the Units for public offering by
the Underwriters under state securities or Blue Sky laws) has been obtained or
made and is in full force and effect.
(n) Each of the Company and its subsidiary owns or possesses
adequate rights to use or can acquire on reasonable terms, all patents, patent
rights, trademarks, service marks, trade names, copyrights, trade secrets and
licenses of any of the foregoing (collectively, "Intellectual Property Rights")
that are described in the Prospectus or which are necessary to the conduct of
its business; there is no claim pending or, to the best knowledge of the
Company, threatened against the Company, its subsidiary, or any of its officers,
directors, employees or consultants, in their capacities as such, alleging any
infringement of Intellectual Property Rights, or any violation of the terms of
any license relating to Intellectual Property Rights, nor does the Company know
of any basis for any such claim. Except as disclosed in the Registration
Statement or in the letter from the Company to the Representative dated
________, the Company knows of no infringement by others of Intellectual
Property Rights owned by or licensed to the Company. Except as disclosed in the
Registration Statement, the expiration of any Intellectual Property Rights would
not have a material adverse effect on the condition, or on the earnings,
business or
5
<PAGE>
operations of the Company or its subsidiaries, taken as a whole. Each of the
Company and its subsidiary has obtained, is in compliance in all material
respect with and maintains in full force and effect all material licenses,
certificates, permits, orders or other, similar authorizations granted or issued
by any governmental agency (collectively "Government Permits") required to
conduct its business as it is presently conducted. No proceeding to revoke,
limit or otherwise materially change any Government Permit has been commenced
or, to the knowledge of the Company, is threatened against the Company or its
subsidiary, and neither the Company nor its subsidiary has reason to anticipate
that any such proceeding will be commenced against the Company or its
subsidiary. Except as disclosed or contemplated in the Prospectus, each of the
Company and its subsidiary has no reason to believe that any pending application
for a patent or Government Permit will be denied or limited in a manner
inconsistent with the Company's or its subsidiary's business plan as described
in the Prospectus.
(o) Each of the Company and its subsidiary is in all material
respects in compliance with all applicable Environmental Laws (as defined
below). Each of the Company and its subsidiary has no knowledge of any past,
present or, as anticipated by the Company or its subsidiary, future events,
conditions, activities, investigation, studies, plans or proposals that (i)
would interfere with or prevent compliance with any Environmental Law by the
Company or its subsidiary or (ii) could reasonably be expected to give rise to
any common law or other liability, or otherwise form the basis of a claim,
action, suit, proceeding, hearing or investigation, involving the Company or its
subsidiary and related to Hazardous Substances (as defined below) or
Environmental Laws. No Hazardous Substance is or has been used, treated, stored,
generated, manufactured or otherwise handled on or at any Facility (as defined
below) and to the knowledge of the Company, no Hazardous Substance has otherwise
come to be located in, on or under any Facility. No Hazardous Substances are
stored at any Facility except in quantities necessary to satisfy the reasonably
anticipated use or consumption by the Company or its subsidiary. No litigation,
claim, proceeding or governmental investigation is pending regarding any
environmental matter for which the Company or its subsidiary has been served or
otherwise notified or, to the knowledge of the Company, threatened or asserted
against the Company, its subsidiary, or the officers or directors of the Company
or its subsidiary in their capacities as such, or any Facility or the Company's
or its subsidiary's business. There are no orders, judgments or decrees of any
court or of any governmental agency or instrumentality under any Environmental
Law which specifically apply to the Company, its subsidiary, any Facility or any
of the Company's or its subsidiary's operations. Each of the Company and its
subsidiary has not received from a governmental authority or other person (i)
any notice that it is a potentially responsible person for any Contaminated site
(as defined below) or (ii) any request for information about a site alleged to
be Contaminated or regarding the disposal of Hazardous Substances. There is no
litigation or proceeding against any other person by the Company or its
subsidiary regarding any environmental matter. The Company has disclosed in the
Prospectus or made available to the Underwriters and their counsel true,
complete and correct copies of any reports, studies, investigations, audits,
analyses, tests or monitoring, in the possession of or initiated by the Company
or its subsidiary, pertaining to any environmental matter relating to the
Company, its subsidiary, and their past or present operations or any Facility.
6
<PAGE>
For the purposes of the foregoing paragraph, "Environmental Laws" means
any applicable federal, state or local statute, regulation, code, rule,
ordinance, order, judgment, decree, injunction or common law pertaining in any
way to the protection of human health or the environment, including without
limitation, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation and Liability Act, the Toxic Substances
Control Act, the Clean Air Act, the Federal Water Pollution Control Act and any
similar or comparable state or local law; "Hazardous Substance" means any
hazardous, toxic, radioactive or infectious substance, material or waste as
defined, listed or regulated under any Environmental Law; "Contaminated" means
the actual existence on or under any real property of Hazardous Substances, if
the existence of such Hazardous Substances triggers a requirement to perform any
investigatory, remedial, removal or other response action under any
Environmental Laws or if such response action legally could be required by any
governmental authority; "Facility" means any property owned, leased or occupied
by the Company or its subsidiary.
(p) Neither the Company, nor to the knowledge of the Company,
any of its affiliates, has taken or intends to take, directly or indirectly, any
action which is designed to cause or result in, or which constitutes or might
reasonably be expected to constitute, the stabilization or manipulation of the
price of the shares of Common Stock to facilitate the sale or resale of the
Units.
(q) The Company is not an "investment company" within the
meaning of such term under the Investment Company Act of 1940 and the rules and
regulations of the Commission thereunder.
(r) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(s) Each of the Company and its subsidiary carries, or is
covered by, insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar industries.
(t) Each of the Company and its subsidiary is in compliance in
all material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"); no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company or its subsidiary would have any liability; neither
the Company nor its subsidiary has incurred and does not expect to incur
liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any
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"pension plan" or (ii) Sections 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published interpretations
thereunder (the "Code"); and each "pension plan" for which the Company or its
subsidiary would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which would cause the loss
of such qualification.
(u) Each of the Company and its subsidiary is in material
compliance with all laws, rules, regulations, orders of any court or
administrative agency, operating licenses or other requirements imposed by any
governmental body applicable to it and otherwise as is applicable to its
business; and the conduct of the business of the Company and its subsidiary, as
described in the Prospectus, will not cause the Company or its subsidiary to be
in violation of any such requirements.
(v) Each of the Warrants and the Representative's Warrants (as
defined in Paragraph (d) of Section 2 hereof) have been authorized for issuance
to the purchasers thereof or to the Representative or its designees, as the case
may be, and will, when issued, entitle the holder thereof to the rights,
privileges, and characteristics as represented in the most recent form of
Warrants or Representative's Warrants, as the case may be, filed as an exhibit
to the Registration Statement; the securities to be issued upon exercise of the
Warrants and the Representative's Warrants, when issued and delivered against
payment therefor in accordance with the terms thereof, will be duly and validly
issued, fully paid, nonassessable and free of preemptive rights, and all
corporate action required to be taken for the authorization and issuance of the
Warrants and the Representative's Warrants, and the securities to be issued upon
their exercise, have been validly and sufficiently taken.
(w) Except as disclosed in the Prospectus, neither the Company
nor any of its officers, directors or affiliates have caused any person, other
than the Underwriters, to be entitled to reimbursement of any kind, including,
without limitation, any compensation that would be includable as underwriter
compensation under the NASD's Corporate Financing Rule with respect to the
offering of the Units, based on any activity of such person as a finder, agent,
broker, investment adviser or other financial service provider, and there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection with this
offering.
(x) Except as described in the Prospectus, neither the Company
nor its subsidiary directly or indirectly controls or has a material interest in
any other business entity.
(y) No labor dispute with the employees of the Company or its
subsidiary exists or, to the knowledge of the Company, is imminent, and neither
the Company nor its subsidiary is aware of any existing or imminent labor
disturbance by the employees of any of its principal suppliers, customers or
vendors, which, in any case, may reasonably be expected to result in a material
adverse effect on the Company.
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(z) There are no contracts or other documents which are
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits thereto which have not been so described and filed as
required.
(aa) There are no affiliations or associations between any
member of the NASD and any of the Company's officers, directors or 5% or greater
security holders.
(bb) Other than as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company or its subsidiary
and any person granting such person the right (other than rights which have been
waived or satisfied) to require the Company to file a registration statement
under the Act with respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Act.
(cc) Each of the Company's and its subsidiary's products will
produce no material, logical or arithmetic inconsistencies when dealing with
leap years or dates beyond the year 1999. Without limiting the foregoing, each
of the Company's and its subsidiary's services and products will not materially
impede the accurate processing of data, or cause programming or processing
errors resulting from the rollover of two-digit year values to "00" on January
1, 2000. The foregoing does not constitute a warranty or representation that the
Company's or its subsidiary's software will be capable of recording, storing,
processing, calculating and displaying correct calendar dates based on software
supplied by any party other than the Company or its subsidiary, or that the
Company's or its subsidiary's software will properly interact with such third
party software.
(dd) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of the Laws of Florida, Chapter
92-198, An Act Relating to Disclosure of Doing Business with Cuba, and the
Company further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba after the
date of the Registration Statement becomes or has become effective with the
Commission or with the Florida Department of Banking and Financing (the
"Department"), whichever date is later, of if the information reported or
incorporated by reference in the Prospectus, if any, concerning the Company's
business with Cuba or with any person or affiliate located in Cuba changed in
any material way, the Company will provide the Department notice of such
business or change, as appropriate, in a form acceptable to the Department.
2. PURCHASE, SALE AND DELIVERY OF THE UNITS.
(a) On the basis of the representations, warranties and
covenants herein contained, and subject to the conditions herein set forth, the
Company agrees to sell to the Underwriters and each Underwriter agrees,
severally and not jointly, to purchase, at a price of $____ per Unit, the number
of Firm Units set forth opposite the name of each Underwriter in Schedule I
hereof, subject to adjustments in accordance with Section 9 hereof.
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(b) Payment for the Firm Units to be sold hereunder is to be
made in New York Clearing House funds and, at the option of the Representative,
by bank wire to an account specified by the Company, or certified or bank
cashier's checks drawn to the order of the Company, against either
uncertificated delivery of Firm Units or of certificates therefor (which
delivery, if certificated, shall take place in such location in New York, New
York as may be specified by the Representative) to the Representative for the
several accounts of the Underwriters. Such payment is to be made at the offices
of the Representative at the address set forth on the first page of this
Agreement, at 7:00 a.m., Pacific time, on the third business day after the date
of this Agreement or at such other time and date not later than five business
days thereafter as you and the Company shall agree upon, such time and date
being herein referred to as the "Closing Date." (As used herein, "business day"
means a day on which the New York Stock Exchange is open for trading and on
which banks in New York are open for business and not permitted by law or
executive order to be closed.) Except to the extent uncertificated Firm Units
are delivered at closing, certificates for the Firm Units and for the common
stock and warrants comprising such Firm Units will be delivered in such
denominations and in such registrations as the Representative requests in
writing not later than the second full business day prior to the Closing Date,
and will be made available for inspection by the Representative at least one
business day prior to the Closing Date.
(c) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company hereby grants an option to the Representative to purchase the
Option Units at the price per Unit as set forth in the first paragraph of this
Section 2. The option granted hereby may be exercised in whole or in part by
giving written notice (i) at any time before the Closing Date and (ii) only once
thereafter within 45 days after the date of this Agreement, by the
Representative to the Company setting forth the number of Option Units as to
which the Representative is exercising the option, the names and denominations
in which the Option Units are to be registered and the time and date at which
certificates representing such Units are to be delivered. The time and date at
which certificates for Option Units are to be delivered shall be determined by
the Representative but shall not be earlier than three nor later than 10 full
business days after the exercise of such option, nor in any event prior to the
Closing Date (such time and date being herein referred to as the "Option Closing
Date"). If the date of exercise of the option is three or more days before the
Closing Date, the notice of exercise shall set the Closing Date as the Option
Closing Date. The option with respect to the Option Units granted hereunder may
be exercised only to cover over-allotments in the sale of the Firm Units by the
Underwriters. The Representative may cancel such option at any time prior to its
expiration by giving written notice of such cancellation to the Company. To the
extent, if any, that the option is exercised, payment for the Option Units shall
be made on the Option Closing Date in New York Clearing House funds and, at the
option of the Representative, by bank wire to an account specified by the
Company, or certified or bank cashier's check drawn to the order of the Company
for the Option Units to be sold by the Company in consideration either of
uncertificated delivery of Option Units or delivery of certificates therefor
(which delivery, if certificated, shall take place in such location in New York,
New York as may be specified by the Representative) to the Representative.
Except to the extent uncertificated Option Units are delivered at closing, the
certificates for the Option Units and for the common stock and warrants
comprising such Option Units will be delivered in such
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denominations and in such registrations as the Representative requests in
writing not later than the second full business day prior to the Option Closing
Date, and will be made available for inspection by the Representative at least
one business day prior to the Option Closing Date.
(d) In addition to the sums payable to the Representative as
provided elsewhere herein, the Representative shall be entitled to receive at
the Closing, for itself alone and not as Representative of the Underwriters, as
additional compensation for its services, purchase warrants (the
"Representative's Warrants") for the purchase of up to 125,000 Units at a price
of $___ per Unit, upon the terms and subject to adjustment and conversion as
described in the form of Representative's Warrants filed as an exhibit to the
Registration Statement.
3. OFFERING BY THE UNDERWRITERS.
It is understood that the several Underwriters are to make a
public offering of the Firm Units as soon as the Representative deems it
advisable to do so. The Firm Units are to be initially offered to the public at
the initial public offering price set forth in the Prospectus. The
Representative may from time to time thereafter change the public offering price
and other selling terms. To the extent, if at all, that any Option Units are
purchased pursuant to Section 2 hereof, the Representative will offer them to
the public on the foregoing terms.
It is further understood that you will act as the
Representative for the Underwriters in the offering and sale of the Units in
accordance with an Agreement Among Underwriters entered into by you and the
several other Underwriters.
4. COVENANTS OF THE COMPANY.
The Company covenants and agrees with the several Underwriters that:
(a) The Company will (A) use its best efforts to cause the
Registration Statement to become effective or, if the procedure in Rule 430A of
the Rules and Regulations is followed, to prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form
approved by the Representative containing information previously omitted at the
time of effectiveness of the Registration Statement in reliance on Rule 430A of
the Rules and Regulations, (B) not file any amendment to the Registration
Statement or supplement to the Prospectus of which the Representative shall not
previously have been advised and furnished with a copy or to which the
Representative shall have reasonably objected in writing or which is not in
compliance with the Rules and Regulations, and (C) file on a timely basis all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission subsequent to the date of the Prospectus and
prior to the termination of the offering of the Units by the Underwriters.
(b) The Company will advise the Representative promptly (A)
when the Registration Statement or any post-effective amendment thereto shall
have become effective, (B) of receipt of any comments from the Commission, (C)
of any request of the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any
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additional information, (D) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the use of the
Prospectus or of the institution of any proceedings for that purpose, and (E) of
the issuance of any order suspending trading of the Units, the Common Stock or
the Warrants. The Company will use its best efforts to prevent the issuance of
any such stop order preventing or suspending the use of the Prospectus or
suspending trading and to obtain as soon as possible the lifting thereof, if
issued.
(c) The Company will cooperate with the Representative in
endeavoring to qualify the Units for sale under the securities laws of such
jurisdictions as the Representative may reasonably have designated in writing
and will make such applications, file such documents, and furnish such
information as may be reasonably required for that purpose, provided the Company
shall not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction where it is not now so
qualified or required to file such a consent. The Company will, from time to
time, prepare and file such statements, reports, and other documents, as are or
may be required to continue such qualifications in effect for so long a period
as the Representative may reasonably request for distribution of the Units.
(d) The Company will deliver to, or upon the order of, the
Representative, from time to time, as many copies of any Preliminary Prospectus
as the Representative may reasonably request. The Company will deliver to, or
upon the order of, the Representative during the period when delivery of a
Prospectus is required under the Act, as many copies of the Prospectus in final
form, or as thereafter amended or supplemented, as the Representative may
reasonably request. The Company will deliver to the Representative at or before
the Closing Date, four signed copies of the Registration Statement and all
amendments thereto including all exhibits filed therewith, and will deliver to
the Representative such number of copies of the Registration Statement
(including such number of copies of the exhibits filed therewith that may
reasonably be requested), and of all amendments thereto, as the Representative
may reasonably request.
(e) The Company will comply with the Act and the Rules and
Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the Commission thereunder, so as to
permit the completion of the distribution of the Units as contemplated in this
Agreement and the Prospectus, and make all required filings thereunder to
maintain compliance with such act with respect to the trading and issuance of
the Common Stock, the Warrants and the Common Stock underlying the Warrants. If
during the period in which a prospectus is required by law to be delivered by an
Underwriter or dealer, any event shall occur as a result of which, in the
judgment of the Company or in the reasonable opinion of the Representative, it
becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading, or, if it is necessary
at any time to amend or supplement the Prospectus to comply with any law, the
Company promptly will prepare and file with the Commission an appropriate
amendment to the Registration Statement or supplement to the Prospectus so that
the Prospectus as so amended or supplemented will not, in the light of the
circumstances existing at the time the Prospectus is so delivered, be
misleading, or so that the Prospectus will comply with the law.
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(f) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the effective date of the Registration Statement, an earnings
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the requirements
of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will
advise you in writing when such statement has been so made available.
(g) The Company will, for a period of five years from the
Closing Date, deliver to the Representative copies of annual reports and copies
of all other documents, reports and information furnished by the Company to its
shareholders or filed with any securities exchange pursuant to the requirements
of such exchange or with the Commission pursuant to the Act or the Exchange Act.
The Company will deliver to the Representative similar reports with respect to
significant subsidiaries, as that term is defined in the Rules and Regulations,
which are not consolidated in the Company's financial statements. The Company
will, for a period of five years from the Closing Date, deliver to the
Representative notice of all meetings of its Board of Directors and any
executive or similar committee thereof.
(h) No offering, sale, short sale or other disposition of any
shares of Common Stock of the Company or other securities convertible into or
exchangeable or exercisable for shares of Common Stock or derivatives of Common
Stock (or agreement therefor) will be made for a period of one year after the
date of this Agreement, directly or indirectly, by the Company otherwise than
hereunder, or pursuant to contractual obligations existing on the date hereof or
pursuant to employee benefit plans in effect on the date hereof, or with the
prior written consent of the Representative, which consent will not be
unreasonably withheld.
(i) The Company will use its best efforts to qualify,
subject to notice of issuance, the Units, the Common Stock and Warrants for
membership in The Nasdaq SmallCap Market and for listing on the Pacific Stock
Exchange.
(j) The Company has caused each officer and director and
persons who own, in the aggregate, [__]% of the shares of the Common Stock
outstanding or issuable upon conversion of convertible securities outstanding
immediately prior to the date hereof to furnish to you, on or prior to the date
of this agreement, a letter or letters, in form and substance satisfactory to
the Underwriters ("Lock-up Agreements"), pursuant to which each such person
shall agree (A) not to offer, sell, contract to sell or grant any option to
purchaser or otherwise dispose of any shares of Common Stock or preferred stock
or other capital stock of the Company, or any options or other securities
convertible, exchangeable or exercisable for Common Stock or derivatives of
Common Stock owned by such person or request the registration for the offer or
sale of any of the foregoing (or as to which such person has the right to direct
the disposition) for a period of one year after the date of this Agreement,
directly or indirectly, except with the prior written consent of the
Representative; and (B) to give prior written notice to the Representative for a
period of one year from the effective date of the Registration Statement, with
respect to any sales of Common Stock of the Company pursuant to Rule 144 under
the Securities Act or any similar rule.
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(k) The Company shall apply the net proceeds of its sale of
the Units as set forth in the Prospectus and shall properly disclose such
information with respect to the sale of the Units and the application of the
proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(l) The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Units in such a manner as
would require the Company to register as an investment company under the
Investment Company Act of 1940, as amended (the "1940 Act").
(m) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a registrar
for the Common Stock and a Warrant Agent for the Warrants.
(n) The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any securities of the Company.
(o) Prior to the Closing Date, the Company will furnish to the
Representatives, as soon as they have been prepared by or are available to the
Company, a copy of any unaudited interim financial statements of the Company for
any period subsequent to the period covered by the most recent financial
statements appearing in the Registration Statement and the Prospectus.
(p) The Company agrees to use its best efforts to cause (i)
each of its directors, officers and shareholders and (ii) each person who
acquires Common Stock of the Company pursuant to the exercise of any option,
warrant or right granted under the Company's 1999 Stock Option Plan or 1994
Employee Stock Option Plan to sign an agreement that restricts such person from
selling, making any short sale of, grant any option for the purchase of, or
otherwise transfer or dispose of, any of such Common Stock, or any such
securities convertible into or exercisable or exchangeable for Common Stock, for
a period of one year days after the date of the Prospectus without the prior
written consent of the Representative; and the Company will (i) enforce the
terms of each such agreement and (ii) issue and impose a stop-transfer
instruction with the Company's transfer agent in order to enforce the foregoing
lock-up agreements.
(q) The Company will (i) enforce the terms of each Lock-up
Agreement, and (ii) issue stop-transfer instructions to the transfer agent for
the Common Stock with respect to any transaction or contemplated transaction
that would constitute a breach of or default under the applicable Lock-up
Agreement. In addition, except with the prior written consent of the
Representative, the Company agrees (i) not to amend or terminate, or waive any
right under, any Lock-up Agreement, or take any other action that would directly
or indirectly have the same effect as an amendment or termination, or waiver of
any right under any Lock-up Agreement, that would permit any holder of Common
Stock, or any securities convertible into, or exercisable or exchangeable for,
Common Stock, to make any short sale of, grant any option for the purchase of,
or otherwise transfer or dispose of, such Common Stock or other securities,
prior to the
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expiration of one year after the date of the Prospectus and (ii) not to consent
to any sale, short sale, grant of an option for the purchase of, or other
disposition or transfer of shares of Common Stock, or securities convertible
into or exercisable or exchangeable for Common Stock, subject to a Lock-up
Agreement.
(r) The Company will, between the date hereof and the date
twenty-five days after the Closing Date, provide the Representative and its
legal counsel, prior to their release, copies of all press releases, proposed
communications with shareholders or other interested parties and other public
announcements and will permit the Representative and its legal counsel to
comment thereon prior to release.
5. COSTS AND EXPENSES.
(a) The Representative shall be entitled to reimbursement from
the Company, for itself alone and not as Representative of the Underwriters, to
a non-accountable expense allowance equal to 2% of the aggregate initial public
offering price of the Firm Units and any Option Units purchased by the
Underwriters. The Representative shall be entitled to withhold this allowance on
the Closing Date related to the purchase of the Firm Units or the Option Units,
as the case may be.
(b) In addition to the payment described in Paragraph (a) of
this Section 5, the Company will pay all costs, expenses and fees incident to
the performance of the obligations of the Company under this Agreement,
including, without limiting the generality of the foregoing, the following:
accounting fees of the Company; the fees and disbursements of counsel for the
Company; the cost of printing and delivering to, or as requested by, the
Underwriters copies of the Registration Statement, Preliminary Prospectuses, the
Prospectus, this Agreement, the Nasdaq listing application, the costs of the due
diligence investigation of the principals of the Company, the Blue Sky Survey
and any supplements or amendments thereto; the filing fees of the Commission;
the filing fees and expenses (including any fees and disbursements) incident to
securing the required review by the NASD of the terms and conditions of the
underwriting arrangements; the listing fee of The Nasdaq Stock Market; and the
expenses, including the fees and disbursements of counsel for the Underwriters,
incurred in connection with the qualification of the Units under state
securities or Blue Sky laws. Any transfer taxes imposed on the sale of the Units
to the several Underwriters will be paid by the Company. The Company shall not,
however, be required to pay for any of the Underwriters' expenses (other than
those related to qualification under NASD regulations and state securities or
Blue Sky laws) except that, if this Agreement shall not be consummated, then the
Company shall reimburse the several Underwriters for actual out-of-pocket
expenses, including fees and disbursements of counsel, reasonably incurred in
connection with investigating, marketing and proposing to market the Units or in
contemplation of performing their obligations hereunder; but the Company shall
not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the Units.
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6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
The several obligations of the Underwriters to purchase the
Firm Units on the Closing Date and the Option Units, if any, on the Option
Closing Date are subject to the accuracy, as of the Closing Date or the Option
Closing Date, as the case may be, of the representations and warranties of the
Company contained herein, to the performance by the Company of its covenants and
obligations hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective and any and all filings required
by Rule 424 and Rule 430A of the Rules and Regulations shall have been made, and
any request of the Commission for additional information (to be included in the
Registration Statement or otherwise) shall have been disclosed to the
Representative and complied with to its reasonable satisfaction. No stop order
suspending the effectiveness of the Registration Statement, as amended from time
to time, shall have been issued and no proceedings for that purpose shall have
been taken or, to the knowledge of the Company, shall be contemplated by the
Commission and no injunction, restraining order, or order of any nature by a
Federal or state court of competent jurisdiction shall have been issued as of
the Closing Date which would prevent the issuance of the Units.
(b) The Representative shall have received on the Closing Date
or the Option Closing Date, as the case may be, the opinion of Luce, Forward,
Hamilton & Scripps LLP, counsel for the Company, dated the Closing Date or the
Option Closing Date, as the case may be, addressed to the Underwriters (and
stating that it may be relied upon by counsel to the Underwriters) to the effect
that:
(i) Each of the Company and its subsidiary has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of California, with corporate
power and corporate authority to own or lease its properties and to
conduct its business as described in the Registration Statement; each
of the Company and its subsidiary is duly qualified to transact
business and is in good standing in all jurisdictions in which the
conduct of its business requires such qualification, or in which the
failure to qualify would have a material adverse effect upon the
business of the Company.
(ii) The Company has authorized and outstanding
capital stock as set forth under the caption "Capitalization" in the
Prospectus; the outstanding shares of Common Stock have been duly
authorized and validly issued, are non-assessable and, to such
counsel's knowledge, fully paid, and have been issued and sold by the
Company in compliance in all material respects with applicable
securities laws; all of the securities of the Company conform to the
description thereof contained in the Prospectus; the certificates for
the Common Stock and Warrants are in due and proper form; the shares of
Common Stock to be sold by the Company pursuant to this Agreement,
including shares of Common Stock to be sold as a part of the Units,
have been duly authorized and, upon issuance and delivery thereof as
contemplated in this Agreement and the Registration Statement, will be
validly issued, fully paid and non-assessable; no preemptive rights of
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shareholders exist with respect to any of the Common Stock or the
issuance or sale thereof pursuant to any applicable statute or the
provisions of the Company's Articles of Incorporation or Bylaws or, to
the knowledge of such counsel, pursuant to any contractual obligation.
The Warrants and the Representative's Warrants have been authorized for
issuance to the purchasers of Units or the Representative, as the case
may be, and will, when issued, possess rights, privileges, and
characteristics as represented in the most recent form of Warrants or
Representative's Warrants, as the case may be, filed as an exhibit to
the Registration Statement; the securities to be issued upon exercise
of the Warrants and the Representative's Warrants, as the case may be,
when issued and delivered against payment therefor in accordance with
the terms of the Representative's Warrants, will be duly and validly
issued, fully paid, nonassessable and free of preemptive rights, and
all corporate action required to be taken for the authorization and
issuance of the Warrants, the Representative's Warrants, and the
securities to be issued upon their exercise, has been validly and
sufficiently taken.
(iii) Except as described in or contemplated by the
Prospectus, to the knowledge of such counsel, there are no outstanding
securities of the Company convertible or exchangeable into or
evidencing the right to purchase or subscribe for any shares of capital
stock of the Company and there are no outstanding or authorized
options, warrants or rights of any character obligating the Company to
issue any shares of its capital stock or any securities convertible or
exchangeable into or evidencing the right to purchase or subscribe for
any shares of such stock; and except as described in the Prospectus, to
the knowledge of such counsel, no holder of any securities of the
Company or any other person has the right, contractual or otherwise,
which has not been satisfied or effectively waived, to cause the
Company to sell or otherwise issue to them, or to permit them to
underwrite the sale of, any of the Units or the right to have any
Common Stock or other securities of the Company included in the
Registration Statement or the right, as a result of the filing of the
Registration Statement, to require registration under the Act of any
shares of Common Stock or other securities of the Company.
(iv) The Registration Statement has become effective
under the Act and, to the best of the knowledge of such counsel, no
stop order proceedings with respect thereto have been instituted or are
pending or threatened under the Act.
(v) The conditions for the use of Form SB-2 set forth
in the general instructions thereto have been satisfied, and the
Registration Statement, the Prospectus and each amendment or supplement
thereto comply as to form in all material respects with the
requirements of the Act and the applicable rules and regulations
thereunder (except that such counsel need express no opinion as to the
financial statements and related schedules therein).
(vi) The statements under the captions "Management's
Discussion and Analysis of Financial Condition and Results of
Operations", "Business-intellectual property," "Management-Stock option
plans," "Management-Employment agreements," "Certain Relationships and
Related Transactions," "Description of Securities," and
17
<PAGE>
"Shares Eligible for Future Sale" in the Prospectus, and Items 24 and
26 of Part II of the Registration Statement, insofar as such statements
constitute a summary of documents referred to therein or matters of
law, fairly summarize in all material respects the information called
for with respect to such documents and matters.
(vii) Such counsel does not know of any contracts or
documents required to be filed as exhibits to the Registration
Statement or described in the Registration Statement or the Prospectus
which are not so filed or described as required, and such contracts and
documents as are summarized in the Registration Statement or the
Prospectus are fairly summarized in all material respects.
(viii) Such counsel knows of no legal or governmental
proceedings pending or threatened against the Company.
(ix) The execution and delivery of this Agreement and
the consummation of the transactions herein contemplated do not and
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, the Articles of
Incorporation or Bylaws of the Company, or any agreement or instrument
known to such counsel to which the Company is a party or by which the
Company may be bound.
(x) Each of this Agreement and the Warrant Agreement
by and among the Company, the Warrantholders (defined therein) and
American Stock Transfer & Trust Company, as Warrant Agent, has been
duly authorized, executed and delivered by the Company.
(xi) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body is necessary in connection
with the execution and delivery of this Agreement and the consummation
of the transactions herein contemplated (other than as may be required
by the NASD or as required by state securities and Blue Sky laws as to
which such counsel need express no opinion) except such as have been
obtained or made, specifying the same.
(xii) The Company is not, and will not become, as a
result of the consummation of the transactions contemplated by this
Agreement, and application of the net proceeds therefrom as described
in the Prospectus, required to register as an investment company under
the 1940 Act.
In rendering such opinion, such counsel may rely as to matters
governed by the laws of states other than California or Federal laws on local
counsel in such jurisdictions, provided that in each case such counsel shall
state that they believe that they and the Underwriters are justified in relying
on such other counsel. In addition to the matters set forth above, the opinion
of Luce, Forward, Hamilton & Scripps LLP shall also include a statement to the
effect that nothing has come to the attention of such counsel that has caused
them to believe that (i) the Registration Statement, at the time it became
effective under the Act (but after giving effect to any modifications
incorporated therein pursuant to Rule 430A under the Act) and as of
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<PAGE>
the Closing Date or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and (ii) the Prospectus, or any supplement thereto, on the date it was filed
pursuant to the Rules and Regulations and as of the Closing Date or the Option
Closing Date, as the case may be, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements, in the light of the circumstances under which they are made, not
misleading (except that such counsel need express no view as to financial
statements, schedules and statistical information therein).
(c) The Representative shall have received from Tonkon Torp
LLP, counsel for the Underwriters, an opinion dated the Closing Date or the
Option Closing Date, as the case may be, substantially to the effect specified
in subparagraphs (i), (iv) and (v) of Paragraph (b) of this Section 6. In
rendering such opinion Tonkon Torp LLP may rely as to all matters governed other
than by the laws of the State of Oregon or Federal laws on the opinion of
counsel referred to in Paragraph (b) of this Section 6. In addition to the
matters set forth above, such opinion shall also include a statement to the
effect that nothing has come to the attention of such counsel that has caused
them to believe that (i) the Registration Statement, or any amendment thereto,
as of the time it became effective under the Act (but after giving effect to any
modifications incorporated therein pursuant to Rule 430A under the Act) and as
of the Closing Date or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and (ii) the Prospectus, or any supplement thereto, on the date it was filed
pursuant to the Rules and Regulations and as of the Closing Date or the Option
Closing Date, as the case may be, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements, in the light of the circumstances under which they are made, not
misleading (except that such counsel need express no view as to financial
statements, schedules and statistical information therein). With respect to such
statement, Tonkon Torp LLP may state that their belief is based upon the
procedures set forth therein, but is without independent check and verification.
(d) The Representative shall have received at or prior to the
Closing Date from Tonkon Torp LLP a memorandum or summary, in form and substance
satisfactory to the Representative, with respect to the qualification for
offering and sale by the Underwriters of the Units under the state securities or
Blue Sky laws of such jurisdictions as the Representative may reasonably have
designated to the Company.
(e) The Representative, on behalf of the several Underwriters,
shall have received, on each of the dates hereof, the Closing Date and the
Option Closing Date, as the case may be, a letter dated the date hereof, the
Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to the Representative, of PricewaterhouseCoopers LLP
confirming that they are independent public accountants within the meaning of
the Act and the applicable published Rules and Regulations thereunder and
stating that in their opinion the financial statements and schedules examined by
them and included in the Registration Statement comply in form in all material
respects with the applicable accounting requirements of the Act and the related
published Rules and Regulations and containing such other statements and
19
<PAGE>
information as is ordinarily included in accountants' "comfort letters" to
Underwriters with respect to the financial statements and certain financial and
statistical information contained in the Registration Statement and Prospectus.
(f) The Representative shall have received on the Closing Date
or the Option Closing Date, as the case may be, a certificate or certificates of
the Chief Executive Officer and the Chief Financial Officer of the Company to
the effect that, as of the Closing Date or the Option Closing Date, as the case
may be, each of them severally represents as follows:
(i) The Registration Statement has become effective
under the Act and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for such
purpose have been taken or are, to his knowledge, contemplated by the
Commission;
(ii) The representations and warranties of the
Company contained in Section 1 hereof are true and correct as of the
Closing Date or the Option Closing Date, as the case may be;
(iii) All filings required to have been made pursuant
to Rules 424 or 430A under the Act have been made;
(iv) He has carefully examined the Registration
Statement and the Prospectus and, in his opinion, as of the effective
date of the Registration Statement, the statements contained in the
Registration Statement were true and correct, and such Registration
Statement and Prospectus did not omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein not misleading, and since the effective date of the
Registration Statement, no event has occurred which should have been
set forth in a supplement to or an amendment of the Prospectus which
has not been so set forth in such supplement or amendment; and
(v) Since the respective dates as of which
information is given in the Registration Statement and Prospectus,
there has not been any material adverse change or any development
involving a prospective material adverse change in or affecting the
condition, financial or otherwise, of the Company or the earnings,
business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company, whether or not
arising in the ordinary course of business.
(g) The Company shall have furnished to the Representative
such further certificates and documents confirming the representations and
warranties, covenants and conditions contained herein and related matters as the
Representative may reasonably have requested.
(h) The Common Stock and Warrants have been approved for
quotation upon notice of issuance on The Nasdaq SmallCap Market.
20
<PAGE>
(i) The Lock-up Agreements described in Section 4(j) are in
full force and effect.
The opinions and certificates mentioned in this Agreement
shall be deemed to be in compliance with the provisions hereof only if they are
in all material respects satisfactory to the Representative and to Tonkon Torp
LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this
Section 6 shall not have been fulfilled when and as required by this Agreement
to be fulfilled, the obligations of the Underwriters hereunder may be terminated
by the Representative by notifying the Company of such termination in writing or
by telegram at or prior to the Closing Date or the Option Closing Date, as the
case may be.
In such event, the Company and the Underwriters shall not be
under any obligation to each other (except to the extent provided in Sections 5
and 8 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company to sell and deliver the portion
of the Units required to be delivered as and when specified in this Agreement
are subject to the conditions that at the Closing Date or the Option Closing
Date, as the case may be, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Act, against any losses, claims, damages or liabilities to which
such Underwriter or any such controlling person may become subject under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto; (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; (iii) caused by any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the consent of the Company for distribution to Participants in
connection with the Directed Share Program or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; (iv) caused by the
failure of any Participant to pay for and accept delivery of Directed Shares
that the Participant agreed to purchase; or (v) related to, arising out of, or
in connection with the Directed Share Program; and will reimburse each
Underwriter and each such controlling person upon demand for any legal or other
expenses reasonably incurred by such Underwriter or such controlling person in
connection with investigating or defending against any such loss, claim, damage
or liability, action or proceeding or in responding to a subpoena or
governmental inquiry related to the offering of the Units, whether or not such
Underwriter or controlling person is a party to any
21
<PAGE>
action or proceeding; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement,
or omission or alleged omission made in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by or through the Representative specifically for use in the preparation
thereof. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Underwriter severally and not jointly will indemnify
and hold harmless the Company, each of its directors, each of its officers who
have signed the Registration Statement and each person, if any, who controls the
Company within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer or controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or (ii) the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; and
will reimburse any legal or other expenses reasonably incurred by the Company or
any such director, officer or controlling person in connection with
investigating or defending against any such loss, claim, damage, liability,
action or proceeding; provided, however, that each Underwriter will be liable in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representative
specifically for use in the preparation thereof. This indemnity agreement will
be in addition to any liability which such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a) or (b) shall be available to any
party who shall fail to give notice as provided in this Section 8(c) if the
party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was materially prejudiced by the failure to give
such notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they may have to
the indemnified party for contribution or otherwise than on account of the
provisions of Section 8(a) or (b). In case any such proceeding shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party and, the indemnifying party shall
pay as incurred the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel at its
22
<PAGE>
own expense. Notwithstanding the foregoing, the indemnifying party shall pay as
incurred (or within 30 days of presentation) the fees and expenses of the
counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel, (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them or (iii) the
indemnifying party shall have failed to assume the defense and employ counsel
acceptable to the indemnified party within a reasonable period of time after
notice of commencement of the action. It is understood that the indemnifying
party shall not, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the reasonable fees and expenses of more than
one additional separate firm for all such indemnified parties. Such firm shall
be designated in writing by the Representative in the case of parties
indemnified pursuant to Section 8(a) and by the Company in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. In addition, the
indemnifying party will not, without the prior written consent of the
indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified party is
an actual or potential party to such claim, action or proceeding) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action or
proceeding.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Units. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bears to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
23
<PAGE>
the Company on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 8(d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
8(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this Section 8(d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), (i) no Underwriter shall
be required to contribute any amount in excess of the underwriting discounts and
commissions applicable to the Units purchased by such Underwriter, and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this Section 8(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement,
any Preliminary Prospectus, the Prospectus or any supplement or amendment
thereto, each party against whom contribution may be sought under this Section 8
hereby consents to the jurisdiction of any court having jurisdiction over any
other contributing party, agrees that process issuing from such court may be
served upon him or it by any other contributing party and consents to the
service of such process and agrees that any other contributing party may join
him or it as an additional defendant in any such proceeding in which such other
contributing party is a party.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers or any persons
controlling the Company, (ii) acceptance of any Units and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter, or to the Company, its directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 8.
9. DEFAULT BY UNDERWRITERS.
If on the Closing Date or the Option Closing Date, as the case
may be, any Underwriter shall fail to purchase and pay for the portion of the
Units which such Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the
24
<PAGE>
part of the Company), you, as Representative of the Underwriters, shall use
reasonable efforts to procure within 36 hours thereafter one or more of the
other Underwriters, or any others, to purchase from the Company such amounts as
may be agreed upon and upon the terms set forth herein, the Firm Units or Option
Units, as the case may be, which the defaulting Underwriter or Underwriters
failed to purchase. If during such 36 hours you, as such Representative, shall
not have procured such other Underwriters, or any others, to purchase the Firm
Units or Option Units, as the case may be, agreed to be purchased by the
defaulting Underwriter or Underwriters, then (a) if the aggregate number of
Units with respect to which such default shall occur does not exceed 10% of the
Firm Units or Option Units, as the case may be, covered hereby, the other
Underwriters shall be obligated, severally, in proportion to the respective
numbers of Firm Units or Option Units, as the case may be, which they are
obligated to purchase hereunder, to purchase the Firm Units or Option Units, as
the case may be, which such defaulting Underwriter or Underwriters failed to
purchase, or (b) if the aggregate number of Firm Units or Option Units, as the
case may be, with respect to which such default shall occur exceeds 10% of the
Firm Units or Option Units, as the case may be, covered hereby, the Company or
you as the Representative of the Underwriters will have the right, by written
notice given within the next 36-hour period to the parties to this Agreement, to
terminate this Agreement without liability on the part of the non-defaulting
Underwriters or of the Company except to the extent provided in Section 8
hereof. In the event of a default by any Underwriter or Underwriters, as set
forth in this Section 9, the Closing Date or Option Closing Date, as the case
may be, may be postponed for such period, not exceeding seven days, as you, as
Representative, may determine in order that the required changes in the
Registration Statement or in the Prospectus or in any other documents or
arrangements may be effected. The term "Underwriter" includes any person
substituted for a defaulting Underwriter. Any action taken under this Section 9
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
10. NOTICES.
All communications hereunder shall be in writing and, except
as otherwise provided herein, will be mailed, delivered or telecopied and
confirmed as follows: if to the Underwriters, to Paulson Investment Company,
Inc., 811 SW Naito Parkway, Portland, Oregon 97204, Attention: Chester L.F.
Paulson; with a copy to Tonkon Torp LLP, 888 SW Fifth Avenue, Suite 1600,
Portland, Oregon 97204, Attention: Thomas P. Palmer, Esq.; if to the Company, to
ImageWare Systems, Inc., 10883 Thornmint Road, San Diego, California 92127,
Attention: S. James Miller, Jr.; with a copy to Luce, Forward, Hamilton &
Scripps LLP, 600 West Broadway, Suite 2600, San Diego, California 92101,
Attention: Dennis J. Doucette, Esq.
11. TERMINATION.
This Agreement may be terminated by the Representative by
notice to the Company as follows:
(a) at any time prior to the earlier of (i) the time the Firm
Units are released to the Representative for sale by notice to the Underwriters,
or (ii) 11:30 a.m. on the first business day following the date of this
Agreement;
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<PAGE>
(b) at any time prior to the Closing Date if any of the
following has occurred: (i) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, any material adverse
change or any development involving a prospective material adverse change in or
affecting the condition, financial or otherwise, of the Company, the earnings,
business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company, whether or not arising in
the ordinary course of business, (ii) any outbreak or escalation of hostilities
or declaration of war or national emergency or other national or international
calamity or crisis or change in economic or political conditions if the effect
on the financial markets of the United States of such outbreak, escalation,
declaration, emergency, calamity, crisis or change would, in the
Representative's reasonable judgment, make it impracticable to market the Units
or to enforce contracts for the sale of the Units, (iii) the Dow Jones
Industrial Average shall have fallen by 15 percent or more from its closing
price on the day immediately preceding the date that the Registration Statement
is declared effective by the Commission, (iv) suspension of trading in
securities generally on the New York Stock Exchange or the American Stock
Exchange or limitation on prices (other than limitations on hours or numbers of
days of trading) for securities on either such Exchange, (v) the enactment,
publication, decree or other promulgation of any statute, regulation, rule or
order of any court or other governmental authority which in the opinion of the
Representative materially and adversely affects or may materially and adversely
affect the business or operations of the Company, (vi) declaration of a banking
moratorium by United States or New York State authorities, (vii) any downgrading
in the rating of the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Exchange Act); (viii) the suspension or halt of trading of the Units, the
Common Stock or the Warrants on the Nasdaq Stock Market or (ix) the taking of
any action by any governmental body or agency in respect of its monetary or
fiscal affairs which in your reasonable opinion has a material adverse effect on
the securities markets in the United States; or
(c) as provided in Sections 6 and 9 of this Agreement.
12. SUCCESSORS.
This Agreement has been and is made solely for the benefit of
the Underwriters, the Company and their respective successors, executors,
administrators, heirs and assigns, and the officers, directors and controlling
persons referred to herein, and no other person will have any right or
obligation hereunder. No purchaser of any of the Units from any Underwriter
shall be deemed a successor or assign merely because of such purchase.
13. INFORMATION PROVIDED BY UNDERWRITERS.
The Company and the Underwriters acknowledge and agree that
the only information furnished or to be furnished by any Underwriter to the
Company for inclusion in the Prospectus or the Registration Statement consists
of the information set forth in the last paragraph on the front cover page of
the Prospectus (insofar as such information relates to the Underwriters), the
legends required by Item 502(d) of Regulation S-B under the Act, the
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<PAGE>
information under the caption "Underwriting" in the Prospectus, other than the
offering expenses disclosed thereunder, and the state blue sky legends.
14. MISCELLANEOUS.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Company or
its directors or officers and (c) delivery of and payment for the Units under
this Agreement.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Oregon. All disputes relating to this
Underwriting Agreement shall be adjudicated before a court located in Multnomah
County, Oregon to the exclusion of all other courts that might have
jurisdiction.
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
ImageWare Systems, Inc.
By:_____________________________________
S. James Miller, Jr., President
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
Paulson Investment Company, Inc.
As Representative of the several
Underwriters listed on Schedule I
By: ___________________________________
Authorized Officer
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<PAGE>
SCHEDULE I
SCHEDULE OF UNDERWRITERS
------------------------
<TABLE>
<CAPTION>
Number of Firm Units
Underwriter to be Purchased
----------- ---------------
<S> <C>
Paulson Investment Company, Inc.
Total
</TABLE>
28
<PAGE>
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF IMAGEWARE SOFTWARE, INC.
S. James Miller, Jr. and Anne Hoversten certify that:
ONE: They are the President and Secretary, respectively, of ImageWare
Software, Inc. (the "Corporation").
TWO: The Articles of Incorporation of the Corporation are amended and
restated to read as follows:
ARTICLE I
The name of the Corporation is ImageWare Systems, Inc.
ARTICLE II
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporations Code.
ARTICLE III
A. CLASSES OF STOCK. The Corporation is authorized to issue two
classes of stock to be designated, respectively, "Common Stock" and
"Preferred Stock." The total number of shares which the Corporation is
authorized to issue is Fifty Four Million (54,000,000) shares. Fifty Million
(50,000,000) shares shall be Common Stock and Four Million (4,000,000) shares
shall be Preferred Stock. The Common Stock shall have a par value of $.01 per
share and the Preferred Stock shall have a par value of $.01 per share. No
shares of Preferred Stock are designated as "Series A Preferred Stock". Seven
Hundred Fifty Thousand (750,000) shares of Preferred Stock are designated as
"Series B Preferred Stock"
The remaining shares of Preferred Stock may be divided into such number
of series as the Board of Directors may determine. The Board of Directors is
authorized to determine and alter the rights, preferences, privileges and
restrictions granted to and imposed upon any wholly unissued series of Preferred
Stock, and to fix the number of shares of any series of Preferred Stock and the
designation of any such series of Preferred Stock. The Board of Directors,
within the limits and restrictions stated in any resolution or resolutions of
the Board of Directors originally fixing the number of shares constituting any
series, may increase or decrease (but not below the number of shares of such
series then outstanding) the number of shares of any series subsequent to the
issuance of shares of that series.
Upon amendment of this article, each outstanding share of Common Stock
of this
<PAGE>
Corporation shall be changed into .1895734 of one share Common Stock. No
fractional shares will be issued; instead, the Corporation will pay cash in lieu
of any fractional shares equal to the fair value of such fractions of a share as
determined by the Board of Directors of the Corporation.
B. RIGHTS, PREFERENCES AND RESTRICTIONS OF SERIES B PREFERRED STOCK.
The rights, preferences, restrictions and other matters relating to the
Series B Preferred Stock are as follows (NOTE: section references within this
Article III.B. are to other sections within this Article III.B. unless
otherwise expressly provided):
1. DIVIDEND PROVISIONS. The holders of shares of Series B Preferred Stock
shall, commencing after April 30, 1996, be entitled to receive cumulative
dividends in cash, subject to the availability of, and only out of, any funds
legally available therefor, prior and in preference to any declaration or
payment of any dividend (payable other than in common stock or other
securities and rights convertible into or entitling the holder thereof to
receive, directly or indirectly, additional shares of common stock of the
corporation; provided, however, that such convertible securities or rights
shall not rank, as to dividend or liquidation rights, prior to or on a parity
with the Series B Preferred Stock) on the common stock or any other series of
preferred stock or series or class of any other stock of the corporation and
prior and in preference to any payment of monies to any sinking or purchase
fund on the common stock or any other series of preferred stock or series or
class of any other stock of the corporation for the redemption or repurchase
thereof, at the rate of $0.2125 per share per annum payable in equal
semiannual installments of $0.10625 per share, on the last business day of
October and April each year, with the first dividend payment commencing
October 31, 1996, and upon redemption of the Series B Preferred Stock or
conversion thereof as otherwise provided herein. Provided, that if a dividend
is paid on the Common Stock prior to April 30, 1996, then the dividends
provided herein to be paid on the Series B Preferred Stock shall commence at
April 30, 1995. Dividends for less than a full calendar semi-annual period
shall be prorated, based on the actual number of days elapsed during such
semiannual period, divided by 180 days. Declared dividends on outstanding
shares of the Series B Preferred Stock shall be paid to record holders as
they appear on the stock register of the corporation at the close of business
on the 15th day of the month containing such dividend date as may be fixed by
the board of directors in advance of such dividend date, provided that no
such record date shall be more than 30 days prior to such dividend date.
2. LIQUIDATION PREFERENCE; MERGER, CONSOLIDATION AND SALE.
(a) In the event of any liquidation, dissolution or winding
up of the Corporation, either voluntarily or involuntarily (an "Event of
Liquidation"), the holders of Series B Preferred Stock shall be entitled to
receive, prior and in preference to any distribution of any of the assets of
the Corporation to the holders of Common Stock or any other series of
Preferred Stock or series or class of any other stock of the Corporation by
reason of their ownership thereof, an amount per share equal to the sum of
(i) $2.50 for each outstanding share of Series B Preferred Stock (hereafter
referred to as the "Original Series B Preferred Stock Issue Price") and (ii)
an amount equal to accrued but unpaid dividends on such share. If upon the
occurrence of such event, the assets and funds thus distributed among the
holders of the Series B Preferred Stock shall be insufficient to permit the
payment to such holders of the full aforesaid preferential amounts, then, the
entire assets and funds of the Corporation legally available for distribution
shall be distributed ratably among the holders of the Series B Preferred
Stock in proportion to the amount of such stock owned by each such holder.
The Corporation shall mail to each holder of Series B Preferred Stock, at
least twenty (20) days prior to an Event of Liquidation, a notice setting
forth the date on which such Event of Liquidiation is expected to become
effective and the type and amount of anticipated proceeds per share of Common
Stock to be distributed with respect thereto and shall afford each such
holder the opportunity to convert such shares of Series B Preferred Stock
pursuant to subsection 3 (conditional upon the consummation of such Event of
Liquidation) prior to the consummation thereof.
<PAGE>
(b) A consolidation or merger of the Corporation with or
into any other corporation or corporations, or a sale, conveyance or
disposition of all or substantially all of the assets of the Corporation or
the effectuation of an acquisition of the Corporation by another entity by
means of a transaction or series of related transactions in which more than
fifty percent (50%) of the voting power of the Corporation is disposed of
(the "Sale") , shall be deemed to be an Event of Liquidation; provided,
however, that if holders of Series B Preferred Stock are to receive more than
the preferential amounts due them under subsection 2(a) above in the Sale,
then the Sale shall not be an Event of Liquidation and all holders of Series
B Preferred Stock shall participate ratably with the holders of Common Stock
and the holders of any other series of Preferred Stock with similar rights in
proportion to the amount of shares owned by each such holder on an
as-converted basis and shall not be entitled to receive any preferential
amounts.
3. CONVERSION. THE HOLDERS OF THE SERIES B PREFERRED STOCK SHALL HAVE CONVERSION
RIGHTS AS FOLLOWS (THE "CONVERSION RIGHTS"):
(a) RIGHT TO CONVERT; AUTOMATIC CONVERSION.
<PAGE>
(i) Subject to subsection 3(c), each share of Series
B Preferred Stock plus accrued but unpaid dividends thereon shall be
convertible, at the option of the holder thereof, at any time after the date of
issuance of such share, at the office of the Corporation or any transfer agent
for the Series B Preferred Stock, into such number of fully paid and
nonassessable shares of Common Stock as is determined by dividing the Original
Series B Issue Price plus the aggregate amount of accrued but unpaid dividends
thereon by the Conversion Price at the time in effect for such share. The
initial Conversion Price per share for shares of Series B Preferred Stock shall
be the Original Series B Issue Price; provided however, that the Conversion
Price for the Series B Preferred Stock shall be subject to adjustment as set
forth in subsection 3(c).
(ii) Each share of Series B Preferred Stock shall
automatically convert into shares of Common Stock at the Conversion Price at the
time in effect for such Series B Preferred Stock immediately upon the initial
closing of the Corporation's sale of its Common Stock in a bona fide
underwritten public offering pursuant to a registration statement on an
appropriate form under the Securities Act of 1933, as amended (the "Public
Offering"), if the public offering price of which is not less than $6.00 per
share (adjusted to reflect subsequent stock dividends, stock splits or
recapitalizations); provided, however, if the public offering price is less than
$6.00 per share but at least $4.00 per share, then the conversion of shares of
Series B Preferred Stock into shares of Common Stock shall still be
automatically effected if the Corporation receives the written consent of the
holders of a majority of the then outstanding shares of Series B Preferred
Stock. Upon automatic conversion pursuant to this subsection 3(a)(ii), all
accrued but unpaid dividends shall be paid immediately upon the initial closing
of the Public Offering, in cash.
(b) MECHANICS OF CONVERSION. Before any holder of Series B
Preferred Stock shall be entitled to convert the same into shares of Common
Stock, he shall surrender the certificate or certificates therefor, duly
endorsed in blank, at the office of the Corporation or of any transfer agent for
the Series B Preferred Stock, and shall give written notice by mail, postage
prepaid, to the Corporation at its principal corporate office, of the election
to convert the same and shall state therein the name or names in which the
certificate or certificates for shares of Common Stock are to be issued. The
Corporation shall, as soon as practicable thereafter, issue and deliver at such
office to such holder of Series B Preferred Stock, or to the nominee or nominees
of such holder, a certificate or certificates for the number of shares of Common
Stock to which such holder shall be entitled as aforesaid. Such conversion shall
be deemed to have been made immediately prior to the close of business on the
date of such surrender of the shares of Series B Preferred Stock to be
converted, and the person or persons entitled to receive the shares of Common
Stock issuable upon such conversion shall be treated for all purposes as the
record holder or holders of such shares of Common Stock as of such date. If the
conversion is in connection with an underwritten offer of securities registered
pursuant to the Securities Act of 1933, as amended, the conversion may, at the
option of any holder tendering Series B Preferred Stock for conversion, be
conditioned upon the closing with the underwriter of the sale of securities
pursuant to such offering, in which event the person(s) entitled to receive the
Common Stock issuable upon such conversion of the Series B Preferred Stock shall
not be
<PAGE>
deemed to have converted such Series B Preferred Stock until immediately prior
to the closing of such sale of securities.
(c) CONVERSION PRICE ADJUSTMENTS OF PREFERRED STOCK. The
Conversion Price of the Series B Preferred Stock shall be subject to adjustment
from time to time as follows:
(i) In the event the Corporation should at any time
or from time to time after the date of the issuance of any shares of Series B
Preferred Stock fix a record date for the effectuation of a split or subdivision
of the outstanding shares of Common Stock or the determination of holders of
Common Stock entitled to receive a dividend or other distribution payable in
additional shares of Common Stock or other securities or rights convertible
into, or entitling the holder thereof to receive directly or indirectly,
additional shares of Common Stock (hereinafter referred to as "Common Stock
Equivalents") without payment of any consideration by such holder for the
additional shares of Common Stock or the Common Stock Equivalents (including the
additional shares of Common Stock issuable upon conversion or exercise thereof),
then, as of such record date (or the date of such dividend distribution, split
or subdivision if no record date is fixed), the Conversion Price of the Series B
Preferred Stock shall be appropriately decreased so that the number of shares of
Common Stock issuable on conversion of each share of such series shall be
increased in proportion to such increase in the aggregate number of shares of
Common Stock outstanding and those issuable with respect to Common Stock
Equivalents or other rights or securities of the Corporation.
(ii) If the number of shares of Common stock
outstanding at any time after the date of the issuance of any shares of Series B
Preferred Stock is decreased by a combination of the outstanding shares of
Common Stock, then, following the record date of such combination, the
Conversion Price for the Series B Preferred Stock shall be appropriately
increased so that the number of shares of Common Stock issuable on conversion of
each share of such series shall be decreased in proportion to such decrease in
outstanding shares.
(d) OTHER DISTRIBUTIONS. In the event the Corporation shall
declare a distribution with respect to the outstanding shares of Common Stock
payable in securities of other persons, evidences of indebtedness issued by the
Corporation or other persons, assets or options or rights not referred to in
subsection 3(c)(i), then, in each such case for the purpose of this subsection
3d., the holders of the Series B Preferred Stock shall be entitled to a
proportionate share of any such distribution as though they were the holders of
the number of shares of Common Stock of the Corporation into which their shares
of Series B Preferred Stock are convertible as of the record date fixed for the
determination of the holders of Common Stock of the Corporation entitled to
receive such distribution.
(e) RECAPITALIZATIONS. If at any time or from time to time
there shall be a capital reorganization of the Corporation or any
reclassification of the Common Stock or in case of the consolidation or merger
of the Corporation with any other person or entity or in case of any sale,
conveyance or disposition of all or substantially all of the assets of the
Corporation to an affiliate of the Corporation (other than a subdivision,
combination or Event of Liquidation or Sale as provided for elsewhere in
subsection 3 or subsection 2), the Corporation and the person
<PAGE>
or entity formed by such consolidation or resulting from such capital
reorganization, reclassification of capital stock or merger, as the case may be,
shall make provision in the articles or certificate of incorporation or other
governing instruments of such person such that each share of Series B Preferred
Stock shall thereafter be convertible only into the kind and amount of shares of
stock, other securities, cash and other property receivable upon such capital
reorganization, reclassification of capital stock, consolidation, merger, sale,
conveyance or disposition, as the case may be, by a holder of the number of
shares of common Stock into which such shares of Series B Preferred Stock was
convertible immediately prior to such capital reorganization, reclassification
of capital stock, consolidation, merger, sale, conveyance or disposition. In any
such case, appropriate adjustment shall be made in the application of the
provisions of this subsection 3 with respect to the rights of the holders of the
Series B Preferred Stock after such capital reorganization, reclassification of
capital stock, consolidation, merger, sale, conveyance or disposition to the end
that the provisions of this subsection 3 (including adjustment of the Conversion
Price then in effect and the number of shares purchasable upon conversion of the
Series B Preferred Stock) shall be applicable after that event as nearly
equivalent as may be practicable.
(f) NO FRACTIONAL SHARES AND CERTIFICATE AS TO ADJUSTMENTS.
(i) No fractional shares shall be issued upon
conversion of the Series B Preferred Stock. If any fractional interest in shares
of Common Stock would, except for the provisions of this subsection 3(f), be
deliverable upon the conversion of any Series B Preferred Stock, the Corporation
shall, in lieu of delivering the fractional share therefore, adjust such
fractional interest by payment to the holder of such converted Series B
Preferred Stock an amount in cash equal to the current market value of such
fractional interest (computed to the nearest cent). Whether or not cash in lieu
of fractional shares are issuable upon such conversion shall be determined on
the basis of the total number of shares of Series B Preferred Stock the holder
is at the time converting into Common Stock and the number of shares of Common
Stock issuable upon such aggregate conversion.
(ii) Upon the occurrence of each adjustment or
readjustment of the Conversion Price of Series B Preferred Stock pursuant to
this subsection 3, the Corporation, at its expense, shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and prepare and
furnish to each holder of Series B Preferred Stock a certificate setting forth
such adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Corporation shall, upon the written
request at any time of any holder of Series B Preferred Stock, furnish or cause
to be furnished to such holder a like certificate setting forth (A) such
adjustment and readjustment, (B) the Conversion Price at the time in effect, and
(C) the number of shares of Common Stock and the amount, if any, of other
property which at the time would be received upon the conversion of a share of
Series B Preferred Stock.
(g) NOTICES OF RECORD DATE. In the event of any taking by the
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend or other distribution, any right to subscribe for, purchase
<PAGE>
or otherwise acquire any shares of stock of any class or any other securities or
property, or to receive any other right, the Corporation shall mail to each
holder of Series B Preferred Stock, at least 20 days prior to the date specified
therein, a notice specifying the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and the amount and
character of such dividend, distribution or right.
(h) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The
Corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock solely for the purpose of effecting the
conversion of the shares of the Series B Preferred Stock such number of its
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of the Series B Preferred Stock; and if at
any time the number of authorized but unissued shares of Common Stock shall not
be sufficient to effect the conversion o f all then outstanding shares of the
Series B Preferred Stock, in addition to such other remedies as shall be
available to the holder of such Series B Preferred Stock, the Corporation will
take such corporate action as may, in the opinion of its counsel, be necessary
to increase its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purposes.
(i) NOTICES. Any notice required by the provisions of this
subsection 3 to be given to the holder of shares of Series B Preferred Stock
shall be deemed given if deposited in the United States mail, postage prepaid,
and addressed to each holder of record at his address appearing on the books of
the Corporation.
4. VOTING RIGHTS.
(a) The holder of each share of Series B Preferred Stock shall
have the right to one vote for each share of Common Stock into which such Series
B Preferred Stock could then be converted (with any fractional share determined
on an aggregate conversion basis being rounded to the nearest whole share), and
with respect to such vote, such holder shall have full voting rights and powers
equal to the voting rights and powers of the holders of Common Stock, and shall
be entitled, notwithstanding any provision hereof, to notice of any
shareholders, meeting in accordance with the by-laws of the Corporation, and
shall be entitled to vote, together with holders of Common Stock, with respect
to any question upon which holders of Common Stock have the right to vote.
(b) ELECTION OF DIRECTORS. Notwithstanding subsection 4(a),
so long as the Corporation is in default in the payment of any dividends due
the holders of Series B Preferred Stock, the holders of Series B Preferred
Stock, voting as a separate class, shall be entitled to elect one (1)
director of the Corporation and the holders of Series B Preferred Stock and
Common Stock, voting on an as converted basis, shall be entitled to elect the
remaining directors of the Corporation. At such time as the Corporation is no
longer in default on the payment of any dividends due the holders of Series B
Preferred Stock, the special voting provisions set forth in the preceding
sentence shall no longer be effective and the voting
<PAGE>
provisions of Section 4(a). shall apply. The director elected by the holders
of Series B Preferred Stock shall thereupon be deemed to have resigned. At
any meeting held for the purpose of electing directors, the presence in
person or by proxy of the holders of a majority of the Series B Preferred
Stock then outstanding shall constitute a quorum of the Series B Preferred
Stock for the election of directors to be elected solely by the holders of
Series B Preferred Stock. A vacancy in any directorship elected by the
holders of Series B Preferred Stock shall be filled only by vote of the
holders of Series B Preferred Stock and a vacancy in the directorship elected
by the holders of Series B Preferred Stock and Common Stock voting together
shall be filled only by the vote of the holders of Series B Preferred Stock
and Common Stock voting together as provided above.
5. REDEMPTION.
(a) REDEMPTION BY THE CORPORATION.
(i) The Corporation shall have the right, but not the
obligation, exercisable at any time or from time to time after December 31,
2000, upon at least sixty (60) days' prior written notice to the holders of the
outstanding shares of Series B Preferred Stock to redeem all or some of the
outstanding shares of Series B Preferred Stock, pro rata, by paying a sum per
share equal to the Original Series B Issue Price (subject to adjustments as a
result of distributions, if any, made pursuant to subsection 3(d) plus an amount
equal to all accrued but unpaid dividends, if any, through the date of
redemption.
(ii) In compliance with the applicable notice period
set forth in this subsection 5(a), the Corporation shall mail, postage prepaid,
to each holder of record of Series B Preferred Stock to be redeemed, at such
holder's address last shown on the records of the Corporation, notifying such
holder of such redemption, specifying the date fixed for the redemption (the
"Redemption Date"), which shall also be the date on which such holder's
Conversion Rights as to the shares called for redemption shall terminate, and
calling upon such holder to surrender to the Corporation, and in the manner and
at the place designated, such holder's certificate or certificates representing
the shares of Series B Preferred Stock to be redeemed (such notice is
hereinafter referred to as the "Redemption Notice"), On or prior to the
Redemption Date, each holder of the Series B Preferred Stock to be redeemed
shall surrender its certificate or certificates representing such shares to the
Corporation, in the manner and at the place designated in the Redemption Notice,
and thereupon the appropriate redemption price as specified in this subsection
5(a) (the "Redemption Price") of such shares (except that such number of shares
shall be reduced by the number of shares which shall have been converted
pursuant to subsection 3 hereof between the date of notice of redemption and the
date on which Conversion Rights to such shares terminate) shall be payable to
the order of the person whose name appears on such certificate or certificates
as the owner therefor and each surrendered certificate shall be canceled. From
and after the Redemption Date, unless there shall have been a default in payment
of the Redemption Price (whether because there is no source of funds legally
available for such redemption or because such funds shall not be paid or made
available for payment), all rights of the holders of the Series B Preferred
Stock (except the right to receive the Redemption Price without interest upon
surrender of their certificate or certificates) shall cease
<PAGE>
with respect to such shares, and such shares shall not thereafter be transferred
on the books of the Corporation or be deemed to be outstanding for any purpose
whatsoever.
(b) REDEMPTION CONSIDERATION. Amounts to be paid pursuant to
subsection 5(a) shall be paid, at the sole discretion of the Corporation, in
cash or notes or any combination of cash and notes. The notes, if issued by the
Corporation in satisfaction of the redemption of Series B Preferred Stock, shall
bear interest, payable monthly, at ten percent (10%) per annum and shall provide
for repayment of the principal amount in two equal installments on the next two
immediately succeeding anniversary dates of the date of redemption of the shares
of Series B Preferred Stock so requested to be redeemed.
(c) SURRENDER OF CERTIFICATE. Except as prohibited pursuant to
applicable California corporate law, on or after the Redemption Date, each
holder of Series B Preferred Stock to be redeemed shall surrender to this
Corporation the certificate or certificates representing such shares, and
thereupon the Redemption Price of such shares shall be payable to the order of
the person whose name appears on such certificate or certificates as the owner
thereof and each surrendered certificate shall be canceled. In the event less
than all the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares.
(d) NO DIVIDENDS AFTER REDEMPTION. From and after the
Redemption Date, unless there shall have been a default in payment of the
Redemption Price, all dividends on the Series B Preferred Stock designated for
redemption in the Redemption Notice shall cease to accrue, all rights of the
holders of such shares as holder of Series B Preferred Stock (except the right
to receive the Redemption Price without interest upon surrender of their
certificate or certificates) shall cease with respect to such shares, and such
shares shall not thereafter be transferred on the books of this Corporation or
be deemed to be outstanding for any purpose whatsoever. Subject to the rights of
series of Preferred Stock which may from time to time come into existence, if
the funds of the Corporation legally available for redemption on shares of
Series B Preferred Stock on any Redemption Date are insufficient to redeem the
total number of shares of Series B Preferred Stock to be redeemed on such date,
those funds which are legally available will be used to redeem the maximum
possible number of such shares ratably among the holders of such shares to be
redeemed. The shares of Series B Preferred Stock not redeemed shall remain
outstanding and entitled to all the rights and preferences provided herein.
Subject to the rights of series of Preferred Stock which may from time to time
come into existence, at any time thereafter when additional funds of the Company
are legally available for the redemption of shares of Series B Preferred Stock,
such funds will immediately be used to redeem the balance of the shares which
the Company has become obligated to redeem on any Redemption Date but which it
has not redeemed; provided, however, that this Corporation shall give ten (10)
days advance written notice to each such holder of shares to be redeemed that
the Corporation at that time has funds available for the redemption of shares of
Series B Preferred Stock, and any such holder may direct that the Corporation
not redeem any or all of that holder's remaining shares previously requested by
that holder to be redeemed, and such shall not be redeemed, so long as written
notice of such direction is received by the Corporation no later than ten (10)
days after this Corporation's advance notice was given.
<PAGE>
6. COVENANTS. SO LONG AS THE CORPORATION IS IN DEFAULT OF ANY PROVISION OF THIS
ARTICLE III.B., THE CORPORATION SHALL NOT REPURCHASE OR REDEEM ANY SHARES OF
COMMON STOCK OR ANY SHARES OF ANY SERIES OF PREFERRED STOCK OF THE CORPORATION,
EXCEPT FOR SHARES OF SERIES B PREFERRED STOCK.
7. REISSUANCE OF SERIES B PREFERRED STOCK. ANY SHARE OR SHARES OF SERIES B
PREFERRED STOCK OR OF ANY OTHER SERIES OR CLASS OF STOCK OF THE CORPORATION
ACQUIRED BY THIS CORPORATION BY REASON OF REDEMPTION, PURCHASE, CONVERSION OR
OTHERWISE SHALL BE RESTORED TO THE STATUS OF AUTHORIZED BUT UNISSUED SHARES OF
PREFERRED STOCK.
8. RESIDUAL RIGHTS. PREFERRED STOCK SHALL NOT HAVE ANY PRE-EMPTIVE RIGHTS. ALL
RIGHTS ACCRUING TO THE OUTSTANDING SHARES OF THE CORPORATION NOT EXPRESSLY
PROVIDED FOR TO THE CONTRARY HEREIN SHALL BE VESTED IN THE COMMON STOCK.
ARTICLE IV
No person acting as director of the Corporation shall be liable for
monetary damages in an action brought by or in the right of the Corporation upon
any breach by such person of his or her director's duties to the Corporation or
its shareholders except for such liability (i) for acts or omissions that
involve intentional misconduct or a knowing and culpable violation of law, (ii)
for acts or omissions that a director believes to be contrary to the best
interests of the Corporation or its shareholders or that involve the absence of
good faith on the part of the director, (iii) for any transaction from which a
director derived an improper personal benefit, (iv) for acts or omissions that
show a reckless disregard for the director's duty to the Corporation or its
shareholders in circumstances in which the director was aware, or should have
been aware, in the ordinary course of performing a director's duties, of a risk
of serious injury to the Corporation or its shareholders, (v) for acts or
omissions that constitute an unexcused pattern of inattention that amounts to an
abdication of the director's duty to the Corporation or its shareholders, (vi)
under Section 310 of the California Corporations Code, or (vii) under Section
316 of the California Corporations Code.
THREE: The foregoing Amended and Restated Articles of Incorporation
have been approved by the Board of Directors of the Corporation.
FOUR: The foregoing Amended and Restated Articles of Incorporation
was approved by the holders of the requisite number of shares of the
Corporation in accordance with Section 902 of the California General
Corporation Law. The total number of outstanding shares of the Common Stock
of the Corporation is 5,968,161 and the total number of outstanding shares of
the Series B Preferred Stock is 389,400. There are no outstanding shares of
Series A Preferred Stock. The number of shares voting in favor of the
foregoing amendment equaled or exceeded the vote required, such vote being
(i) a majority of the number of shares of Common Stock then outstanding plus
the number of shares of Common Stock into which the then outstanding Series B
Preferred Stock could have been then converted, voting together as a
<PAGE>
class, and (ii) a majority of the number of shares of Common Stock then
outstanding, voting as a separate class.
We further declare under penalty of perjury under the laws of the State
of California that the matters set forth in the foregoing certificate are true
and of our own knowledge.
Dated: November 29, 1999 /s/ S. James Miller Jr.
-------------------------------------------
S. James Miller, Jr., President
/s/ Anne Hoversten
-------------------------------------------
Anne Hoversten, Secretary
<PAGE>
BYLAWS
OF
IMAGEWARE SOFTWARE, INC.
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICES. The board of directors shall fix the
location of the principal executive office of the corporation at any place
within or outside the State of California. If the principal executive office
is located outside California, and the corporation has one or more business
offices in California, the board of directors shall fix and designate a
principal business office in California.
Section 2. OTHER OFFICES. Branch or subordinate offices may be
established at any time and at any place by the board of directors.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of shareholders shall be held at
any place within or outside the State of California designated by the board
of directors. In the absence of a designation by the board, shareholders'
meetings shall be held at the corporation's principal executive office.
Section 2. ANNUAL MEETING. The annual meeting of the shareholders
shall be held each year on a date and at a time designated by the board of
directors. At each annual meeting, directors shall be elected, and any other
proper business within the power of the shareholders may be transacted. The
date so designated shall be within five (5) months after the end of the
corporation's fiscal year, and within fifteen (15) months after the last
annual meeting.
Section 3. SPECIAL MEETING. A special meeting of the shareholders may
be called at any time by the board of directors, by the chairman of the
board, by the president or by one or more shareholders holding shares that in
the aggregate are entitled to cast ten percent or more of the votes at that
meeting.
If a special meeting is called by anyone other than the board of
directors, the person or persons calling the meeting shall make a request in
writing, delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission, to the chairman of the board or the president,
vice president, or secretary, specifying the time of the meeting (which is
not less than 35 or more than 60 days after receipt of the request) and the
general nature of the business proposed to be transacted. Within 20 days
after receipt, the officer receiving the request shall cause notice to be
given to the shareholders entitled to vote, in accordance with Sections 4 and
5 of this Article II, stating that a meeting will be held at the time
requested by the person(s) calling the meeting, and stating the general
nature of the business proposed to be transacted. If notice is not given
within 20 days after receipt of the request, the person or persons requesting
the meeting may give the notice. Nothing contained in this paragraph shall be
construed as limiting, fixing, or affecting the time when a meeting of
shareholders called by action of the board may be held.
Section 4. NOTICE OF SHAREHOLDERS' MEETINGS. All notices of meetings of
shareholders shall be sent or otherwise given in accordance with Section 5 of
this Article II not fewer than 10 nor more than 60 days before the date of
the meeting. Shareholders entitled to notice shall be determined in
accordance with Section 11 of this Article II. The notice shall specify the
place, date, and hour of the meeting, and (i) in the case of special meeting,
the general nature of the business to be transacted, or (ii) in the case of
the annual meeting, those matters which the board of directors, at the time
of giving the notice intends to present for action by the shareholders. If
directors are to be elected, the notice shall include the names of all
nominees whom the board intends at the time of the notice, to present for
election.
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The notice shall also state the general nature of any proposed action to
be taken at the meeting to approve any of the following matters: (i) a
transaction in which a director has a material financial interest, within the
meaning of Section 310 of the California Corporation Code; (ii) an amendment
of the articles of incorporation under Section 902 of that Code; (iii) a
reorganization under Section 1201 of that Code; (iv) a voluntary dissolution
under Section 1900 of that Code; or (v) a distribution in dissolution that
requires approval of the outstanding shares under Section 2007 of that Code.
Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any
shareholders' meeting shall be given either personally or by first-class mail
or telegraphic or other written communication, charges prepaid, addressed to
the shareholder at the address appearing on the corporation's books or given
by the shareholder to the corporation for the purposes of notice. If no
address appears on the corporation's books or has been given as specified
above, notice shall be either (1) sent by first-class mail addressed to the
shareholder at the corporation's principal executive office, or (2) published
at least once in a newspaper of general circulation in the county where the
corporation's principal executive office is located. Notice is deemed to
have been given at the time when delivered personally or deposited in the
mail or sent by other means of written communication.
If any notice or report mailed to a shareholder at the address appearing
on the corporation's books is returned to the corporation by the United
States Postal Service marked to indicate that the United States Postal
Service is unable to deliver the document to the shareholder at that address,
all future notices or reports shall be deemed to have been duly given without
further mailing if the corporation holds the document available for the
shareholder on written demand at the corporation's principal executive office
for a period of one year from the date the notice or report was given to all
other shareholders.
An affidavit of the mailing, or other authorized means of given notice
or delivering a document, of any notice of shareholders' meeting, report, or
other document sent to shareholders, may be executed by the corporation's
secretary, assistant secretary, or transfer agent, and shall be filed and
maintained in the minute book of the corporation.
Section 6. QUORUM. The presence in person or by proxy of the holders
of a majority of the shares entitled to vote at any meeting of shareholders
shall constitute a quorum for the transaction of business. The shareholders
present at a duly called or held meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the withdrawal of
enough shareholders to leave less than a quorum, if any action taken (other
than adjournment) is approved by at least a majority of the shares required
to constitute a quorum.
Section 7. ADJOURNED MEETING; NOTICE. Any shareholders meeting, annual
or special, whether or not a quorum is present, may be adjourned from time to
time by the vote of the majority of the shares represented at that meeting,
either in person or by proxy, but in the absence of a quorum, no other
business may be transacted at that meeting, except as provided in Section 6
of this Article II.
When any meeting of the shareholders, either annual or special, is
adjourned to another time or place, notice of the adjourned meeting need not
be given if the time and place thereof are announced at the meeting at which
the adjournment is taken, unless a new record date for the adjourned meeting
is fixed, or unless the adjournment is for more than 45 days from the date
set for the original meeting, in which case the board of directors shall set
a new record date and notice of any such adjourned meeting shall be given to
each shareholder of record entitled to vote at the adjourned meeting in
accordance with the provisions of Section 4 and 5 of this Article II. At any
adjourned meeting, the corporation may transact any business which might have
been transacted at the original meeting.
Section 8. VOTING. The shareholders entitled to vote at any meeting of
shareholders shall be determined in accordance with the provisions of Section
11 of this Article II, subject to the provisions of Section 702 through 704,
inclusive, of the California Corporations Code (relating to voting shares
held by a fiduciary, in the name of the corporation, or in joint ownership).
The shareholders' vote may be by voice vote or
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by ballot, provided, however, that any election for directors must be by
ballot if demanded by any shareholder before the voting has begun. On any
matter other than election of directors, any shareholder may vote part of the
shares in favor of the proposal and refrain from voting the remaining shares
or vote them against the proposal, but, if the shareholder fails to specify
the number of shares that the shareholder is voting affirmatively, it will be
conclusively presumed that the shareholder's approving vote is with respect
to all shares that the shareholder is entitled to vote. If a quorum is
present, (or, if a quorum has been present earlier at the meeting, but some
shareholders have withdrawn), the affirmative vote of a majority of the
shares represented and voting, provided such shares voting affirmatively also
constitute a majority of the number of shares required for a quorum, shall be
the act of the shareholders, unless the vote of a greater number or voting by
classes is required by law or by the articles of incorporation.
At a shareholders' meeting at which directors are to be elected, no
shareholder shall be entitled to cumulate votes (i.e., cast for any
candidate a number of votes greater than the number of votes which that
shareholder normally would be entitled to cast) unless such candidates' names
have been placed in nomination before commencement of the voting and a
shareholder has given notice before the voting has begun of the shareholder's
intention to cumulate votes. If any one shareholder has given such a notice,
then all shareholders entitled to vote may cumulate their votes for
candidates in nomination, and may give one candidate a number of votes equal
to the number of directors to be elected multiplied by the number of votes to
which that shareholder's shares are normally entitled, or distribute the
shareholders votes on the same principle among any or all of the candidates,
as the shareholder thinks fit. The candidates receiving the highest number of
affirmative votes, up to the number of directors to be elected, shall be
elected.
Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The
transactions of any meeting of shareholders, either annual or special, however
called and noticed and wherever held, shall be as valid as though they were
had at a meeting duly held after regular call and notice, if a quorum is
present either in person or by proxy, and if each person entitled to vote who
was not present in person or by proxy, either before or after the meeting,
signs a written waiver of notice or a consent to holding the meeting or an
approval of the minutes of the meeting. The waiver of notice or consent need
not specify either the business to be transacted or the purpose of any annual
or special meeting of shareholders, except that if action is taken or
proposed to be taken for approval of any of those matters specified in
Section 601(f) of the California Corporations Code, the waiver of notice or
consent is required to state the general nature of the action or proposed
action. All waivers, consents, and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
A shareholder's attendance at a meeting also constitutes a waiver of
notice of that meeting, unless the shareholder at the beginning of the
meeting objects to the transaction of any business on the ground that the
meeting was not lawfully called or convened. In addition attendance at a
meeting does not constitute a waiver of any right to object to consideration
of matters required by law to be included in the notice of the meeting which
were not so included, if that objection is expressly made at the meeting.
Section 10. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Any action that could be taken at an annual or special meeting of
shareholders may be taken without a meeting and without prior notice, if
consent in writing, setting forth the action so taken, is signed by the
holders of outstanding shares having not less than the minimum number of
votes that would be necessary to authorize or take that action at a meeting
at which all shares entitled to vote on that action were present and voted.
Directors may be elected by written consent of the shareholders without
a meeting only if the written consents of all outstanding shares entitled to
vote are obtained, except that vacancies on the board (other than vacancies
created by removal) not filled by the board may be filled by the written
consent of the holders of a majority of the outstanding shares entitled to
vote.
All consents shall be filed with the secretary of the corporation and
shall be maintained in the corporate records. Any shareholder or other
authorized person who has given a written consent may revoke it by a writing
received by the secretary of the corporation before written consents of the
number of shares required to authorize the proposed action have been filed
with the secretary.
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Unless the consents of all shareholders entitled to vote have been
solicited in writing, prompt notice shall be given of any corporate action
approved by shareholders without a meeting by less than unanimous consent, to
those shareholders entitled to vote who have not consented in writing. As to
approvals required by California Corporations Code Section 310 (transactions
in which a director has a financial interest), Section 317 (indemnification
of corporate agents), Section 1201 (corporate reorganization), or Section
2007 (certain distributions on dissolution), notice of the approval shall be
given at least 10 days before the consummation of any action authorized by
the approval. Notice shall be given in the manner specified in Section 5 of
this Article II.
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE OF MEETING, VOTING AND
GIVING CONSENT.
(a) For purposes of determining the shareholders entitled to receive
notice of and vote at a shareholders' meeting or give written consent to
corporate action without a meeting, the board may fix, in advance, a record
date that is not more than 60 nor less than 10 days before the date of a
shareholders' meeting, or not more than 60 days before any other action.
(b) If no record date is fixed:
(i) The record date for determining shareholders entitled to
receive notice of and vote at a shareholders' meeting shall be the business
day next preceding the day on which notice is given, or if notice is waived
as provided in Section 9 of this Article II, the business day next preceding
the day on which the meeting is held;
(ii) The record date for determining shareholders entitled to
give consent to corporate action in writing without a meeting, if no prior
action has been taken by the board, shall be the day on which the first
written consent is given;
(iii) The record date for determining shareholders for any other
purpose shall be as set forth in Section 1 of Article VIII of these bylaws.
(c) A determination of shareholders of record entitled to receive
notice of and vote at a shareholder's meeting shall apply to any adjournment
of the meeting unless the board fixes a new record date for the adjourned
meeting. However, the board shall fix a new record date if the adjournment is
to a date more than 45 days after the date set for the original meeting.
(d) Only shareholders of record on the corporation's books at the
close of business on the record date shall be entitled to any of the notice
and voting rights listed in subsection (a) of this section, notwithstanding
any transfer of shares on the corporation's books after the record date,
except as otherwise required by law.
Section 12. PROXIES. Every person entitled to vote for directors or on
any other matter shall have the right to do so either in person or by one or
more agents authorized by a written proxy signed by the person and filed with
the secretary of the corporation. A proxy shall be deemed signed if the
shareholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission, or otherwise) by the shareholder or
the shareholder's attorney in fact. A validly executed proxy that does not
state that it is irrevocable shall continue in full force and effect unless
(a) revoked by the person executing it, before the vote pursuant to that
proxy, by a writing delivered to the corporation stating that the proxy is
revoked, or voting in person by the person executing the proxy or by a
subsequent proxy executed by the same person and presented at the meeting; or
(b) written notice of the death or incapacity of the maker of that proxy is
received by the corporation before the vote pursuant to that proxy is
counted; provided, however, that no proxy shall be valid after the expiration
of 11 months from the date of the proxy, unless otherwise provided in the
proxy. The revocability of a proxy that states on its face that it is
irrevocable shall be governed by the provisions of Sections 705(e) and 705(f)
of the California Corporations Code.
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Section 13. INSPECTORS OF ELECTION. Before any meeting of shareholders,
the board of directors may appoint any persons other than nominees for office
to act as inspectors of election at the meeting or its adjournment. If no
inspectors of election are so appointed, the chairman of the meeting may, and
on the request of any shareholder or a shareholder's proxy shall, appoint
inspectors of election at the meeting. The number of inspectors shall be
either one or three. If inspectors are appointed at a meeting on the request
of one or more shareholders or proxies, the meeting shall determine whether
one or three inspectors are to be appointed. If any person appointed as
inspector fails to appear or fails or refuses to act, the chairman of the
meeting may, and upon the request of any shareholder or a shareholder's proxy
shall, appoint a person to fill that vacancy.
These inspectors shall:
(a) Determine the number of shares outstanding and the voting power
of each, the shares represented at the meeting, the existence of a quorum,
and the authenticity, validity, and effect of proxies;
(b) Receive votes, ballots, or consents;
(c) Hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct the election or
vote with fairness to all shareholders.
ARTICLE III
DIRECTORS
Section 1. POWERS. Subject to the provisions of the California
General Corporation Law and any limitations in the articles of incorporation
and these bylaws relating to action required to be approved by the
shareholders or by the outstanding shares, the business and affairs of the
corporation shall be managed and all corporate powers shall be exercised by
or under the direction of the board of directors.
Without prejudice to these general powers, and subject to the same
limitations, the directors shall have the power to:
(a) Select and remove all officers, agents and employees of the
corporation; prescribe any powers and duties for them that are consistent
with law, with the articles of incorporation, and with these bylaws; fix
their compensation, and require from them security for faithful service.
(b) Change the principal executive office or the principal business
office in the State of California from one location to another; cause the
corporation to be qualified to do business in any other state, territory,
dependency, or country and conduct business within or outside the State of
California; and designate and place within or outside the State of California
for the holding of any shareholders' meeting, or meetings, including annual
meetings.
(c) Adopt, make and use a corporate seal, prescribe the forms of
certificates of stock; and alter the form of the seal and certificates.
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(d) Authorize the issuance of shares of stock of the corporation on
any lawful terms, in consideration of money paid, labor done, services
actually rendered, debts or securities canceled, or tangible or intangible
property actually received.
(e) Borrow money and incur indebtedness on behalf of the
corporation, and cause to be executed and delivered for the corporation's
purposes, in the corporate name, promissory notes, bonds, debentures, deeds
of trust, mortgages, pledges, hypothecations and other evidences of debt and
securities.
Section 2. NUMBER OF DIRECTORS. The number of directors shall not be
less than four (4) nor more than seven (7) as determined by approval of the
board, until changed by a duly adopted amendment to the articles of
incorporation or by an amendment to this bylaw adopted by the vote or written
consent of a majority of the outstanding shares entitled to vote. However, an
amendment that would reduce the authorized number of directors to a number
less than five cannot be adopted if the votes cast against its adoption at a
shareholders' meeting, or the shares not consenting to an action by written
consent, are equal to more than one sixth (16 2/3%) of the outstanding shares
entitled to vote.
Section 3. ELECTION AND TERM OF OFFICE OF DIRECTORS. Directors shall be
elected at each annual meeting of the shareholders to hold office until the
next annual meeting. Each director, including a director elected to fill a
vacancy, shall hold office until the expiration of the term for which elected
and until a successor has been elected and qualified.
No reduction of the authorized number of directors shall have the effect
of removing any director before that director's term of office expires.
Section 4. VACANCIES. A vacancy in the board of directors shall be
deemed to exist (a) if a director dies, resigns, or is removed by the
shareholders or an appropriate court, as provided in sections 303 or 304 of
the California Corporations Code; (b) if the board of directors declares
vacant the office of a director who has been convicted of a felony or
declared of unsound mind by an order of court; (c) if the authorized number
of directors is increased; or (d) if at any shareholders' meeting at which
one or more directors are elected the shareholders fail to elect the full
authorized number of directors to be voted for at that meeting.
Any director may resign effective on giving written notice to the
chairman of the board, the president, the secretary, or the board of
directors, unless the notice specifies a later effective date. If the
resignation is effective at a future time, the board may elect a successor to
take office when the resignation becomes effective.
Except for a vacancy caused by the removal of a director, vacancies on
the board may be filled by a majority of the directors then in office,
whether or not they constitute a quorum, or by a sole remaining director. A
vacancy on the board caused by the removal of a director may be filled only
by the shareholders, except that a vacancy created when the board declares
the office of a director vacant as provided in clause (b) of the first
paragraph of this section of the bylaws may be filled by the board of
directors.
The shareholders may elect a director at any time to fill a vacancy not
filled by the board of directors.
The term of office of a director elected to fill a vacancy shall run
until the next annual meeting of the shareholders, and such a director shall
hold office until a successor is elected and qualified.
Section 5. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE. Regular meetings
of the board of directors may be held at any place within or outside the
State of California as designated from time to time by the board. In the
absence of a designation, regular meetings shall be held at the principal
executive office of the corporation. Special meetings of the board shall be
held at any place within or outside the State of California designated in the
notice of the meeting, or if the notice does not state a place, or if there
is no notice, at the principal executive office of the corporation. Any
meeting, regular or special, may be held by conference telephone or similar
communication equipment, provided that all directors participating can hear
one another.
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Section 6. ANNUAL DIRECTORS' MEETING. Immediately after each annual
shareholders' meeting, the board of directors shall hold a regular meeting at
the same place, or at any other place that has been designated by the board
of directors, to consider matters of organization, election of officers and
other business as desired. Notice of this meeting shall not be required
unless some place other than the place of the annual shareholders' meeting
has been designated.
Section 7. OTHER REGULAR MEETINGS. Other regular meetings of the board
of directors shall be held without call at times to be fixed by the board of
directors from time to time. Such regular meetings may be held without notice.
Section 8. SPECIAL MEETINGS. Special meetings of the board of
directors may be called for any purpose or purposes at any time by the
chairman of the board, the president or any two directors.
Special meetings shall be held on four days' notice by mail or
forty-eight hours' notice delivered personally or by telephone or telegraph.
Oral notice given personally or by telephone may be transmitted either to the
director or to a person at the director's office who can reasonably be
expected to communicate it promptly to the director. Written notice, if used,
shall be addressed to each director at the address shown on the corporation's
records. The notice need not specify the purpose of the meeting, nor need it
specify the place if the meeting is to be held at the principal executive
office of the corporation.
Section 9. QUORUM. A majority of the number of directors as determined
from time to time by the board as provided for herein shall constitute a
quorum for the transaction of business, except to adjourn as provided in
Section 11 of this Article III and subject to the requirements set forth
under Section 307(a)(7) of the California Corporations Code. Every act or
decision done or made by a majority of the directors present at a meeting
duly held at which a quorum is present shall be regarded as the act of the
board of directors, subject to the provisions of Section 310 of the
California Corporations Code (as to approval of contracts or transactions in
which a director has a direct or indirect material financial interest),
Section 311 (as to appointment of committees), and Section 317(e) (as to
indemnification of directors). A meeting at which a quorum is initially
present may continue to transact business notwithstanding the withdrawal of
directors, if any action taken is approved by at least a majority of the
required quorum for that meeting.
Section 10. WAIVER OF NOTICE. Notice of a meeting although otherwise
required, need not be given to any director who (a) either before or after
the meeting signs a waiver of notice or a consent to holding the meeting
without being given notice, (b) signs an approval of the minutes of the
meeting, or (c) attends the meeting without protesting the lack of notice
before or at the beginning of the meeting. Waivers of notice or consents need
not specify the purpose of the meeting. All waivers, consents, and approvals
of the minutes shall be filed with the corporate records or made a part of
the minutes of the meeting.
Section 11. ADJOURNMENT TO ANOTHER TIME OR PLACE. Whether or not
constituting a quorum, a majority of the directors present may adjourn any
meeting to another time and place.
Section 12. NOTICE OF ADJOURNED MEETING. Notice of the time and place
of resuming a meeting that has been adjourned need not be given, unless the
adjournment is for more than 24 hours, in which case notice shall be given,
before the time set for resuming the adjourned meeting, to the directors who
were not present at the time of adjournment. Notice need not be given in any
case to directors who were present at the time of adjournment.
Section 13. ACTION WITHOUT A MEETING. Any action required or permitted
to be taken by the board of directors may be taken without a meeting, if all
members of the board shall individually or collectively consent in writing to
that action. Such action by written consent shall have the same force and
effect as a unanimous vote of the board of directors. All written consents
shall be filed with the minutes of the proceedings of the board of directors.
Section 14. FEES AND COMPENSATION OF DIRECTORS. Directors and members
of committees of the board may be compensated for their services, and shall
be reimbursed for expenses, as fixed or
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determined by resolution of the board of directors and approved by the
shareholders. This section shall not be construed to preclude any director
from serving the corporation in any other capacity, as an officer, agent,
employee, or otherwise, and receiving compensation for those services.
ARTICLE IV
COMMITTEES
Section 1. EXECUTIVE AND OTHER COMMITTEES OF THE BOARD. The board of
directors may, by resolution adopted by a majority of the authorized number
of directors, designate an executive committee or one or more other
committees, each consisting of two or more directors. The board may designate
one or more directors as alternate members of any committee, to replace any
absent member at a committee meeting. The appointment of committee members or
alternative members requires a vote of a majority of the authorized number of
directors. A committee may be granted any or all of the powers and authority
of the board, to the extent provided in the resolution of the board, except
with respect to:
(a) Approving any action for which the California Corporations Code
also requires the approval of the shareholders of the outstanding shares;
(b) Filling vacancies on the board of directors or any committee of the
board;
(c) Fixing directors' compensation for serving on the board or a
committee of the board;
(d) Adopting, amending, or repealing bylaws;
(e) Amending or repealing any resolution of the board of directors
which by its express terms is not so amendable or repealable;
(f) Making distributions to shareholders, except at a rate or in a
periodic amount or within a price range determined by the board of directors;
or
(g) Appointing other committees of the board or their members.
Section 2. MEETINGS AND ACTION OF COMMITTEES. Meetings and action of
committees shall be governed by, and held and taken in accordance with, bylaw
provisions applicable to meetings and actions of the board of directors, as
provided in Section 5 and Sections 7 through 13 of Article III of these
bylaws, as to the following matters: place of meetings, Section 5; regular
meeting, Section 7; special meetings and notice, Section 8; quorum, Section
9; waiver of notice, Section 10; adjournment, Section 11, notice of
adjournment, Section 12; and action without meeting, Section 13, with such
changes in the context of those bylaws as are necessary to substitute the
committee and its members for the board of directors and its members, except
that (a) the time of regular meetings of committees may be determined either
by resolution of the board of directors or by resolution of the committee;
(b) special meetings of committees may also be called by resolution of the
board of directors; and (c) notice of special meetings of committees shall
also be given to all alternate members, who shall have the right to attend
all meetings of the committee. The board of directors may adopt rules for the
governance of any committee not inconsistent with the provisions of these
bylaws.
ARTICLE V
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall be a Chief
Executive Officer and President, a Secretary, and a Chief Financial Officer.
The corporation may also have, at the discretion of the board of directors, a
chairman of the board, one or more vice presidents, one or more assistant
secretaries, one or more assistant treasurers, and such other officers as may
be appointed in accordance with the provisions of Section 3 of this Article
V. Any number of offices may be held by the same person.
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Section 2. ELECTION OF OFFICERS. The officers of the corporation,
except for subordinate officers appointed in accordance with the provisions
of Section 3 of this Article V, shall be chosen by the board of directors,
and shall serve at the pleasure of the board of directors.
Section 3. SUBORDINATE OFFICERS. The board of directors may appoint,
and may empower the president to appoint other officers as required by the
business of the corporation, whose duties shall be as provided in the bylaws
or as determined from time to time by the board of directors or the president.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Any officer chosen by
the board of directors may be removed at any time, with or without cause or
notice, by the board of directors. Subordinate officers appointed by persons
other than the board under Section 3 of this Article V may be removed at any
time, with or without cause or notice, by the board of directors or by the
officer by whom appointed. Officers may be employed for a specified term
under a contract of employment if authorized by the board of directors; such
officers may be removed from office at any time under this section, and shall
have no claim against the corporation nor individual officers or board
members because of the removal except any right to monetary compensation to
which the officer may be entitled under the contract of employment.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect on the date of receipt of the
notice unless a later time is specified in the notice. Unless otherwise
specified in the notice, acceptance of the resignation is not necessary to
make it effective. Any resignation is without prejudice to the rights, if any,
of the corporation to monetary damages under any contract of employment to
which the officer is a party.
Section 5. VACANCIES IN OFFICE. A vacancy in an office because of an
officer's death, resignation, removal, disqualification, or from any other
cause shall be filled in the manner prescribed in these bylaws for regular
election or appointment to that office.
Section 6. CHAIRMAN OF THE BOARD. The Board of Directors may elect a
chairman who shall preside, if present, at board meetings and shall exercise
and perform such other powers and duties as may be assigned from time to time
by the board of directors. If there is no president, the chairman of the
board shall in addition be the chief executive officer of the corporation, and
shall have the powers and duties prescribed in Section 7 of this Article V.
Section 7. PRESIDENT. Except to the extent that the bylaws or the
board of directors assign specific powers and duties to the chairman of the
board (if any), the president shall be the corporation's general manager and
chief executive officer and, subject to the control of the board of
directors, shall have general supervision, direction, and control over the
corporation's business and its officers. The managerial powers and duties to
the president shall include, but are not limited to, all the general powers
and duties of management usually vested in the office of president of a
corporation, and the president shall have other powers and duties as
prescribed by the board of directors or the bylaws. The president shall
preside at all meetings of the shareholders and, in the absence of the
chairman of the board or if there is no chairman of the board, shall also
preside at meetings of the board of directors.
Section 8. VICE PRESIDENTS. If desired, one or more vice presidents
may be chosen by the board of directors in accordance with the provisions for
electing officers set forth in Section 2 of this Article V. In the absence or
disability of the president, the president's duties and responsibilities
shall be carried out by the highest ranking available vice president if vice
presidents are ranked, or if not, by a vice president designated by the board
of directors. When so acting, a vice president shall have all the powers of
and be subject to all the restrictions on the president. Vice presidents of
the corporation shall have such other powers and perform such other duties as
prescribed from time to time by the board of directors, the bylaws, or the
president (or chairman of the board if there is no president).
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Section 9. SECRETARY.
(a) MINUTES. The secretary shall be present at all shareholders'
meetings and all board meetings and shall take the minutes of the meeting. If
the secretary is unable to be present, the secretary or the presiding
officer of the meeting shall designate another person to take the minutes of
the meeting.
The secretary shall keep, or cause to be kept, at the principal
executive office or such other place as designated by the board of
directors, a book of minutes of all meetings and actions of the
shareholders, of the board of directors, and of committees of the board. The
minutes of each meeting shall state the time and place the meeting was held;
whether it was regular or special; if special, how it was called or
authorized; the names of directors present at board or committee meetings;
the number of shares present or represented at shareholders' meetings; and an
accurate account of the proceedings.
(b) RECORD OF SHAREHOLDERS. The secretary shall keep, or cause to be
kept at the principal executive office or at the office of the transfer agent
or registrar, a record or duplicate record of shareholders. This record shall
show the names of all shareholders and their addresses, the number and
classes of shares held by each, the number and date of share certificates
issued to each shareholder, and the number and date of cancellation of any
certificates surrendered for cancellation.
(c) NOTICE OF MEETINGS. The secretary shall give notice, or cause
notice to be given, of all shareholders' meetings, board meetings, and
meetings of committees of the board for which notice is required by statute
or by the bylaws. If the secretary or other person authorized by the
secretary to give notice fails to act, notice of any meeting may be given by
any other officer of the corporation.
(d) OTHER DUTIES. The secretary shall keep the seal of the
corporation, if any, in safe custody. The secretary shall have such other
powers and perform other duties as prescribed by the board of directors or by
the bylaws.
Section 10. CHIEF FINANCIAL OFFICER. The chief financial officer shall
keep or cause to be kept adequate and correct books and records of accounts
of the properties and business transactions of the corporation, including
accounts of its assets, liabilities, receipts, disbursements, gains, losses,
capital, retained earnings, and shares. The books of account shall at all
reasonable times be open to inspection by any director.
The chief financial officer shall (1) deposit corporate funds and other
valuables in the corporation's name and to its credit with depositaries
designated by the board of directors; (2) make disbursements of corporate
funds as authorized by the board; (3) render a statement of the corporation's
financial condition and an account of all transactions conducted as chief
financial officer whenever requested by the president or the board of
directors; and (4) have other powers and perform other duties as prescribed
by the board of directors or the bylaws.
Unless the board of directors has elected a separate treasurer, the
chief financial officer shall be deemed to be the treasurer for purposes of
giving any reports or executing any certificates or other documents.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
Section 1. AGENTS, PROCEEDINGS AND EXPENSES. For the purposes of this
Article, "agent" means any person who is or was a director, officer,
employee, or other agent of this corporation, or is or was serving at the
request of this corporation as a director, officer, employee, or agent of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, or was a director, officer, employee, or agent of a foreign
or domestic corporation which was a predecessor corporation of this
corporation or of another enterprise at the request of such predecessor
corporation; "proceeding" means any threatened, pending or completed action
or proceeding, whether civil, criminal, administrative, or investigative; and
"expenses" include,
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without limitation, attorney's fees and any expenses of establishing a right
to indemnification under Section 4 or Section 5(c) of this Article VI.
Section 2. ACTIONS OTHER THAN BY THE CORPORATION. This corporation
shall have the power to indemnify any person who was or is a party, or is
threatened to be made a party, to any proceeding (other than an action by or
in the right of this corporation to procure a judgment in its favor), by
reason of the fact that such person is or was an agent of this corporation,
against expenses, judgments, fines, settlements and other amounts actually
and reasonably incurred in the connection with such proceeding if that person
acted in good faith and in a manner that person reasonably believed to be in
the best interests of the corporation and, in the case of a criminal
proceedings, had no reasonable cause to believe the conduct of that person
was unlawful. The termination of any proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendre or its equivalent
shall not, of itself, create a presumption that the person did not act in
good faith and in a manner which the person reasonably believed to be in the
best interests of this corporation, or that the person had reasonable cause
to believe that the person's conduct was unlawful.
Section 3. ACTIONS BY THE CORPORATION. This corporation shall have the
power to indemnify any person who was or is a party, or is threatened to be
made a party, to any threatened, pending or completed action by or in the
right of this corporation to procure a judgment in its favor by reason of the
fact that the person is or was an agent of this corporation, against expenses
actually and reasonably incurred by that person in connection with the
defense or settlement of that action if that person acted in good faith, in a
manner that person believed to be in the best interests of this corporation
and with such care, including reasonable inquiry, as an ordinarily prudent
person in a like position would use under similar circumstances. No
indemnification shall be made under this Section 3:
(a) With respect to any claim, issue or matter as to which that person
shall have been adjudged to be liable to this corporation in the performance
of that person's duty to this corporation, unless and only to the extent that
the court in which that action is or was pending shall determine upon
application that, in view of all the circumstances of the case, that person
is fairly and reasonably entitled to indemnity of the expenses which the
court shall determine;
(b) Of amounts paid in settling or otherwise disposing of a threatened
or pending action, with or without court approval; or
(c) Of expenses incurred in defending a threatened or pending action
that is settled or otherwise disposed of without court approval.
Section 4. SUCCESSFUL DEFENSE BY AGENT. To the extent that an agent of
this corporation has been successful on the merits in defense of any
proceeding referred to in Section 2 or 3 of this Article VI, or in defense of
any claim, issue, or matter therein, the agent shall be indemnified against
expenses actually and reasonably incurred by the agent in connection
therewith.
Section 5. REQUIRED APPROVAL. Except as provided in Section 4 of this
Article VI, any indemnification under this Article shall be made by this
corporation only if authorized in the specific case, upon a determination
that indemnification of the agent is proper in the circumstances because the
agent has met the applicable standard of conduct set forth in Section 2 or 3
of this Article VI, by one of the following:
(a) A majority vote of a quorum consisting of directors who are not
parties to the proceedings or by independent legal counsel in a written
opinion if such quorum of directors is not obtainable;
(b) (i) the affirmative vote of a majority of the shares of this
corporation entitled to vote represented at a duly held meeting at which a
quorum is present; or
(c) (ii) The written consent of holders of a majority of the
outstanding shares entitled to vote (for purposes of this subsection 5(b),
the shares owned by the person to be indemnified shall not be considered
outstanding or entitled to vote thereon); or
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(c) The court in which the proceedings is or was pending, on
application made by this corporation or the agent or the attorney or other
person rendering services in connection with the defense, whether or not such
application by the agent, attorney, or other person is opposed by this
corporation.
Section 6. ADVANCE OF EXPENSES. Expenses incurred in defending any
proceeding may be advanced by this corporation before the final disposition of
the proceeding on receipt of an undertaking by or on behalf of the agent to
repay the amount of the advanced unless it shall be determined ultimately
that the agent is entitled to be indemnified as authorized in this Article.
Section 7. OTHER CONTRACTUAL RIGHTS. Nothing contained in this Article
shall affect any right to indemnification to which persons other than
directors and officers of this corporation or any subsidiary hereof may be
entitled by contract or otherwise.
Section 8. LIMITATIONS. No indemnification or advance shall be made
under this Article, except as provided in Section 4 or Section 5(c), in any
circumstances where it appears:
(a) That it would be inconsistent with a provision of the articles, a
resolution of the shareholders, or an agreement in effect at the time of the
accrual of the alleged cause of action asserted in the proceedings in which
the expenses were incurred or other amounts were paid, which prohibits or
otherwise limits indemnification; or
(b) That it would be inconsistent with any condition expressly imposed
by a court in approving a settlement.
Section 9. INSURANCE. If so decided by the board of directors, this
corporation may purchase and maintain insurance on behalf of any agent of the
corporation against any liability asserted against or incurred by the agent
in such capacity or arising out of the agent's status as such whether or not
this corporation would have the power to indemnify the agent against that
liability under the provisions of this section.
Section 10. FIDUCIARIES OF CORPORATE EMPLOYEE BENEFIT PLAN. This Article
does not apply to any proceeding against any trustee, investment manager, or
other fiduciary of an employee benefit plan in that person's capacity as such,
event though that person may also be an agent of the corporation. The
corporation shall have the power to indemnify, and to purchase and maintain
insurance on behalf of, any such trustee, investment manager, or other
fiduciary of any benefit plan for any or all of the directors, officers and
employees of the corporation or any of its subsidiary or affiliated
corporations.
ARTICLE VII
RECORDS AND REPORTS
Section 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER. The
corporation shall keep at its principal executive office, or at the office of
its transfer agent or registrar, if either be appointed and as determined by
resolution of the board of directors, a record of the names and addresses of
all shareholders and the number and class of shares held by each shareholder.
A shareholder or shareholders of the corporation holding a least five
percent in the aggregate of the outstanding voting shares of the corporation
have the right to do either of both of the following: (a) inspect and copy
the record of shareholders' names and addresses and shareholdings during usual
business hours, on five days' prior written demand on the corporation, or (b)
obtain from the corporation's transfer agent, on written demand and tender of
the transfer agent's usual charges for this service, a list of the names and
address of shareholders who are entitled to vote for the election of
directors, and their shareholdings, as of the most recent record date for
which a list has been compiled or as of a specified date later than the date
of demand. This list shall be made available within five days after (i)
the date of demand, or (ii) the specified later date as of which the list is
to be compiled. The record of shareholders shall also be open to inspection
on the written demand of any shareholder or holder of a voting trust
certificate, at any time during usual business hours, for a purpose
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reasonably related to the holder's interests as a shareholder or holder of a
voting trust certificate. Any inspection and copying under this section may
be made in person or by an agent or attorney of the shareholder or holder of
a voting trust certificate making the demand.
Section 2. MAINTENANCE AND INSPECTION OF BYLAWS. The corporation shall
keep at its principal executive office, or if its principal executive office
is not in the State of California, at its principal business office in this
state, the original or a copy of the bylaws as amended to date, which shall
be open to inspection by the shareholders at all reasonable times during
office hours. If the principal executive office of the corporation is outside
the State of California and the corporation has no principal business office
in this state, the secretary shall, upon the written request of any
shareholder, furnish to that shareholder a copy of the bylaws as amended to
date.
Section 3. MAINTENANCE AND INSPECTION OF MINUTES AND ACCOUNTING
RECORDS. The minutes of proceedings of the shareholders, board of directors,
and committees of the board, and the accounting books and records shall be
kept at the principal executive office of the corporation, or at such other
place or places as designated by the board of directors. The minutes shall be
kept in written form, and the accounting books and records shall be kept
either in written form or in a form capable of being converted into written
form. The minutes and accounting books and records shall be open to
inspection on the written demand of any shareholder or holder of a voting
trust certificate at any reasonable time during usual business hours, or a
purpose reasonably related to the holder's interests as a shareholder or
holder of a voting trust certificate. The inspection may be made in person or
by an agent or attorney, and shall include the right to copy and make
extracts. These rights of inspection shall extend to the records of each
subsidiary of the corporation.
Section 4. INSPECTION BY DIRECTORS. Every director shall have the
absolute right at any reasonable time to inspect all books, records and
documents of every kind and the physical properties of the corporation and
each of its subsidiary corporations. This inspection by a director may be
made in person or by an agent or attorney and the right or inspection
includes the right to copy and make extracts of documents.
Section 5. ANNUAL REPORT TO SHAREHOLDERS. Inasmuch as, and for as long
as, there are fewer than 100 shareholders, the requirement of an annual
report to shareholders referred to in Section 1501 of the California
Corporations Code is expressly waived. However, nothing in this provision
shall be interpreted as prohibiting the board of directors from issuing
annual or other periodic reports to the shareholders, as the board considers
appropriate.
Section 6. FINANCIAL STATEMENTS. The corporation shall keep a copy of
each annual financial statement, quarterly or other periodic income
statement, and accompanying balance sheets prepared by the corporation on
file in the corporation's principal executive office for 12 months; these
documents shall be exhibited at all reasonable times, or copies provided, to
any shareholder on demand.
If no annual report for the last fiscal year has been sent to
shareholders, on written request of any shareholder made more than 120 days
after the close of the fiscal year the corporation shall deliver or mail to
the shareholder, within 30 days after the receipt of the request, a balance
sheet as of the end of that fiscal year and an income statement and statement
of changes in financial position for that fiscal year.
A shareholder or shareholders holding five percent or more of the
outstanding shares of any class of stock of the corporation may request in
writing an income statement for the most recent three-month, six-month, or
nine-month period (ending more than 30 days before the date of the request)
of the current fiscal year, and a balance sheet of the corporation as of the
end of that period. If such documents are not already prepared the chief
financial officer shall cause them to be prepared and shall deliver the
documents personally or mail them to the requesting shareholders within 30
days after receipt of the request. A balance sheet, income statement, and
statement of changes in financial position for the last fiscal year shall
also be included, unless the corporation has sent the shareholders an annual
report for the last fiscal year.
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Quarterly income statements and balance sheets referred to in this
section shall be accompanied by the report, if any, of independent
accountants engaged by the corporation or the certificate of an authorized
corporate officer stating that the financial statements were prepared without
audit from the corporation's books and records.
Section 7. ANNUAL STATEMENT OF GENERAL INFORMATION.
(a) Every year, during the calendar month in which the original
articles of incorporation were filed with the California Secretary of State,
or during the preceding five calendar months, the corporation shall file a
statement with the Secretary of State on the prescribed form, setting forth
the authorized number of directors; the names and complete business or
residence addresses of all incumbent directors; the names and complete
business or residence address of the chief executive officer, the secretary,
and the chief financial officer; the street address of the corporation's
principal executive office in this state; a statement of the general type of
business constituting the principal business activity of the corporation; and
a designation of the agent of the corporation for the purpose of service of
process, all in compliance with section 1502 of the California Corporations
Code.
(b) Notwithstanding the provisions of paragraph (a) of this section, if
there has been no change in the information contained in the corporation's
last annual statement on file in the Secretary of State's office, the
corporation may, in lieu of filing the annual statement described in
paragraph (a) of this section, advise the Secretary of State, on the
appropriate form, that no changes in the required information have occurred
during the applicable period.
ARTICLE VIII
GENERAL CORPORATE MATTERS
Section 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING. For
purposes of determining the shareholders entitled to receive payment of
dividends or other distributions or allotment of rights, or entitled to
exercise any rights in respect of any other lawful action (other than voting
at and receiving notice of shareholders' meetings and giving written consent
of the shareholders without a meeting), the board of directors may fix in
advance a record date which shall be not more than 60 nor less than 10 days
before the date of the dividend payment, distribution, allotment, or other
action. If a record date is so fixed, only shareholders of record at the
close of business on that date shall be entitled to receive the dividend,
distribution, or allotment of rights, or to exercise the other rights, as the
case may be, notwithstanding any transfer of shares on the corporation's book
after the record date, except as otherwise provided by statute.
If the board of directors does not so fix a record date in advance, the
record date shall be at the close of business on the later of (1) the day on
which the board of directors adopts the applicable resolution or (2) the 60th
day before the date of the dividend payment, distribution, allotment of
rights, or other action.
Section 2. AUTHORIZED SIGNATORIES FOR CHECKS. All checks, drafts, other
orders for payment of money, notes, or other evidences of indebtedness issued
in the name of or payable to the corporation shall be signed or endorsed by
such person or persons and in such manner authorized from time to time by
resolution of the board of directors.
Section 3. EXECUTING CORPORATE CONTRACTS AND INSTRUMENTS. Except as
otherwise provided in the articles or in these bylaws, the board of directors
by resolution may authorize any officer, officers, agent, or agents to enter
into any contract or to execute any instrument in the name of and on behalf
of the corporation. This authority may be general or it may be confined to
one or more specific matters. No officer, agent, employee, or other person
purporting to act on behalf of the corporation shall have any power or
authority to bind the corporation in any way, to pledge the corporation's
credit, or to render the corporation liable for any purpose or in any amount,
unless that person was acting with authority duly granted by the board of
directors as provided in these bylaws, or unless an unauthorized act was
later ratified by the corporation.
Section 4. CERTIFICATES FOR SHARES. A certificate or certificates for
shares of the capital stock of the corporation shall be issued to each
shareholder when any of the shares are fully paid. In addition to
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certificates for fully paid shares, the board of directors may authorize the
issuance of certificates for shares that are partly paid and subject to call
for the remainder of the purchase price, provided that the certificates
representing partly paid shares shall state the total amount of the
consideration to be paid for the shares and the amount actually paid.
All certificates shall certify the number of shares and the class or
series of shares represented by the certificate. All certificates shall be
signed in the name of the corporation by (1) either the chairman of the board
of directors, the vice chairman of the board of directors, the president, or
any vice president, and (2) either the chief financial officer, treasurer,
any assistant treasurer, the secretary, or any assistant secretary.
Any of the signatures on the certificate may be facsimile. If any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed on a certificate shall cease to be that officer,
transfer agent, or registrar before that certificate is issued, the
certificate may be issued by the corporation with the same effect as if that
person were an officer, transfer agent, or registrar at the date of issue.
Section 5. LOST CERTIFICATES. Except as provided in this Section 5, no
new certificates for shares shall be issued to replace old certificates
unless the old certificate is surrendered to the corporation for cancellation
at the same time. If share certificates or certificates for any other
security have been lost, stolen, or destroyed, the board of directors may
authorize the issuance of replacement certificates on terms and conditions as
required by the board, which may include a requirement that the owner give
the corporation a bond (or other adequate security) sufficient to indemnify
the corporation against any claim that may be made against it (including any
expense or liability) on account of the alleged loss, theft, or destruction
of the old certificate or the issuance of the replacement certificate.
Section 6. SHARES OF OTHER CORPORATIONS; HOW VOTED. Shares of other
corporations standing in the name of this corporation shall be voted by one
of the following persons, listed in order of preference: (1) chairman of the
board, or person designated by the chairman of the board; (2) president, or
person designated by the president; (3) first vice president, or person
designated by the first vice president; (4) other person designated by the
board of directors.
The authority to vote shares granted by this section includes the
authority to execute a proxy in the name of the corporation for purposes of
voting the shares.
Section 7. CONSTRUCTION AND DEFINITIONS. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in
sections 100 through 195 of the California Corporations Code shall govern the
construction of these bylaws. Without limiting the generality of this
provision, the singular number includes the plural, the plural number
includes the singular, and the term "person" includes both a corporation and a
natural person.
ARTICLE IX
AMENDMENTS
Section 1. AMENDMENT BY BOARD OF DIRECTORS OR SHAREHOLDERS. Except as
otherwise required or prohibited by law or by the articles of incorporation,
these bylaws may be amended or repealed, and new bylaws may be adopted, by
the board of directors or by the holders of a majority of the outstanding
shares entitled to vote.
Section 2. AMENDMENT IN CONFORMITY WITH LAW. To the extent these bylaws
make reference to a provision or provisions of the California Corporations
Code and any such provisions are renumbered, then these bylaws shall be
deemed to be amended to reflect such renumbering and, further, to the extent
any of the provisions of these bylaws are or subsequently become conflicting
with any substantive, mandatory requirement of the California Corporations
Code, then these bylaws shall be deemed to be amended to conform to such
applicable provisions of the California Corporations Code.
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Exhibit 4.1
NUMBER SHARES
0
INCORPORATED UNDER THE LAWS OF THE STATE OF CALIFORNIA
FEBRUARY 6, 1987
IMAGEWARE SOFTWARE, INC.
50,000,000 SHARES COMMON STOCK 4,000,000 SHARES SERIES A PREFERRED STOCK
$.01 PAR VALUE EACH $.01 PAR VALUE EACH
THIS CERTIFIES THAT _________________________________________IS THE REGISTERED
HOLDER OF _______________________________________SHARES OF THE COMMON STOCK OF
IMAGEWARE SOFTWARE, INC.
HEREINAFTER DESIGNATED "THE CORPORATION", TRANSFERABLE ON THE SHARE REGISTER
OF THE CORPORATION UPON SURRENDER OF THIS CERTIFICATE PROPERLY ENDORSED OR
ASSIGNED.
This certificate and the shares represented thereby shall be held
subject to all of the provisions of the Articles of Incorporation and the
By-Laws of said Corporation, a copy of each of which is on file at the office
of the Corporation, and made a part hereof as fully as though the provisions
of said Articles of Incorporation and By-Laws were imprinted in full on this
certificate, to all of which the holder of this certificate, by acceptance
hereof, assents and agrees to be bound.
Any shareholder may obtain from the principal office of the Corporation,
upon request and without charge, a statement of the number of shares
constituting each class or series of stock and the designation thereof; and a
copy of the rights, preferences, privileges, and restrictions granted to or
imposed upon the respective classes or series of stock and upon the holders
thereof by said Articles of Incorporation and the By-Laws.
WITNESS THE SEAL OF THE CORPORATION AND THE SIGNATURES OF ITS DULY AUTHORIZED
OFFICERS.
DATED:
_________________________ [SEAL] __________________________
SECRETARY PRESIDENT
<PAGE>
Exhibit 4.1
NUMBER SHARES
0
INCORPORATED UNDER THE LAWS OF THE STATE OF CALIFORNIA
FEBRUARY 6, 1987
IMAGEWARE SOFTWARE, INC.
50,000,000 SHARES COMMON STOCK 4,000,000 SHARES PREFERRED STOCK
$.01 PAR VALUE EACH $.01 PAR VALUE EACH
THIS CERTIFIES THAT _________________________________________IS THE REGISTERED
HOLDER OF ___________________________SHARES OF THE SERIES B PREFFERED STOCK OF
IMAGEWARE SOFTWARE, INC.
HEREINAFTER DESIGNATED "THE CORPORATION", TRANSFERABLE ON THE SHARE REGISTER
OF THE CORPORATION UPON SURRENDER OF THIS CERTIFICATE PROPERLY ENDORSED OR
ASSIGNED.
This certificate and the shares represented thereby shall be held
subject to all of the provisions of the Articles of Incorporation and the
By-Laws of said Corporation, a copy of each of which is on file at the office
of the Corporation, and made a part hereof as fully as though the provisions
of said Articles of Incorporation and By-Laws were imprinted in full on this
certificate, to all of which the holder of this certificate, by acceptance
hereof, assents and agrees to be bound.
Any shareholder may obtain from the principal office of the Corporation,
upon request and without charge, a statement of the number of shares
constituting each class or series of stock and the designation thereof; and a
copy of the rights, preferences, privileges, and restrictions granted to or
imposed upon the respective classes or series of stock and upon the holders
thereof by said Articles of Incorporation and the By-Laws.
WITNESS THE SEAL OF THE CORPORATION AND THE SIGNATURES OF ITS DULY AUTHORIZED
OFFICERS.
DATED:
_________________________ [SEAL] __________________________
SECRETARY PRESIDENT
<PAGE>
VOID AFTER 5:00 P.M. PACIFIC TIME ON __________, 2005
WARRANTS TO PURCHASE COMMON STOCK
W-_____ _________Warrants
IMAGEWARE SYSTEMS, INC.
CUSIP ______________
THIS CERTIFIES THAT
or registered assigns, is the registered holder of the number of Warrants (the
"Warrants") set forth above. Each Warrant entitles the holder thereof to
purchase from ImageWare Systems, Inc., a corporation incorporated under the laws
of the State of California (the "Company"), subject to the terms and conditions
set forth hereinafter and in the Warrant Agreement hereinafter more fully
described (the "Warrant Agreement"), at any time on or before the close of
business on __________, 2005 or, if such Warrant is redeemed as provided in the
Warrant Agreement, at any time prior to the effective time of such redemption
(the "Expiration Date"), one fully paid and non-assessable share of Common Stock
of the Company (the "Common Stock") upon presentation and surrender of this
Warrant Certificate, with the instructions for the registration and delivery of
Common Stock filled in, at the stock transfer office in Denver, Colorado, of
American Stock Transfer & Trust Company, Warrant Agent of the Company (the
"Warrant Agent") or of its successor warrant agent or, if there be no successor
warrant agent, at the corporate offices of the Company, and upon payment of the
Exercise Price (as defined in the Warrant Agreement) and any applicable taxes
paid either in cash, or by certified or official bank check, payable in lawful
money of the United States of America to the order of the Company. Each Warrant
initially entitles the holder to purchase one share of Common Stock initially
for $[120% of the initial public offering price of the Units]. The Exercise
Price shall be adjusted on the first anniversary of the closing of the Company's
initial public offering to 150% of the initial public offering price of the
Units. The number and kind of securities or other property for which the
Warrants are exercisable are subject to further adjustment in certain events,
such as mergers, splits, stock dividends, recapitalizations and the like, to
prevent dilution. After six months following the closing of the Company's
initial public offering, the Company may redeem any or all outstanding and
unexercised Warrants at any time if the Daily Price has exceeded $_____ for ten
consecutive trading days immediately preceding the date of notice of such
redemption, upon 30 days notice, at a price equal to $0.25 per Warrant. For the
purpose of the foregoing sentence, the term "Daily Price" shall mean, for any
relevant day, the closing bid price on that day as reported by the principal
exchange or quotation system on which prices for the Common Stock are reported.
All Warrants not theretofore exercised or redeemed will expire on _________,
2005.
<PAGE>
This Warrant Certificate is subject to all of the terms, provisions and
conditions of the Warrant Agreement, dated as of ____________, 2000 (the
"Warrant Agreement"), between the Company and the Warrant Agent, to all of which
terms, provisions and conditions the registered holder of this Warrant
Certificate consents by acceptance hereof. The Warrant Agreement is
incorporated herein by reference and made a part hereof and reference is made to
the Warrant Agreement for a full description of the rights, limitations of
rights, obligations, duties and immunities of the Warrant Agent, the Company and
the holders of the Warrant Certificates. Copies of the Warrant Agreement are
available for inspection at the stock transfer office of the Warrant Agent or
may be obtained upon written request addressed to the Company at 10833 Thornmint
Road, San Diego, CA 92127, Attention: Chief Financial Officer.
The Company shall not be required upon the exercise of the Warrants
evidenced by this Warrant Certificate to issue fractions of Warrants, Common
Stock or other securities, but shall make adjustment therefor in cash on the
basis of the current market value of any fractional interest as provided in the
Warrant Agreement.
In certain cases, the sale of securities by the Company upon exercise of
Warrants would violate the securities laws of the United States, certain states
thereof or other jurisdictions. The Company has agreed to use all commercially
reasonable efforts to cause a registration statement to continue to be effective
during the term of the Warrants with respect to such sales under the Securities
Act of 1933, as amended, and to take such action under the laws of various
states as may be required to cause the sale of securities upon exercise to be
lawful. However, the Company will not be required to honor the exercise of
Warrants if, in the opinion of the Board of Directors, upon advice of counsel,
the sale of securities upon such exercise would be unlawful. In certain cases,
the Company may, but is not required to, purchase Warrants submitted for
exercise for a cash price equal to the difference between the market price of
the securities obtainable upon such exercise and the exercise price of such
Warrants.
This Warrant Certificate, with or without other Warrant Certificates, upon
surrender to the Warrant Agent, any successor warrant agent or, in the absence
of any successor warrant agent, at the corporate offices of the Company, may be
exchanged for another Warrant Certificate or Certificates evidencing in the
aggregate the same number of Warrants as the Warrant Certificate or Certificates
so surrendered. If the Warrants evidenced by this Warrant Certificate shall be
exercised in part, the holder hereof shall be entitled to receive upon surrender
hereof another Warrant Certificate or Certificates evidencing the number of
Warrants not so exercised.
No holder of this Warrant Certificate, as such, shall be entitled to vote,
receive dividends or be deemed the holder of Common Stock or any other
securities of the Company which may at any time be issuable on the exercise
hereof for any purpose whatever, nor shall anything contained in the Warrant
Agreement or herein be construed to confer upon the holder of this Warrant
Certificate, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof or give or withhold consent to any corporate
action (whether upon any matter submitted to stockholders at any meeting
thereof, or give or withhold consent to any merger,
<PAGE>
recapitalization, issuance of stock, reclassification of stock, change of par
value or change of stock to no par value, consolidation, conveyance or
otherwise) or to receive notice of meetings or other actions affecting
stockholders (except as provided in the Warrant Agreement) or to receive
dividends or subscription rights or otherwise until the Warrants evidenced by
this Warrant Certificate shall have been exercised and the Common Stock
purchasable upon the exercise thereof shall have become deliverable as
provided in the Warrant Agreement.
If this Warrant Certificate shall be surrendered for exercise within any
period during which the transfer books for the Company's Common Stock or other
class of stock purchasable upon the exercise of the Warrants evidenced by this
Warrant Certificate are closed for any purpose, the Company shall not be
required to make delivery of certificates for shares purchasable upon such
transfer until the date of the reopening of said transfer books.
Every holder of this Warrant Certificate by accepting the same consents and
agrees with the Company, the Warrant Agent, and with every other holder of a
Warrant Certificate that:
(a) This Warrant Certificate is transferable on the registry books of the
Warrant Agent only upon the terms and conditions set forth in the Warrant
Agreement; and
(b) The Company and the Warrant Agent may deem and treat the person in
whose name this Warrant Certificate is registered as the absolute owner hereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone other than the Company or the Warrant Agent) for all purposes whatever
and neither the Company nor the Warrant Agent shall be affected by any notice to
the contrary.
The Company shall not be required to issue or deliver any certificate for
shares of Common Stock or other securities upon the exercise of Warrants
evidenced by this Warrant Certificate until any tax which may be payable in
respect thereof by the holder of this Warrant Certificate pursuant to the
Warrant Agreement shall have been paid, such tax being payable by the holder of
this Warrant Certificate at the time of surrender.
This Warrant Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Warrant Agent.
WITNESS the facsimile signatures of the proper officers of the Company and
its corporate seal.
Dated:
IMAGEWARE SYSTEMS, INC.
By:
----------------------------
Chief Executive Officer
<PAGE>
Attest:
-----------------------
Secretary
Countersigned
American Stock Transfer & Trust
Company
By:
----------------------------
Authorized Officer
<PAGE>
FORM OF ELECTION TO PURCHASE
(TO BE EXECUTED BY THE REGISTERED HOLDER IN ORDER TO EXERCISE THE WARRANTS IN
WHOLE OR IN PART)
To: IMAGEWARE SYSTEMS, INC.
The undersigned Registered Holder ( )
- -------------------------------------
(Please insert Social Security or other
identification number of Registered Holder)
hereby irrevocably elects to exercise the right of purchase represented by the
within this Warrant Certificate for, and to purchase thereunder, _______________
shares of Common Stock provided for therein and tenders payment herewith to the
order of IMAGEWARE SYSTEMS, INC. in the amount of $________________.
The undersigned requests that certificates for such shares of Common Stock be
issued as follows:
Name:________________________________________________________________________
Address:______________________________________________________________________
Deliver to:___________________________________________________________________
Address:______________________________________________________________________
and if said number of Warrants being exercised shall not be all the Warrants
evidenced by this Warrant Certificate, that a new Certificate for the balance of
such Warrants as well as the shares of Common Stock represented by this Warrant
Certificate be registered in the name of, and delivered to, the Registered
Holder at the address stated below:
Address:_____________________________________________________________________
Dated:_____________, _______
Signature
- ------------------------------------------
(Signature must conform in all respects to
the name of Registered Holder as specified
in the case of this Warrant Certificate in
every particular, without alteration or any
change whatever.)
Signature Guaranteed:
- ------------------------------------------
The signature should be guaranteed by an eligible institution (Banks,
Stockbrokers, Savings and Loan Association and Credit Union with membership in
an approved signature Medallion Program), pursuant to S.E.C. Rule 17Ad-15.
<PAGE>
FORM OF ASSIGNMENT
(TO BE SIGNED ONLY UPON ASSIGNMENT)
FOR VALUE RECEIVED, the undersigned Registered Holder ( )
- ------------------------
(Please insert
Social Security or other
identification number of
Registered Holder)
hereby sells, assigns and transfers unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please Print Name and Address including Zip Code)
Warrants evidenced by the within Warrant Certificate, and irrevocably
constitutes
and appoints
______________________________________________________________________Attorney
to transfer this Warrant Certificate on the books of ImageWare Systems, Inc.
with the full power of substitution in the premises.
Dated:__________________, ________
Signature:
__________________________________
(Signature must conform in all respects to
the name of Registered Holder as specified
on the face of this Unit Certificate in
every particular, without alteration or any
change whatsoever, and the signature must be
guaranteed in the usual manner.)
Signature Guaranteed:
__________________________________
The signature should be guaranteed by an eligible institution (Banks,
Stockbrokers, Savings and Loan Association and Credit Union with membership in
an approved signature Medallion Program), pursuant to S.E.C. Rule 17Ad-15.
<PAGE>
FORM OF
IMAGEWARE SYSTEMS, INC.
PURCHASE WARRANT
Issued to:
PAULSON INVESTMENT COMPANY, INC.
Exercisable to Purchase
150,000 UNITS
THIS WARRANT HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933
AND IS NOT TRANSFERABLE
EXCEPT AS PROVIDED HEREIN
Void after __________, 2005
<PAGE>
This is to certify that, for value received and subject to the terms
and conditions set forth below, the Warrantholder (hereinafter defined) is
entitled to purchase, and the Company promises and agrees to sell and issue to
the Warrantholder, at any time on or after ______ ___, 2000 and on or before
__________ ___, 2005, up to 150,000 Units (hereinafter defined) at the Exercise
Price (hereinafter defined).
This Warrant Certificate is issued subject to the following terms and
conditions:
1. DEFINITIONS OF CERTAIN TERMS. Except as may be otherwise clearly
required by the context, the following terms have the following meanings:
(a) "Act" means the Securities Act of 1933, as amended.
(b) "Closing Date" means the date on which the Offering is closed.
(c) "Commission" means the Securities and Exchange Commission.
(d) "Common Stock" means the common stock, $0.01 par value, of the
Company.
(e) "Company" means ImageWare Systems, Inc., a California
corporation.
(f) "Company's Expenses" means any and all expenses payable by the
Company or the Warrantholder in connection with an offering described in Section
6 hereof, except Warrantholder's Expenses.
(g) "Effective Date" means the date on which the Registration
Statement is declared effective by the Commission.
(h) "Exercise Price" means the price at which the Warrantholder may
purchase one complete Unit (or Securities obtainable in lieu of one complete
Unit) upon exercise of Warrants as determined from time to time pursuant to the
provisions hereof. The initial Exercise Price is $_____ per Unit (120% of the
initial public offering price of a Unit). If a Warrant is exercised for a
component of a Unit or Units, then the price payable in connection with such
exercise shall be determined by allocating $0.001 to the Unit Warrant and the
balance of the Exercise Price to the share of Common Stock, or, in each case, to
any securities obtainable in addition to or in lieu of such Unit Warrant or
share of Common Stock by virtue of the application of Section 3 of this Warrant.
(i) "Offering" means the public offering of Units made pursuant to
the Registration Statement.
(j) "Participating Underwriter" means any underwriter participating
in the sale of the Securities pursuant to a registration under Section 6 of this
Warrant Certificate.
(k) "Registration Statement" means the Company's registration
statement (File No. 333-____), as amended on the Closing Date.
Page 1 - Purchase Warrant
<PAGE>
(l) "Rules and Regulations" means the rules and regulations of the
Commission adopted under the Act.
(m) "Securities" means the securities obtained or obtainable upon
exercise of the Warrant or securities obtained or obtainable upon exercise,
exchange or conversion of such securities.
(n) "Unit" means, as the case may require, either one of the Units
offered to the public pursuant to the Registration Statement or one of the Units
obtainable on exercise of a Warrant, each Unit consisting of one share of Common
Stock and one Unit Warrant to purchase one share of Common Stock on the terms
and conditions described in the Registration Statement.
(o) "Unit Warrant" means a Common Stock purchase warrant included as
a component of a Unit.
(p) "Warrant Certificate" means a certificate evidencing the Warrant.
(q) "Warrantholder" means a record holder of the Warrant or
Securities. The initial Warrantholder is Paulson Investment Company, Inc.
(r) "Warrantholder's Expenses" means the sum of (i) the aggregate
amount of cash payments made to an underwriter, underwriting syndicate, or agent
in connection with an offering described in Section 6 hereof multiplied by a
fraction, the numerator of which is the aggregate sales price of the Securities
sold by such underwriter, underwriting syndicate, or agent in such offering on
behalf of the Warrantholder and the denominator of which is the aggregate sales
price of all of the securities sold by such underwriter, underwriting syndicate,
or agent in such offering and (ii) all out-of-pocket expenses of the
Warrantholder, except for the fees and disbursements of one firm retained as
legal counsel for the Warrantholder on behalf of all of the Warrantholders that
will be paid by the Company.
(s) "Warrant" means the warrant evidenced by this certificate, any
similar certificate issued in connection with the Offering, or any certificate
obtained upon transfer or partial exercise of the Warrant evidenced by any such
certificate.
2. EXERCISE OF WARRANTS. All or any part of the Warrant may be
exercised commencing on the first anniversary of the Effective Date and
ending at 5:00 p.m. (Pacific Time) on the fifth anniversary of the Effective
Date by surrendering this Warrant Certificate, together with appropriate
instructions, duly executed by the Warrantholder or by its duly authorized
attorney, at the office of the Company, 10833 Thornmint Road, San Diego,
California 92127, or at such other office or agency as the Company may
designate. Upon receipt of notice of exercise, the Company shall immediately
instruct its transfer agent to prepare certificates for the Securities to be
received by the Warrantholder upon completion of the Warrant exercise. When
such certificates are prepared, the Company shall notify the Warrantholder
and deliver such certificates to the Warrantholder or as per the
Warrantholder's instructions immediately upon payment in full by the
Warrantholder, in lawful money of the United States, of the Exercise Price
payable with respect to the Securities being purchased. If the Warrantholder
shall represent and warrant that all applicable registration and prospectus
delivery requirements for their sale have been complied with upon sale
Page 2 - Purchase Warrant
<PAGE>
of the securities received upon exercise of the Warrant, such certificates
shall not bear a legend with respect to the Act.
If fewer than all the Securities purchasable under the Warrant are
purchased, the Company will, upon such partial exercise, execute and deliver
to the Warrantholder a new Warrant Certificate (dated the date hereof), in
form and tenor similar to this Warrant Certificate, evidencing that portion
of the Warrant not exercised. The Securities to be obtained on exercise of
the Warrant will be deemed to have been issued, and any person exercising the
Warrants will be deemed to have become a holder of record of those
Securities, as of the date of the payment of the Exercise Price.
3. ADJUSTMENTS IN CERTAIN EVENTS. The number, class, and price of
Securities for which this Warrant Certificate may be exercised are subject to
adjustment from time to time upon the happening of certain events as follows:
(a) If the outstanding shares of the Company's Common Stock are
divided into a greater number of shares or a dividend in stock is paid on the
Common Stock, the number of shares of Common Stock for which the Warrant is
then exercisable will be proportionately increased and the Exercise Price
will be proportionately reduced; and, conversely, if the outstanding shares
of Common Stock are combined into a smaller number of shares of Common Stock,
the number of shares of Common Stock for which the Warrant is then
exercisable will be proportionately reduced and the Exercise Price will be
proportionately increased. The increases and reductions provided for in this
subsection 3(a) will be made with the intent and, as nearly as practicable,
the effect that neither the percentage of the total equity of the Company
obtainable on exercise of the Warrants nor the price payable for such
percentage upon such exercise will be affected by any event described in this
subsection 3(a).
(b) In case of any change in the Common Stock through merger,
consolidation, reclassification, reorganization, partial or complete
liquidation, purchase of substantially all the assets of the Company, or
other change in the capital structure of the Company, then, as a condition of
such change, lawful and adequate provision will be made so that the holder of
this Warrant Certificate will have the right thereafter to receive upon the
exercise of the Warrant the kind and amount of shares of stock or other
securities or property to which he would have been entitled if, immediately
prior to such event, he had held the number of shares of Common Stock
obtainable upon the exercise of the Warrant. In any such case, appropriate
adjustment will be made in the application of the provisions set forth herein
with respect to the rights and interest thereafter of the Warrantholder, to
the end that the provisions set forth herein will thereafter be applicable,
as nearly as reasonably may be, in relation to any shares of stock or other
property thereafter deliverable upon the exercise of the Warrant. The
Company will not permit any change in its capital structure to occur unless
the issuer of the shares of stock or other securities to be received by the
holder of this Warrant Certificate, if not the Company, agrees to be bound by
and comply with the provisions of this Warrant Certificate.
(c) When any adjustment is required to be made in the number of
shares of Common Stock, other securities, or the property purchasable upon
exercise of the Warrant, the Company will promptly determine the new number of
such shares or other securities or property
Page 3 - Purchase Warrant
<PAGE>
purchasable upon exercise of the Warrant and (i) prepare and retain on file a
statement describing in reasonable detail the method used in arriving at the
new number of such shares or other securities or property purchasable upon
exercise of the Warrant and (ii) cause a copy of such statement to be mailed
to the Warrantholder within thirty (30) days after the date of the event
giving rise to the adjustment.
(d) No fractional shares of Common Stock or other securities will
be issued in connection with the exercise of the Warrant, but the Company
will pay, in lieu of fractional shares, a cash payment therefor on the basis
of the mean between the bid and asked prices of the Common Stock in the
over-the-counter market or the last sale price of the Common Stock on the
Nasdaq SmallCap Market or a national securities exchange on the day
immediately prior to exercise.
(e) If securities of the Company or securities of any subsidiary
of the Company are distributed pro rata to holders of Common Stock, such
number of securities will be distributed to the Warrantholder or his assignee
upon exercise of his rights hereunder as such Warrantholder or assignee would
have been entitled to if this Warrant Certificate had been exercised prior to
the record date for such distribution. The provisions with respect to
adjustment of the Common Stock provided in this Section 3 will also apply to
the securities to which the Warrantholder or his assignee is entitled under
this subsection 3 (e).
(f) Notwithstanding anything herein to the contrary, there will be
no adjustment made hereunder on account of the sale by the Company of the
Common Stock or other Securities purchasable upon exercise of the Warrant.
4. RESERVATION OF SECURITIES. The Company agrees that the number of
shares of Common Stock, Unit Warrants or other Securities sufficient to provide
for the exercise of the Warrant upon the basis set forth above will at all times
during the term of the Warrant be reserved for issuance upon exercise of the
Warrant.
5. VALIDITY OF SECURITIES. All Securities delivered upon the exercise of
the Warrant will be duly and validly issued in accordance with their terms, and
the Company will pay all documentary and transfer taxes, if any, in respect of
the original issuance thereof upon exercise of the Warrant.
6. REGISTRATION OF SECURITIES ISSUABLE ON EXERCISE OF WARRANT
CERTIFICATE.
(a) The Company will register the Securities with the Commission
pursuant to the Act so as to allow the unrestricted sale of the Securities to
the public from time to time commencing on the first anniversary of the
Effective Date and ending at 5:00 p.m. (Pacific Time) on the fifth anniversary
of the Effective Date (the "Registration Period"). The Company will also file
such applications and other documents necessary to permit the sale of the
Securities to the public during the Registration Period in those states
designated by the Warrantholders among those in which the Units were qualified
for sale in the Offering or in such other states as the Company and the
Warrantholder agree to. In order to comply with the provisions of this Section
6(a), the Company is not required to file more than one registration statement
in addition to the Registration Statement.
Page 4 - Purchase Warrant
<PAGE>
(b) The Company will pay all of the Company's Expenses and each
Warrantholder will pay its pro rata share of the Warrantholder's Expenses
relating to the registration, offer and sale of the Securities.
(c) Except as specifically provided herein, the manner and conduct
of the registration, including the contents of the registration statement,
will be entirely in the control and at the discretion of the Company. The
Company will file such post-effective amendments and supplements as may be
necessary to maintain the currency of the registration statement during the
Registration Period. In addition, if the Warrantholder participating in the
registration is advised by counsel that the registration statement, in their
opinion, is deficient in any material respect, the Company will use its best
efforts to cause the registration statement to be amended to eliminate the
concerns raised.
(d) The Company will furnish to the Warrantholder the number of
copies of a prospectus, including a preliminary prospectus, in conformity
with the requirements of the Act, and such other documents as it may
reasonably request in order to facilitate the disposition of Securities owned
by it.
(e) The Company will, at the request of Warrantholders holding at
least 50 percent of the then outstanding Warrants, (i) furnish an opinion of
the counsel representing the Company for the purposes of the registration
pursuant to this Section 6, addressed to the Warrantholders and any
Participating Underwriter, (ii) in the event of an underwritten offering,
furnish an appropriate letter from the independent public accountants of the
Company, addressed to the Warrantholders and any Participating Underwriter,
and (iii) make such representations and warranties to the Warrantholders and
any Participating Underwriter as are customarily given to underwriters of
public offerings of equity securities in connection with such offerings. A
request pursuant to this subsection (e) may be made on three occasions. The
documents required to be delivered pursuant to this subsection (e) will be
dated within ten days of the request and will be, in form and substance,
equivalent to similar documents furnished to the underwriters in connection
with the Offering, with such changes as may be appropriate in light of
changed circumstances.
7. INDEMNIFICATION IN CONNECTION WITH REGISTRATION.
(a) If any of the Securities are registered, the Company will
indemnify and hold harmless each selling Warrantholder, any person who
controls any selling Warrantholder within the meaning of the Act, and any
Participating Underwriter against any losses, claims, damages, or
liabilities, joint or several, to which any Warrantholder, controlling
person, or Participating Underwriter may be subject under the Act or
otherwise; and it will reimburse each Warrantholder, each controlling person,
and each Participating Underwriter for any legal or other expenses reasonably
incurred by the Warrantholder, controlling person, or Participating
Underwriter in connection with investigating or defending any such loss,
claim, damage, liability or action, insofar as such losses, claims, damages,
or liabilities, joint or several (or actions in respect thereof), arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained, on the effective date thereof, in any such
registration statement or any preliminary prospectus or final prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated
Page 5 - Purchase Warrant
<PAGE>
therein or necessary to make the statements therein not misleading; PROVIDED,
HOWEVER, that the Company will not be liable in any case to the extent that
any loss, claim, damage, or liability arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in any registration statement, preliminary prospectus, final prospectus,
or any amendment or supplement thereto, in reliance upon and in conformity
with written information furnished by a Warrantholder for use in the
preparation thereof. The indemnity agreement contained in this subsection
will not apply to amounts paid to any claimant in settlement of any suit or
claim unless such payment is first approved by the Company, such approval not
to be unreasonably withheld.
(b) Each selling Warrantholder, as a condition of the Company's
registration obligation, will indemnify and hold harmless the Company, each
of its directors, each of its officers who have signed any registration
statement or other filing, or any amendment or supplement thereto, and any
person who controls the Company within the meaning of the Act, against any
losses, claims, damages, or liabilities to which the Company or any such
director, officer, or controlling person may become subject under the Act or
otherwise, and will reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer, or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability, or action, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue or
alleged untrue statement of any material fact contained in said registration
statement, any preliminary or final prospectus, or other filing or any
amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but only to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission was made in said registration statement,
preliminary or final prospectus, or other filing, or amendment or supplement,
in reliance upon and in conformity with written information furnished by such
Warrantholder for use in the preparation thereof; PROVIDED, HOWEVER, that the
indemnity agreement contained in this subsection (b) will not apply to
amounts paid to any claimant in settlement of any suit or claim unless such
payment is first approved by the Warrantholder, such approval not to be
unreasonably withheld.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, notify the indemnifying party of the commencement
thereof; but the omission to notify the indemnifying party will not relieve
it from any liability that it may have to any indemnified party otherwise
than under subsections (a) and (b).
(d) If any such action is brought against any indemnified party
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and, to the extent
that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party; and after notice from the indemnifying party to such
indemnified party of its election to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal
or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
Page 6 - Purchase Warrant
<PAGE>
8. RESTRICTIONS ON TRANSFER. This Warrant Certificate and the Warrant
may not be sold, transferred, assigned or hypothecated for a one-year period
after the Effective Date except to underwriters of the Offering or to
individuals who are either a partner or an officer of such an underwriter or by
will or by operation of law. The Warrant may be divided or combined, upon
request to the Company by the Warrantholder, into a certificate or certificates
evidencing the same aggregate number of Warrants.
9. NO RIGHTS AS A SHAREHOLDER. Except as otherwise provided herein, the
Warrantholder will not, by virtue of ownership of the Warrant, be entitled to
any rights of a shareholder of the Company but will, upon written request to the
Company, be entitled to receive such quarterly or annual reports as the Company
distributes to its shareholders.
10. OPTIONAL CONVERSION.
(a) In addition to and without limiting the right of any Warrantholder
under the terms of this Warrant, the Warrantholder shall have the right (the
"Conversion Right") to convert this Warrant or any portion thereof into
Securities as provided in this Section 10 at any time or from time-to-time after
the first anniversary of the date hereof and prior to its expiration. Upon
exercise of the Conversion Right with respect to a particular number of Units
subject to this Warrant (the "Converted Securities"), the Company shall deliver
to the holder of this Warrant, without payment by the holder of any exercise
price or any cash or other consideration, that number of Units equal to the
quotient obtained by dividing the Net Value (as hereinafter defined) of the
Converted Securities by the sum of the fair market value (as defined in
paragraph (c) below) of a single share of Common Stock plus a single Unit
Warrant, determined in each case as of the close of business on the Conversion
Date (as hereinafter defined). The "Net Value" of the Converted Securities
shall be determined by subtracting the aggregate Exercise Price of the Converted
Securities from the aggregate fair market value of the Converted Securities.
Notwithstanding anything in this Section 10 to the contrary, the Conversion
Right cannot be exercised with respect to a number of Converted Securities
having a Net Value below $100. No fractional shares shall be issuable upon
exercise of the Conversion Right, and if the number of shares to be issued in
accordance with the foregoing formula is other than a whole number, the Company
shall pay to the holder of this Warrant an amount in cash equal to the fair
market value of the resulting fractional share.
(b) The Conversion Right may be exercised by the holder of this Warrant
by the surrender of this Warrant at the principal office of the Company
together with a written statement specifying that the holder thereby intends
to exercise the Conversion Right and indicating the number of Securities
subject to this Warrant which are being surrendered (referred to in paragraph
(a) above as the Converted Securities) in exercise of the Conversion Right.
Such conversion shall be effective upon receipt by the Company of this
Warrant together with the aforesaid written statement, or on such later date
as is specified therein (the "Conversion Date"), but not later than the
expiration date of this Warrant. Certificates for the shares of Common Stock
and Unit Warrants issuable upon exercise of the Conversion Right, together
with a check in payment of any fractional share and, in the case of a partial
exercise, a new Warrant evidencing the Securities remaining subject to this
Warrant, shall be issued as of the Conversion Date, and shall be delivered to
the holder of this Warrant within seven days following the Conversion Date.
Page 7 - Purchase Warrant
<PAGE>
(c) For purposes of this Section 10, the "fair market value" of a share
of Common Stock or Unit Warrant as of a particular date shall be the mean
between the bid and asked price of the Common Stock or Unit Warrant, as the
case may be, as quoted in the over the counter market, or, if applicable, the
closing sale price of the Common Stock or Unit Warrant, as the case may be,
on the Nasdaq Stock Market or a national exchange.
11. NOTICE. Any notices required or permitted to be given hereunder
will be in writing and may be served personally or by mail addressed as
follows:
If to the Company:
10833 Thornmint Road
San Diego, California 92127
Attn: President
If to the Warrantholder:
at the address furnished
by the Warrantholder to the
Company for the purpose of
notice.
Any notice so given by mail will be deemed effectively given 48 hours after
mailing when deposited in the United States mail, registered or certified mail,
return receipt requested, postage prepaid and addressed as specified above. Any
party may by written notice to the other specify a different address for notice
purposes.
12. APPLICABLE LAW. This Warrant Certificate will be governed by and
construed in accordance with the laws of the State of Oregon, without reference
to conflict of laws principles thereunder. All disputes relating to this
Warrant Certificate shall be tried before the courts of Oregon located in
Multnomah County, Oregon, to the exclusion of all other courts that might have
jurisdiction.
Dated as of _______ ___, 2000.
IMAGEWARE SYSTEMS, INC.
By:________________________________
________________________________
Agreed and Accepted as of ________ ___, 2000
Page 8 - Purchase Warrant
<PAGE>
PAULSON INVESTMENT COMPANY, INC.
By:_______________________________
_______________________________
Page 9 - Purchase Warrant
<PAGE>
[REGISTRATION OPINION]
December 17, 1999
ImageWare Systems, Inc.
10883 Thronmint Road
San Diego, California 92127
Re: REGISTRATION STATEMENT ON FORM SB-2
-----------------------------------
Ladies and Gentlemen:
We are counsel for ImageWare Systems, Inc., a California corporation
("ImageWare"), in connection with its proposed public offering under the
Securities Act of 1933, as amended, of 1,500,000 units ("Units") consisting of
1,500,000 shares of Common Stock (the "Shares") and 1,500,000 Warrants (the
"Warrants") (1,775,000 Units if the overallotment option is exercised in full),
through a Registration Statement on Form SB-2 as to which this opinion is a
part, to be filed with the Securities and Exchange Commission (the
"Commission").
In connection with rendering our opinion as set forth below, we have reviewed
and examined originals or copies of such corporate records and other documents
and have satisfied ourselves as to such other matters as we have deemed
necessary to enable us to express our opinion hereinafter set forth.
Based on the foregoing, it is our opinion that:
The Units covered by the Registration Statement, when issued in accordance with
the terms and conditions set forth therein, will be duly authorized and validly
issued and the Shares covered by the Registration Statement, when issued in
accordance with the terms and conditions set forth therein, will be duly
authorized, validly issued, fully paid, and non-assessable.
The shares of Common Stock underlying the Warrants covered by the Registration
Statement, when issued in accordance with the terms and conditions set forth
therein, will by duly authorized, validly issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Prospectus included in the Registration Statement.
Very truly yours,
/s/ Luce, Forward, Hamilton & Scripps
<PAGE>
EXHIBIT 10.1
IMAGEWARE SOFTWARE, INC.
EMPLOYMENT AGREEMENT
(AMENDED SEPTEMBER 1997)
This EMPLOYMENT AGREEMENT ("Agreement"), which was entered into as of
January 1, 1996 by and between ImageWare Software, Inc., a California
Corporation (herein the "Company") and S. James Miller, Jr. (herein "Miller")
and replaced the Employment Agreement entered into with Miller as of January
1, 1995, is hereby amended to read in full as hereinafter set forth.
It is hereby agreed as follows:
1. EMPLOYMENT AND TERM. The Company hereby employs Miller as
President, Chief Executive Officer of the Company, and Miller agrees to his
employment by the Company as its President and Chief Executive Officer, the
term of which employment shall be a period of three years commencing January
1, 1996 and ending December 31, 1998.
2. DUTIES. During the term of this Agreement, Miller shall devote
substantially all of his working time, energies and skills to the management
of the Company's business. Miller shall render services consistent with those
of the Chief Executive Officer of a corporation and shall perform all duties
incident to such office and all such further similar duties that may from
time to time be assigned to him by the Board of Directors of the Company.
3. COMPENSATION. Miller's compensation under this Agreement shall be
as follows:
(a) BASE SALARY. The Company shall pay to Miller a base salary
(the "Base Salary") of $155,000.00 per year from January 1, 1996 through
December 31, 1998. In addition, each year during the term of this Agreement,
Miller shall receive a cost-of-living increase equal to the percentage by
which the Consumer Price Index applicable to the San Diego area increased
during the prior fiscal year. Such Base Salary shall be payable in
semi-monthly installments in accordance with the regular employee payment
practice of the Company. All payments shall be subject to the deduction of
payroll taxes and similar assessments as required by law.
(b) BONUS. In addition to his Base Salary, Miller shall be
eligible to participate in any Company Bonus Plan, adopted from time to time
by the Board of Directors.
4. EXPENSES AND BENEFITS. Miller is authorized to incur reasonable
expenses in connection with the business of the Company, including expenses
for entertainment, travel and similar matters. The Company will reimburse
Miller for such expenses upon presentation by
<PAGE>
Miller of such accounts and records as the Company shall from time to time
reasonably require. The Company also agrees to provide Miller with the
following benefits:
(a) AUTOMOBILE. An automobile allowance of $750.00 per month
to reimburse him for use of his automobile in carrying on the business of the
Company.
(b) INSURANCE. Major medical health insurance and disability
insurance which shall provide not less than two-thirds of Miller's then
current Base Salary in disability payments commencing three months after
permanent or partial disability occurs and life group or term life insurance
in an amount equal two times Miller's Base Salary.
(c) EMPLOYEE BENEFIT PLANS. Participation in any other
employee benefit plans now existing or hereafter adopted by the Company for
its employees.
(d) VACATIONS. Miller shall be entitled to a paid vacation for
a period in each calendar year of not less than four weeks, to be taken at
such times as mutually agreed with the Company.
(e) PHYSICAL EXAMINATION. Not more than once every two years,
Miller shall be entitled to receive a physical examination at Company
expense; and at the Company's request, will take an a physical examination
annually and provide the results to the Company.
5. TERMINATION. Except as otherwise provided herein, this Agreement
shall terminate upon the first to occur of the expiration of the term
provided for in Section 1 or the death of Miller. However, nothing contained
in this Section 5 shall be construed to abrogate the obligations of the
Company to Miller, or his personal representative, or his heirs, as the case
may be, in respect of all rights which shall accrue prior or subsequent to
termination.
6. DISABILITY. In the event that Miller becomes permanently disabled
during the term of this Agreement, then Miller shall continue in the employ
of the Company, but his compensation hereunder shall be limited to the amount
of his Base Salary then in effect, as set forth in Section 3(a) hereof, which
compensation shall be reduced by any amounts which Miller receives from
worker's compensation, social security, state disability programs or the
disability insurance provided by the Company to Miller. In such event,
Miller's employment hereunder shall continue after his permanent disability
and until the first to occur of (i) the expiration of the term specified in
Section 1, or (ii) the death of Miller; and during such period of time Miller
shall not be entitled to payment of expenses or benefits specified in Section
4 hereof, except that the Company shall continue to provide Miller with the
insurance benefits specified in Section 4(b) hereof.
(a) DEFINITION OF DISABILITY. As used in this Agreement, the
term "permanent disability" shall mean three (3) months of substantially
continuous disability. Disability shall be deemed "substantially continuous"
if, as a practical matter, Miller by reason of his mental or physical health,
is unable to sustain reasonably long periods of substantial
-2-
<PAGE>
performance of his duties. Frequent long illnesses, though different from the
preceding illness and though separated by relatively short periods of
performance, may be deemed to be "substantially continuous." Disability shall
be determined in good faith by a vote of not less than 75% of the Board of
Directors of the Company, excluding Miller if he is a director, whose
decision shall be final and binding upon Miller. Miller hereby consents to
medical examinations by such physicians and medical consultants as the
Company shall from time to time require.
7. TERMINATION BY COMPANY FOR CAUSE. The Company shall have the right
to terminate Miller's employment as President, Chief Executive Officer of the
Company for "Cause," in which event no compensation shall be paid or other
benefits furnished to Miller after termination for Cause. Whether Cause
exists shall be determined in good faith by the Board of Directors of Company
and shall require a vote of not less than 75% of such Directors, excluding
Miller if he is a director. Termination for Cause shall be effective
immediately upon notice being sent to Miller.
(a) DEFINITION OF CAUSE. As used in this Agreement, the term
"Cause" shall mean (1) any material act of dishonesty by Miller against the
Company; or (2) willful misconduct or gross negligence by Miller in carrying
out his duties as President, Chief Executive Officer of the Company; or (3)
material breach of this Agreement by Miller; or (4) misconduct by Miller,
such as intoxication on the job, use of illegal drugs, insubordination or
other misconduct which has a substantial adverse effect on the business of
the Company, or (5) other circumstances indicative of Miller's failure
materially to comply with the terms of his employment and which have had or
may have a substantial adverse effect on the business of the Company.
8. TERMINATION BY COMPANY OTHER THAN FOR CAUSE. The Company shall have
the right to terminate Miller's employment as of or prior to the expiration of
the term of his employment provided in this Agreement, without cause. In the
event Miller's employment is terminated effective prior to expiration of the
term of his employment, then the Company shall pay Miller in one lump sum, an
amount equal to the full amount of his Base Salary from the date of
termination through the remainder of the term of this Agreement.
9. RESIGNATION BY MILLER FOR CAUSE--CHANGE IN CONTROL OR DIMINUTION IN
DUTIES. In the event that there is a change in Control of the Company or in
the event that the Board of Directors materially reduces the scope and/or
authority of Miller's duties as President, Chief Executive Officer of the
Company, then Miller, within 30 days of such Change in Control, may terminate
his employment as of a date not more than 60 days from the date of such
Change in Control, by giving the Company 30 days advance written notice. In
such event, Miller shall be entitled to payment of his entire unpaid Base
Salary for the remaining term of this Agreement, which Base Salary shall be
paid to him in one lump.
(a) As used in this Agreement, the term "Change of Control"
shall mean the occurrence of any of the following events during the term
hereof:
-3-
<PAGE>
(i) Any "person" (such as that term is used in Section 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, or securities of the Company
representing 50% or more of the total voting power represented by the
Company's then outstanding voting securities; or
(ii) Any merger or consolidation of the Company with any other
corporation, other than a merger or consolidation that would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent 50% or more of the total voting power represented by
the Company's then outstanding voting securities (either by remaining
outstanding or by being converted into voting securities of the Company or
such other surviving entity outstanding immediately after such merger or
consolidation); or
(iii) A majority of the directors of the Company which were not
nominated by the Company's management (or were nominated by management
pursuant to an agreement with persons that acquired sufficient voting
securities of the Company to de facto control it) are elected to the Board of
Directors by the Company's shareholders; or
(iv) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all the Company's assets.
10. EVERGREEN EXTENSION OF AGREEMENT. On each anniversary of this
Agreement, the term of this Agreement shall be automatically extended for an
additional period of one year if notice of termination has not been given by
the Company to Miller at least one year in advance of such anniversary date.
The effect of this provision shall be that Miller's term of employment under
this Agreement shall always be at least three years. For example, (a) if
notice of termination of this Agreement is not given by December 31, 1996,
then the term of Miller's employment shall be extended from December 31, 1998
until December 31, 1999; or (b) if notice of termination of this Agreement is
given on September 30, 1997 and Miller is asked to leave the Company at such
date, then the term of Miller's employment shall be extended from December
31, 1999 to December 31, 2000 and he shall be paid through December 31, 2000.
11. OFFICES IN SAN DIEGO. The Company agrees that if it moves its
principal office out of San Diego County, then Miller will have the right to
terminate this Agreement, in which event the Company shall pay Miller in one
lump sum, an amount equal to the full amount of his Base Salary through the
remainder of the term of this Agreement.
12. INDEMNIFICATION. The Company shall enter into an Officers and
Directors Indemnification Agreement with Miller that shall provide the
Executive with the maximum amount of protection allowed under the laws of
California to the extent that they are not inconsistent with the Company's
Articles of Incorporation or Bylaws with respect to such subject matter.
-4-
<PAGE>
13. NO PROSELYTIZING OF EMPLOYEES. During the term of Miller's
employment and for a period of 24 months following termination of his
employment (for whatever reason), Miller shall not, on his own behalf or on
behalf of any other person or entity, directly or indirectly, solicit or
encourage any person then an employee of the Company to leave the employ of
the Company for the purpose of forming or joining another business.
14. NO SOLICITATION OF CUSTOMERS. During the term of Miller's
employment and for a period of 24 months following termination of his
employment (for whatever reason), Miller shall not, on his own behalf or on
behalf of any other person or entity, directly or indirectly, solicit, entice
away or divert any person or entity then a client of customer of the Company
to become a client or customer of any other person or entity.
15. GENERAL PROVISIONS.
(a) NOTICES. Any notices to be given hereunder by either party
to the other shall be in writing and may be effected either by personal
delivery or by fax, private courier, or certified mail, postage prepaid with
return receipt requested. Mailed notices shall be addressed to the parties at
the addresses set forth below, but each party may change his or its address
by written notice in accordance with this Section 11(a). Notices delivered
personally shall be deemed communicated as of actual receipt; faxes, private
courier deliveries or mailed notices shall be deemed communicated as of one
day after faxing, delivery to a private courier or mailing.
If to Miller--
Mr. S. James Miller, Jr.
14395 Trailwind Road
Poway, California 92064
If to the Company--
ImageWare Software, Inc.
15373 Innovation Drive, Suite 120
San Diego, California 92128
(b) SEVERABILITY. If any provision in this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
(c) LAW GOVERNING AGREEMENT. This Agreement shall be governed by
and construed in accordance with the laws of the State of California.
-5-
<PAGE>
(d) ASSIGNMENT. This Agreement shall inure to the benefit of and
bind the parties hereto and their respective legal representatives,
successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
ImageWare Software, Inc.
By /s/ William E. Guthner, Jr.
-------------------------------------
William E. Guthner, Jr.
For the Compensation Committee of
the Board of Directors
/s/ S. James Miller, Jr.
-------------------------------------
S. James Miller, Jr.
-6-
<PAGE>
EXHIBIT 10.2
IMAGEWARE SOFTWARE, INC.
EMPLOYMENT AGREEMENT
(AMENDED MARCH 1, 1999)
This EMPLOYMENT AGREEMENT ("Agreement") which was entered into as of
April 1, 1997 by and between ImageWare Software, Inc., a California
Corporation (herein the "Company") and Wayne Wetherell (herein "Wetherell")
at San Diego, California, is amended to read in full as hereinafter set forth.
It is hereby agreed as follows:
1. EMPLOYMENT AND TERM. The Company hereby employs Wetherell as the
Chief Financial Officer of the Company, and Wetherell agrees to his
employment by the Company as its Chief Financial Officer, the term of which
employment shall be a period of three years commencing March 1, 1999 and
ending April 30, 2002.
2. DUTIES. During the term of this Agreement, Wetherell shall devote
substantially all of his working time, energies and skills to day to day
significant operating matters of the Company, including managing its
financial affairs. Wetherell shall render services consistent with those of
the Chief Financial Officer of a corporation and shall perform all duties
incident to such office and all such further managerial duties that may from
time to time be assigned to him by the President and Chief Executive Officer
of the Company or its Board of Directors.
3. COMPENSATION. Wetherell's compensation under this Agreement shall
be as follows:
(a) BASE SALARY. The Company shall pay to Wetherell a base salary
(the "Base Salary") of $112,144 per year from March 1, 1999 through April 30,
2002. In addition, each year during the term of this Agreement, Wetherell
shall be reviewed for purposes of determining the appropriateness of
increasing his salary hereunder, provided that in any event, Wetherell shall
receive a cost-of-living increase equal to the percentage by which the
Consumer Price Index applicable to the San Diego area increased during the
prior fiscal year. Such Base Salary shall be payable in semi-monthly
installments in accordance with the regular employee payment practice of the
Company. All payments shall be subject to the deduction of payroll taxes and
similar assessments as required by law.
(b) BONUS. In addition to his Base Salary, Wetherell shall be
eligible to participate in any Company Bonus Plan, adopted from time to time
by the Board of Directors.
4. EXPENSES AND BENEFITS. Wetherell is authorized to incur reasonable
expenses in connection with the business of the Company, including expenses
for entertainment,
<PAGE>
travel and similar matters. The Company will reimburse Wetherell for such
expenses upon presentation by Wetherell of such accounts and records as the
Company shall from time to time reasonably require. The Company also agrees
to provide Wetherell with the following benefits:
(a) INSURANCE. Major medical health insurance and disability
insurance which shall provide not less than two-thirds of Wetherell's then
current Base Salary in disability payments commencing three months after
permanent or partial disability occurs and life group or term life insurance
in an amount equal two times Wetherell's Base Salary.
(b) EMPLOYEE BENEFIT PLANS. Participation in any other employee
benefit plans now existing or hereafter adopted by the Company for its
employees.
(c) VACATIONS. Wetherell shall be entitled to a paid vacation for
a period in each calendar year of not less than three weeks, to be taken at
such times as mutually agreed with the Company.
5. TERMINATION. Except as otherwise provided herein, this Agreement
shall terminate upon the first to occur of the expiration of the term
provided for in Section 1 or the death of Wetherell. However, nothing
contained in this Section 5 shall be construed to abrogate the obligations of
the Company to Wetherell, or his personal representative, or his heirs, as
the case may be, in respect of all rights which shall accrue prior or
subsequent to termination.
6. DISABILITY. In the event that Wetherell becomes permanently
disabled during the term of this Agreement, then Wetherell shall continue in
the employ of the Company, but his compensation hereunder shall be limited to
the amount of his Base Salary then in effect, as set forth in Section 3(a)
hereof, which compensation shall be reduced by any amounts which Wetherell
receives from worker's compensation, social security, state disability
programs or the disability insurance provided by the Company to Wetherell. In
such event, Wetherell's employment hereunder shall continue after his
permanent disability and until the first to occur of (a) the expiration of
the term specified in Section 1, or (b) the death of Wetherell, or (c) one
year from the date he is determined to be permanently disabled; and during
such period of time Wetherell shall not be entitled to payment of expenses or
benefits specified in Section 4 hereof, except that the Company shall
continue to provide Wetherell with the insurance benefits specified in
Section 4(b) hereof.
(a) DEFINITION OF DISABILITY. As used in this Agreement, the term
"permanent disability" shall mean three (3) months of substantially
continuous disability. Disability shall be deemed "substantially continuous"
if, as a practical matter, Wetherell by reason of his mental or physical
health, is unable to sustain reasonably long periods of substantial
performance of his duties. Frequent long illnesses, though different from the
preceding illness and though separated by relatively short periods of
performance, may be deemed to be "substantially continuous". Disability shall
be determined in good faith by a vote of not less than 75% of the Board of
Directors of the Company, whose decision shall be final and binding upon
Wetherell. Wetherell hereby consents to medical examinations by such
physicians and medical consultants as the Company shall from time to time
require.
- 2 -
<PAGE>
7. TERMINATION BY COMPANY FOR CAUSE. The Company shall have the right
to terminate Wetherell's employment as Chief Financial Officer of the Company
for "Cause," in which event no compensation shall be paid or other benefits
furnished to Wetherell after termination for Cause. Whether Cause exists
shall be determined in good faith by the Board of Directors of Company and
shall require a vote of not less than 75% of such Directors. Termination for
Cause shall be effective immediately upon notice being sent to Wetherell.
(a) DEFINITION OF CAUSE. As used in this Agreement, the term
"Cause" shall mean (1) any material act of dishonesty by Wetherell against
the Company; or (2) willful misconduct or gross negligence by Wetherell in
carrying out his duties as Chief Financial Officer of the Company; or (3)
material breach of this Agreement by Wetherell; or (4) misconduct by
Wetherell, such as intoxication on the job, use of illegal drugs,
insubordination or other misconduct which has a substantial adverse effect on
the business of the Company; or (5) other circumstances indicative of
Wetherell's failure materially to comply with the terms of his employment and
which have had or may have a substantial adverse effect on the business of
the Company.
8. TERMINATION BY COMPANY OTHER THAN FOR CAUSE. The Company shall
have the right to terminate Wetherell's employment as of or prior to the
expiration of the term of his employment provided in this Agreement, without
cause. In the event Wetherell's employment is terminated prior to the
expiration of the term of his employment, then the Company shall continue to
pay Wetherell the full amount of his Base Salary for a period of one year
from the date of his termination of employment.
9. RESIGNATION BY WETHERELL FOR CAUSE--CHANGE IN CONTROL OR DIMINUTION
IN DUTIES. In the event that there is a change in Control of the Company or
in the event that the Board of Directors materially reduces the scope and/or
authority of Wetherell's duties as Chief Financial Officer of the Company,
then Wetherell may terminate his employment by giving the Company 30 days
advance written notice. In such event, Wetherell shall be entitled to payment
of his entire unpaid Base Salary for a period of one year from the date of
his termination of employment.
(a) As used in this Agreement, the term "Change of Control" shall
mean the occurrence of any of the following events during the term hereof:
(i) Any "person" (such as that term is used in Section 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, or securities of the Company
representing 50% or more of the total voting power represented by the
Company's then outstanding voting securities; or
(ii) Any merger or consolidation of the Company with any other
corporation, other than a merger or consolidation that would result in the
voting securities
- 3 -
<PAGE>
of the Company outstanding immediately prior thereto continuing to represent
50% or more of the total voting power represented by the Company's then
outstanding voting securities (either by remaining outstanding or by being
converted into voting securities of the Company or such other surviving
entity outstanding immediately after such merger or consolidation); or
(iii) A majority of the directors of the Company which were
not nominated by the Company's management (or were nominated by management
pursuant to an agreement with persons that acquired sufficient voting
securities of the Company to de facto control it) are elected to the Board of
Directors by the Company's shareholders; or
(iv) the shareholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all the Company's assets.
10. INDEMNIFICATION. The Company shall enter into an Officers and
Directors Indemnification Agreement with Miller that shall provide the
Executive with the maximum amount of protection allowed under the laws of
California to the extent that they are not inconsistent with the Company's
Articles of Incorporation or Bylaws with respect to such subject matter.
11. NO PROSELYTIZING OF EMPLOYEES. During the term of Wetherell's
employment and for a period of 24 months following termination of his
employment (for whatever reason), Wetherell shall not, on his own behalf or
on behalf of any other person or entity, directly or indirectly, solicit or
encourage any person then an employee of the Company to leave the employ of
the Company for the purpose of forming or joining another business.
12. NO SOLICITATION OF CUSTOMERS. During the term of Wetherell's
employment and for a period of 24 months following termination of his
employment (for whatever reason), Wetherell shall not, on his own behalf or
on behalf of any other person or entity, directly or indirectly, solicit,
entice away or divert any person or entity then a client of customer of the
Company to become a client or customer of any other person or entity.
13. GENERAL PROVISIONS.
(a) NOTICES. Any notices to be given hereunder by either party to
the other shall be in writing and may be effected either by personal delivery
or by fax, private courier, or certified mail, postage prepaid with return
receipt requested. Mailed notices shall be addressed to the parties at the
addresses set forth below, but each party may change his or its address by
written notice in accordance with this Section 11(a). Notices delivered
personally shall be deemed communicated as of actual receipt; faxes, private
courier deliveries or mailed notices shall be deemed communicated as of one
day after faxing, delivery to a private courier or mailing.
- 4 -
<PAGE>
If to Wetherell--
Mr. Wayne Wetherell
12320 Del Mar Oaks
San Diego, California 92130
If to the Company--
ImageWare Software, Inc.
15373 Innovation Drive, Suite 120
San Diego, California 92128
(b) SEVERABILITY. If any provision in this Agreement is held by
a court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
(c) LAW GOVERNING AGREEMENT. This Agreement shall be governed by
and construed in accordance with the laws of the State of California.
(d) ASSIGNMENT. This Agreement shall inure to the benefit of and
bind the parties hereto and their respective legal representatives,
successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
ImageWare Software, Inc.
By /s/ S. James Miller, Jr.
-------------------------------------
S. James Miller, Jr.
President and Chief Executive Officer
/s/ Wayne Wetherell
-------------------------------------
Wayne Wetherell
- 5 -
<PAGE>
Exhibit 10.3
IMAGEWARE SOFTWARE, INC.
EMPLOYMENT AGREEMENT
(REVISED MARCH 1, 1999)
THIS EMPLOYMENT AGREEMENT ("Agreement"), which was entered into as of
July 20, 1997 by and between ImageWare Software, Inc., a California
Corporation (herein the "Company") and Paul Devermann, (herein "Devermann"),
is amended to read in full as hereinafter set forth.
It is hereby agreed as follows:
1. EMPLOYMENT AND TERM. The Company hereby employs Devermann as Vice
President, Sales and Business Development (VP, Sales and Business
Development) of the Company and Devermann agrees to his employment by the
Company as its VP, Sales and Business Development the term of which
employment shall be a period of three years commencing March 1, 1999 and
ending February 28, 2002.
2. DUTIES. During the term of this Agreement, Devermann shall devote
substantially all of his working time, energies and skills to the management
of the Company's business. Devermann shall render services consistent with
those of the VP, Sales and Business Development of a corporation and shall
perform all duties incident to such office and all such further similar
duties that may from time to time be assigned to him by the Board of
Directors of the Company.
3. COMPENSATION. Devermann's compensation under this Agreement shall
be as follows:
(a) BASE SALARY. The Company shall pay to Devermann, a base
salary (the "Base Salary") of $103,731 per year from March 1, 1999
through February 28, 2002. In addition, each year during the term of
this Agreement, Devermann shall be reviewed for purposes of determining
the appropriateness of increasing his salary hereunder, provided that in
any event, Devermann shall receive a cost-of-living increase equal to
the percentage by which the Consumer Price Index applicable to the San
Diego, California area increased during the prior fiscal year. Such Base
Salary shall be payable in semi-monthly installments in accordance with
the regular employee payment practice of the Company. All payments shall
be subject to the deduction of payroll taxes and similar assessments as
required by law.
(b) BONUS. In addition to his Base Salary, Devermann shall be
eligible to participate in any Company Bonus Plan, adopted from time to
time by the Board of Directors.
4. EXPENSES AND BENEFITS. Devermann is authorized to incur reasonable
expenses in connection with the business of the Company, including expenses
for entertainment, travel and similar matters. The Company will reimburse
Devermann for
<PAGE>
such expenses upon presentation by Devermann of such accounts and records as
the Company shall from time to time reasonably require. The Company also
agrees to provide Devermann with the following benefits:
(a) INSURANCE. Major medical health insurance and disability
insurance which shall provide not less than two-thirds of Devermann's
then current Base Salary in disability payments commencing three months
after permanent or partial disability occurs and life group or term life
insurance in an amount equal to two times Devermann's Base Salary.
(b) EMPLOYEE BENEFIT PLANS. Participation in any other employee
benefit plans now existing or hereafter adopted by the Company for its
employees.
(c) VACATIONS. Devermann shall be entitled to a paid vacation for a
period in each calendar year of not less than three weeks, to be taken
at such times as mutually agreed with the Company.
5. TERMINATION. Except as otherwise provided herein, this Agreement
shall terminate upon the first to occur of the expiration of the term
provided for in Section 1 or the death of Devermann. However, nothing
contained in this Section 5 shall be construed to abrogate the obligations of
the Company to Devermann, or his personal representative, or his heirs, as
the case may be, in respect of all rights which shall accrue prior or
subsequent to termination.
6. DISABILITY. In the event that Devermann becomes permanently disabled
during the term of this Agreement, then Devermann shall continue in the
employ of the Company, but his compensation hereunder shall be limited to the
amount of his Base Salary then in effect, as set forth in Section 3(a)
hereof, which compensation shall be reduced by any amounts which Devermann
receives from worker's compensation, social security, state disability
programs or the disability insurance provided by the Company to Devermann. In
such event, Devermann's employment hereunder shall continue after his
permanent disability and until the first to occur of (a) the expiration of
the term specified in Section 1, or (b) the death of Devermann; and during
such period of time Devermann shall not be entitled to payment of expenses or
benefits specified in Section 4 hereof, except that the Company shall
continue to provide Devermann with the insurance benefits specified in
Section 4(b) hereof.
(a) DEFINITION OF DISABILITY. As used in this Paragragh 6,
"permanent disability" shall mean three (3) months of substantially
continuous disability. Disability shall be deemed "substantially
continuous" if, as a practical matter, Devermann by reason of his mental
or physical health, is unable to sustain reasonably long periods of
substantial performance of his duties. Frequent long illnesses, though
different from the preceding illness and though separated by relatively
short periods of performance, may be deemed to be "substantially
continuous." Disability shall be determined in good faith by a vote of
not less than 75% of the Board of Directors of the Company, excluding
Devermann if he is a director, whose decision shall be final and binding
upon Devermann.
<PAGE>
Devermann hereby consents to medical examinations by such physicians
and medical consultants as the Company shall from time to time require.
7. TERMINATION BY COMPANY FOR CAUSE. The Company shall have the right
to terminate Devermann's employment as VP, Sales and Business Development of
the Company for "Cause," in which event no compensation shall be paid or
other benefits furnished to Devermann after termination for Cause.
Termination for Cause shall be effective immediately upon notice being sent
to Devermann.
(i) DEFINITION OF CAUSE. For purposes of this Agreement, the
term "Cause" shall mean (1) any material act of dishonest by Devermann
against the Company; or (2) willful misconduct or gross negligence by
Devermann in carrying out his duties as VP, Sales and Business Development
of the Company; or (3) material breach of this Agreement by Devermann; or
(4) misconduct by Devermann, such as intoxication or other misconduct
which has a substantial adverse effect on the business of the Company, or
(5) other circumstances indicative of Devermann's failure materially to
comply with the terms of his employment and which have had or may have a
substantial adverse effect on the business of the Company.
8. TERMINATION BY COMPANY OTHER THAN FOR CAUSE. The Company shall
have the right to terminate Devermann's employment prior to its normal
expiration under this Agreement, without cause, in which event the Company
shall pay Devermann in one lump sum, an amount equal to the full amount of
his Base Salary for a period of one year from the date of his termination of
employment.
9. RESIGNATION BY DEVERMANN FOR CAUSE - CHANGE IN CONTROL OR
DIMINUTION IN DUTIES. In the event that there is a change in Control of the
Company or in the event that the Board of Directors materially reduces the
scope and/or authority of Devermann's duties as Vice President of Sales and
Business Development, then Devermann may terminate his employment by giving
the Company 30 days advance written notice. In such event, Devermann shall be
entitled to payment of his entire unpaid Base Salary for a period of one year
from the date of his termination of employment.
(a) As used in this Agreement, the term "Change of Control" shall
mean the occurrence of any of the following events during the term hereof:
(i) Any "person" (such as tat term is used in Section 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act)) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, or securities of the Company
representing 50% or more of the total voting power represented by the
Company's then outstanding voting securities; or
(ii) Any merger or consolidation of the Company with any
other corporation, other than a merger or consolidation that would result in
the voting securities of the Company outstanding immediately prior thereto
continuing to represent 50% or more of the total voting power represented by
the Company's then outstanding
<PAGE>
voting securities (either by remaining outstanding or by being converted into
voting securities of the Company or such other surviving entity outstanding
immediately after such merger or consolidation); or
(iii) a majority of the directors of the Company which were
not nominated by the Company's management (or were nominated by management
pursuant to an agreement with persons that acquired sufficient voting
securities of the Company to de facto control it) are elected to the Board of
Directors by the Company's shareholders; or
(iv) the shareholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the company of all or substantially all of the Company's
assets.
10. INDEMNIFICATION. The Company shall enter into an Officers and
Directors Indemnification Agreement with Devermann that shall provide the
Executive with the maximum amount of protection allowed under the laws of
California to the extent that they are not inconsistent with the Company's
Articles of Incorporation or Bylaws with respect to such subject matter.
11. NO PROSELYTIZING OF EMPLOYEES. During the term of Devermann's
employment and for a period of 24 months following termination of his
employment (for whatever reason), Devermann shall not, on his own behalf or
on behalf of any other person or entity, directly or indirectly, solicit or
encourage any person then an employee of the Company to leave the employ of
the Company for the purpose of forming of joining another business.
12. NO SOLICITATION OF CUSTOMERS. During the term of Devermann's
employment and for a period of 24 months following termination of his
employment (for whatever reason), Devermann shall not, on his own behalf or
on behalf of any other person or entity, directly or indirectly, solicit,
entice away or divert any person or entity then a client of customer of the
Company to become a client or customer of any other person or entity.
13. GENERAL PROVISIONS.
(a) NOTICES. Any notices to be given hereunder by either party to
the other shall be in writing and may be effected either by personal delivery
or by fax, private courier, or certified mail, postage prepaid with return
receipt requested. Mailed notices shall be addressed to the parties at the
addresses set forth below, but each party may change his or its address by
written notice in accordance with this Section 11(a). Notices delivered
personally shall be deemed communicated as of actual receipt; faxes, private
courier deliveries or mailed notices shall be deemed communicated as of one
day after faxing, delivery by a private courier or mailing.
<PAGE>
If to Devermann:
Paul Devermann
4668 E. Talmadge
San Diego,CA 92116
If to the Company:
ImageWare Software, Inc.
10883 Thornmint Road
San Diego, CA 92127
(b) SEVERABILITY. If any provision in this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable,
the remaining provisions shall nevertheless continue in full force
without being impaired or invalidated in any way.
(c) LAW GOVERNING AGREEMENT. This Agreement shall be governed by
and construed in accordance with the laws of the state of California.
(d) ASSIGNMENT. This Agreement shall inure to the benefit of and
bind the parties hereto and their representative legal representatives,
successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
/s/ Jim Miller /s/ Paul Devermann
- ---------------------------------- -------------------------------------
Jim Miller Paul Devermann
Chairman and CEO VP, Sales and Business Development
<PAGE>
Exhibit 10.4
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is entered into as of
__________________ by and between ImageWare Software, Inc., a California
corporation ("Company") and _______________________, an individual
("Indemnitee"), with reference to the following facts:
A. The Company and Indemnitee are aware of the substantial growth in
the number of lawsuits filed against corporate directors and officers, and the
substantial costs of defending against such lawsuits.
B. The Company is aware that Indemnitee would not be willing to
continue to serve as an officer of the Company and/or any of the Company's
subsidiaries and/or on the Board of Directors of the Company and/or any of the
Company's subsidiaries if Indemnitee were required to provide his or her own
defense to any lawsuit filed against Indemnitee in his or her capacity as an
officer or director of the Company, or with respect to any other service
provided by Indemnitee for the benefit of the Company.
C. The Company has concluded that it is in the best interests of the
Company and its shareholders to contract with its directors and officers,
including Indemnitee, so as to provide them with indemnity to the fullest extent
permitted by law against personal liability for actions taken in the performance
of their duties to the Company.
D. The Board of Directors of the Company has determined, after due
consideration of this Agreement, that this Agreement is reasonable, prudent and
in the best interests of the Company and its shareholders. This Agreement is
intended to: (i) induce and encourage highly experienced and capable persons,
such as Indemnitee, to serve as directors and officers of the Company; (ii)
encourage such persons to resist what they consider to be unjustifiable suits
and claims made against them in connection with the performance of their duties
to the Company, secure in knowledge that certain expenses, costs, and
liabilities incurred by them in their defense of such litigation will be borne
by the Company and that they will receive the maximum protection against such
risks and liabilities as legally may be made available to them; and (iii)
encourage directors to exercise their best business judgment regarding matters
which come before the Board of Directors without undue concern for the risk that
claims may be made against them on account thereof.
E. The Company desires to have Indemnitee serve as an officer and/or
director of the Company free from concern about unpredictable, inappropriate or
unreasonable legal risks and personal liabilities by reason of his or her
actions or inactions in the performance of his or her duties to the Company and
its shareholders.
NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:
<PAGE>
I.
INDEMNIFICATION
1.01 THIRD PARTY PROCEEDINGS. The Company shall indemnify
Indemnitee if Indemnitee is or was a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than any action by or in
the right of the Company) by reason of the fact that Indemnitee is or was a
director and/or officer of the Company or any subsidiary of the Company, by
reason of the fact that Indemnitee is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against all expenses,
liability and loss (including reasonable attorneys' fees), judgments, fines and
amounts paid in settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld) actually and
reasonably incurred by Indemnitee in connection with such action, suit or
proceeding if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the best interests of the Company, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
Indemnitee's conduct was unlawful.
The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of NOLO CONTENDERE or its
equivalent, shall not, of itself, create a presumption that Indemnitee did not
act in good faith and in a manner which Indemnitee reasonably believed to be in
the best interests of the Company, and with respect to any criminal action or
proceeding, had reasonable cause to believe that Indemnitee's conduct was
unlawful. Notwithstanding the foregoing, no indemnification shall be made in any
criminal proceeding where Indemnitee has been adjudged guilty unless a
disinterested majority of the directors determine that Indemnitee did not
receive, participate in or share in any pecuniary benefit to the detriment of
the Company and, in view of all of the circumstances of the case, Indemnitee is
fairly and reasonably entitled to indemnity for expenses or liabilities.
1.02 PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The
Company shall indemnify Indemnitee if Indemnitee 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 Company or any subsidiary of the Company to
procure a judgment in its favor by reason of fact that Indemnitee is or was a
director and/or officer of the Company or any subsidiary of the Company, by
reason of any action or inaction on the part of Indemnitee while a director
and/or officer or by reason of the fact that Indemnitee is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against all
expense, liability and loss (including attorneys' fees) and amounts paid in
settlement (if such settlement is court-approved) actually and reasonably
incurred by Indemnitee in connection with the defense or settlement of such
action or suit if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the best interests of the Company and its
shareholders. No indemnification shall be made in respect of any claim, issue or
matter as to which Indemnitee shall
2
<PAGE>
have been adjudged to be liable to the Company in the performance of
Indemnitee's duties to the Company and its shareholders, unless and only to the
extent that the Court in which such proceeding is or was pending shall determine
upon application that, in view of all the circumstances of the case, Indemnitee
is fairly and reasonably entitled to indemnity for expenses and then only to the
extent that the court shall determine.
1.03 MANDATORY PAYMENT OF EXPENSES. To the extent that
Indemnitee has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 1.01 or 1.02 or the defense of
any claim, issue or matter therein, Indemnitee shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by
Indemnitee in connection therewith.
II.
EXPENSES: INDEMNIFICATION PROCEDURE
2.01 ADVANCEMENT OF EXPENSES. The Company shall advance all
expenses reasonably incurred by Indemnitee in connection with the investigation,
defense, settlement or appeal of any civil or criminal action, suit or
proceeding referenced in Section 1.01 or 1.02 hereof. Indemnitee hereby
undertakes to repay such amounts advanced only if, and to the extent that, it
shall ultimately be determined that Indemnitee is not entitled to be indemnified
by the Company as authorized hereby. The advance to be made hereunder shall be
paid by the Company to Indemnitee within thirty (30) days following delivery of
a written request therefor by Indemnitee to the Company. Indemnitee shall, in
accordance with the Company's policies, present invoices to the Company for
expenses actually incurred by Indemnitee. Notwithstanding the foregoing, in a
proceeding brought by the Company directly, in its own right (as distinguished
from an action brought derivatively or by any receiver or trustee), the Company
shall not be required to make the advances called for hereby if a majority of
the disinterested directors determine that it does not appear that Indemnitee
has met the standards of conduct which made it permissible under applicable law
to indemnify Indemnitee and the advancement of expenses would not be in the best
interests of the Company and its shareholders.
2.02 DETERMINATION OF CONDUCT. Any indemnification (unless
ordered by a court) shall be made by the Company only as authorized in the
specific case upon a determination that indemnification of Indemnitee is proper
under the circumstances because Indemnitee has met the applicable standard of
conduct set forth in Section 1.01 or 1.02 of this Agreement. Notwithstanding the
foregoing, (i) the obligations of the Company shall be subject to the condition
that the Board of Directors shall not have determined that Indemnitee would not
be permitted to be indemnified under applicable law, (ii) the obligations of the
Company shall be subject to the condition that the Board of Directors shall have
determined that Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the best interests of the Company, and, in the case
of a criminal proceeding, that Indemnitee had no reason to believe the conduct
of Indemnitee was unlawful. Such
3
<PAGE>
determination shall be made by any of the following: (1) the Board of Directors
(or by an executive committee thereof) by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or proceeding, (2) if
such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, (3) by the shareholders, with the shares owned by Indemnitee not being
entitled to vote thereon, or (4) by the court in which such proceeding is or was
pending upon application made by the Company or Indemnitee or the attorney or
other person rendering service in connection with the defense, whether or not
such application by Indemnitee, the attorney or the other person is opposed by
the Company. Unless the Indemnitee shall commence litigation to challenge any
such determination, such determination shall be conclusive and binding on the
Company and Indemnitee.
2.03 NOTICE/COOPERATION BY INDEMNITEE. Indemnitee shall, as a
condition precedent to his or her right to be indemnified under this Agreement,
give the Company notice in writing as soon as practicable of any claim made
against Indemnitee for which indemnification will or could be sought under this
Agreement. Such notice shall include a description of the nature of the matter
and the facts underlying the matter and be accompanied by copies of any
documents filed with the court in which the matter is pending. Notice to the
Company shall be directed to the address specified in Section 9.03 hereof, or
such other address as the Company shall designate in writing to Indemnitee.
Notice shall be deemed received on the third business day after the date
postmarked if sent by domestic certified or registered mail, properly addressed;
otherwise, notice shall be deemed received when such notices shall actually be
received by the Company. In addition, Indemnitee shall give the Company such
information and cooperation as it may reasonably require and as shall be within
Indemnitee's power.
2.04 NOTICE TO INSURERS. If at the time of the receipt of a
notice of a claim pursuant to Section 2.03 hereof, the Company has director and
officer liability insurance in effect, the Company shall give prompt notice of
the commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable actions to cause such insurers to pay, on behalf
of the Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
2.05 SELECTION OF COUNSEL. In the event the Company shall be
obligated under Section 2.01 hereof to pay the expenses of any proceeding
against Indemnitee, the Company, shall be entitled to assume the defense of such
proceeding, with counsel reasonably approved by Indemnitee, which approval shall
not be unreasonably withheld, upon the delivery to Indemnitee of written notice
of its election so to do. After delivery of such notice, approval of such
counsel by Indemnitee and the retention of such counsel by the Company, the
Company will not be liable to Indemnitee under this Agreement for any fees of
counsel subsequently incurred by Indemnitee with respect to the same proceeding,
provided that (a) Indemnitee shall have the right to employ his or her counsel
in any such proceeding at Indemnitee's expense; and (b) if (i) the employment of
counsel by Indemnitee has been previously authorized by the Company, (ii)
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and Indemnitee in the conduct of any such defense,
or (iii) the Company shall not, in fact, have employed counsel
4
<PAGE>
to assume the defense of such proceeding, then the reasonable fees and expenses
of Indemnitee's counsel shall be at the expense of the Company.
III.
ADDITIONAL INDEMNIFICATION RIGHTS: NON-EXCLUSIVITY
3.01 APPLICATION. The provisions of this Agreement shall be
deemed applicable to all actual or alleged actions or omissions by Indemnitee
during any and all periods of time that Indemnitee was, is, or shall be serving
as a director and/or officer of the Company.
3.02 SCOPE. The Company hereby agrees to indemnify Indemnitee
to the fullest extent permitted by law (except as set forth in Article VIII
hereof), notwithstanding that such indemnification is not specifically
authorized by the other provisions of this Agreement, the Company's Articles of
Incorporation, the Company's Bylaws or by statute. In the event of any changes,
after the date of this Agreement, in any applicable law, statute, or rule which
expands the right of a California corporation to indemnify a member of its board
of directors or an officer, such changes shall be, IPSO FACTO, within the
purview of Indemnitee's rights and the Company's obligations under this
Agreement. In the event of any change in any applicable law, statute, or rule
which narrows the right of a California corporation to indemnify a member of its
board of directors or an officer, such changes, to the extent not otherwise
required by such law, statute or rule to be applied to this Agreement shall have
no effect on this Agreement or the parties' rights and obligations hereunder.
3.03 NON-EXCLUSIVITY. The indemnification provided by this
Agreement shall not be deemed exclusive of any rights to which an Indemnitee may
be entitled under the Company's Articles of Incorporation, its Bylaws, any
agreement, any vote of shareholders or disinterested directors, the California
General Corporation Law, or otherwise, both as to action in Indemnitee's
official capacity and as to action in another capacity while holding such
office. The indemnification provided under this Agreement shall continue as to
Indemnitee for an action taken or not taken while serving in an indemnified
capacity even though he or she may have ceased to serve in such capacity at the
time of any action, suit or other covered proceeding.
IV.
PARTIAL INDEMNIFICATION
4.01 If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the
expenses, judgment, fines or penalties actually or reasonably incurred by him in
the investigation, defense, appeal or settlement of any civil or criminal
action, suit or proceeding, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion of such
expenses, judgments, fines or penalties to which Indemnitee is entitled.
5
<PAGE>
V.
MUTUAL ACKNOWLEDGMENT
5.01 Both the Company and Indemnitee acknowledge that in
certain instances, federal law or public policy may override applicable state
law and prohibit the Company from indemnifying its directors and officers under
this Agreement or otherwise. For example, the Company and Indemnitee acknowledge
that the Securities and Exchange Commission (the "SEC") has taken the position
that indemnification is not permissible for liabilities arising under certain
federal securities laws, and federal legislation prohibits indemnification for
certain ERISA violations. Indemnitee understands and acknowledges that the
Company has undertaken or may be required in the future to undertake with the
SEC to submit the question of indemnification to a court in certain
circumstances for a determination of the Company's right under public policy to
indemnify Indemnitee.
VI.
DIRECTORS' AND OFFICER'S LIABILITY INSURANCE
6.01 The Company shall, from time to time, make the good faith
determination whether or not it is practicable for the Company to obtain and
maintain a policy or policies of insurance with reputable insurance companies
providing the directors and officers with coverage for losses from wrongful
acts, or to ensure the Company's performance of its indemnification obligations
under this Agreement. Among other considerations, the Company will weigh the
costs of obtaining such insurance coverage against the protection afforded by
such coverage. In all policies of directors' and officers' liability insurance,
Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee the same rights and benefits as are accorded to the most favorably
insured of the Company's director, if Indemnitee is a director, or of the
Company's officers, if Indemnitee is not a director of the Company but is an
officer. Notwithstanding the foregoing, the Company shall have no obligation to
obtain or maintain such insurance if the Company determines in good faith that
such insurance is not reasonably available, if the premium costs for such
insurance are disproportionate to the amount of coverage provided, if the
coverage provided by such insurance is limited by exclusions so as to provide an
insufficient benefit, or if Indemnitee is covered by similar insurance
maintained by a parent or subsidiary of the Company.
6
<PAGE>
VII.
SEVERABILITY
7.01 Nothing in this Agreement is intended to require or shall
be construed as requiring the Company to do or fail to do any act in violation
of applicable law. The Company's inability, pursuant to court order, to perform
its obligations under this Agreement shall not constitute a breach of this
Agreement. The provisions of this Agreement shall be severable as provided in
this Article VII. If this Agreement or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
VIII.
EXCEPTIONS
8.01 Any other provision to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement for the
following:
(a) CLAIMS INITIATED BY INDEMNITEE. To
indemnify or advance expenses to Indemnitee with respect to proceedings or
claims initiated or brought voluntarily by Indemnitee and not by way of defense,
unless said proceedings or claims were authorized by the board of directors of
the Company.
(b) IMPROPER PERSONAL BENEFIT. To indemnify
Indemnitee against liability for any transactions from which Indemnitee derived
an improper personal benefit, including, but not limited to, self-dealing or
usurpation of a corporate opportunity.
(c) DISHONESTY. To indemnify Indemnitee if a
judgment or other final adjudication adverse to Indemnitee established that
Indemnitee committed acts of active and deliberate dishonesty, with actual
dishonest purpose and intent, which acts were material to the cause of action so
adjudicated.
(d) INSURED CLAIMS. To indemnify Indemnitee for
expenses or liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) which have been paid directly to or on behalf of Indemnitee by an
insurance carrier under a policy of officers' and directors' liability insurance
maintained by the Company or any other policy of insurance by the Company of
Indemnitee.
7
<PAGE>
(e) CLAIMS UNDER SECTION 16(B). To indemnify
Indemnitee for expenses or the payment of profits arising from the purchase and
sale by Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or any similar successor statute.
(f) EXCLUDED ACTS. To indemnify Indemnitee for
any acts or omissions or transactions from which a director or officer may not
be relieved of liability under Section 204 of the California Corporations Code;
or
(g) LACK OF GOOD FAITH. To indemnify Indemnitee
for any expenses incurred by Indemnitee with respect to any proceeding
instituted by Indemnitee to enforce or interpret this Agreement, if a court of
competent jurisdiction determines that each of the material assertions made by
Indemnitee in such proceeding was not made in good faith or was frivolous.
IX.
MISCELLANEOUS
9.01 CONSTRUCTION OF CERTAIN PHRASES
(a) For purposes of this Agreement, references
to the "Company" shall include any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger so that if
Indemnitee is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, Indemnitee shall stand in the same
position under the provisions of this Agreement with respect to the resulting or
surviving corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.
(b) For purposes of this Agreement, references
to "other enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on Indemnitee with respect to an
employee benefit plan; and references to "serving at the request of the Company"
shall include any service as a director, officer, employee or agent of the
Company which impose duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its participants, or
beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the best interests of the participants and
beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have
acted in a manner "reasonably believed to be in the best interests of the
Company and its shareholders" as referred to in this Agreement.
9.02 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the Company and its successors and assigns, and shall inure to the benefit
of Indemnitee and Indemnitee's estate, heirs, legal representatives and assigns.
8
<PAGE>
9.03 NOTICE. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed duly
given (i) if delivered by hand and receipted for by the party addressed on the
date of such receipt, or (ii) if mailed by domestic certified or registered mail
with postage prepaid, on the third business day after the date postmarked.
If to Indemnitee:
-------------------
-------------------
-------------------
If to Company: ImageWare Software, Inc.
10883 Thornmint Road
San Diego, California 92127
Attention: President
or to such other address as may be furnished in writing to Indemnitee by the
Company or to the Company by Indemnitee, as the case may be.
9.04 CONSENT TO JURISDICTION. The Company and Indemnitee each
hereby irrevocably consent to the jurisdiction of the courts of the State of
California for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement and agree that any action instituted
under this Agreement shall be brought only in the state courts of the State of
California.
9.05 CHOICE OF LAW: This Agreement shall be governed by and
its provisions construed in accordance with the laws of the State of California,
as applied to contracts between California residents entered into and to be
performed entirely within California.
9.06 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
9.07 SUBROGATION. In the event of payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of the Indemnitee, who shall execute all papers
required and shall do everything that may be necessary to secure such rights,
including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
9.08 NO DUPLICATION OF PAYMENTS. The Company shall not be
liable under this Agreement to make any payment in connection with any claim
made against Indemnitee to the extent Indemnitee has otherwise actually received
payment (under any insurance policy, bylaw or otherwise) of the amounts
otherwise indemnifiable hereunder.
9
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
COMPANY:
IMAGEWARE SOFTWARE, INC.
a California corporation
By:______________________________________
INDEMNITEE:
----------------------------------------
1454807.5
10
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[LOGO]TAKENAKA & COMPANY LLC
INVESTMENT BANKING & CONSULTING
-------------------------------
GLOBAL HEADQUARTERS: HOME SAVINGS OF AMERICA TOWER
660 South Figueroa Street Suite 1600 Los Angeles, California 90017
Telephone: (213) 891-0060 FAX: (213) 891-0168
E-mail: [email protected]
November 3, 1999
Mr. Jim Miller
Chairman and CEO
ImageWare Software
10883 Thornmint Road
San Diego, CA 92127
Dear Mr. Miller:
In connection with the loan transaction between ImageWare Software ("the
Company") and Atlus Co. Ltd. ("Atlus"), you have requested that Takenaka &
Company LLC ("Takenaka") assist the Company in keeping Atlus informed on a
timely basis of events/and or transactions occurring that would be of
interest to Atlus. Takenaka's role would be to observe and report to Atlus on
all matters that Takenaka, in its sole discretion, deems to be informative.
All information communicated will be discussed with you or your designee, and
you will also be copied on any documents transmitted to Atlus. It is
anticipated by all parties concerned that this will enhance Atlus'
understanding of the Company and its strategy and action plan.
Takenaka will bill the Company for its professional services based on
standard billing rates for the individuals involved, plus reimbursement for
out of pocket expenses. Such expenses shall include among other items: air
and ground transportation, telephone, telefax, photocopying, printing,
overtime expenses including meals, materials and supplies. In addition,
Takenaka charges an administrative fee of $15 per professional hour to cover
administrative support.
Takenaka will bill the Company for professional fees upon closing of the
intended initial public offering. Reimbursement for out of pocket expenses
will be billed as incurred.
****************
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[LOGO]TAKENAKA & COMPANY LLC
We look forward to working with you on this important assignment.
Very truly yours,
/s/ Alvin D. Kang
Alvin D. Kang
Executive Vice President
Takenaka & Company LLC
Agreed to and Accepted by:
/s/ S. James Miller, Jr.
--------------------------
Name and Title
Nov. 8, 1999
--------------------------
Date
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Exhibit 10.6
IMAGEWARE SOFTWARE, INC.
1994 EMPLOYEE STOCK OPTION PLAN
(AMENDED SEPTEMBER 3, 1997)
1. PURPOSE
The purpose of this 1994 Employee Stock Option Plan (the "Plan") is to
encourage and enable officers and other key employees of IMAGEWARE SOFTWARE,
INC. ("Company") and its subsidiaries (if any are organized or acquired) to
acquire a proprietary interest, or increase their proprietary interest, in the
Company through the ownership of Common Stock of the Company. It is also
expected that the Plan will encourage qualified persons to seek or accept
employment with the Company and its subsidiaries. Pursuant to the Plan,
optionees will be offered the opportunity to acquire such Common Stock through
the grant of Incentive Stock Options.
2. ADMINISTRATION OF THE PLAN
The Plan shall be administered by a Stock Option Committee of the
Board of Directors of the Company ("Committee") consisting of three members
appointed by the Board.
In administering the Plan, the Committee may adopt rules and
regulations for carrying out the Plan. The interpretation and decisions made by
the Committee with regard to any questions arising under the Plan shall be final
and conclusive on all officers and employees of the Company and its
subsidiaries.
The Options granted under this Plan are intended to be "Incentive
Stock Options" within the meaning of Section 422A of the Internal Revenue Code
of 1986, as amended (the "Code"). The Committee shall have the power and
authority to designate participants, which shall not include Committee members
during the time they are serving on the Committee, and to determine the terms
and provisions of respective Option agreements (which need not be identical),
including the authority to grant to the holder of an outstanding Option, in
exchange for the surrender and cancellation of such Option, a new Option having
a purchase price lower than provided in the Option so surrendered and canceled
and containing such other terms and conditions as the Committee may prescribe in
accordance with the provisions of the Plan.
The term "subsidiary" means any corporation 50% or more of the voting
stock of which is owned by the Company or by a subsidiary (as so defined) of the
Company.
3. STOCK RESERVED FOR THE PLAN
Subject to the adjustments provided for in paragraph 9 hereof, a total
of 900,000 shares of Common Stock ("Common Stock") of the Company shall be
subject to the Plan. The shares subject to the Plan shall consist of unissued
shares or previously issued shares reacquired and held by the Company, and such
amount of shares shall be and is hereby reserved for sale for such
<PAGE>
purpose. Any of such shares which may remain unsold and which are not
subject to outstanding Options at the termination of the Plan shall cease to
be reserved for the purpose of the Plan, but until termination of the Plan
the Company shall at all times reserve a sufficient number of shares to meet
the requirements of the Plan. Any shares subject to any Option which for any
reason expires or is terminated unexercised as to such shares may again be
subject to an Option under the Plan.
4. DESIGNATIONS OF PARTICIPANTS
The persons eligible for participating in the Plan as recipients of
Options shall be officers and key employees ("Employees") of the Company or any
of its subsidiaries. The aggregate fair market value (determined as of the time
an Option is granted) of the Common Stock for which any Employee may be granted
Incentive Stock Options shall not exceed $100,000 for any calendar year in which
the Option is exercisable for the first time by such individual (under all such
plans of the Company or any subsidiary).
5. OPTION PRICE
The purchase price of each share of Common Stock placed under Option
pursuant to the Plan shall be determined by the Committee, but shall in no event
be less than 100% of the fair market value of such share on the date the Option
is granted; provided however, that if an Option is granted to an Employee who
owns 10% or more of the Common Stock of the Company, then the purchase price of
each share of Common Stock placed under Option pursuant to the Plan shall in no
event be less than 110% of the fair market value of such share on the date the
Option is granted.
6. OPTION PERIOD
(a) TERM. The Options granted under this Plan shall be for a term of
not more than ten years from the date of the granting of each Option; provided
however, that if an Option is granted to an Employee who owns 10% or more of the
Common Stock of the Company, then the term of his Option shall be for not more
than five years from the date of the granting of such Option.
(b) REORGANIZATION, ETC. If the Company is reorganized, merged or
consolidated with another corporation while unexercised Options remain
outstanding under the Plan, there shall be substituted for the shares subject to
the unexercised portions of such outstanding Options an appropriate number of
shares of each class of stock or other securities of the reorganized, merged or
consolidated corporation distributed to the holders of the Company's Common
Stock in respect of their shares, such number of shares to be determined in
accordance with applicable provisions of the Code or regulations issued
thereunder which may from time to time govern the treatment of Incentive Stock
Options in such a transaction; provided, however, that all such Options may be
canceled by the Company as of the effective date of any such reorganization,
consolidation or merger or of any dissolution or liquidation of the Company by
giving notice of its intention to do so to each holder thereof or his personal
representative and by permitting the purchase during a
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period of not less than thirty days next preceding such effective date of all
of the shares subject to such outstanding Options.
7. EXERCISE OF OPTIONS
The Committee, in granting Options, shall have the discretion to
determine the terms upon which such Options shall be exercisable, subject to the
applicable provisions of this Plan. In any event, Options shall be subject to
the following provisions:
(a) EXERCISE IN INSTALLMENTS. Except as provided in this Section 7,
an Employee must remain in the employ of the Company or any of its subsidiaries
at all times in order to exercise such Option. Unless the Committee determines
otherwise, Options shall be exercisable in installments as follows: 30% after 12
months from date of grant; 30% after 24 months from date of grant; and 40% after
36 months from date of grant. To the extent not exercised, installments shall
accumulate and be exercisable, in whole or in part, in any subsequent period.
(b) TERMINATION OF EMPLOYMENT. The effect of termination of an
Employee's employment with the Company or any of its subsidiaries shall be as
follows:
(1) TERMINATION. If the employment of an Employee is terminated
for any reason, except for "cause" then any outstanding Option held by such
Employee may be exercised at any time prior to the expiration date of the
Option, or within three months after the date of such termination, whichever is
the shorter period.
(2) RETIREMENT. If an Employee's employment terminates as the
result of retirement of the Employee under any retirement plan of the Company or
a subsidiary, he may exercise any outstanding Option at any time prior to the
expiration date of the Option or within three months after the effective date of
his retirement, whichever is the shorter period.
(3) DEATH. If an Employee shall die while he is an Employee, or
within three months after his retirement, or within three months after the
involuntary termination of his employment, his Option or Options may be
exercised by the person or persons entitled to do so under the Employee's will
or, if the Employee shall have failed to make testamentary disposition of such
Option or shall have died intestate, by the Employee's legal representative or
representatives, in either case at any time prior to the expiration date of the
Option or within six months of the date of Employee's death, whichever is the
shorter period.
(4) TERMINATION FOR CAUSE. If the employment of an Employee
shall terminate for "cause", then his rights under any then outstanding Option
shall terminate at the time of such termination of employment. Termination for
"cause" shall include, but not be limited to, termination due to the occurrence
of any of the following events:
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<PAGE>
(i) Employee's persistent or excessive use of drugs or alcohol
to an extent that such use interferes with the proper performance of
his duties to the Company hereunder; or
(ii) Employee's misappropriation of funds or property of the
Company (as determined by the Company's Board of Directors); or
(iii) Employee's gross negligence, willful misconduct,
insubordination or habitual neglect of duty in carrying out his
employment (as determined by the Company's Board of Directors).
(c) NONTRANSFERABILITY. Each Option granted under the Plan shall by
its terms be nontransferable by the Employee except by will or the laws of
descent and distribution, and each Option shall be exercisable during the
Employee's lifetime only by him.
(d) PAYMENT. The purchase price of the shares as to which an Option
is exercised shall be paid in full at the time of exercise. Such purchase price
shall be payable in cash, or, at the discretion of the Company, in shares of
Common Stock theretofore owned by the holder of such Option (or in a combination
of cash and such Common Stock). For purposes of determining the amount, if any,
of the purchase price satisfied by payment in Common Stock, such Stock shall be
valued at its fair market value on the date of exercise. Any Common Stock
delivered in satisfaction of all or a portion of the purchase price shall be
appropriately endorsed for transfer and assignment to the Company. No holder of
an Option shall be, or have any of the rights or privileges of, a shareholder of
the Company in respect of any shares purchasable upon the exercise of any part
of an Option unless and until certificates representing such shares shall have
been issued by the Company to such holder.
(e) OUTSTANDING INCENTIVE STOCK OPTIONS. An Incentive Stock Option
will be exercisable at any time, subject to the terms of the Option, without
regard to other outstanding Incentive Stock Options, whether such Options were
granted before or after the Option to be exercised.
(f) GENERAL RESTRICTIONS. Each Option granted under the Plan shall
be subject to the requirement that, if at any time the Board of Directors shall
determine, in its discretion, that the listing, registration, or qualification
of the shares issuable or transferable upon exercise thereof upon any securities
exchange or under any state or federal law, or the consent or approval of any
governmental regulatory body is necessary or desirable as a condition of, or in
connection with, the granting of such Option or the issuance or transfer of
shares thereunder, such Option may not be exercised in whole or in part unless
such listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Board of
Directors.
(g) SPECIAL RESTRICTION. No Option granted under the Plan may be
exercised until the Plan has been approved and ratified by the holders of a
majority of the voting stock of the
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<PAGE>
Company at a shareholders' meeting. In the event that the Plan is not
approved by the shareholders of the Company within one year of the date of
its adoption by the Company's Board of Directors, the right to exercise any
Option shall terminate.
8. CAPITAL CHANGE OF THE COMPANY
If the outstanding shares of Common Stock of the Company shall at any
time be changed or exchanged by declaration of a stock dividend, split-up,
combination of shares or recapitalization, the number and kind of shares subject
to this Plan or subject to any Options theretofore granted, and the Option
prices, shall be appropriately and equitably adjusted so as to maintain the
proportionate number of shares without changing the aggregate Option price,
provided, however, no adjustment shall be made by reason of the distribution of
subscription rights on outstanding stock.
9. OPTION AGREEMENT
Each Option granted under the Plan shall be evidenced by a written
stock Option agreement executed by the Company and accepted by the Employee,
which (a) shall contain each of the provisions and agreements herein
specifically required to be contained therein, including, without limitation, in
the case of Options granted prior to the approval of the Plan by the
shareholders of the Company, a provision specifically indicating that such
Option may not be exercised unless and until such approval is obtained, and (b)
shall contain such other terms and conditions as the Committee may deem
desirable and which are not inconsistent with the Plan, including a
representation that the shares of Common Stock will be purchased for investment
and not with a view to their distribution, or other representations necessary to
comply with federal or state securities laws.
10. AMENDMENT OF THE PLAN
The Board of Directors shall have the right to amend, suspend or
terminate the Plan at any time; provided, however, that no such action shall
affect or in any way impair the rights of an Employee under any Option
theretofore granted under the Plan. In addition, unless duly approved by the
holders of Common Stock entitled to vote thereon at a meeting (which may be the
annual meeting) duly called and held for such purpose, no amendment or change
shall be made in the Plan (a) increasing the total number of shares which may be
issued or transferred under the Plan (except for adjustments for
recapitalization, stock dividends and other changes in corporate structure);
(b) changing the minimum purchase price hereinbefore specified for the shares
subject to Options; (c) changing the maximum period during which Options may be
exercised; (d) increasing the maximum number of shares for which Options may be
granted to any Employee; or (e) extending the period during which Options may be
granted under the Plan.
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<PAGE>
11. EFFECTIVE DATE OF THE PLAN
The Plan shall be effective as of September 1, 1994.
12. DURATION OF THE PLAN
Subject to the provisions of paragraph 6, the Plan shall remain in
effect until all shares subject or which may become subject to the Plan shall
have been purchased pursuant to the exercise of Options granted under the Plan,
provided that no Options may be granted after August 31, 2004.
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<PAGE>
Exhibit 10.7
IMAGEWARE SOFTWARE, INC.
1994 NONQUALIFIED STOCK OPTION PLAN
1. PURPOSE
The purpose of this 1994 Nonqualified Stock Option Plan (the "Plan")
is to encourage and enable Directors and Consultants of IMAGEWARE SOFTWARE, INC.
(the "Company") and its subsidiaries (if any are organized or acquired) to
acquire a proprietary interest, or increase their proprietary interest, in the
Company through the ownership of Common Stock of the Company. It is also
expected that the Plan will encourage qualified persons to accept offers of
Directorship with the Company. Pursuant to the Plan, optionees will be offered
the opportunity to acquire such Common Stock through the grant of Nonqualified
Stock Options.
2. ADMINISTRATION OF THE PLAN
The Plan shall be administered by a Stock Option Committee of the
Board of Directors of the Company (the "Committee") consisting of three members
appointed by the Board.
In administering the Plan, the Committee may adopt rules and
regulations for carrying out the Plan. The interpretation and decisions made by
the Committee with regard to any questions arising under the Plan shall be final
and conclusive on all officers and employees of the Company and its
subsidiaries.
The Committee shall have the power and authority to designate
participants, which shall not include Committee members during the time they are
serving on the Committee, and to determine the terms and provisions of
respective Option agreements (which need not be identical), including the
authority to grant to the holder of an outstanding Option, in exchange for the
surrender and cancellation of such Option, a new Option having a purchase price
lower than provided in the Option so surrendered and canceled and containing
such other terms and conditions as the Committee may prescribe in accordance
with the provisions of the Plan.
The term "subsidiary" means any corporation 50% or more of the voting
stock of which is owned by the Company or by a subsidiary (as so defined) of the
Company.
3. STOCK RESERVED FOR THE PLAN
Subject to the adjustments provided for in paragraph 9 hereof, a total
of 100,000 shares of Common Stock ("Common Stock") of the Company shall be
subject to the Plan. The shares subject to the Plan shall consist of unissued
shares or previously issued shares reacquired and held by the Company, and such
amount of shares shall be and is hereby reserved for sale for such purpose. Any
of such shares which may remain unsold and which are not subject to outstanding
Options at the termination of the Plan shall cease to be reserved for the
purpose of the Plan, but until termination of the Plan the Company shall at all
times reserve a sufficient number of shares to meet
<PAGE>
the requirements of the Plan. Any shares subject to any Option which for any
reason expires or is terminated unexercised as to such shares may again be
subject to an Option under the Plan.
4. DESIGNATIONS OF PARTICIPANTS
The persons eligible for participating in the Plan as recipients of
Options shall be Directors of the Company or Consultants of the Company or any
of its subsidiaries.
5. OPTION PRICE
The purchase price of each share of Common Stock placed under Option
pursuant to the Plan shall be determined by the Committee, but shall in no event
be less than 85% of the fair market value of such share on the date the Option
is granted.
6. OPTION PERIOD
(a) TERM. The Options granted under this Plan shall be for a term of
not more than five years from the date of the granting of each Option.
(b) REORGANIZATION, ETC. If the Company is merged reorganized, or
consolidated with another corporation while unexercised Options remain
outstanding under the Plan, there shall be substituted for the shares subject to
the unexercised portions of such outstanding Options an appropriate number of
shares of each class of stock or other securities of the merged, reorganized, or
consolidated corporation distributed to the holders of the Company's Common
Stock in respect of their shares; provided, however, that all such Options may
be canceled by the Company as of the effective date of any such merger,
reorganization or consolidation or of any dissolution or liquidation of the
Company by giving notice of its intention to do so to each holder thereof or his
personal representative and by permitting the purchase during a period of not
less than thirty days next preceding such effective date of all of the shares
subject to such outstanding Options.
7. EXERCISE OF OPTIONS
The Committee, in granting Options, shall have the discretion to
determine the terms upon which such Options shall be exercisable, subject to the
applicable provisions of this Plan. In any event, Options shall be subject to
the following provisions:
(a) EXERCISE IN INSTALLMENTS. Except as provided in this Section 7,
a Director or Consultant must continue to act in that capacity at all times in
order to exercise such Option. Unless the Committee determines otherwise,
Options shall be exercisable in installments as follows: 30% after 12 months
from date of grant; 30% after 24 months from date of grant; and 40% after 36
months from date of grant. To the extent not exercised, installments shall
accumulate and be exercisable, in whole or in part, in any subsequent period.
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(b) TERMINATION AS DIRECTOR OR CONSULTANT WITHOUT CAUSE. The effect
of termination of a person's relationship with the Company as a Director or
Consultant shall be that any outstanding Option then held by such Director or
Consultant may be exercised at any time prior to the expiration date of the
Option, or within three months after the date of such termination, whichever is
the shorter period.
(c) TERMINATION AS DIRECTOR OR CONSULTANT FOR CAUSE. If a Director
or Consultant is terminated for "cause", then his rights under any then
outstanding Option shall terminate at the time of such termination of
employment. Termination for "cause" shall include, but not be limited to,
termination due to the occurrence of any of the following events:
(i) The Director or Consultant's persistent or excessive use
of drugs or alcohol to an extent that such use interferes with the
proper performance of his duties to the Company hereunder; or
(ii) The Director or Consultant's misappropriation of funds or
property of the Company (as determined by the Company's Board of
Directors); or
(iii) The Director or Consultant's gross negligence, willful
misconduct, insubordination or habitual neglect of duty in carrying
out his duties as a director or consultant (as determined by the
Company's Board of Directors).
(d) PAYMENT. The purchase price of the shares as to which an Option
is exercised shall be paid in full at the time of exercise. Such purchase price
shall be payable in cash, or, at the discretion of the Company, in shares of
Common Stock theretofore owned by the holder of such Option (or in a combination
of cash and such Common Stock). For purposes of determining the amount, if any,
of the purchase price satisfied by payment in Common Stock, such Stock shall be
valued at its fair market value on the date of exercise. Any Common Stock
delivered in satisfaction of all or a portion of the purchase price shall be
appropriately endorsed for transfer and assignment to the Company. No holder of
an Option shall be, or have any of the rights or privileges of, a shareholder of
the Company in respect of any shares purchasable upon the exercise of any part
of an Option unless and until certificates representing such shares shall have
been issued by the Company to such holder.
(e) GENERAL RESTRICTIONS. Each Option granted under the Plan shall
be subject to the requirement that, if at any time the Board of Directors shall
determine, in its discretion, that the listing, registration, or qualification
of the shares issuable or transferable upon exercise thereof upon any securities
exchange or under any state or federal law, or the consent or approval of any
governmental regulatory body is necessary or desirable as a condition of, or in
connection with, the granting of such Option or the issuance or transfer of
shares thereunder, such Option may not be exercised in whole or in part unless
such listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Board of
Directors.
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<PAGE>
(f) SPECIAL RESTRICTION. No Option granted under the Plan may be
exercised until the Plan has been approved and ratified by the holders of a
majority of the voting stock of the Company at a shareholders' meeting. In the
event that the Plan is not approved by the shareholders of the Company within
one year of the date of its adoption by the Company's Board of Directors, the
right to exercise any Option shall terminate.
8. CAPITAL CHANGE OF THE COMPANY
If the outstanding shares of Common Stock of the Company shall at any
time be changed or exchanged by declaration of a stock dividend, split-up,
combination of shares or recapitalization, the number and kind of shares subject
to this Plan or subject to any Options theretofore granted, and the Option
prices, shall be appropriately and equitably adjusted so as to maintain the
proportionate number of shares without changing the aggregate Option price,
provided, however, no adjustment shall be made by reason of the distribution of
subscription rights on outstanding stock.
9. OPTION AGREEMENT
Each Option granted under the Plan shall be evidenced by a written
stock Option agreement executed by the Company and accepted by the Director or
Consultant, which (a) shall contain each of the provisions and agreements herein
specifically required to be contained therein, including, without limitation, in
the case of Options granted prior to the approval of the Plan by the
shareholders of the Company, a provision specifically indicating that such
Option may not be exercised unless and until such approval is obtained, and (b)
shall contain such other terms and conditions as the Committee may deem
desirable and which are not inconsistent with the Plan, including a
representation that the shares of Common Stock will be purchased for investment
and not with a view to their distribution, or other representations necessary to
comply with federal or state securities laws.
10. AMENDMENT OF THE PLAN
The Board of Directors shall have the right to amend, suspend or
terminate the Plan at any time; provided, however, that no such action shall
affect or in any way impair the rights of a Director or Consultant under any
Option theretofore granted under the Plan. In addition, unless duly approved by
the holders of Common Stock entitled to vote thereon at a meeting (which may be
the annual meeting) duly called and held for such purpose, no amendment or
change shall be made in the Plan (a) increasing the total number of shares which
may be issued or transferred under the Plan (except for adjustments for
recapitalization, stock dividends and other changes in corporate structure); (b)
changing the minimum purchase price hereinbefore specified for the shares
subject to Options; (c) changing the maximum period during which Options may be
exercised; or (d) extending the period during which Options may be granted under
the Plan.
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11. EFFECTIVE DATE OF THE PLAN
The Plan shall be effective as of September 1, 1994.
12. DURATION OF THE PLAN
Subject to the provisions of paragraph 6, the Plan shall remain in
effect until all shares subject or which may become subject to the Plan shall
have been purchased pursuant to the exercise of Options granted under the Plan,
provided that no Options may be granted after August 31, 2004.
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Exhibit 10.8
IMAGEWARE SYSTEMS, INC.
AMENDED AND RESTATED 1999 STOCK OPTION PLAN
1. PURPOSE. This Stock Option Plan (the "Plan") is intended to serve as
an incentive to, and to encourage stock ownership by, certain eligible
participants rendering services to ImageWare Systems, Inc., a California
corporation (the "Corporation"), and certain affiliates as set forth below, so
that they may acquire or increase their proprietary interest in the Corporation
and to encourage them to remain in the service of the Corporation.
2. ADMINISTRATION.
2.1 COMMITTEE. The Plan shall be administered by the Board of
Directors of the Corporation (the "Board of Directors") or a committee of two or
more members appointed by the Board of Directors (the "Committee") who are
Non-Employee Directors as defined in Rule 16b-3 promulgated under Section 16 of
the Securities Exchange Act of 1934 and an outside director as defined in
Treasury Regulation Section 1.162-27(e)(3). The Committee shall select one of
its members as Chairman and shall appoint a Secretary, who need not be a member
of the Committee. The Committee shall hold meetings at such times and places as
it may determine and minutes of such meetings shall be recorded. Acts by a
majority of the Committee in a meeting at which a quorum is present and acts
approved in writing by a majority of the members of the Committee shall be valid
acts of the Committee.
2.2 TERM. If the Board of Directors selects a Committee, the
members of the Committee shall serve on the Committee for the period of time
determined by the Board of Directors and shall be subject to removal by the
Board of Directors at any time. The Board of Directors may terminate the
function of the Committee at any time and resume all powers and authority
previously delegated to the Committee.
2.3 AUTHORITY. The Committee shall have sole discretion and
authority to grant options under the Plan to eligible participants rendering
services to the Corporation or any "parent" or "subsidiary" of the Corporation
("Parent or Subsidiary"), as defined in Section 424 of the Internal Revenue Code
of 1986, as amended (the "Code"), at such times, under such terms and in such
amounts as it may decide. For purposes of this Plan and any Stock Option
Agreement (as defined below), the term "Corporation" shall include any Parent or
Subsidiary, if applicable. Subject to the express provisions of the Plan, the
Committee shall have complete authority to interpret the Plan, to prescribe,
amend and rescind the rules and regulations relating to the Plan, to determine
the details and provisions of any Stock Option Agreement, to accelerate any
options granted under the Plan and to make all other determinations necessary or
advisable for the administration of the Plan.
2.4 TYPE OF OPTION. The Committee shall have full authority
and discretion to determine, and shall specify, whether the eligible individual
will be granted options intended to qualify as incentive options under Section
422 of the Code ("Incentive Options") or options
<PAGE>
which are not intended to qualify under Section 422 of the Code ("Non-Qualified
Options"); provided, however, that Incentive Options shall only be granted to
employees of the Corporation, or a Parent or Subsidiary thereof, and shall be
subject to the special limitations set forth herein attributable to Incentive
Options.
2.5 INTERPRETATION. The interpretation and construction by the
Committee of any provisions of the Plan or of any option granted under the Plan
shall be final and binding on all parties having an interest in this Plan or any
option granted hereunder. No member of the Committee shall be liable for any
action or determination made in good faith with respect to the Plan or any
option granted under the Plan.
3. ELIGIBILITY.
3.1 GENERAL. All directors, officers, employees of and certain
persons rendering services to the Corporation, or any Parent or Subsidiary,
relative to the Corporation's, or any Parent's or Subsidiaries', management,
operation or development shall be eligible to receive options under the Plan.
The selection of recipients of options shall be within the sole and absolute
discretion of the Committee. No person shall be granted an option under this
Plan unless such person has executed the grant representation letter set forth
on Exhibit "A", as such Exhibit may be amended by the Committee from time to
time and no person shall be granted an Incentive Option under this Plan unless
such person is an employee of the Corporation, or a Parent or Subsidiary, on the
date of grant. No employee shall be granted more than 75,000 options in any one
year period.
3.2 TERMINATION OF ELIGIBILITY.
3.2.1 If an optionee ceases to be employed by the
Corporation, or its Parent or Subsidiary, is no longer an officer or member of
the Board of Directors of the Corporation or no longer performs services for the
Corporation, or its Parent or Subsidiary for any reason (other than for "cause,"
as hereinafter defined, or such optionee's death), any option granted hereunder
to such optionee shall expire three months after the date the occurrence giving
rise to such termination of eligibility (or 1 year in the event an optionee is
"disabled," as defined in Section 22(e)(3) of the Code) or upon the date it
expires by its terms, whichever is earlier. Any option that has not vested in
the optionee as of the date of such termination shall immediately expire and
shall be null and void. The Committee shall, in its sole and absolute
discretion, decide, utilizing the provisions set forth in Treasury Regulations
Section 1.4271-7(h), whether an authorized leave of absence or absence for
military or governmental service, or absence for any other reason, shall
constitute termination of eligibility for purposes of this Section.
3.2.2 If an optionee ceases to be employed by the
Corporation, or its Parent or Subsidiary, is no longer an officer or member of
the Board of Directors of the Corporation, or no longer performs services for
the Corporation, or its Parent or Subsidiary and such termination is as a result
of "cause," as hereinafter defined, then all options granted hereunder to such
optionee shall expire on the date of the occurrence giving rise to such
<PAGE>
termination of eligibility or upon the date it expires by its terms, whichever
is earlier, and such optionee shall have no rights with respect to any
unexercised options. For purposes of this Plan, "cause" shall mean an optionee's
personal dishonesty, misconduct, breach of fiduciary duty, incompetence,
intentional failure to perform stated obligations, willful violation of any law,
rule, regulation or final cease and desist order, or any material breach of any
provision of this Plan, any Stock Option Agreement or any employment agreement.
3.3 DEATH OF OPTIONEE AND TRANSFER OF OPTION. In the event an
optionee shall die, an option may be exercised (subject to the condition that no
option shall be exercisable after its expiration and only to the extent that the
optionee's right to exercise such option had accrued at the time of the
optionee's death) at any time within six months after the optionee's death by
the executors or administrators of the optionee or by any person or persons who
shall have acquired the option directly from the optionee by bequest or
inheritance. Any option that has not vested in the optionee as of the date of
death or termination of employment, whichever is earlier, shall immediately
expire and shall be null and void. No option shall be transferable by the
optionee other than by will or the laws of intestate succession.
3.4 LIMITATION ON INCENTIVE OPTIONS. No person shall be
granted any Incentive Option to the extent that the aggregate fair market value
of the Stock (as defined below) to which such options are exercisable for the
first time by the optionee during any calendar year (under all plans of the
Corporation as determined under Section 422(d) of the Code) exceeds $100,000.
4. IDENTIFICATION OF STOCK. The Stock, as defined herein, subject to
the options shall be shares of the Corporation's authorized but unissued or
acquired or reacquired common stock (the "Stock"). The aggregate number of
shares subject to outstanding options shall not exceed 350,000 shares of Stock
(subject to adjustment as provided in Section 6). If any option granted
hereunder shall expire or terminate for any reason without having been exercised
in full, the unpurchased shares subject thereto shall again be available for
purposes of this Plan. Notwithstanding the above, at no time shall the total
number of shares of Stock issuable upon exercise of all outstanding options and
the total number of shares of Stock provided for under any stock bonus or
similar plan of the Corporation exceed 30% as calculated in accordance with the
conditions and exclusions of ss.260.140.45 of Title 10, California Code of
Regulations, based on the shares of the issuer which are outstanding at the time
the calculation is made.
5. TERMS AND CONDITIONS OF OPTIONS. Any option granted pursuant to the
Plan shall be evidenced by an agreement ("Stock Option Agreement") in such form
as the Committee shall from time to time determine, which agreement shall comply
with and be subject to the following terms and conditions:
5.1 NUMBER OF SHARES. Each option shall state the number of
shares of Stock to which it pertains.
5.2 OPTION EXERCISE PRICE. Each option shall state the option
exercise price, which shall be determined by the Committee; provided, however,
that (i) the exercise price of
<PAGE>
any Incentive Option shall not be less than the fair market value of the Stock,
as determined by the Committee, on the date of grant of such option, (ii) the
exercise price of any option granted to any person who owns more than 10% of the
total combined voting power of all classes of the Corporation's stock, as
determined for purposes of Section 422 of the Code, shall not be less than 110%
of the fair market value of the Stock, as determined by the Committee, on the
date of grant of such option, and (iii) the exercise price of any Non-Qualified
Option shall not be less than 85 % of the fair market value of the Stock, as
determined by the Committee, on the date of grant of such option.
5.3 TERM OF OPTION. The term of an option granted hereunder
shall be determined by the Committee at the time of grant, but shall not exceed
ten years from the date of the grant. The term of any Incentive Option granted
to an employee who owns more than 10% of the total combined voting power of all
classes of the Corporation's stock, as determined for purposes of Section 422 of
the Code, shall in no event exceed five years from the date of grant. All
options shall be subject to early termination as set forth in this Plan. In no
event shall any option be exercisable after the expiration of its term.
5.4 METHOD OF EXERCISE. An option shall be exercised by
written notice to the Corporation by the optionee (or successor in the event of
death) and execution by the optionee of an exercise representation letter in the
form set forth on Exhibit "B," as such Exhibit may be amended by the Committee
from time to time. Such written notice shall state the number of shares with
respect to which the option is being exercised and designate a time, during
normal business hours of the Corporation, for the delivery thereof ("Exercise
Date"), which time shall be at least 30 days after the giving of such notice
unless an earlier date shall have been mutually agreed upon. At the time
specified in the written notice, the Corporation shall deliver to the optionee
at the principal office of the Corporation, or such other appropriate place as
may be determined by the Committee, a certificate or certificates for such
shares. Notwithstanding the foregoing, the Corporation may postpone delivery of
any certificate or certificates after notice of exercise for such reasonable
period as may be required to comply with any applicable listing requirements of
any securities exchange. In the event an option shall be exercisable by any
person other than the optionee, the required notice under this Section shall be
accompanied by appropriate proof of the right of such person to exercise the
option.
5.5 MEDIUM AND TIME OF PAYMENT. The option exercise price
shall be payable in full on or before the option Exercise Date in any one of the
following alternative forms:
5.5.1 Full payment in cash or certified bank or
cashier's check;
5.5.2 A Promissory Note (as defined below);
5.5.3 Full payment in shares of Stock or other
securities of the Corporation having a fair market value on the Exercise Date in
the amount equal to the option exercise price;
5.5.4 Through a special sale and remittance
procedure pursuant to
<PAGE>
which the optionee shall concurrently provide irrevocable written instruction to
(a) a Corporation designated brokerage firm to effect the immediate sale of the
purchased shares and remit to the Corporation, out of the sale proceeds
available on the settlement date, sufficient funds to cover the aggregate
exercise price payable for the purchased shares plus all applicable Federal,
state and local income and employment taxes required to be withheld by the
Corporation by reason of such exercise and (b) the Corporation to deliver the
certificates for the purchased shares directly to such brokerage firm in order
to complete the sale.
5.5.5 A combination of the consideration set forth
in Sections 5.5.1, 5.5.2 and 5.5.3 equal to the option exercise price; or
5.5.6 Any other method of payment complying with
the provisions of Section 422 of the Code with respect to Incentive Options,
provided that the terms of payment are established by the Committee at the time
of grant and any other method of payment established by the Committee with
respect to Non-Qualified Options.
5.6 FAIR MARKET VALUE. The fair market value of a share of
Stock or other security of the Corporation on any relevant date shall be
determined in accordance with the following provisions:
5.6.1 If the Stock or other security of the
Corporation at the time is neither listed nor admitted to trading on any stock
exchange nor traded in the over-the-counter market, then the fair market value
shall be determined by the Committee after taking into account such factors as
the Committee shall deem appropriate.
5.6.2 If the Stock or other security of the
Corporation is not at the time listed or admitted to trading on any stock
exchange but is traded in the over-the-counter market, the fair market value
shall be the mean between the highest bid and lowest asked prices (or, if such
information is available, the closing selling price) of one share of Stock or
other security of the Corporation on the date in question in the
over-the-counter market, as such prices are reported by the National Association
of Securities Dealers through its NASDAQ system or any successor system. If
there are no reported bid and asked prices (or closing selling price) for the
Stock or other security of the Corporation on the date in question, then the
mean between the highest bid price and lowest asked price (or the closing
selling price) on the last preceding date for which such quotations exist shall
be determinative of fair market value.
5.6.3 If the Stock or other security of the
Corporation is at the time listed or admitted to trading on any stock exchange,
then the fair market value shall be the closing selling price of one share of
Stock or other security of the Corporation on the date in question on the stock
exchange determined by the Committee to be the primary market for the Stock or
other security of the Corporation, as such price is officially quoted in the
composite tape of transactions on such exchange. If there is no reported sale of
Stock or other security of the Corporation on such exchange on the date in
question, then the fair market value shall be the closing selling price on the
exchange on the last preceding date for which such quotation exists.
<PAGE>
5.7 PROMISSORY NOTE. Subject to the requirements of applicable
state or Federal law or margin requirements, payment of all or part of the
purchase price of the Stock may be made by delivery of a full recourse
promissory note ("Promissory Note"). The Promissory Note shall be executed by
the optionee, made payable to the Corporation and bear interest at such rate as
the Committee shall determine, but in no case less than the minimum rate which
will not cause under the Code (i) interest to be imputed, (ii) original issue
discount to exist, or (iii) any other similar results to occur. Unless otherwise
determined by the Committee, interest on the Note shall be payable in quarterly
installments on March 31, June 30, September 30 and December 31 of each year. A
Promissory Note shall contain such other terms and conditions as may be
determined by the Committee; provided, however, that the full principal amount
of the Promissory Note and all unpaid interest accrued thereon shall be due not
later than five years from the date of exercise. The Corporation may obtain from
the optionee a security interest in all shares of Stock issued to the optionee
under the Plan for the purpose of securing payment under the Promissory Note and
shall retain possession of the stock certificates representing such shares in
order to perfect its security interest.
5.8 RIGHTS AS A SHAREHOLDER. An optionee or successor shall
have no rights as a shareholder with respect to any Stock underlying any option
until the date of the issuance to such optionee of a certificate for such Stock.
No adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property) or distributions or other rights for which
the record date is prior to the date such Stock certificate is issued, except as
provided in Section 6.
5.9 MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. Subject to
the terms and conditions of the Plan, the Committee may modify, extend or renew
outstanding options granted under the Plan, or accept the surrender of
outstanding options (to the extent not exercised) and authorize the granting of
new options in substitution therefor.
5.10 VESTING AND RESTRICTIONS. The Committee shall have
complete authority and discretion to set the terms, conditions, restrictions,
vesting schedules and other provisions of any option in the applicable Stock
Option Agreement and shall have complete authority to require conditions and
restrictions on any Stock issued pursuant to this Plan; provided, however, that,
except with respect to options granted to officers or directors of the
Corporation, options granted pursuant to this Plan shall be exercisable or
"vest" at the rate of at least 20% per year over the 5-year period beginning on
the date the option is granted. Options granted to officers and directors shall
become exercisable or "vest," subject to reasonable conditions, at any time
during any period established by the Corporation.
5.11 OTHER PROVISIONS. The Stock Option Agreements shall
contain such other provisions, including without limitation, restrictions or
conditions upon the exercise of options, as the Committee shall deem advisable.
6. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
6.1 SUBDIVISION OR CONSOLIDATION. Subject to any required
action by
<PAGE>
shareholders of the Corporation, the number of shares of Stock covered by each
outstanding option, and the exercise price thereof, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Stock of
the Corporation resulting from a subdivision or consolidation of shares,
including, but not limited to, a stock split, reverse stock split,
recapitalization, continuation or reclassification or the payment of a stock
dividend (but only on the Stock) or any other increase or decrease in the number
of such shares effected without receipt of consideration by the Corporation. Any
fraction of a share subject to option that would otherwise result from an
adjustment pursuant to this Section shall be rounded downward to the next full
number of shares without other compensation or consideration to the holder of
such option.
6.2 CAPITAL TRANSACTIONS. Upon a sale or exchange of all or
substantially all of the assets of the Corporation, a merger or consolidation in
which the Corporation is not the surviving corporation, a merger, reorganization
or consolidation in which the Corporation is the surviving corporation and
shareholders of the Corporation exchange their stock for securities or property,
a liquidation of the Corporation or similar transaction as determined by the
Committee ("Capital Transaction"), this Plan and each option issued under this
Plan, whether vested or unvested, shall terminate, unless such options are
assumed by a successor corporation in a merger or consolidation, immediately
prior to such Capital Transaction; provided, however, that unless the
outstanding options are assumed by a successor corporation in a merger or
consolidation, subject to terms approved by the Committee or the options are
repurchased pursuant to Section 8, all optionees will have the right, during the
30 days prior to such Capital Transaction, to exercise all vested options.
The Corporation shall, subject to any nondisclosure provisions, attempt to
provide optionees at least 15 days notice of the option termination date. The
Committee may (but shall not be obligated to) (i) accelerate the vesting of any
option or (ii) apply the foregoing provisions, including but not limited to
termination of this Plan and any options granted pursuant to the Plan, in the
event there is a sale of 50% or more of the stock of the Corporation in any one
year period or a transaction similar to a Capital Transaction.
6.3 ADJUSTMENTS. To the extent that the foregoing adjustments
relate to stock or securities of the Corporation, such adjustments shall be made
by the Committee, whose determination in that respect shall be final, binding
and conclusive.
6.4 ABILITY TO ADJUST. The grant of an option pursuant to the
Plan shall not affect in any way the right or power of the Corporation to make
adjustments, reclassifications, reorganizations or changes of its capital or
business structure or to merge, consolidate, dissolve, liquidate, sell or
transfer all or any part of its business or assets.
6.5 NOTICE OF ADJUSTMENT. Whenever the Corporation shall take
any action resulting in any adjustment provided for in this Section, the
Corporation shall forthwith deliver notice of such action to each optionee,
which notice shall set forth the number of shares subject to the option and the
exercise price thereof resulting from such adjustment.
6.6 LIMITATION ON ADJUSTMENTS. Any adjustment, assumption or
substitution of an Incentive Option shall comply with Section 425 of the Code,
if applicable.
<PAGE>
7. NONASSIGNABILITY. Options granted under this Plan may not be sold,
pledged, assigned or transferred in any manner other than by will or by the laws
of intestate succession, and may be exercised during the lifetime of an optionee
only by such optionee. Any transfer in violation of this Section shall void such
option and any Stock Option Agreement entered into by the optionee and the
Corporation regarding such transferred option shall be void and have no further
force or effect. No option shall be pledged or hypothecated in any way, nor
shall any option be subject to execution, attachment or similar process.
8. REPURCHASE OPTION.
8.1 The Corporation shall have the right to purchase all Stock
held by an optionee or any unexercised option held by an optionee which has been
obtained pursuant to the Plan, together with any rights, securities or
additional stock that has been received pursuant to a stock dividend, stock
split, reorganization or other similar transaction that has been received as a
result of an employee option or Stock acquired pursuant thereto in the event (i)
an optionee terminates his or her services with the Corporation, or any Parent
or Subsidiary thereof, or (ii) the Corporation so elects, in the event of a
Capital Transaction. The price paid for any unexercised option or Stock shall be
the fair market value of such option or Stock as determined herein. The fair
market value assigned to any option shall be the fair market value of the Stock
as to which it is exercisable reduced by the exercise price. The parties shall
first negotiate in good faith to reach an agreement as to the value of the
option or Stock. Absent an agreement within 30 days, the parties shall select
one appraiser to determine the value of the Stock. In the event the parties
cannot agree as to an appraiser, then each party shall appoint one appraiser and
the two appraisers shall jointly determine a third appraiser. In the event the
two appraisers cannot determine a third appraiser, such third appraiser shall be
appointed by a Judge of the Superior Court of the County of San Diego,
California. Such appraisers shall make their determination of the fair market
value of the Stock, and the average of the two appraisers whose valuations are
closest to each other shall control. Any appraiser selected by any party shall
be an appraiser experienced in the area of valuing similar stock. The
Corporation and the optionee, or successor, shall each pay for one-half of the
cost of any such appraisal. If the Corporation desires to purchase the Stock or
options held by an employee as set forth in this Section, then the Corporation
shall provide written notice to such optionee at such optionee's last known
address within 120 days after the termination of such optionee's employment, or
at least 30 days prior to a Capital Transaction.
8.2 The Committee may assign the Corporation's repurchase
option under this Section to any person selected by the Committee including one
or more of the shareholders of the Corporation.
8.3 The repurchase option set forth in this Section shall
terminate upon the consummation of an underwritten public offering of the
Corporation's Stock registered under the Securities Act of 1933, as amended (the
"Act").
9. RIGHT OF FIRST REFUSAL.
<PAGE>
9.1 Stock issued pursuant to this Plan together with any
rights, securities or additional stock that have been received pursuant to a
stock dividend, stock split, reorganization or other transaction that has been
received as a result of an employee option or stock acquired pursuant thereto
shall be subject to a right of first refusal by the Corporation in the event the
holder of such shares proposes to sell, pledge or otherwise transfer said shares
or any interest in said shares to any person or entity. Any holder of shares of
Stock (or other securities) acquired under the Plan desiring to transfer such
Stock (or other securities) or any interest therein shall give written notice to
the Corporation describing the proposed transfer, including the price of shares
proposed to be transferred, the proposed transfer price and terms, and the name
and address of the proposed transferee. Unless otherwise agreed by the
Corporation and the holder of such shares, repurchases by the Corporation under
this Section shall be at the proposed price and terms specified in the notice to
the Corporation. The Corporation's rights under this Section shall be freely
assignable.
9.2 If the Corporation fails to exercise its right of first
refusal within 30 days from the date upon which the Corporation received the
shareholder's written notice, the shareholder may, within the next 90 days,
conclude a transfer of the exact number of shares covered by said notice on
terms not more favorable to the transferee than those described in the notice.
Any subsequent proposed transfer by such transferee shall again be subject to
the Corporation's right of first refusal. If the Corporation exercises its right
of first refusal, the shareholder shall endorse and deliver to the Corporation
the stock certificates representing the shares being repurchased, and the
Corporation shall promptly pay the shareholder the total repurchase price as set
forth in the terms of the agreement. The holders of shares being repurchased
pursuant to this Section shall cease to have any rights with respect to such
shares immediately upon repurchase.
9.3 No written notice of a proposed transfer shall be required
under this Section and no right of first refusal shall exist with respect to
transfers by will or the laws of intestate succession.
9.4 The right of first refusal set forth in this Section shall
terminate upon the consummation of an underwritten public offering of the
Corporation's Stock registered under the Securities Act of 1933, as amended (the
"Act").
9.5 Any attempted transfer of any Stock or securities subject
to this right of first refusal which is not made in compliance with this Section
shall be null and void.
9.6 The Committee may assign the Corporation's repurchase
option under this Section to any person selected by the Committee including one
or more or the shareholders of the Corporation.
10. NO RIGHT OF EMPLOYMENT. Neither the grant nor exercise of any
option nor anything in this Plan shall impose upon the Corporation or any other
corporation any obligation to employ or continue to employ any optionee. The
right of the Corporation and any
<PAGE>
other corporation to terminate any employee shall not be diminished or affected
because an option has been granted to such employee.
11. TERM OF PLAN. This Plan is effective on November ___, 1999 and
options may be granted pursuant to the Plan from time to time within a period of
ten (10) years from such date, or the date of any required shareholder approval
required under the Plan, if earlier. Termination of the Plan shall not affect
any option theretofore granted.
12. AMENDMENT OF THE PLAN. The Board of Directors of the Corporation
may, subject to any required shareholder approval, suspend, discontinue or
terminate the Plan, or revise or amend it in any respect whatsoever with respect
to any shares of Stock at that time not subject to options.
13. APPLICATION OF FUNDS. The proceeds received by the Corporation from
the sale of Stock pursuant to options may be used for general corporate
purposes.
14. RESERVATION OF SHARES. The Corporation, during the term of this
Plan, shall at all times reserve and keep available such number of shares of
Stock as shall be sufficient to satisfy the requirements of the Plan.
15. NO OBLIGATION TO EXERCISE OPTION. The granting of an option shall
not impose any obligation upon the optionee to exercise such option.
16. APPROVAL OF BOARD OF DIRECTORS AND SHAREHOLDERS. The Plan
shall not take effect until approved by the Board of Directors of the
Corporation. This Plan shall be approved by a vote of the shareholders within 12
months from the date of approval by the Board of Directors. In the event such
shareholder vote is not obtained, all options granted hereunder, whether vested
or unvested, shall be null and void. Further, any stock acquired pursuant to the
exercise of any options under this Agreement may not count for purposes of
determining whether shareholder approval has been obtained.
17. WITHHOLDING TAXES. Notwithstanding anything else to the contrary in
this Plan or any Stock Option Agreement, the exercise of any option shall be
conditioned upon payment by such optionee in cash, or other provisions
satisfactory to the Committee, of all local, state, federal or other withholding
taxes applicable, in the Committee's judgment, to the exercise or to later
disposition of shares acquired upon exercise of an option (including any
repurchase of an option or the Stock).
18. PARACHUTE PAYMENTS. Any outstanding option under the Plan may not
be accelerated to the extent any such acceleration of such option would, when
added to the present value of other payments in the nature of compensation which
becomes due and payable to the optionee would result in the payment to such
optionee of an excess parachute payment under Section 280G of the Code. The
existence of any such excess parachute payment shall be determined in the sole
and absolute discretion of the Committee.
<PAGE>
19. SECURITIES LAWS COMPLIANCE. Notwithstanding anything contained
herein, the Corporation shall not be obligated to grant any option under this
Plan or to sell, issue or effect any transfer of any Stock unless such grant,
sale, issuance or transfer is at such time effectively (i) registered or exempt
from registration under Securities Act of 1933, as amended (the "Act") and (ii)
qualified or exempt from qualification under the California Corporate Securities
Law of 1968 and any other applicable state securities laws. As a condition to
exercise of any option, each optionee shall make such representations as may be
deemed appropriate by counsel to the Corporation for the Corporation to use any
available exemption from registration under the Act or any applicable state
securities law.
20. RESTRICTIVE LEGENDS. The certificates representing the Stock issued
upon exercise of options granted pursuant to this Plan will bear legends
required by applicable securities laws as determined by the Committee.
21. NOTICES. Any notice to be given under the terms of the Plan shall
be addressed to the Corporation in care of its Secretary at its principal
office, and any notice to be given to an optionee shall be addressed to such
optionee at the address maintained by the Corporation for such person or at such
other address as the optionee may specify in writing to the Corporation.
22. INFORMATION TO PARTICIPANTS. The Corporation shall make available
to all holders of options the information required pursuant to Section
260.140.46 of the California Code of Regulations.
As adopted by the Board of Directors effective December 17, 1999.
IMAGEWARE SYSTEMS, INC., a California
corporation
By: /s/ S. James Miller
-------------------------------
Its: President
-------------------------------
<PAGE>
EXHIBIT A
____________________, 1999
ImageWare Systems, Inc.
Re: 1999 STOCK OPTION PLAN
----------------------
To Whom It May Concern:
This letter is delivered to ImageWare Systems, Inc., a California
corporation (the "Corporation"), in connection with the grant to __________ (the
"Optionee") of an option (the "Option") to purchase _____ shares of common stock
of the Corporation (the "Stock") pursuant to the ImageWare Systems, Inc. Amended
and Restated 1999 Stock Option Plan dated November 18, 1999 (the "Plan"). The
Optionee understands that the Corporation's receipt of this letter executed by
the Optionee is a condition to the Corporation's willingness to grant the Option
to the Optionee.
In addition, the Optionee makes the following representations and
warranties with the understanding that the Corporation will rely upon them.
1. The Optionee acknowledges receipt of a copy of the Plan and
Agreement. The Optionee has carefully reviewed the Plan and Agreement.
2. The Optionee understands and acknowledges that the Option and the
Stock are subject to the terms and conditions of the Plan.
3. The Optionee understands and agrees that, at the time of exercise of
any part of the Option for Stock, the Optionee may be required to provide the
Corporation with additional representations, warranties and/or covenants similar
to those contained in this letter.
4. The Optionee is a resident of the State of __________.
5. The Optionee will notify the Corporation immediately of any change
in the above information which occurs before the Option is exercised in full by
the Optionee.
<PAGE>
The foregoing representations and warranties are given on
______________, 1999 at ________________.
OPTIONEE:
--------------------------------
<PAGE>
EXHIBIT B
____________, 1999
ImageWare Systems, Inc.
Re: 1999 STOCK OPTION PLAN
----------------------
To Whom It May Concern:
I (the "Optionee") hereby exercise my right to purchase _____ shares of
common stock (the "Stock") of ImageWare Systems, Inc., a California corporation
(the "Corporation"), pursuant to, and in accordance with, the ImageWare Systems,
Inc. Amended and Restated 1999 Stock Option Plan dated November __, 1999 (the
"Plan") and Stock Option Agreement (the "Agreement") dated November __, 1999.
As provided in such Plan, I deliver herewith payment as set forth in the Plan in
the amount of the aggregate option exercise price. Please deliver to me at my
address as set forth above stock certificates representing the subject shares
registered in my name (and (SPOUSE) , as (STYLE OF VESTING)).
The Optionee hereby represents and agrees as follows:
1. The Optionee acknowledges receipt of a copy of the Plan and
Agreement. The Optionee has carefully reviewed the Plan and Agreement.
2. The Optionee is a resident of the State of __________.
3. The foregoing representations and warranties are given on
___________________ at ______________________.
OPTIONEE:
_____________, President
<PAGE>
Exhibit 10.9
AGREEMENT AND PLAN OF MERGER
DATED
NOVEMBER 12,1997
STATUTORY REVERSE TRAINGULAR MERGER
BY AN AMONG
XIMAGE CORPORATION
AND
IMAGEWARE SOFTWARE, INC. AND
IMAGEWARE ACQUISITION, INC.
<PAGE>
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (the "Merger Agreement") is entered
into as of Novermber 12, 1997, by and among XImage Corporation, a California
corporation ("XImage"), ImageWare Software, Inc., a California corporation
("ImageWare"), and ImageWare Acquisition, Inc., a California corporation
("IAI").
PLAN OF MERGER
ImageWare proposes to acquire XImage in a statutory reverse triangular
merger wherein (1) IAI will be merged with and into XImage; (2) IAI's
corporate existence will cease and disappear; (3) the capital stock of XImage
will be canceled in exchange for $2,000,000 in cash, subject to adjustment,
together with Warrants to purchase 325,000 shares of ImageWare Common Stock;
and (4) the Common Stock of IAI, owned by ImageWare, will be converted into
Common Stock of XImage and XImage will become a wholly-owned subsidairy of
ImageWare (the "Merger").
MERGER AGREEMENT
Now, Therefore, in consideration of the mutual agreements contained
herein, and subject to the terms and conditions hereof, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
SECTION 1-THE MERGER
SECTION 1.1 MERGER OF IAI INTO XIMAGE. Upon the terms and subject to
the conditions set forth in this Merger Agreement, and in accordance with the
California General Corporation Law ("California GCL"), at the Effective Time
of the Merger (defined in Section 1.2), IAI shall be merged with and into
Ximage, the seperate existence of IAI shall thereupon cease. XImage shall
continue its corporate existence as the surviving corporation of the Merger
as a wholly-owned subsidiary of ImageWare under the laws of the State of
California under the name "XImage Corporation" and XImage shall succeed to
and assume all the rights and obligations of IAI in accordance with the
California GCL.
SECTION 1.2 EFFECTIVE TIME OF THE MERGER. Subject to the provisions of
this Merger Agreement, as soon as practicable after the Closing Date (defined
in Section 3.1), the parties shall file with the Secretary of State of the
State of California, a short form Agreement of Merger together with Officers'
Certificates from the Constituent Corporations ("Merger Documents"), executed
in accordance with Section 1103 of the California GCL, and shall make all
other filings or recordings required under the California GCL. The Merger
shall become effective at such
1
<PAGE>
time as the Merger Documents are duly filed with the California Secretary of
State ("Effective Time of the Merger").
Section 1.3 Effects of the Merger. At the Effective Time of the Merger:
(a) Merger of IAI with and into XImage. IAI shall be merged
with and into XImage, which shall be the surviving corporation, and all of
the assets of IAI shall become the property of XImage as the surviving
corporation of the Merger, subject to the liabilities of IAI as of the
Effective Time of the Merger, and the seperate corporate existence of IAI
shall cease.
(b) Articles of Incorporation. The Articles of Incorporation
of XImage, as in effect immediately prior to the Effective Time of the
Merger, shall be the Articles of Incorporation of the surviving corporation.
(c) By-Laws. The By-Laws of XImage, as in effective
immediately prior to the Effective Time of the Merger, shall be the By-Laws
of the surviving corporation.
(d) Directors. The directors of IAI immediately prior to the
Effective Time of the Merger (S., James Miller, Jr. and Wayne Wetherell)
shall be the directors of XImage, such directors to hold office until the
next annual Shareholders' meeting of XImage or until their successors are
elected and duly qualified in accordance with the terms of the Articles and
Bylaws of XImage.
(e) Officers. The officers of XImage commencing at the
Effective Time of the Merger shall be S. James Miller Jr., President, and
Wayne Wetherell, Chief Financial Officer and Secretary, such officers to hold
office at the pleasure of the board of directors of XImage.
(f) Effects of Merger. The Merger shall have the effects set
forth in Section 1107 of the California GCL.
Section 2 -- Effect of Merger on the Capital Stock of the Constituent
Corporations
Section 2.1 Conversion of XImage Common Stock
(a) Certain Definitions. the following definitions relate to
terms used in this Section 2 as well as other sections in this Merger
Agreement.
(i) "Merger Warrants" means warrants to purchase 325,000
shares of ImageWare Common Stock ("325,000 Merger Warrants") at any time
during the four year period commencing on the Closing of the Merger, at a
per share price equal to the same per share price at which ImageWare sells
its Common Stock to obtain the funds necessary to consummate the Merger (or
the equivalent per share price if other equity securities, e.g., preferred
stock, are sold to obtain the funds necessary to consummate the Merger). Such
Merger Warrant price will
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be memorialized in an agreement to be entered into by ImageWare and XImage
prior to the Closing.
(ii) "Cash Merger Value" means $2,000,000 increased or decreased
based upon the amount of XImage's Net Worth at October 31, 1997, as follows:
In the event that the Net Worth of XImage at October 31, 1997 (determined in
accordance with subparagraph (A) below) is greater than - $1,225,000 or less
than - $1,275,000, then the Cash Merger Value shall be $2,000,000 increased
or decreased by the difference between the Net Worth so computed and
$1,250,000. In the event that the Net Worth of Ximage at October 31, 1997 so
determined is between - $1,225,000 and -$1,275,000, then no adjustment will
be made in the amount of the Cash Merger VAlue. For example, if the Net Worth
of XImage at October 31, 1997 is computed to be -$1,100,000, then the Cash
Merger Value shall be $2,150,000 ($2,000,000 plus $150,000). Similarly, if
the Net Worth of XImage at October 31, 1997 is computed to be -$1,230,000),
then the Cash Merger Value shall be $2,000,000 (no adjustment).
(A) A calculation of the Net Worth of XImage at October 31,
1997 shall be made on or before Wednesday November 12, 1997 by XImage (who
may use calculation) and upon completion shall immediately be provided to
ImageWare for review and approval. On or before Monday November 17, 1997,
ImageWare shall advise XImage in writing that if either approves or
disapproves such Net Worth calculation, provided that if ImageWare fails to
so advise XImage, then it shall be deemed to have disapproved such Net Worth
computation. On or before Wednesday November 19, 1997, ImageWare and XImage
shall meet to resolve their differences regarding such Net Worth calculation
and if they are unable to agree upon the amount of the Net Worth of XImage at
October 31, 1997, then the calculation of the Net Worth of XImage, together
with ImageWare's notice of the items in the computation with which it
disagrees, shall be submitted to a mutually acceptable independent public
accounting firm (the "CPA") who, at ImageWare's cost, shall determine the Net
Worth of XImage at October 31, 1997. The determination of the Net Worth of
XImage so made by the CPA shall be final and binding upon XImage and
ImageWare. The CPA shall be directed to make such Net Worth determination as
soon as feasible.
(B) In the event that ImageWare does no agree with the
computation of XImage's Net Worth at October 31, 1997 and ImageWare and
XImage are unable to agree upon the amount of such Net Worth, then, if the
disagreement involves an aggregate amount of not more than $100,000, (1) the
Merger shall close; (2) the amount in dispute will be deposited in
the Holdback Escrow; and (3) such amount will subsequently be distributed by
the Escrow Holder to ImageWare and/or XImage based upon the determination of
XImage's Net Worth at October 31, 1997, as determined by the CPA.
(iii) "Merger Consideration" means the sum or combination of the
Merger Warrants and the Cash Merger Value.
(iv) "Net Worth of XImage" means the assets of XImage reduced by
the liabilities of XImage as of the computation date (a negative amount at
September 30 1997).
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The computation of the Net Worth of XImage at October 31, 1997 shall be made
consistent with the method of accounting used by XImage in preparing its
September 30, 1997 financial statements. Such Net Worth computation at
October 31, 1997 shall in all material respects conform to GAAP and shall
include as a liability, the fees, costs and expenses incurred by XImage in
consummating the Merger.
(v) "Optionees" means holders of options to purchase shares of
XImage common Stock.
(vi) "Option Exercise Notice" means the document in which an
Optionee communicates to Ximage its exercise of an XImage option.
(vii) "XImage Stock Options" means XImage options that are
exercised subsequent to the date of this Merger Agreement solely for the
purpose of participating in the Merger.
(viii) "XImage Common Stock Outstanding" means the total number of
shares of XImage Common Stock outstanding at the Closing of the Merger,
including shares covered by the XImage Stock Options.
(b) Optionees that May Participate in the Merger. All Optionees
holding options to purchase shares of XImage Common Stock, to the extent
vested (including options for which XImage has accelerated vesting), which
are outstanding at the date of this Merger Agreement, may participate in the
Merger and shall be entitled to receive a portion of the Merger
Consideration, provided that prior to the consummation of he Merger they
exercised their options, by the execution and delivery to XImage of an Option
Exercise Notice (as described in subsection (c) below) and either (i) pay the
exercise price on XImage in purchase of the underlying shares of XImage
Common Stock, or (ii) advise XImage that their exercise of their options is
conditioned on the consummation of the Merger and that they are effective a
"net exercise of their options wherein the cash component of the Merger
payable to them will be reduced by the per share exercise price of the option
plus their pro rata share of any Merger expenses payable by the XImage
Shareholders. Solely to determine the net Merger Consideration receivable
upon consummation of the Merger by an Optionee who conditionally exercises
his or her option and to determine such Optionee's obligations resulting from
the Merger, the number of shares of XImage Common Stock issuable upon the
exercise of XImage Stock Options shall be considered to be shares of Ximage
Common Stock Outstanding at the Effective Time of the Merger and the holders
of XImage Stock Options shall be considered to be XImage Shareholders.
(c) Notice to XImage Shareholders and Holders of XImage Options. Prior
to the closing of the Merger, ImageWare shall prepare a Disclosure Statement
relating to the proposed issuance of the Merger Warrants to Shareholders and
Optionees of XImage and XImage shall transmit such Disclosure Statement
together with a notice to each holder of record of a certificate representing
XImage Common Stock ("XImage Stock Certificate") or a stock option agreement
representing XImage Stock Options, containing instructions with respect to
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their delivery of the XImage Stock Certificate or the Option Exercise Notices
to the Shareholder Representative for delivery by them to the Escrow referred
to in subsection (f)(i) below.
(D) CONVERSION; MERGER CONSIDERATION. At the Effective Time of the
Merger, the holders of all outstanding shares of XImage Common Stock
immediately prior to the Effective Time of the Merger, including shares of
Common Stock represented by XImage Stock Options exercised conditionally upon
the Closing of the Merger, shall, by virtue of the Merger, and without any
action on the part of the holders thereof, be converted into the right to
receive their proportionate share of the Merger Consideration, which shall be
deliverable/payable as provided herein upon the surrender of the XImage Stock
Certificates formerly representing such shares of XImage Common Stock or
Option Exercise Notices representing XImage Stock Options.
(I) SCHEDULE OF MERGER CONSIDERATION PAYABLE TO THE XIMAGE
SHAREHOLDERS. XImage shall prepare and deliver to the Escrow Holder of the
Closing Escrow, a Schedule as of the date of the Closing the contains (1) a
list of the Shareholders of XImage and the holders of XImage Stock Options;
(2) the number of shares of XImage Common Stock and XImage Stock Options
owned by each of such XImage Shareholders and Optionees, respectively; and
(3) the number of Merger Warrants and the amount of the Cash Merger Value
distributable to each of them through the Closing Escrow or that has been
deposited in the Indemnification Escrow on their behalf. Such Schedule shall
also reflect the number of Merger Warrants distributable to Business
Development Advisors.
(E) FRACTIONAL MERGER WARRANTS. No Merger Warrants to purchase
fractional shares of ImageWare Common Stock will be issued to XImage
Shareholders or Business Development Advisors as a result of the Merger. The
number of share of ImageWare Common Stock purchasable under such Merger
Warrants, when distributed to the XImage Shareholders, shall be rounded to
the nearest whole number of Merger Warrants to which each XImage Shareholder
and Business Development Advisors is entitled, such that Merger Warrants to
purchase exactly 325,000 shares of ImageWare Common Stock will be issued and
distributed to the XImage Shareholders and Business Development Advisors.
(F) SURRENDER OF CERTIFICATES AND RECEIPT OF CONSIDERATION.
(I) ESCROWS. At or prior to the Closing, ImageWare andXImage
shall enter into an Escrow Agreement with First Trust of California, as
Escrow Agent (the "Holdback Escrow"), and XImage shall enter into an Escrow
Agreement with First Trust of California, as Escrow Holder (the "Closing
Escrow").
(II) HOLDBACK ESCROW. At the Closing, ImageWare shall deliver
$250,000 of the Cash Merger Value (the "Indemnification Fund") to the Escrow
Holder of the Holdback Escrow to be held for the purposes set forth in
Subsection (iii) below. The Escrow Agent shall hold the Indemnification Fund
in accordance with the terms of the Holdback Escrow Agreement and this Merger
Agreement for the purpose of providing a fund that can be drawn upon to
indemnify ImageWare pursuant to Section 8.2 hereof. The Indemnification Fund,
including interest thereon, shall be ehld for the account of the XImage
Shareholders and, to the
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extent not so used to indemnify ImageWare, shall be distributed to the XImage
Shareholders in accordance with their interests as reflected in the Schedule
delivered to the Escrow Holder of the Closing Escrow pursuant to Section
2.1(d)(i) hereof, upon termination of the Holdback Escrow.
(III) CLOSING ESCROW; SURRENDER OF XIMAGE STOCK CERTIFICATES
AND OPTION EXERCISE AGREEMENTS. At the Closing ImageWare shall deliver the
Merger Warrants and Cash Merger Value (less the Indemnification Fund) to the
Escrow Holder of the Closing Escrow who shall receive XImage Stock
Certificates, representing share of XImage Common Stock, or Option Exercise
Notices, representing XImage Stock Options in exchange for the number of
Merger Warrants to purchase whole shares of ImageWare Common Stock to which
the holder of the XImage Common Stock of XImage Stock Options is entitled
pursuant to Section 2.1(d)(i), plus that portion of the Cash Merger Value
which such holder has the right to received pursuant to Section 2.1(d)(i),
after giving effect to any required tax withholding, and the XImage Stock
Certificates and Option Exercise Notices so surrendered shall forthwith be
canceled. In the event that an XImage Shareholder, including an Optionee of
an XImage Stock Option, fails to deliver to the Escrow Holder his or her
XImage Stock Certificate of Option Exercise Notice, then the Escrow Holder
shall hold the Merger Consideration for such XImage Shareholders until they
deliver to them such XImage Stock Certificate or Option Exercise Notice or an
acceptable substitute therefor, e.g., a notice of lost certificate and
indemnification with respect thereto. The Escrow Holder shall deliver such
XImage Stock Certificates or Option Exercise Notices to ImageWare concurrent
with their delivering the Merger Consideration to the XImage Shareholders.
(IV) LIMITATIONS. Notwithstanding any other provision of
this Merger Agreement, until holders of Ximage Stock Certificates or Option
Exercise Notices have surrendered them, or an acceptable substitute therefor,
for exchange as provided herein, that portion of the Merger Consideration
attributable to such XImage Shareholders shall not be paid or distributed to
such XImage Shareholder. Any interest earned on the funds so held in the
Closing Escrow shall be held for the benefit of the XImage Shareholders and
shall be distributed to them upon termination of the Closing Escrow.
(G) CANCELLATION OF THE XIMAGE COMMON STOCK. At the Effective
Time of the Merger, all of the authorized and outstanding shares of XImage
Common Stock shall be canceled and cease to represent any interest in XImage
and the holders of such XImage Common Stock shall cease to have any right of
a shareholder of XImage. From and after the Effective Time of the Merger, the
holders of the shares of XImage Common Stock Outstanding immediately prior to
the Effective Time of the Merger, as such holders, shall be entitled to
receive only the Merger Consideration.
(I) The holders of XImage Stock Options that are exercised
conditionally upon the Closing of the Merger shall not be required to
purchase the shares of XImage Common Stock underlying the XImage Stock
Options, but such shares shall be taken into consideration in determining
the amount of the Cash Merger Value payable to the holders of such XImage
Stock Options. Thus, the per share Cash Merger Value payable to a holder of
an XImage Stock Option shall be an amount equal to the excess of the per
share Cash Merger Value
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over the exercise price of such XImage Stock Option, provided that if there
is no excess, then the holder of such XImage Stock Option shall pay to XImage
the amount by which the exercise price of the XImage Stock Option exceeds the
per share Cash Merger Value, and such amount shall increase the Cash Merger
Value.
(ii) The Cash Merger Value ($2,000,000, subject to adjustment)
shall be increased by the exercise price of the XImage Stock Options that are
exercised conditionally upon the Closing of the Merger and then divided by
the number of shares of Common Stock outstanding, including the shares that
would ordinarily be issued upon the exercise of such XImage Stock Options.
This will yield the amount of cash per share payable to the XImage
Shareholders, except that the amount of cash per share payable to the holders
of XImage Stock Options will be reduced by the exercise price of their price
of their XImage Stock Options.
(iii) The number of Merger Warrants issuable each of to the
Shareholders of XImage Common Stock and the holders of XImage Stock Options,
shall be determined by dividing the 325,000 Merger Warrants, reduced by
the number of Merger Warrants distributable to Business Development Advisors,
by the number of shares of XImage Common Stock Outstanding at the Effective
Time of the Merger and multiplying such amount by the number of shares of
XImage Common Stock Outstanding owned by each XImage Shareholder.
(h) CANCELLATION OF OPTIONS. At the Effective Time of the Merger,
all unexercised XImage options shall be canceled.
SECTION 2.2 CONVERSION OF IAI COMMON STOCK. At the Effective Time of the
Merger, each share of IAI Common Stock outstanding immediately prior to the
Effective Time of the Merger shall by virtue of the Merger and without any
action on the part of the holder thereof be converted into one share of a
newly-created class of $.01 par value common stock of the Surviving
Corporation.
SECTION 2.3 WITHHOLDING TAX. The right of any XImage Shareholder to
receive the Merger Consideration shall be subject to any required tax
withholding obligation.
SECTION 3--THE CLOSING
SECTION 3.1 CLOSING; CLOSING DATE. On or before November 26, 1997
(unless this Merger Agreement shall have been terminated and the Merger
abandoned pursuant to the provisions of Section 11 hereof), a closing
("Closing") shall take place at the offices of ImageWare, 15373 Innovative
Drive, Suite 120, San Diego, California 92128, at 10:00 A.M., California
time, provided that if it is not feasible to Close the Merger on such date,
then such Closing shall take place at such other time, or at such other place
as may be agreed upon in writing by the parties hereto ("Closing Date"). The
Merger Documents shall be filed with the California Secretary of State on the
Closing Date and, the Effective Date and the Closing Date shall be the same.
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SECTION 4--REPRESENTATIONS AND WARRANTIES OF XIMAGE
Except as otherwise disclosed to ImageWare in a Schedule attached hereto
(which Schedule shall contain appropriate references to identify the
representations and warranties herein to which the information is such
Schedule relates) ("XImage Disclosure Schedule"), XImage represents and
warrants to ImageWare as follows:
SECTION 4.1 ORGANIZATION. XImage is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Cal;ifornia and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being
conducted. XImage is duly qualified or authorized and in good standing to do
business in each jurisdiction in which the property owned, leased, or operated
by it or the nature of the business conducted by it makes such qualification
necessary, except for jurisdictions in which failure to be so qualified or
authorized would not have a material adverse effect on the assets,
properties, business or financial condition of XImage taken as a whole (the
"Business").
SECTION 4.2 CAPITALIZATION. The authorized capital stock of XImage
consists of 5,000,000 shares of Common Stock, no par value. As of the date
hereof, (a) 1,629,665 shares of Common Stock are issued and outstanding, and
(b) options to purchase 2,197,688 shares of issued and outstanding shares of
XImage Common Stock are validly issued, fully paid and nonassessable and free
of preemptive rights. Except as set forth above, as of the date of this
Merger Agreement, there are no shares of capital stock of XImage issued or
outstanding or any options, warrants, subscriptions, calls, rights,
convertible securities or other agreements of commitments obligating XImage
is issue, transfer, sell, redeem, repurchase or otherwise acquire any shares
of this capital stock or securities. After the Effective Time of the Merger,
XImage will have no obligation to issue, transfer or sell any shares of its
capital stock pursuant to any employee benefit plan or otherwise.
SECTION 4.3 AUTHORITY RELATIVE TO THIS MERGER AGREEMENT. XImage has
all requisite corporate power and authority to enter into this Merger
Agreement and subject to approval of this Merger Agreement and the Merger by
XImage Shareholders and to the consents and approvals set forth in Section
4.4 below, to consummate the Merger. The execution, delivery and performance
of this Merger Agreement by XImage and the consummation by XImage of the
Merger have been duly authorized by all necessary corporate action on the
part of XImage, including the approval of the Board of Directors of XImage,
and no other corporate proceedings on the part of XImage are necessary to
authorize this Merger Agreement or the Merger (except for the approval by the
XImage Shareholders). This Merger Agreement has been duly and validly
executed and delivered by XImage and, subject to approval by the XImage
Shareholders, constitutes a valid and binding agreement of XImage, enforceable
against XImage in accordance with its terms, except that such enforceability
may be subject to (a) bankruptcy, insolvency, reorganization or other similar
laws relating to enforcement of creditor's rights generally, and (b) general
equitable principles of law.
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SECTION 4.4 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for
applicable requirements of the Securities Act of 1933, as amended
("Securities Act"), state laws relating to takeovers, if applicable, state
securities or blue sky laws, state and local laws and regulations relating to
licensing and the filing of the Documents of Merger as required by the
California GCL, no filing with, and no permit, authorization, consent or
approval of, any court or tribunal or administrative, governmental or
regulatory body, agency or authority (except state and local authorities who
have entered into contracts with XImage) is necessary for the execution,
delivery and performance of this Merger Agreement by XImage or the Merger.
Neither the execution, delivery nor performance of this Merger Agreement by
XImage, nor the consummation by XImage of the Merger, nor compliance by
XImage with any of the provisions hereof, will (a) conflict with or result in
any breach of any provisions of the Articles of Incorporation or By-Laws of
XImage, (b) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation, acceleration, vesting, payment, exercise,
suspension or revocation) under, any of the terms, conditions or provisions
of any note, deed of trust, security interest, license, contract, agreement,
plan or other instrument or obligation to which XImage is a part or by which
it or any of its properties or assets may be bound or affected, (c) violate
any order, writ, injunction, decree, statute, rule or regulation applicable
to XImage or any of its properties or assets, or (d) cause the suspension or
revocation of any registration, licenses, permits and other consents or
approvals of governmental agencies for violations, breaches, defaults,
terminations, cancellations, accelerations, suspensions or revocations which
would not individually or in the aggregate have a material adverse effect on
the Business of XImage.
SECTION 4.5 XIMAGE FINANCIAL STATEMENTS. XImage has delivered to
ImageWare true and complete copies of its unaudited financial statements
(including related notes) for the Fiscal Year ended December 31, 1996 and the
Nine Month Period ended September 30, 1997 ("XImage Financial Statements").
The XImage Financial Statements have been prepared from the books and records
of XImage and fairly present, in conformity with GAAP applied on a consistent
basis (except as may be indicated in the notes thereto), in all material
respects, the financial position of XImage as of their dates and the results
of operations and cash flows for the periods then ended (subject to normal
year-end adjustments in the case of any unaudited interim financial
statements).
SECTION 4.6 ABSENCE OF MATERIAL ADVERSE AND OTHER CHANGES. Except as
contemplated by this Merger Agreement, and except as set forth in Section 4.6
of the XImage Disclosure Schedule, since September 30, 1997, XImage has
conducted its business in the ordinary course, consistent with past
practices, and there has not been: (a) any event or occurrence that has
materially adversely affected XImage or its Business, (b) any declaration or
payment of any dividend in respect of its capital stock, (c) any increase in
the regular compensation of any of the officers or employees of XImage,
except such increases as have been granted in the ordinary course of business
in accordance with its customary practices (which shall include normal
periodic performance reviews, promotions and related compensation increases),
(d) any incurrence, assumption or guarantee by XImage of any indebtedness for
borrowed money other than in the ordinary course of business consistent with
past practices, (e) any transaction or commitment made, or any contract or
agreement entered into, by XImage
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(including the acquisition or disposition of any assets) or any
relinquishment by XImage of any contract or other right, in either case,
material to XImage's Business taken as a whole, other than transactions and
commitments in the ordinary course of business consistent with past practices
and those contemplated by this Merger Agreement, (f) any change in any method
of accounting practice by XImage, (g) any loss or damage to the properties or
assets of XImage which has materially adversely affected, or is reasonably
likely to materially adversely affect XImage, or (h) any agreement or any
commitment to take any of the actions described in this Section 4.6.
SECTION 4.7 ACCOUNTS RECEIVABLE. The accounts receivable of XImage
reflected in the Net Worth of XImage calculated as of the Closing pursuant to
Section 2.1(b)(iii) hereof shall be collected within twelve months following
the Closing, without resort to litigation and without offset, discount,
return, or allowance, in the aggregate face amounts thereof, as reflected in
such Net Worth calculation.
SECTION 4.8 LITIGATION. Except for litigation disclosed in Section 4.8
of the XImage Disclosure Schedule, there is no suit, action or proceeding
pending or, to the best knowledge of XImage, threatened against or affecting
XImage, the outcome of which, in the reasonable judgment of XImage is likely
individually or in the aggregate to have a material adverse affect on the
Business of XImage.
SECTION 4.9 ABSENCE OF UNDISCLOSED LIABILITIES. Except for liabilities
or obligations which (i) are accrued or reserved against in the XImage
Financial Statements (or reflected in the notes thereto); or (ii) which were
incurred after September 30, 1997 in the ordinary course of business and
consistent with past practices; or (iii) which in the aggregate would not
have a material adverse effect on the Business of XImage. XImage does not
have an liabilities or obligations (whether absolute, accrued, contingent or
otherwise) of a nature required by GAAP to be reflected in its September 30,
1997 Balance Sheet (or in the notes thereto).
SECTION 4.10 PROPERTIES, LIENS, ETC. XImage owns all of its tangible and
intangible property shown on its September 30, 1997 Balance Sheet or used in
operating its business, real and personal, free and clear of any liens,
except for liens for current taxes not yet delinquent.
SECTION 4.11 TAXES. XImage has (a) timely filed all material tax
returns, including income, sales, payroll and property tax returns, required
by applicable law to be filed by it for tax years ended prior to the date of
this Merger Agreement and all such tax returns are true, complete and correct
in all materials respects, and (b) paid all taxes due or has properly accrued
for or reserved for all such taxes for periods subsequent to the periods
covered by such tax returns.
SECTION 4.12 BENEFIT PLANS.
(a) LIST OF PLANS. Section 4.12 of the XImage Disclosure
Schedule lists each XImage Employee Benefit Plan. Each of the XImage Employee
Benefit Plans has been operated and administered in all material respects in
accordance with the terms and with all applicable laws, and XImage has no
liability (contingent or otherwise) for any funding of such Employee Benefit
Plans.
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(b) COMPLIANCE. For purposes of this Section 4.12, "Employee
Benefit Plan" means any deferred compensation, retirement, severance, health
or other plan or program constituting an "employee benefit plan" as defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended, and all regulations and published interpretations promulgated
thereunder, as in effect from time to time.
SECTION 4.13 EMPLOYMENT MATTERS; LABOR RELATIONS.
(a) COMPENSATION OF KEY EMPLOYEES. Section 4.13 of the XImage
Disclosure Schedule sets forth a true and complete list of the names,
classifications, dates of hire and base compensation for the year ending
December 31, 1997, of each employee of XImage whose base compensation exceeds
$50,000 per annum.
(b) RELATIONS WITH EMPLOYEE. XImage has no adverse labor
matters pending or to XImage's knowledge, threatended and to XImage's
knowledge, its relations with its employees are good.
SECTION 4.14 INTELLECTUAL PROPERTY. Except as set forth in Section 4.14
of the XImage Disclosure Schedule, and expect to the extent that the
inaccuracy of any of the following (or the circumstances giving rise to such
inaccuracy), individually and in the aggregate, would not have a material
adverse effect on the Business of XImage:
(a) OWNERSHIP OF INTELLECTUAL PROPERTY. XImage owns, or is
licensed or otherwise has the right to use all Intellectual Property (as
defined below) that in any material respect is used in the business of XImage.
(b) NO CLAIMS OF INFRINGEMENT, ETC. No claims are pending, or
to the knowledge of XImage, threatened that XImage is infringing on or
otherwise violating the rights of any person with regard to any Intellectual
Property owned by and/or licensed to XImage.
(c) NO INFRINGEMENT OF XIMAGE INTELLECTUAL PROPERTY. To the
knowledge of XImage, no person is infringing or otherwise violating any right
of XImage with respect to any Intellectual Property owned by and/or licensed
to XImage, PROVIDED, that the foregoing representation is qualified to the
extent of publicly known problems of general applicability with respect to
software piracy and copyright protection.
(d) NO CLAIMS OF OWNERSHIP. None of the former or current
members of management or key personnel of XImage, including all former and
current employees, agents, consultants and contractors who have contributed
to or participated in the conception and development of designs, computer
software or other Intellectual Property of XImage, has asserts in writing any
claim against XImage in connection with the involvement of such persons in
the conception and development of any design, computer software or other
Intellectual Property, and no such claim, to the knowledge of XImage, has
been threatened.
(e) DEFINITION OF INTELLECTUAL PROPERTY. For purposes of this
Merger Agreement, "Intellectual Property" means (i) trademarks (registered or
unregistered), service
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marks, trade names and other indications of origin, the goodwill associated
with the foregoing and registrations in any jurisdiction of, and applications
in any jurisdiction to register, the foregoing, including any extension,
modification or renewal of any such registration or application; (i)
inventions, discoveries and ideas, whether patented or patentable; (iii)
nonpublic information, trade secrets, know-how and confidential information
and rights in any jurisdiction to limit the use or disclosure thereof by any
person; (iv) writings and other works, whether copyrighted or copyrightable;
(v) registration or applications for registration of copyrights in any
jurisdiction, and any renewals or extensions thereof; (vi) computer programs
and software (including source code, object code and data); and (vii)
licenses, covenants not to sue and the like relating to the foregoing. XImage
has not assigned any of its claims or causes of action arising out of or
related to any infringement or misappropriation of any of the foregoing, if
any.
(f) REGISTRATIONS. Except for the name "XImage" and the XImage
logo, there are no (i) material domestic and foreign registered trademarks or
registered copyrights and applications for registration of any of the
foregoing; (ii) material trade names, service marks or service names which
are owned by XImage and that are used or proposed to be used in the business
of XImage as currently conducted; or (iii) material licenses and other
agreements to which XImage is a party and pursuant to which XImage is
authorized to use any Intellectual Property. TO the knowledge of XImage, all
registered Intellectual Property has been validly issued or registered and is
subsisting. To the knowledge of XImage, XImage has not taken or omitted to
take any act, which act or omission might have the effect of waiving or
impairing any of the rights of XImage to practice and enforce any patent, or
to use and enforce any trademark or copyright listed in Section 4.14 of the
XImage Disclosure Schedule.
SECTION 4.15 INSURANCE. Section 4.15 of the XImage Disclosure Schedule
contains a complete and correct list and accurate summary description of all
insurance policies maintained by or on behalf of or covering XImage, its
assets or operations or the conduct of its business. All such policies are in
full force and effect, no notices of cancellation or nonrenewal have been
received with respect thereto and all premiums due thereon have been paid.
XImage has complied in all material respects with the provisions of such
policies. Such policies are of the type and in amounts customarily carried by
persons conducting businesses similar to the business conducted by XImage.
SECTION 4.16. COMPLIANCE WITH APPLICABLE LAW. To XImage's knowledge,
XImage is not in violation of, or to XImage's knowledge, is not under
investigation with respect to nor has it been threatened to be charged without
given notice of any violation of, any applicable laws, ordinances, rules and
regulations of any court, administrative agency or commission or other
governmental authority or instrumentality applicable to XImage, except for
such violations, if any, that, in the aggregate, have not had and would not,
in the reasonable judgment of XImage, be likely to have a material adverse
effect on its Business.
SECTION 4.17 CERTAIN CONTRACTS AND ARRANGEMENTS. All material agreements
to which XImage is a party are valid and binding upon XImage, and to XImage's
knowledge, enforceable in accordance with their terms, and neither XImage nor
to XImage's knowledge any other party to such agreements is in default under
any of such agreements, nor, to the knowledge
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of XImage, has any event or circumstance occurred that, with notice of lapse
of time or both, would constitute any event of default by XImage or any other
party thereto other than with respect to any defaults that would not,
individually or in the aggregate, have a material adverse effect on the
Business of XImage. To XImage's knowledge, none of the parties to the
agreements identified in this Section 4.17 have terminated, or have
expressed an intent to reduce materially or terminate in the future, such
agreements. None of the material agreements to which XImage is a party,
including XImage's contract to provide and maintain a booking software system
to the New York City Police Department, require the other contracting
party(s) to such agreements to consent to the Merger.
SECTION 4.18 PROHIBITED PAYMENTS. XImage has not with respect to the
opportunities, business or operation of XImage, (a) entered into any
understanding, agreement or arrangement, written or oral, under or pursuant
to which bribes, kickbacks, rebates, payoffs or other forms of illegal
payments have been or will be made, either directly or indirectly, through
agents, brokers or other intermediaries, (b) made any illegal payment or
contribution of moneys, services or property to any political party,
candidate or elected official, directly or indirectly, for any purpose, or
(c) directly or indirectly engaged in any activity prohibited by the Foreign
Corrupt Practices of 1977.
SECTION 4.19 ENVIRONMENTAL MATTERS. XImage holds, and is in substantial
compliance with, all environmental permits and all applicable environmental
laws related to the operation of its business, except where the failure to
hold such permits or to be in compliance would not have a material adverse
effect on the Business XImage.
SECTION 4.20 BOARD APPROVAL. The Board of Directors of XImage has
approved the Merger.
SECTION 4.21 BROKERS. No broker, finder or investment banker is
entitled to any brokerage, finder's fee or commission payable by XImage in
connection with the transactions contemplated by this Merger Agreement based
upon arrangements made by or on behalf of XImage, except Business Development
Advisers.
SECTION 4.22 DISCLOSURE. No representation or warranty by XImage in
this Merger Agreement or any certificates delivered pursuant to the terms
hereof, contains or will contain an untrue statement of a material fact, or
omits or will omit to a state a material fact necessary to make the statements
contained herein or therein, in light of the circumstances in which they were
made, not misleading.
SECTION 5 -- REPRESENTATIONS AND WARRANTIES OF IMAGEWARE
Except as otherwise disclosed to XImage in a Schedule delivered to it
prior to the execution hereof (which Schedule shall contain appropriate
references to identify the
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representations and warranties herein to which the information in such
Schedule relates) ("ImageWare Disclosure Schedule"), ImageWare represents and
warrants to XImage as follows:
SECTION 5.1 ORGANIZATION. Each of ImageWare and IAI is a corporation
duly organized, validly existing and in good standing under the laws of the
State of California and has all requisite corporate power and authority to
own, lease and operate its properties and to carry on its business as now
being conducted. Each of ImageWare and IAI is duly qualified or licensed and
in good standing to do business in each jurisdiction in which the property
owned, leased or operated by it or the nature of the business conducted by it
makes such qualification necessary.
SECTION 5.2 CAPITALIZATION. The authorized capital stock of ImageWare
consists of 50,000,000 shares of Common Stock, par value $.001 per share, and
4,000,000 shares of preferred stock, par value $.001 per share. As of the
date hereof, (a) 4,272,875 shares of Common Stock are issued and outstanding,
(b) options to purchase 657,500 shares of Common Stock are outstanding under
all stock option plans of ImageWare, (c) 342,500 shares of Common Stock are
reserved for issuance pursuant to stock options not yet granted under
ImageWare's stock option plans; (d) 524,500 shares are issuable upon the
exercise of outstanding warrants; (e) 327,219 shares are issuable upon the
conversion of convertible debentures and notes; and (f) there are 341,000
shares of ImageWare Preferred Stock outstanding. In addition, Atlus, Ltd. has
the right at the end of each calendar quarter prior to the time that
ImageWare "goes public," to purchase a five year warrant to purchase at $4
per share that number of shares of Common Stock as will make Atlus the owner
of one-third of ImageWare's outstanding Capital Stock as of the end of such
quarter. All of the issued and outstanding shares of Common Stock and
Preferred Stock are validly issued, fully paid and nonassessable and free of
preemptive rights. All of the Common Stock reserved for issuance upon the
exercise of the Warrants issuable to XImage Shareholders at the Effective Time
of the Merger in accordance with this Merger Agreement will be, when so
issued, duly authorized, validly issued, fully paid and non-assessable. The
authorized capital stock of IAI consists of 100 shares of IAI Common Stock,
par value $.01 per share, all of which shares are validly issued and
outstanding, fully paid and nonassessable and are owned by ImageWare.
SECTION 5.3 AUTHORITY RELATIVE TO THIS MERGER AGREEMENT. Each of
ImageWare and IAI has all requisite corporate power and authority to enter
into this Merger Agreement and subject, in the case of this Merger Agreement,
to the consents and approvals set forth in Section 5.4 below, to consummate
the transactions contemplated hereby. The execution, delivery and performance
of this Merger Agreement by ImageWare and IAI and the consummation by
ImageWare and IAI of the Merger have been duly authorized by all necessary
corporate action on the part of ImageWare and IAI, including the approval of
their respective Boards of Directors and sole shareholder of IAI, and no
other corporate proceedings on the part of ImageWare or IAI are necessary to
authorize this Merger Agreement or the Merger. This Merger Agreement has been
duly and validly executed and delivered by ImageWare and IAI and constitutes
a valid and binding agreement of each of them, enforceable against each of
them in accordance with its terms, except that such enforceability may be
subject to (a) bankruptcy, insolvency,
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reorganization or other similar laws relating to enforcement of creditors'
rights generally, and (b) general equitable principles.
SECTION 5.4 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for the
applicable requirements of the Securities Act, state or foreign laws relating
to takeovers, if applicable, state securities or blue sky laws, state and
local laws and regulations relating to licensing and the filing of the
Documents of Merger as required by the California GCL, no filing with, and no
permit, authorization, consent or approval of, any government entity is
necessary for the execution, delivery and performance of this Merger
Agreement by ImageWare and IAI or the Merger. Neither the execution, delivery
nor performance of this Merger Agreement by Image Ware and IAI, nor the
consummation by ImageWare and IAI of the Merger, nor compliance by ImageWare
and IAI with any of the provisions hereof, will (a) conflict with or result
in any breach of any provisions of the Articles of Incorporation or By-Laws
of ImageWare or IAI, (b) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise
to any right of termination, cancellation, acceleration, vesting, payment,
exercise, suspension or revocation) under, any of the terms, conditions or
provisions of any note, deed of trust, security interest, license, contract,
agreement, plan or other instrument or obligation to which ImageWare is a
party or by which it or any of its properties or assets may be bound or
affected, (c) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to ImageWare or any of its properties or assets, or (d)
cause the suspension or revocation of any registrations, licenses, permits
and other consents or approvals of governmental agencies for violations,
breaches, defaults, terminations, cancellations, accelerations, suspensions
or revocations which would not individually or in the aggregate have a
material adverse effect on the Business of ImageWare.
SECTION 5.5 FINANCIAL STATEMENTS. ImageWare has delivered to XImage
true and complete copies of its audited financial statements of (including
related notes) for the Fiscal Years Ended December 31, 1995 and December 31,
1996, and unaudited interim financial statements of the Six Month Period
Ended June 30, 1997 ("ImageWare Financial Statements"). The ImageWare
Financial Statements fairly present, in conformity with GAAP applied on a
consistent basis (except as may be indicated in the notes thereto), the
financial position of ImageWare as of their dates and the results of
operations and cash flows for the periods then ended (subject to normal
year-end adjustments in the case of any unaudited interim financial
statements).
SECTION 5.6 INFORMATION SUPPLIED. None of the information supplied or
to be supplied by ImageWare to XImage for inclusion in its Proxy Statement to
its Shareholders seeking approval of the Merger, will, at the time of the
mailing of the Proxy Statement and any amendment or supplement thereto, and
at the time of any meeting of Shareholders of XImage to vote upon this Merger
Agreement and the transactions contemplated hereby, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances in which they are made, not misleading.
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SECTION 5.7 BOARD APPROVALS. The Board of Directors of ImageWare and
IAI have approved the Merger.
SECTION 5.8 LITIGATION. There is no suit, action or proceeding pending
or, to the best knowledge of ImageWare, threatened against or affecting
ImageWare, the outcome of which, in the reasonable judgment of ImageWare,
is likely individually or in the aggregate to have a material adverse affect
on the financial condition, properties or business of ImageWare.
SECTION 5.9 BROKERS. No broker, finder or investment banker is
entitled to any brokerage, finder's fee or commission payable by ImageWare in
connection with the transactions contemplated by this Merger Agreement based
upon arrangements made by or on behalf of ImageWare.
SECTION 5.10 DISCLOSURE. No representation or warranty by ImageWare in
this Merger Agreement, the schedules hereto or any certificates delivered
pursuant to the terms hereof, contains or will contain an untrue statement of
a material fact, or omits or will omit to state a material fact necessary to
make the statements contained herein or therein, in light of the
circumstances in which they were made, not misleading.
SECTION 6--PRE CLOSING COVENANTS
SECTION 6.1 COVENANTS OF ALL PARTIES. During the period from the date
of this Merger Agreement until the earlier of the termination of this Merger
Agreement or the Effective Time of the Merger, each of the parties hereto
covenants and agrees as follows:
(a) ADVISE OF CHANGES. Each party hereto shall promptly advise
each of the other parties in writing of any event occurring subsequent to the
date of this Merger Agreement that would render any representation or
warranty of such party contained in this Merger Agreement, if made on or as
of the date of such event or the Closing Date, untrue or inaccurate in any
material respect. Such advisement shall constitute an amendment or
supplement to such party's Disclosure Schedule if, and only if, consented to
by the other party. In such event, for all purposes of this Merger
Agreement, a party's Disclosure Schedule shall be deemed to be such
Disclosure Schedule, as amended or supplemented. In the event that ImageWare
seeks to amend or supplement its Disclosure Schedule pursuant to this Section
6.1(a), but XImage does not consent to such amendment or supplement, or vice
versa, XImage seeks to amend or supplement its Disclosure Schedule pursuant
to this Section 6.1(a), but ImageWare does not consent to such amendment or
supplement, then this Merger Agreement shall be deemed terminated by mutual
consent as provided in Section 11.1(a) hereof.
(b) CONFIDENTIALITY. Each party shall hold in confidence all
nonpublic information obtained from the other until such time as such
information is otherwise publicly available and, if this Merger Agreement is
terminated, each party will deliver to the other all documents, work papers
and other materials (including copies) obtained by such party or on its
behalf from the other party as a result of this Merger Agreement or in
connection herewith,
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whether so obtained before or after the execution hereof. Each party shall
continue to abide by the terms of those certain confidentiality agreements dated
July 10, 1997 and August 4, 1997 between ImageWare and XImage and IAI agrees to
be bound by these confidentiality agreements as well.
(c) BEST EFFORTS. Upon the terms and subject to the conditions
herein provided, each of the parties hereto agrees to use its best efforts to
take or cause to be taken all actions, to do or cause to be done, and to assist
and cooperate with the other party hereto in doing, all things necessary, proper
or advisable under applicable laws and regulations, to consummate and make
effective, in the most expeditious manner practicable, the Merger contemplated
by this Merger Agreement, including (i) using all reasonable efforts to obtain
all necessary waivers, consents and approvals from third parties, (ii) executing
and delivering such instruments, and taking such other actions as the other
party hereto may reasonably require in order to carry out the intent of this
Merger Agreement.
SECTION 6.2 COVENANTS OF XIMAGE. During the period from the date of this
Merger Agreement until the earlier of the termination of this Merger Agreement
or the Effective Time of the Merger, XImage agrees (except as expressly
contemplated by this Merger Agreement or with the prior written consent of
ImageWare) that:
(a) CONDUCT OF BUSINESS PENDING MERGER.
(i) ORDINARY COURSE. XImage shall carry on its businesses in
the usual, regular and ordinary course in substantially the same manner as
heretofore conducted and, to the extent consistent with such businesses, use
all reasonable efforts to preserve intact its present business organization,
keep available the services of its present officers and employees and preserve
its relationships with customers, suppliers and others having business dealings
with XImage. XImage shall promptly notify ImageWare of any event or occurrence
or emergency not in the ordinary course of business of XImage, which is
material and adverse to the Business. Specifically, XImage shall not (except
with the prior written consent of ImageWare) grant any severance or termination
pay to any officer or director or, except in the ordinary course of business
consistent with past practices, to any employee of XImage.
(ii) DIVIDENDS; CHANGES IN STOCK. XImage shall not (A)
declare or pay any dividends on, or make other capital distributions in respect
of, any of its capital stock, (B) authorize or propose the issuance of any
securities in respect of, in lieu of, or in substitution for, shares of its
capital stock, except exercises of options by current Optionees, or (C)
repurchase, redeem or otherwise acquire, any shares of its capital stock.
(iii) ISSUANCES OF SECURITIES. XImage shall not authorize or
issue, deliver or sell any shares of its capital stock or any securities
convertible into such shares, or any rights, warrants, calls, subscriptions or
options to acquire any such shares or convertible securities, or any other
ownership interests in such capital stock, except exercises of options by
current Optionees.
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(iv) GOVERNING DOCUMENTS. XImage shall not amend its Articles
of Incorporation or By-Laws.
(v) NO ACQUISITIONS. XImage shall not acquire, or agree to
acquire a substantial equity interest in or substantial portion of the assets
of, or by any other manner, any business or any corporation, partnership,
association or other business organization or division thereof.
(vi) NO DISPOSITIONS. XImage shall not sell, lease, license,
encumber or otherwise dispose of any of its assets, except for sales or
licenses of products or technology in the ordinary course of business
consistent with prior practice.
(vii) INDEBTEDNESS. XImage shall not incur any indebtedness for
borrowed money or guarantee any such indebtedness or sell any debt securities
or warrants or rights to acquire any debt securities, except in the ordinary
course of business consistent with past practices.
(viii) EMPLOYEE BENEFIT PLANS. XImage shall not adopt or amend
in any material respect any XImage Employee Benefit Plan or pay any amount
with respect thereto not required by any existing XImage Employee Benefit Plan.
(ix) COMPENSATION. Other than pursuant to scheduled reviews
under XImage's normal compensation review cycle, in all cases consistent with
existing policies and past practice, XImage shall not enter into any employment
contracts, pay any special bonuses or special remuneration to officers,
directors or employees, or increase the salaries, wage rates or fringe benefits
of (1) any of its officers or employees whose compensation exceeded $50,000
during the fiscal year ending December 31, 1996, or (2) any of its other
officers and employees.
(x) TAX MATTERS. XImage shall not make any tax election that
would have a material adverse effect on the Business of XImage.
(xi) DISCHARGE OF LIABILITIES. XImage shall not pay,
discharge, settle or satisfy any claims, liabilities or obligations, except in
the ordinary course of business.
(b) SHAREHOLDER'S MEETING OR WRITTEN CONSENT. XImage shall hold a
meeting of its Shareholders at the earliest practicable date to submit this
Merger Agreement and the Merger for their consideration and approval, which
approval shall be recommended by XImage's Board of Directors, or in the
alternative, shall obtain Shareholder approval of the Merger by their written
consent.
(c) BOARD APPROVAL. The Board of Directors of XImage shall approve
the Merger at a meeting duly held or by unanimous written consent.
(d) DUE DILIGENCE--IMAGEWARE. XImage shall afford to ImageWare and
to ImageWare's legal counsel, accountants, financing sources and other
authorized representatives, access from the date hereof through October 31,
1997 during normal business hours, to its books,
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records, properties, offices and personnel, to conduct a due diligence review
thereof, provided that such due diligence shall be conducted upon advance
notice in a manner which will cause a minimum of disruption to XImage's
operations.
(e) DUE DILIGENCE--XIMAGE. ImageWare shall afford to XImage and
to XImage's legal counsel, accountants and other authorized representatives,
access from the date hereof through October 31, 1997 during normal business
hours, to its books, records, properties, offices and personnel, to conduct a
due diligence review thereof, provided that such due diligence shall be
conducted upon advance notice in a manner which will cause a minimum of
disruption to ImageWare's operations.
(f) ACQUISITION PROPOSALS. From the date hereof until the earlier
of the termination of this Agreement or the consummation of this Merger,
XImage will not, and will cause its officers, directors, employees, agents
and representatives not to, directly or indirectly, encourage, solicit,
accept, initiate or conduct discussions or negotiations with, provide any
information to, or enter into any agreement with, any corporation,
partnership, limited liability company, person or other entity or group
concerning the acquisition of all or a substantial part of the assets,
business or capital stock of XImage, whether through purchase, merger,
consolidation, exchange or any other business combination.
SECTION 6.3 COVENANTS OF IMAGEWARE. Prior to the Effective Time of the
Merger, ImageWare agrees that:
(a) BOARD APPROVAL OF IMAGEWARE. The Board of Directors of ImageWare
shall approve the Merger at a meeting duly held or by unanimous written consent.
(b) BOARD AND SHAREHOLDER APPROVAL OF IAI. The Board of Directors of
IAI, and ImageWare, as the sole shareholder of IAI, shall approve the Merger at
meetings duly held or by unanimous written consent.
SECTION 7--CONDITIONS TO CONSUMMATION OF THE MERGER
SECTION 7.1 CONDITIONS TO OBLIGATIONS OF XIMAGE. The obligations of
XImage to effect the Merger shall be subject to the satisfaction or waiver at
or prior to the Effective Time of the Merger of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The
representations and warranties of ImageWare contained in this Merger Agreement
shall be deemed to have been made again at and as of the Closing with respect
to the stated facts then existing and shall be true in all material respects.
(b) COVENANTS PERFORMED. All of the obligations of ImageWare and IAI
to be performed at or before the Closing pursuant to the terms of this Merger
Agreement shall have been duly performed.
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(c) CERTIFICATE. At the Closing, XImage shall have received a
Certificate signed by the President of ImageWare to the effect that each of
the conditions set forth in subsections (a) and (b) above have been satisfied.
(d) RESOLUTIONS. At the Closing, XImage shall have received a
certified copy of the resolutions duly adopted by each of the Boards of
Directors of ImageWare and IAI authorizing the execution of this Merger
Agreement and the consummation of the Merger.
(e) MATERIAL ADVERSE CHANGES. There shall have been no material
adverse changes in the Business of ImageWare between the date of this Merger
Agreement and the Closing Date.
(f) CASH POSITION OF IMAGEWARE AT THE CLOSING. ImageWare shall have
cash on hand immediately following the Closing (after payment of the Merger
Consideration) in excess of its liabilities, excluding current liabilities, of
not less than $2,000,000.
(g) OPINION OF COUNSEL. Nossaman, Guthner, Knox & Elliott, LLP,
counsel to ImageWare and IAI, shall have issued an opinion to XImage, dated
the Effective Time of the Merger, in form and substance reasonably
satisfactory to XImage, to the effect that:
(i) Each of ImageWare and IAI is a corporation validly
existing and in good standing under the laws of the State of California and has
all requisite corporate power to own, operate and lease its properties and to
carry on its business as it is now being conducted;
(ii) ImageWare and IAI have full corporate power to enter into
this Merger Agreement and to carry out the Merger;
(iii) All corporate action required to be taken on the part of
ImageWare and IAI to authorize it to execute and deliver this Merger Agreement
and to consummate the Merger have been duly and validly taken; and
(iv) This Merger Agreement has been duly and validly
authorized, executed and delivered by ImageWare and IAI and, assuming due
authorization, execution, delivery and performance by XImage, constitutes the
valid and binding obligation of ImageWare and IAI, enforceable in accordance
with its terms, except as such enforceability may be limited by bankruptcy or
other laws relating to or affecting creditors' rights generally and by
equitable principles.
In giving such opinions, such counsel shall be entitled to rely upon
certificates of officers of ImageWare and public officials with respect to
factual matters upon which its opinions may be based, provided that the
extent of such reliance is set forth in such opinion and it is reasonable for
XImage to rely thereon.
(h) EMPLOYMENT CONTRACTS. At the Closing, Employment Agreements, in
mutually acceptable form, shall have been entered into between XImage and/or
ImageWare and Messrs. Fields and Narasimhan.
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(i) COVENANT NOT TO COMPETE AGREEMENTS. At the Closing, Covenant Not
to Compete Agreements, in mutually acceptable form, shall have been entered
into between XImage and/or ImageWare and Messrs. Fields and Narasimhan and the
$50,000 consideration payable to each of them for agreeing not to compete with
XImage or ImageWare shall have been paid.
(j) APPROVAL OF SHAREHOLDERS. This Merger Agreement and the Merger
shall have been approved by the XImage Shareholders.
(k) ESCROWS. The Escrow Agreements creating the Holdback Escrow and
the Closing Escrow referred to in Section 2.1(f)(i) shall have been entered
into by XImage and ImageWare.
(l) PAYMENT OF MERGER CONSIDERATION. The Merger Consideration shall
have been deposited in the Closing Escrow (pursuant to Section 2.1(f)(iii)
hereof) or deposited in the Holdback Escrow (pursuant to Section 2.1(f)(ii)
hereof).
(m) MERGER DOCUMENTS. The Merger Documents shall have been filed
with the Secretary of State of the State of California, as required by law.
SECTION 7.2 CONDITIONS TO OBLIGATIONS OF IMAGEWARE AND IAI. The
obligations of ImageWare and IAI to effect the Merger shall be subject to the
satisfaction or waiver at or prior to the Effective Time of the Merger of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The
representations and warranties contained in this Merger Agreement of XImage
shall be deemed to have been made again at and as of the Closing with respect
to the stated facts then existing and shall be true in all material respects.
(b) COVENANTS PERFORMED. All of the obligations of XImage to be
performed at or before the Closing pursuant to the terms of this Merger
Agreement shall have been duly performed.
(c) CERTIFICATE. At the Closing, XImage shall have received a
Certificate signed by the Vice President of XImage to the effect that each of
the conditions set forth in subsections (a) and (b) above have been satisfied.
(d) RESOLUTIONS. At the Closing, ImageWare shall have received a
certified copy of the resolutions duly adopted by the Board of Directors of
XImage and its shareholders authorizing or approving the execution of this
Merger Agreement and the consummation of the Merger.
(e) MATERIAL ADVERSE CHANGES. There shall have been no material
adverse change in the Business of XImage between the date of this Merger
Agreement and the date of the Closing.
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(f) CONSENTS. Other than the filing of the Merger Documents as
contemplated in Section 1.2, the parties shall have made such filings, and
obtained all consents of governmental entities or other persons, required to
consummate the Merger.
(g) NO LITIGATION. There shall not be pending any action,
proceeding or other application before any court or government entity brought
by any government entity (i) challenging or seeking to restrain or prohibit the
consummation of the transactions contemplated by this Merger Agreement, or
seeking to obtain any material damages, or (ii) seeking to prohibit or impose
any material limitations on ImageWare's ownership or operation of all or any
portion of the combined business of ImageWare and XImage.
(h) OPINION OF COUNSEL. Morrison & Foerster, counsel to XImage,
shall have issued an opinion of counsel to ImageWare, dated the Effective Time
of the Merger, in form and substance reasonably satisfactory to ImageWare, to
the effect that:
(i) XImage is a corporation validly existing and in good
standing under the laws of the State of California and has all requisite
corporate power to own, operate and lease its properties and to carry on its
business as it is now being conducted;
(ii) XImage has full corporate power to enter into this Merger
Agreement and to carry out the Merger; and
(iii) All corporate action required to be taken on the part of
XImage to authorize it to execute and deliver this Merger Agreement and to
consummate the Merger have been duly and validly taken.
In giving such opinions, such counsel shall be entitled to rely upon
certificates of officers of XImage and public officials with respect to factual
matters upon which their opinions may be based, provided that the extent of
such reliance is set forth in such opinion and it is reasonable for ImageWare
to rely thereon.
(i) EMPLOYMENT CONTRACTS. At the Closing, Employment Agreements, in
mutually acceptable form, shall have been entered into between XImage and/or
ImageWare and Messrs. Fields and Narasimhan.
(j) COVENANT NOT TO COMPETE AGREEMENTS. At the Closing, Covenant
Not to Compete Agreements, in mutually acceptable form, shall have been entered
into between XImage and/or ImageWare and Messrs. Fields and Narasimhan and the
$50,000 in consideration payable to each of them for agreeing not to compete
with XImage or ImageWare shall have been paid to them in cash.
(k) APPROVAL OF SHAREHOLDERS. This Merger Agreement and the Merger
shall have been approved by the XImage Shareholders.
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(l) ESCROWS. The Escrow Agreements creating the Holdback
Escrow and the Closing Escrow referred to in Section 2.1(f)(i) shall have
been entered into by XImage and ImageWare.
(m) PAYMENT OF MERGER CONSIDERATION. The Merger
Consideration shall have been deposited in the Closing Escrow (pursuant to
Section 2.1(f)(iii) hereof) or deposited in the Holdback Escrow (pursuant to
Section 2.1(f)(ii) hereof).
(n) MERGER DOCUMENTS. The Merger Documents shall have been
filed with the Secretary of State of the State of California, as required by
law.
SECTION 8--INDEMNIFICATION
SECTION 8.1 NATURE OF STATEMENTS, ETC.; SURVIVAL OF REPRESENTATIONS
AND WARRANTIES. Each statement, representation, warranty, covenant,
agreement or indemnity made by XImage or ImageWare or IAI in this Agreement or
in any document, certificate or other instrument delivered by or on its
behalf pursuant to this Agreement or in connection herewith shall be deemed
the statement, representation, warranty, covenant, agreement or indemnity of
XImage, ImageWare or IAI, respectively. All statements, representations,
warranties, covenants, agreements or indemnities made by the parties hereto
shall survive the Closing and thereafter expire one year from the Closing
Date; and all claims for indemnification shall be made within 30 days after
such statements, representations, warranties, covenants, agreements or
indemnities expire.
SECTION 8.2 INDEMNIFICATION OF IMAGEWARE BY XIMAGE SHAREHOLDERS. The
XImage Shareholders, by virtue of receiving cash and Warrants to purchase
Common Stock of ImageWare, severally and not jointly, shall indemnify and
hold ImageWare harmless from, against and in respect of (and shall on demand
reimburse ImageWare for) any and all loss, liability, damage or expense
suffered or incurred by ImageWare by reason of any untrue representation,
breach of warranty or nonfulfillment of any agreement requiring performance
after the Closing or of any covenant contained herein or in any certificate,
document or instrument delivered to ImageWare pursuant hereto or in
connection herewith. In addition, since the amount of the cash component of
the Merger Consideration is based upon the Net Worth of XImage at October 31,
1997, the XImage Shareholders shall indemnify ImageWare for liability based
on the IBM Assistance Agreement which is referred to in the XImage Disclosure
Schedule but will not be shown as a liability in computing XImage's Net Worth
at October 31, 1997. The liability of the XImage Shareholders under this
Section 8.2 shall be up to a maximum liability of $1,000,000 in the
aggregate, provided that in the event of fraud, the maximum liability shall
be the total Merger Consideration.
(a) AGREED CLAIM. If ImageWare makes a claim against the
XImage Shareholders for indemnification pursuant to this Section 8, and the
XImage Shareholders agree
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that ImageWare is entitled to indemnification, then ImageWare may obtain
indemnification through the Holdback Escrow created pursuant to Section
2.1(f)(i).
(b) DISPUTED CLAIM. If ImageWare makes a claim against the
XImage Shareholders for indemnification pursuant to this Section 8 and the
XImage Shareholders do not agree that ImageWare is entitled to
indemnification, or with the amount of the claim for indemnification, then
ImageWare may provide the Escrow Holder of the Holdback Escrow created
pursuant to Section 2.1(e)(ii) with written notification of its claim for
indemnification in which event Escrow Holder shall place a hold on the
Escrowed Funds to the extent of the claim and such Escrowed Funds shall
continue to be held in this Escrow until such claim for indemnification is
resolved by the XImage Shareholders and ImageWare.
(c) ASSIGNMENT OF RECEIVABLES. In the event that the XImage
Shareholders indemnify ImageWare for the failure of XImage to collect any of
its accounts receivable (which were represented to be collectible under
Section 4.7 hereof), then such uncollected receivables shall be assigned by
XImage and/or ImageWare to the XImage Shareholders, without recourse, and the
subsequent collection of such accounts receivable shall be for the account of
the XImage Shareholders. Specifically, if any check or other form of payment
of such accounts receivable is made payable or delivered to XImage or
ImageWare, XImage or ImageWare shall immediately deliver such funds to the
Shareholder Representatives.
SECTION 8.3 INDEMNIFICATION OF XIMAGE SHAREHOLDERS BY IMAGEWARE.
ImageWare hereby agrees to indemnify and hold the XImage Shareholders
harmless from, against and in respect of (and shall on demand reimburse the
XImage Shareholders for) any and all loss, liability, damage or expense
suffered or incurred by such XImage Shareholders by reason of any untrue
representation, breach of warranty or nonfulfillment of any agreement
requiring performance after the Closing or of any covenant contained herein
or in any certificate, document or instrument delivered to XImage pursuant
hereto or in connection herewith.
SECTION 8.4 NOTICE RE INDEMNIFICATION. Promptly after receipt by an
indemnified party of notice of the commencement of any action against such
indemnified party with respect to a claim which the indemnified party
believes is covered by this Section 8, the indemnified party shall notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than as to the
particular item as to which indemnification is then being sought solely
pursuant to this Section 8. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate in, and, to
the extent that it may wish, jointly with any other indemnifying party
similarly notified, reasonably assume the defense thereof, subject to the
provisions herein stated, and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, other than
reasonable costs of investigation, unless the indemnifying party shall not
pursue the action to its final conclusion. The indemnified party shall have
the right to
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employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall not be at the expense
of the indemnifying party if the indemnifying party has assumed the defense of
the action with counsel reasonably satisfactory to the indemnified party. The
indemnifying party shall have the right to settle any action against an
indemnified party for which the indemnifying party is liable.
SECTION 8.5 LIMITATIONS ON INDEMNIFICATION. Any provision herein to the
contrary notwithstanding:
(a) An indemnifying party shall have no obligation to indemnify the
indemnified party unless and until the aggregate amount of the claims or
liabilities for which the indemnifying party is liable exceeds $20,000.
(b) In determining the amount of any indemnity, there shall be taken
into account any tax benefit, insurance proceeds or other similar recovery or
offset realized, directly or indirectly, by the party to be indemnified.
(c) ImageWare and XImage each acknowledges and agrees that is shall
have no right pursuant to this Section 8 with respect to any breach or failure
by an XImage Shareholder to fully perform his or her obligation under such
XImage Shareholder's Covenant Not To Compete or Employment Agreement, as
applicable, and that any cause of action arising as a result of such breach or
failure to perform shall be asserted only against such XImage Shareholder in a
separate action by ImageWare or XImage that is independent of this Article 8.
SECTION 8.6 RECOVERY OF COSTS. In the event any party seeks to enforce
its rights hereunder against any other party, then, in addition to all
damages and other remedies to which the prevailing party is or becomes
entitled by reason of such default, the losing party shall promptly pay to
the prevailing party an amount equal to all costs and expenses (including
reasonable attorneys' fees) paid or incurred by the prevailing party in
connection with such enforcement proceeding.
SECTION 9--DISPUTES
SECTION 9.1 Mediation and Last Offer Arbitration. XImage and ImageWare
have agreed on the following mechanisms in order to obtain prompt, expeditious
and equitable resolution of disputes between them which may arise subsequent to
the Closing if they are unable to resolve such issues amicably:
(a) GOOD FAITH NEGOTIATIONS. In the event of any dispute (the
"Dispute") between the parties arising out of or relating to this Agreement or
the performance or breach of this Agreement by either of them, the parties
shall negotiate and try to resolve the Dispute in good faith.
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(b) MEDIATION. In the event that either party determines in its sole
discretion that any Dispute will not be resolved promptly pursuant to Section
9.1(a) above, such party may invoke the mediation process set forth in this
Section 9.1(b) by sending to the other party a written demand for mediation (the
"Demand for Mediation"). Within fifteen days after receipt of the Demand for
Mediation, the parties shall agree on a neutral person to serve as mediator
("Mediator"). In the event that the parties cannot agree on the Mediator
within said fifteen day period, then the San Diego office of JAMS/Endispute
shall, within five days after receiving a request by either party, appoint a
neutral person as the Mediator. The first Mediation session shall be held in
San Diego, California, and shall be requested to be convened no later than
thirty days after the appointment of the Mediator.
(c) LAST OFFER ARBITRATION. In the event that the Mediator, in his
or her sole judgment, determines that the parties are unable to resolve the
Dispute through the Mediation process, but in any event no later than twenty
one days after the first mediation session, then the parties agree to submit
the Dispute for resolution by the Mediator who shall request a last offer (the
"Last Offer") for resolution of the Dispute from each party. Within five days
of receipt of such request, each party shall submit a Last Offer to the Mediator
who, after receiving the Last Offers from both parties, will communicate the
Last Offer made by each party to the other party. If the Dispute is not
resolved through the exchange of the Last Offers, then the Mediator shall, with
ten days of receiving the Last Offers, render his or her award (the "Award") in
writing by selecting one of the last offers. The Mediator shall have no
alternative other than to select one of the Last Offers. The Award shall
include a decision on the costs and expenses in accordance with Section 9.1(d)
below.
(d) COSTS. The cost of the mediation shall initially be borne
equally by the XImage Shareholders and ImageWare, but the prevailing party in
such proceeding shall be entitled to recover, in addition to reasonable
attorneys' fees and all other costs, its contribution for the reasonable costs
of the Mediator as an item of damage or recoverable costs or both. If the
XImage Shareholders or ImageWare refuses to pay its share of the costs at the
time(s) required, the other may do so, in which event that party will be
entitled to recover (or offset) the amount advanced, with interest, even if
that party is not the prevailing party. The Mediator shall include such costs
in any award.
(e) CONFIDENTIALITY. The Mediation and Arbitration proceedings
conducted pursuant to this Section 9 and any information disclosed therein
shall be kept confidential by the parties and not disclosed to third persons,
except for disclosure to accountants in connection with preparing financial
statements or tax returns for the parties, or as required by law.
SECTION 9.2 ENTRY OF JUDGMENT. Any decision by a Mediator shall be
binding on the XImage Shareholders and ImageWare, and judgment thereon may be
entered in the Superior Court for the County of San Diego or any other court
having jurisdiction thereof.
SECTION 9.3 COOPERATION. The XImage Shareholders and ImageWare shall
diligently cooperate with one another to resolve a dispute, and shall perform
such acts as may be necessary to obtain a prompt and expeditious resolution of
the dispute. If the XImage Shareholders or
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ImageWare refuse to cooperate diligently, and another party, after first
giving notice of its intent to rely on the provisions of this Section 9,
incurs additional expenses or attorneys' fees wholly or partly as a result of
such failure to cooperate diligently, then the Mediator may award such
additional expenses and attorneys' fees to the party giving such notice, even
if the party is not the prevailing party in the dispute.
SECTION 10--ADDITIONAL AGREEMENTS
SECTION 10.1 PUBLIC ANNOUNCEMENTS. ImageWare, IAI and XImage agree that
they will not issue any press release or otherwise make any public statement or
respond to any press inquiry with respect to this Merger Agreement or the Merger
without the prior approval of the other party (which approval will not be
unreasonably withheld).
SECTION 10.2 FUNDING XIMAGE; PAYMENT OF CERTAIN DEBTS. Following the
Merger, ImageWare shall provide XImage with funds necessary to pay the debts and
obligations of XImage, in existence at the Effective Time of the Merger, as
they come due and specifically to cause XImage to pay in full, within 30 days
following the Closing, all employee obligations, including accrued vacation
expense, and promissory notes to the XImage Shareholders and former employees
reflected in the computation of XImage's Net Worth at October 31, 1997.
SECTION 10.3 ADDITIONAL MERGER AGREEMENTS. In case at any time after the
Effective Time of the Merger any further action is reasonably necessary or
desirable to vest the Surviving Corporation with full title to all properties,
assets, rights, approvals and franchises of either of the constituent
corporations, the proper officers and directors of each corporation which is a
party to this Merger Agreement shall take all such necessary corporate action.
SECTION 10.4 PAYMENT FOR ACCRUED VACATION. Any employee of XImage that
has accrued vacation which is included as a liability in computing the Net Worth
of XImage at October 31, 1997, shall have the right, within thirty days
following the Closing, to elect to be paid for such vacation in cash, and in
the event of such election, ImageWare shall cause XImage to pay such accrued
vacation in the pay period in which such election is made.
SECTION 10.5 XIMAGE TAX RETURNS. The XImage Shareholders shall file or
cause to be filed the state and federal income tax returns of XImage for the
short taxable period ending on the Effective Date. The cost of preparing and
filing such returns shall be paid 50% by the XImage Shareholders (through an
offset of the Indemnification Fund) and 50% by ImageWare. All tax returns of
XImage for all taxable periods ending after the effective date shall be
prepared and filed by XImage, at its expense and not at the expense of the
XImage Shareholders. After the Closing, each party hereto shall provide to
each of the other parties hereto such cooperation and information as any of
them reasonably request in filing any tax return or claim for refund,
determining a liability for taxes or a right to refund of taxes or in
conducting any audit or other proceeding in respect of taxes and will preserve
such information, records and documents until the expiration of any applicable
statute of limitations or extensions thereof.
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SECTION 10.6 USE OF NAME. Without limiting the right of ImageWare to
conduct its business in such manner as it deems appropriate, ImageWare intends,
following the Closing Date, and for the foreseeable future thereafter, to
maintain XImage as a separate subsidiary operating under its existing name.
SECTION 10.7 SHAREHOLDER REPRESENTATIVES. Kenneth D. Fields and Don
Dehaan shall each be a "Shareholder Representative" of the XImage Shareholders
during the period commencing on the Closing of the Merger and continuing until
termination of the Escrow (the "Escrow Period"). The Shareholder
Representatives, acting jointly, are authorized to take any action deemed by
them to be appropriate or necessary to carry out the provisions of, and to
determine the rights of the Shareholders under this Merger Agreement. The
Shareholder Representatives shall serve as the agent of the XImage Shareholders
for all purposes related to this Merger Agreement and the Escrow Agreement,
including without limitation, service of process upon the Shareholders. The
authorization and designation of the Shareholder Representatives under this
Merger Agreement shall be binding upon the successors and assigns of each
XImage Shareholder. ImageWare and the Escrow Holder shall be entitled to rely
upon such authorization and designation of the Shareholder Representatives and
the action they take on behalf of the XImage Shareholders, and shall have no
duty to inquire into authority of any person reasonably believed by either of
them to be a Shareholder Representative.
(a) REPLACEMENT OF A SHAREHOLDER REPRESENTATIVE. In the event
that a Shareholder Representative shall resign or otherwise terminate his or
her status as such, his or her successor shall be any of the other XImage
Shareholders appointed by the remaining Shareholder Representative, or where
such Shareholder Representative fails to appoint a successor after a vacancy
has been created, elected by the vote or written consent of a majority in
interest of the XImage Shareholders. All decisions of the Shareholder
Representatives shall be binding upon all XImage Shareholders. The
Shareholder Representatives shall keep the XImage Shareholders reasonably
informed of their action or decisions of a material nature. The Shareholder
Representatives shall not be entitled to any compensation for their services
as such.
(b) LIABILITY OF SHAREHOLDER REPRESENTATIVES. The Shareholder
Representatives shall (i) not be liable to any of the XImage Shareholder for any
error of judgment, act done or omitted in good faith, or mistake of fact or law
unless caused by his or her own gross negligence or willful misconduct; (ii) be
entitled to treat as genuine any letter or other document furnished to him or
her by ImageWare or the XImage Shareholders, and believed by him or her to be
genuine and to have been signed and presented by the proper party or parties;
and (iii) be reimbursed from any proceeds otherwise immediately deliverable to
the XImage Shareholders from the Escrow Funds for counsel fees and other
out-of-pocket expenses incurred by the Shareholder Representatives in connection
with this Merger Agreement. The Escrow Agent and ImageWare shall be entitled to
rely upon instructions of the Shareholder Representatives with regard to such
reimbursement for counsel fees and other out-of-pocket expenses.
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SECTION 11 -- TERMINATION
SECTION 11.1 TERMINATION. This Merger Agreement may be terminated at
any time prior to the Effective Time of the Merger, whether before or after
the approval by the XImage Shareholders ("Shareholder Approval") has been
obtained.
(a) MUTUAL CONSENT. By mutual written consent of ImageWare and
XImage;
(b) FAILURE TO CLOSE ON TIME, RECEIVE SHAREHOLDER APPROVAL OR
ORDER PREVENTING MERGER. By either XImage or ImageWare if (i) if without the
fault of the terminating party, the Merger shall not have been consummated
before November 26, 1997; (ii) Shareholder Approval of the Merger Agreement
and the Merger shall not be obtained by reason of XImage Shareholders holding
a majority of XImage's Common Stock failing to vote in favor of approval of
this Merger Agreement at a meeting of the XImage Shareholders; or (iii) a
governmental entity of competent jurisdiction shall have issued an order,
decree or ruling or taken any other action permanently restraining,
enjoining or otherwise prohibiting the Merger and such order, decree, ruling
or other action shall have become final and nonappealable.
(c) BREACH BY XIMAGE. By ImageWare if there has been a breach by
XImage of any representation, warranty, covenant or other agreement in this
Merger Agreement which has a material adverse effect on the Business of
XImage, and such breach has not been included in an updated XImage Disclosure
Schedule or cured, or XImage has not commenced reasonable efforts to cure
such breach within ten days after written notice of such breach is given by
ImageWare to XImage;
(d) BREACH BY IMAGEWARE OR IAI. By XImage if there has been a breach
by ImageWare or IAI of any material representation, warranty, covenant or
other agreement, which has a material adverse effect on the Business of
ImageWare, and such breach has not been included in an updated ImageWare
Disclosure Schedule or cured, or ImageWare and IAI have not commenced
reasonable efforts to cure such breach, within ten days after written notice
of such breach is given by XImage to Imageware.
(e) FAILURE TO FULFILL CONDITIONS. By XImage if any of the
conditions set forth in Section 7.1 hereof shall not have been fulfilled on
or prior to the date specified for fulfillment thereof, or shall have become
impossible to fulfill for reasons beyond the control of XImage, and such
condition shall not have been waived.
(f) FAILURE TO FULFILL CONDITIONS. By ImageWare if any of the
conditions set forth in Section 7.2 hereof shall not have been fulfilled on
or prior to the date specified for fulfillment thereof, or shall have become
impossible to fulfill for reasons beyond the control of ImageWare, and such
condition shall not have been waived.
Where action is taken to terminate this Merger Agreement pursuant to this
Section 11, it shall be sufficient for such action to be authorized by the
Board of Directors of the party taking such
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action, and in the case of XImage, without any requirement to submit such
action to its Shareholders.
SECTION 11.2 EFFECT OF TERMINATION AND ABANDONMENT. In the event of
termination of the Merger Agreement by either XImage or ImageWare as
permitted in Section 11, then this Merger Agreement shall forthwith become
void and have no effect, and there shall be no liability or obligation on the
part of XImage, ImageWare or IAI, or their respective officers and directors,
except that (a) the provisions of Section 6.1(b) and this Section 11.2 shall
survive any such termination, and (b) no party whose breach of its
representations, warranties, covenants or agreements set forth in this Merger
Agreement was the basis of the other party's termination of this Merger
Agreement (under Section 11.1(c) or (d)) shall be relieved from liability for
damages occasioned by such breach, including any expenses incurred by the
other party in connection with this Merger Agreement and the Merger.
SECTION 11.3 AMENDMENT. This Merger Agreement may be amended by the
parties hereto by action taken by their respective Boards of Directors at
any time before or after Shareholder Approval, but after Shareholder
Approval, no amendment shall be made which by law requires the further
approval of the XImage Shareholders without first obtaining such approval.
This Merger Agreement may not be amended, except by an instrument in writing
signed on behalf of each of the parties hereto.
SECTION 11.4 EXTENSION; WAIVER. At any time prior to the Effective
Time of the Merger, any party hereto, by action taken by its Board of
Directors may, to the extent legally allowed, (a) extend the time for the
performance of any of the obligations or other acts of the other parties
hereto, or (b) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto, or (c) waive
compliance with any of the agreements, covenants or conditions for the
benefit of such party contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party. The failure of any
party to this Merger Agreement to assert any of its rights under this Merger
Agreement shall not constitute a waiver of these rights.
SECTION 12--MISCELLANEOUS
SECTION 12.1 ASSIGNMENT. This Merger Agreement shall be binding upon,
and shall inure to the benefit of, the parties to it and their respective
successors and assigns, but neither this Merger Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties hereto.
SECTION 12.2 FEES AND EXPENSES. Each of the parties shall pay its own
fees, costs and expenses (including, without limitation, brokers fees and
legal and accounting expenses) incurred, or to be incurred, by each of them
in negotiating and preparing this Merger Agreement and in closing and
carrying out the Merger. In the case of XImage, these expenses, to the extent
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not listed as a liability in the computation of XImage's Net Worth at
October 31, 1997, shall be paid out of the funds deposited in the Closing
Escrow.
SECTION 12.3 NOTICES. All notices, requests, demands and other
communications under this Merger Agreement shall be in writing and shall be
deemed to have been duly given (a) on the date of service if served
personally; (b) on the date of receipt by the party to whom notice is to be
given if transmitted by an overnight commercial carrier; (c) on the date sent
by facsimile to the party to whom notice is to be given where the fax
transmitting device records verification of receipt of the fax and the date
and time of transmission, receipt and the telephone number of the other fax
machine; or (d) on the third business day after deposit in the U.S. Mail, if
mailed to the party on whom notice is to be given, by certified mail, postage
prepaid, and properly addressed as follows:
If to ImageWare and IAI:
ImageWare Software, Inc.
15373 Innovation Drive, Suite 120
San Diego, California 92128
Attention: S. James Miller, Jr., President
Facsimile: (619) 673-0291
Confirmation: (619) 673-8600
with a copy to:
Nossaman, Guthner, Knox & Elliott, LLP
445 South Figueroa Street, 31st Floor
Los Angeles, CA 90071-1602
Attention: William E. Guthner, Jr.
Facsimile: (213) 612-7814
Confirmation: (213) 612-7800
If to XImage:
XImage Corporation
1050 North Fifth Street
San Jose, California 95112
Attention: Kenneth D. Fields, Vice President
Facsimile: (408) 993-1050
Confirmation: (408) 288-8800
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If to the Shareholder Representatives
Kenneth D. Fields and Don Dehaan
XImage Corporation
1050 North Fifth Street
San Jose, California 95112
Facsimile: (408) 993-1050
Confirmation: (408) 288-8800
with a copy to:
Morrison & Foerster
755 Page Mill Road
Palo Alto, California 94304
Attention: Suzanne S. Graeser
Facsimile: 415-494-0792
Confirmation: 415-813-5750
Any party may change its address for purposes of this Section by giving the
other party written notice of the new address in the manner set forth above.
SECTION 12.4 GOVERNING LAW. This Merger Agreement shall be construed
in accordance with, and governed by, the laws of the State of California,
without giving effect to provisions thereof relating to conflicts of law.
SECTION 12.5 FURTHER ACTION. Each of the parties hereto shall use its
best efforts to take such action as may be necessary or reasonably requested
by another party hereto to carry out and consummate the Merger.
SECTION 12.6 NO THIRD PARTY BENEFICIARY. Nothing herein is intended to
create rights in any third party.
SECTION 12.7 EFFECT OF HEADINGS. The subject headings of the Sections
of this Merger Agreement are included for purposes of convenience only, and
shall not affect the construction or interpretation of any of its provisions.
SECTION 12.8 SEVERABILITY. If any term of this Merger Agreement or
application thereof shall be invalid or unenforceable, the remainder of this
Merger Agreement shall remain in full force and effect.
SECTION 12.9 COUNTERPARTS. This Merger Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
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SECTION 12.10 SCHEDULES. Any disclosure included in any section of the
XImage Disclosure Schedule or the ImageWare Disclosure Schedule shall be
considered to have been made for purposes of each and every section of this
Merger Agreement, if appropriate or relevant. All such Schedules are
incorporated herein by this reference.
SECTION 12.11 ENTIRE MERGER AGREEMENT; MODIFICATION; WAIVER. This
Merger Agreement constitutes the entire agreement among the parties
pertaining to the subject matter contained herein and supersedes all prior
and contemporaneous agreements, representations and undertakings of the
parties. No supplement, modification or amendment of this Merger Agreement
shall be binding unless executed in writing by all the parties. No waiver of
any of the provisions of this Merger Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor
shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by any party making the waiver.
In Witness Whereof, the parties to this Merger Agreement have duly
executed it on the day and year first above written.
ImageWare Software, Inc., a California corporation
by /s/ S. James Miller, Jr.
---------------------------------------------------
S. James Miller, Jr., President
by /s/ Wayne Wetherell
---------------------------------------------------
Wayne Wetherell, Chief Financial Officer
ImageWare Acquisition, Inc., a California corporation
by /s/ S. James Miller, Jr.
---------------------------------------------------
S. James Miller, Jr., President
by /s/ Wayne Wetherell
---------------------------------------------------
Wayne Wetherell, Secretary
XImage Corporation, a California corporation
by /s/ Kenneth D. Fields
---------------------------------------------------
Kenneth D. Fields, Vice President
by /s/ Don Dehaan
---------------------------------------------------
Don Dehaan, Vice President
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$500,000.00 Portland, Oregon
November 24, 1999
PROMISSORY NOTE
For valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the undersigned ("Borrower") promises and agrees
to pay to the order and assigns of Chester L.F. Paulson ("Lender") at 811 SW
Naito Parkway, Suite 200, Portland, Oregon 97204 (or at such other address as
Lender may specify in writing from time to time) the sum of Five Hundred
Thousand Dollars ($500,000.00). Interest on this Note will accrue from the date
of this Note until it is paid in full at the rate of interest applicable to the
promissory note attached to this Note as Exhibit A as set forth in the section
thereof entitled "Variable Interest Rate."
Borrower will repay this Note as follows:
1. Beginning on December 15, 1999 and continuing on the
fifteenth day of each month thereafter, Borrower will pay to Lender or Lender's
designee all accrued and unpaid interest on this Note; and
2. Borrower will pay to Lender or Lender's designee the
entire unpaid principal balance of this Note together with all accrued and
unpaid interest and all other sums due and owing under this Note or under the
Loan and Indemnification Agreement dated the same date as this Note (the "Loan
Agreement") on the earlier of the following:
(a) any written or oral demand by Lender;
(b) the closing of Borrower's initial public
offering underwritten by Paulson Investment Company, Inc. from the proceeds of
such initial public offering; or
(c) April 3, 2000.
Capitalized terms used in this Note and not otherwise defined
will have the meanings assigned to those terms in the Loan Agreement.
Borrower also promises and agrees to pay on demand the costs
and disbursements, including reasonable attorney fees, including at trial and in
any post-judgment proceeding, incurred by Lender in collecting this Note and
enforcing the Loan Agreement whether or not in a civil action, arbitration
proceeding, or insolvency proceeding and whether or not the claim is commenced,
tried, or appealed.
Borrower hereby waives acceptance, presentment, demand,
diligence, protest, nonpayment, dishonor and notice of any of the foregoing and
consents to impairment of subrogation rights. Borrower acknowledges that
forbearance by Lender, including any failure to make demand, or other failure by
Lender to exercise any right or remedy upon demand or default will not
constitute a waiver or grounds for a claim of estoppel.
IMAGEWARE SOFTWARE, INC.
By: /s/ Wayne Wetherell
--------------------------------
Title: V.P & CFO
-----------------------------
<PAGE>
LOAN AND
INDEMNIFICATION AGREEMENT
This Loan and Indemnification Agreement dated as of November 24, 1999 is
entered into between Chester L.F. Paulson ("Lender ") and ImageWare Software,
Inc. ("Borrower").
WHEREAS, Borrower is currently undertaking an initial public offering
underwritten by Lender's employer, Paulson Investment Company, Inc. ("Paulson");
WHEREAS, Borrower is in need of working capital until it receives the
proceeds of its initial public offering;
WHEREAS, U.S. Bank National Association ("U.S. Bank") has agreed to lend to
Lender $500,000 at a variable interest rate (the "Loan") pursuant to the terms a
promissory note dated November 15, 1999;
WHEREAS, Lender has agreed to advance the proceeds of the Loan to Borrower
pursuant to the terms of the Promissory Note (the "Promissory Note") dated of
even date herewith; and
WHEREAS, Paulson has agreed to indemnify Lender in the event of a default
under the U.S. Bank Promissory Note and as such be ultimately responsible for
any payments due to U.S. Bank thereunder.
NOW, THEREFORE, in consideration of the premises and in order to induce
Lender to make the loan to Borrower, the parties hereto agree as follows:
SECTION 1. LOAN. Borrower promises to pay to the order of Lender or
Lender's designee Five Hundred Thousand Dollars ($500,000.00) loaned by Lender
to Borrower hereunder. Borrower shall also pay interest on the Five Hundred
Thousand Dollars ($500,000.00) at rates in accordance with the terms hereof.
SECTION 2. INTEREST RATES. Interest on this loan will accrue from the
date of this Loan Agreement and the Note until it is paid in full at the rate of
interest applicable to the promissory note attached thereto as set forth in the
section thereof entitled "Variable Interest Rate."
SECTION 3. PAYMENTS. (a) Borrower shall pay monthly payments of accrued
interest on this loan from Lender beginning on December 15, 1999 and continuing
on the fifteenth day of each month thereafter directly to U.S. Bank at the
address and for the account of Lender specified on the signature page hereto,
and shall send a copy of such documents as may evidence the payments to Lender
at the address specified in Section 9 below.
<PAGE>
(b) All payments hereunder by Borrower to Lender, Lender's designee,
Paulson or U.S. Bank, as the case may be, shall be made free and clear of
set-off or counterclaim, in lawful currency of the United States and in
immediately available funds. Whenever any payment hereunder shall be due on a
day that is not a business day, the date for payment thereof shall be extended
to the next succeeding business day.
SECTION 4. MATURITY DATE. (a) Borrower shall repay the entire principal
balance of the Loan together with all accrued and unpaid interest and any other
sums due under this Loan Agreement upon the earlier of (x) a written or oral
demand by Lender, (y) the closing of Borrower's initial public offering
underwritten by Paulson from the proceeds of such initial public offering, or
(z) April 3, 2000.
(b) If a demand for payment is made at any time to Lender by U.S. Bank,
Lender shall notify Borrower orally or in writing and Borrower shall repay the
Loan and all fees as required pursuant to the terms of the promissory note with
U.S. Bank. If Lender repays the Loan or any portion thereof pursuant to such
demand for payment, then Borrower agrees to immediately repay Lender or Paulson,
as the case may be, an amount equal to the amount so paid or, if unable to do so
at the time of such demand for payment, pay Lender upon the earlier of (y) the
closing of Borrower's initial public offering underwritten by Paulson from the
proceeds of such initial public offering or (z) April 3, 2000. Failing such
payments, Borrower shall be considered in default of this Loan Agreement and
shall issue such warrants and make such payments as required by Section 6 below.
SECTION 5. FEES. (a) Borrower agrees to pay or cause to be paid to
Lender, Paulson or U.S. Bank, all fees, including loan fees, costs, out-of-
pocket expenses, premiums, penalties, late charges and disbursements (the
"Related Payments") provided for in this Loan Agreement, the Promissory Note and
the promissory note attached thereto that may be due in connection with any
payment by Lender or Paulson to U.S. Bank under the Loan or in connection with
nonpayment by Borrower of the loan when required.
(b) Borrower agrees to pay Paulson a loan fee in respect of the loan
evidenced by this Loan Agreement and the Promissory Note in the form of a cash
payment of $75,000 upon the closing of the initial public offering underwritten
by Paulson from the proceeds thereof.
SECTION 6. EVENTS OF DEFAULT. (a) If Borrower fails to pay, when due,
any of the obligations under this Loan Agreement or the Promissory Note, or if
Borrower fails to perform any obligation or covenant in this Loan Agreement, or
fails or neglects to perform, keep or observe any other material term,
provision, condition, covenant or agreement contained in this Loan Agreement,
then Borrower shall:
(i) issue to Paulson a warrant, in the form attached hereto as Exhibit A,
exercisable for five years from the date of issuance, to purchase, at an
exercise price of $1.00 per share, one share of Borrower's common stock for each
$1.00 paid by Lender or Paulson to U.S. Bank with respect to the Loan,
including, interest, fees, late charges, and any other payments made by Lender
or Paulson in connection with such Loan; and
<PAGE>
(ii) in the event Borrower's initial public offering underwritten by
Paulson is not completed by April 3, 2000, but Borrower completes another
financing transaction involving the issuance of equity securities, the
incurrence of debt or otherwise prior to December 31, 2000, the proceeds of
which are in excess of $575,000, then Borrower agrees to use the proceeds from
such financing, even if closed after April 3, 2000, to immediately repay the
loan of Lender, including interest, fees, late charges, and any other payments
made by Lender or Paulson in connection with such Loan and pay Paulson a cash
payment of $75,000 in respect of the loan fee.
(b) Any default by Lender under any of the agreements relating to the Loan
shall be and constitute a default under this Loan Agreement and, at the election
of Lender, trigger the payments by Borrower under Sections 1 through 6.
SECTION 7. TERM. This Loan Agreement and the Promissory Note shall
terminate upon the first to occur of (i) repayment in full by Borrower of the
principal amount of the loan with all accrued interest, fees, late charges, and
any other payments made by Lender or Paulson in connection with such Loan,
payment in full by Borrower to Paulson of the $75,000 loan fee and satisfaction
of all other obligations of Borrower under this Loan Agreement and the
Promissory Note, (ii) issuance of the Warrant pursuant to Section 6 with the
continuing obligation for payment under Section 6(a)(ii) (in the event of the
tender of such payment, Paulson shall, at its sole election, either accept such
payment and surrender the previously issued warrant, or refuse such payment and
retain the previously issued warrant), or (iii) the mutual written consent of
Borrower, Lender and Paulson.
SECTION 8. AMENDMENTS, ETC. Notwithstanding any other provision of
this Loan Agreement, no amendment or waiver of any provision of this Loan
Agreement or consent to any departure by Borrower therefrom shall in any case be
effective unless the same shall be in writing, accepted and signed by the
parties hereto, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 9. NOTICES. Except as otherwise expressly provided herein, all
notices, consents, approvals and other communications provided for herein shall
be in writing (the terms "in writing" or "written", as used herein with respect
to such communications, include reference to communications that are telecopied,
sent by overnight courier or messenger, but not communications sent by e-mail or
similar electronic formats) and telecopied or sent by overnight courier or
messenger to the intended recipient at the address or telecopy number set forth
beneath its name on the signature page hereof; or as to any party, at such other
address or telecopy number as shall be designated by such party in a notice to
the party sending such communication. Each such notice, request or other
communication shall be effective (i) if given by registered mail, return receipt
requested, three (3) business days after the date such communication is
deposited in the mails addressed as aforesaid or (ii) if given by any other
means, when delivered at the address specified in this Section 9, provided that
notices given by telecopier or other facsimile transmission shall not be
effective until received.
SECTION 10. NO WAIVER; REMEDIES. No failure on the part of Lender to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof nor
<PAGE>
shall any single or partial exercise of any right hereunder preclude any other
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 11. INDEMNIFICATION. Borrower agrees to indemnify and hold
harmless Lender his heirs, representatives, assigns, and Paulson or any of its
affiliates, officers, directors, employees or agents, from and against any and
all claims, damages, losses, liabilities, reasonable costs or expenses
whatsoever (other than costs or expenses payable pursuant to another provision
of this Loan Agreement) which Lender or Paulson may incur (or which may be
claimed against them by any person or entity whatsoever) by reason of or in
connection with (a) the execution, delivery, administration or enforcement of
this Loan Agreement or the Promissory Note, or (b) the execution and delivery or
transfer of, or payment or failure to pay under, this Loan Agreement or the
Promissory Note. Nothing in this Section 11 is intended to limit the obligation
of Borrower contained in Sections 1 through 6 hereof. If any action shall be
brought against Lender or Paulson in respect of which indemnity may be sought
against Borrower, Lender or Paulson shall promptly notify Borrower in writing,
and Borrower shall promptly assume the defense thereof, including the retention
of counsel reasonably satisfactory to Lender and Paulson, the payment of all
expenses and the right to negotiate and consent to settlement. Lender and
Paulson shall have the right to employ separate counsel in any such action and
to participate in the defense thereof, and the fees and expenses of such counsel
shall be at the expense of Borrower. Borrower shall not be liable for any
settlement of any such action effected without its consent by Lender or Paulson,
but if settled with the consent of Borrower or if there be a final judgment for
the plaintiff in any such action against Borrower or Lender or Paulson, with or
without the consent of Borrower, Borrower agrees to indemnify and hold harmless
each of Lender and Paulson to the extent provided herein.
SECTION 12. CONTINUING OBLIGATION. This Agreement is a continuing
obligation and shall (a) be binding upon Borrower or its successor and (b) inure
to the benefit of and be enforceable by Lender or its successor.
SECTION 13. LIABILITY OF LENDER. Neither Lender, his heirs,
representatives, assigns, nor Paulson or any of its affiliates, officers,
directors, employees, or agents shall be liable or responsible to Borrower or
any creditors or shareholders of Borrower for (a) the use which may be made of
the loan or the proceeds thereof; (b) the validity, sufficiency or genuineness
of documents, even if such documents should in fact prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (c) payments by Lender or
Paulson against presentation of documents which do not comply with the terms of
the loan of Lender or the Loan, including failure of any documents to bear any
reference or adequate reference to the loan of Lender or the Loan; or (d) any
other circumstances whatsoever in making or failing to make payment under the
loan of Lender or the Loan.
SECTION 14. OBLIGATIONS ABSOLUTE. The payment obligations of Borrower
under this Loan Agreement are absolute, unconditional and irrevocable, and will
be paid strictly in accordance with the terms of this Loan Agreement under all
circumstances, including the following circumstances:
<PAGE>
(a) Any lack of validity or enforceability of all or any of the Loan,
the Promissory Note, this Loan Agreement or any of the other related documents;
(b) Any amendment or waiver of, or any consent to departure from, any
of the terms and conditions of all or any of the Loan, the Promissory Note, this
Loan Agreement or any of the other related documents;
(c) The existence of any claim, set-off, defense or other rights that
Borrower may have at any time against any beneficiary or transferee of the
Promissory Note, this Loan Agreement, or the Loan (or any person or entity for
whom or for which any such beneficiary or any such transferee may be acting),
Lender, Paulson, U.S. Bank or any other person or entity, whether in connection
with this Loan Agreement, the related documents or any unrelated transaction; or
(d) Any other circumstances or happening whatsoever, whether or not
similar to any of the preceding.
SECTION 15. AUTHORIZATIONS AND WAIVERS. Borrower consents to, waives
notice of, and authorizes and agrees that none of the following, on one or any
number of occasions, will affect Borrower's liability:
(a) any increase or decrease in the amount of credit extended to
Lender, any extension of time for payment, any acceptance of partial payments,
or any other modification in the terms of the credit granted to or the
relationship with Lender and U.S. Bank;
(b) any change, amendment, or renegotiation of any term or condition
of any agreement between Lender and U.S. Bank;
(c) any settlement, compromise, discharge or release of any
indebtedness, including in any bankruptcy proceeding, any impairment of or
failure to perfect any security interest in any collateral, or any release or
agreement not to sue Lender;
(d) any sale, transfer or other conveyance by Lender of its assets to
any entity or other person; and
(e) any other thing between U.S. Bank and Lender or U.S. Bank and
Paulson, whether or not specified, which may be done or waived.
SECTION 16. ADDITIONAL WAIVERS. Borrower also waives (a) all notices of
any default by Lender; (b) all notices of the settlement or adjustment of any
defaults or disputes; (c) all presentments; (d) all demands for performance; (e)
all notices of nonpayment or nonperformance; (f) all protests; (g) all notices
of protest; (h) all notices of dishonor; (i) all other notices to which Borrower
might be entitled; (j) all defenses related to any disability or other defense
of Borrower other than full payment of the indebtedness in legal tender; (k) all
right to deduct or assert setoff, counterclaims or recoupment; and (l) all
requirements of diligence.
<PAGE>
SECTION 17. SEVERABILITY. Any provision of this Loan Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective only to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
SECTION 18. GOVERNING LAW. This Agreement, in its entirety, shall be
governed by, and construed in accordance with, the laws of the State of Oregon.
SECTION 19. VENUE AND JURISDICTION. Borrower hereby irrevocably submits
to the jurisdiction of any state or federal court sitting in Multnomah County,
Oregon, in any action or proceeding brought to enforce or otherwise arising out
of or relating to this Loan Agreement, and hereby waives any objection to venue
in any such court and any claim that such forum is an inconvenient forum. The
parties agree that jurisdiction and venue with respect to any lawsuit between or
among the parties involving the interpretation, compliance or enforcement of any
provision under this Loan Agreement shall be exclusively in the state or federal
courts located in Multnomah County, Oregon.
SECTION 20. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 21. HEADINGS. Section headings in this Loan Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Loan Agreement for any other purpose.
SECTION 22. NO ASSIGNMENT BY BORROWER. Borrower shall not assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of Lender and Paulson, which consent shall not be unreasonably
withheld or delayed.
SECTION 23. ATTORNEYS' FEES. In any litigation involving Borrower and
Lender or Paulson in connection with the interpretation of this Loan Agreement
or the Promissory Note, or the enforcement of any right of either of them under
this Loan Agreement or the Promissory Note, the prevailing party shall be
entitled to payment by the other party of all court costs and reasonable
attorneys' fees incurred by the prevailing party in connection with such
litigation (whether incurred at the trial, appellate, or administrative levels),
in such amount as the court or administrative body may judge reasonable, all of
which may be incorporated into and be a part of any judgment or decision
rendered in such litigation.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
BORROWER:
IMAGEWARE SOFTWARE, INC.
By: /s/ Wayne Wetherell
---------------------------
Name: Wayne Wetherell
-------------------------
Title: V.P & CFO
------------------------
Fax: 858-673-0291
--------------------------
Address:10883 Thornmint Road
San Diego, CA 92172
LENDER:
/s/ Chester L.F. Paulson U.S. Bank Account No.:153650190975
- ------------------------------------ Address: 1111 SW Fifth Avenue, Suite 600
CHESTER L.F. PAULSON Portland, Oregon 97204
Address: 811 S.W. Front Avenue, Suite 200
Portland, Oregon 97204
ACCEPTED AND AGREED:
PAULSON INVESTMENT COMPANY, INC.
By: /s/ Lorraine Maxfield
---------------------------
Name: Lorraine Maxfield
-------------------------
Title: Senior VP, Research
------------------------
Fax: 503-243-6096
--------------------------
Address: 811 S.W. Front Avenue, Suite 200
Portland, Oregon 97204
<PAGE>
EXHIBIT A
FORM OF
IMAGEWARE SOFTWARE, INC.
PURCHASE WARRANT
Issued to:
PAULSON INVESTMENT COMPANY, INC.
Exercisable to Purchase
575,000 SHARES OF THE COMPANY'S COMMON STOCK
THIS WARRANT HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933
AND IS NOT TRANSFERABLE
EXCEPT AS PROVIDED HEREIN
Void after [April 3,] 2005
<PAGE>
This is to certify that, for value received and subject to the
terms and conditions set forth below, the Warrantholder (hereinafter defined) is
entitled to purchase, and the Company promises and agrees to sell and issue to
the Warrantholder, at any time on or after [April 3,] 2000 and on or before
[April 3,] 2005, up to 575,000 shares of Common Stock (hereinafter defined) at
the Exercise Price (hereinafter defined).
This Warrant Certificate is issued subject to the following
terms and conditions:
1. DEFINITIONS OF CERTAIN TERMS. Except as may be otherwise clearly
required by the context, the following terms have the following meanings:
(a) "Act" means the Securities Act of 1933, as amended.
(b) "Issue Date" means April 3, 2000.
(c) "Commission" means the Securities and Exchange Commission.
(d) "Common Stock" means the common stock, $0.01 par value, of
the Company.
(e) "Company" means ImageWare Software, Inc., a California
corporation.
(f) "Exercise Price" means the price at which the
Warrantholder may purchase one share of Common Stock (or Securities obtainable
in lieu of one share of Common Stock) upon exercise of Warrants as determined
from time to time pursuant to the provisions hereof. The initial Exercise Price
is $1.00 per share of Common Stock.
(g) "Rules and Regulations" means the rules and regulations of
the Commission adopted under the Act.
(h) "Securities" means the securities obtained or obtainable
upon exercise of the Warrant or securities obtained or obtainable upon exercise,
exchange or conversion of such securities.
(i) "Warrant Certificate" means a certificate evidencing the
Warrant.
(j) "Warrantholder" means a record holder of the Warrant or
Securities. The initial Warrantholder is Paulson Investment Company, Inc.
(k) "Warrant" means the warrant evidenced by this certificate,
or any certificate obtained upon transfer or partial exercise of the Warrant
evidenced by any such certificate.
2. EXERCISE OF WARRANTS. All or any part of the Warrant may be
exercised commencing on the date the Warrant is issued and ending at 5:00 p.m.
(Pacific Time) on the fifth anniversary of the Issue Date by surrendering this
Warrant Certificate, together with appropriate instructions, duly executed by
the Warrantholder or by its duly authorized attorney, at the office of the
Company, 10833 Thornmint Road, San Diego, California 92127, or at such other
office or agency as the Company may designate. Upon receipt of notice of
exercise, the Company shall immediately instruct its transfer agent to prepare
certificates for the Securities to be received by the Warrantholder upon
completion of the Warrant exercise. When such certificates are prepared, the
Company shall notify the Warrantholder and deliver such certificates to the
Warrantholder or as per the Warrantholder's instructions immediately upon
payment in full by the Warrantholder, in lawful money of the United States, of
the Exercise Price payable with respect to the Securities being purchased. If
the Warrantholder shall represent and warrant that all applicable registration
and prospectus delivery requirements for their sale have been complied with upon
sale of the
Page 1 - Purchase Warrant
<PAGE>
securities received upon exercise of the Warrant, such certificates shall not
bear a legend with respect to the Act.
If fewer than all the Securities purchasable under the Warrant are
purchased, the Company will, upon such partial exercise, execute and deliver to
the Warrantholder a new Warrant Certificate (dated the date hereof), in form and
tenor similar to this Warrant Certificate, evidencing that portion of the
Warrant not exercised. The Securities to be obtained on exercise of the Warrant
will be deemed to have been issued, and any person exercising the Warrants will
be deemed to have become a holder of record of those Securities, as of the date
of the payment of the Exercise Price.
3. ADJUSTMENTS IN CERTAIN EVENTS. The number, class, and price of
Securities for which this Warrant Certificate may be exercised are subject to
adjustment from time to time upon the happening of certain events as follows:
(a) If the outstanding shares of the Company's Common Stock
are divided into a greater number of shares or a dividend in stock is paid on
the Common Stock, the number of shares of Common Stock for which the Warrant is
then exercisable will be proportionately increased and the Exercise Price will
be proportionately reduced; and, conversely, if the outstanding shares of Common
Stock are combined into a smaller number of shares of Common Stock, the number
of shares of Common Stock for which the Warrant is then exercisable will be
proportionately reduced and the Exercise Price will be proportionately
increased. The increases and reductions provided for in this subsection 3(a)
will be made with the intent and, as nearly as practicable, the effect that
neither the percentage of the total equity of the Company obtainable on exercise
of the Warrants nor the price payable for such percentage upon such exercise
will be affected by any event described in this subsection 3(a).
(b) In case of any change in the Common Stock through merger,
consolidation, reclassification, reorganization, partial or complete
liquidation, purchase of substantially all the assets of the Company, or other
change in the capital structure of the Company, then, as a condition of such
change, lawful and adequate provision will be made so that the holder of this
Warrant Certificate will have the right thereafter to receive upon the exercise
of the Warrant the kind and amount of shares of stock or other securities or
property to which he would have been entitled if, immediately prior to such
event, he had held the number of shares of Common Stock obtainable upon the
exercise of the Warrant. In any such case, appropriate adjustment will be made
in the application of the provisions set forth herein with respect to the rights
and interest thereafter of the Warrantholder, to the end that the provisions set
forth herein will thereafter be applicable, as nearly as reasonably may be, in
relation to any shares of stock or other property thereafter deliverable upon
the exercise of the Warrant. The Company will not permit any change in its
capital structure to occur unless the issuer of the shares of stock or other
securities to be received by the holder of this Warrant Certificate, if not the
Company, agrees to be bound by and comply with the provisions of this Warrant
Certificate.
(c) When any adjustment is required to be made in the number
of shares of Common Stock, other securities, or the property purchasable upon
exercise of the Warrant, the Company will promptly determine the new number of
such shares or other securities or property purchasable upon exercise of the
Warrant and (i) prepare and retain on file a statement describing in reasonable
detail the method used in arriving at the new number of such shares or other
securities or property purchasable upon exercise of the Warrant and (ii) cause a
copy of such
Page 2 - Purchase Warrant
<PAGE>
statement to be mailed to the Warrantholder within thirty (30) days after the
date of the event giving rise to the adjustment.
(d) No fractional shares of Common Stock or other securities
will be issued in connection with the exercise of the Warrant, but the Company
will pay, in lieu of fractional shares, a cash payment therefor on the basis of
the mean between the bid and asked prices of the Common Stock in the
over-the-counter market or the last sale price of the Common Stock on the Nasdaq
SmallCap Market or a national securities exchange, as the case may be, on the
day immediately prior to exercise.
(e) If securities of the Company or securities of any
subsidiary of the Company are distributed pro rata to holders of Common Stock,
such number of securities will be distributed to the Warrantholder or his
assignee upon exercise of his rights hereunder as such Warrantholder or assignee
would have been entitled to if this Warrant Certificate had been exercised prior
to the record date for such distribution. The provisions with respect to
adjustment of the Common Stock provided in this Section 3 will also apply to the
securities to which the Warrantholder or his assignee is entitled under this
subsection 3(e).
(f) Notwithstanding anything herein to the contrary, there
will be no adjustment made hereunder on account of the sale by the Company of
the Common Stock or other Securities purchasable upon exercise of the Warrant.
4. RESERVATION OF SECURITIES. The Company agrees that the number of
shares of Common Stock or other Securities sufficient to provide for the
exercise of the Warrant upon the basis set forth above will at all times during
the term of the Warrant be reserved for issuance upon exercise of the Warrant.
5. VALIDITY OF SECURITIES. All Securities delivered upon the exercise
of the Warrant will be duly and validly issued in accordance with their terms,
and the Company will pay all documentary and transfer taxes, if any, in respect
of the original issuance thereof upon exercise of the Warrant.
6. REGISTRATION RIGHTS.
(a) DEFINITIONS. For purposes of this subsection 6, the
following terms shall have the following definitions.
(i) The terms "Form S-1," "Form S-3," "Form S-4" and
"Form S-8" mean such respective forms under the Act,
as in effect on the date hereof or any successor
registration forms to Form S-1, Form S-3, Form S-4
and Form S-8, respectively, under the Act
subsequently adopted by the Commission.
(ii) The term "Holder" means the Warrantholder and
any person owning Registrable Securities (as defined
below) or any assignee thereof in accordance with
Section 6(m) hereof.
(iii) The term "Immediate Family" means, with respect
to any natural person, each of such person's spouse,
father, mother, brothers, sisters and lineal
descendants and ancestors.
(iv) The terms "register," "registered," and
"registration" refer to a registration effected by
preparing and filing a registration statement or
similar document in compliance with the Act, and the
automatic
Page 3 - Purchase Warrant
<PAGE>
effectiveness or the declaration or ordering of
effectiveness of such registration statement or
document.
(v) The term "Registrable Securities" means (i) any
shares of Common Stock held by a Holder or any
capital stock issued as a dividend or other
distribution with respect to, in exchange for, or in
replacement of such Common Stock; and (ii) any other
shares of capital stock acquired after the date
hereof by any Holder or any capital stock issued as a
dividend or other distribution with respect to, in
exchange for, or in replacement of such stock;
provided, however, that any shares previously sold
pursuant to a registered public offering or pursuant
to an exemption from the registration requirements of
the Act under which the transferee does not receive
"restricted securities" shall cease to be Registrable
Securities.
(b) REQUEST FOR REGISTRATION.
(i) At any time after the earlier of (i) April 3,
2001 or (ii) the date six months after the closing
date of the first registered public offering of
securities of the Company, if the Company shall
receive a written request from the Warrantholder that
the Company effect the registration under the Act of
Registrable Securities, then the Company shall,
within five days of the receipt thereof, give written
notice of such request to all Holders and shall,
subject to the limitations of this Section 6(b), use
its best efforts to effect such a registration as
soon as practicable and in any event to file within
60 days of the receipt of such request a registration
statement under the Act covering all the Registrable
Securities which the Holders shall in writing request
(within 20 days of receipt of the notice given by the
Company pursuant to this Section 6(b)) to be included
in such registration and to have such registration
statement become effective.
(ii) If the Warrantholder intends to distribute the
Registrable Securities covered by their request by
means of an underwriting, they shall so advise the
Company as part of their request made pursuant to
this Section 6(b) and the Company shall include such
information in the written notice referred to in
Section 6(b). In such event, the right of any Holder
to include its Registrable Securities in such
registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion
of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a
majority in interest of the Holders and such Holder)
to the extent provided herein. All Holders proposing
to distribute their securities through such
underwriting shall (together with the Company as
provided in Section 6(d)(iv), enter into an
underwriting agreement in customary form with the
underwriter or underwriters selected for such
underwriting by the Company and reasonably acceptable
to the Warrantholder; provided, however, that if the
underwriter is not reasonably acceptable to a the
Warrantholder, the Warrantholder may select an
underwriter or underwriters which shall be reasonably
acceptable to the Company. Notwithstanding any other
provision of this Section 6, if, in the
Page 4 - Purchase Warrant
<PAGE>
case of a registration requested pursuant to Section
6(b), the underwriter advises the Warrantholder in
writing that marketing factors require a limitation
of the number of shares to be underwritten, then the
Warrantholder shall so advise the Company and all
Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and all
the securities other than Registrable Securities
sought to be included in the underwriting shall first
be excluded. To the extent that further limitation is
required, the number of Registrable Securities that
may be included in the underwriting shall be
allocated first to the Warrantholder then pro rata
among all Holders thereof desiring to participate in
such underwriting (according to the number of
Registrable Securities then held by each such
Holder). No Registrable Securities requested by any
Holder to be included in a registration pursuant to
Section 6(b) shall be excluded from the underwriting
unless all securities other than Registrable
Securities are first excluded.
(iii) The Company is obligated to effect pursuant to
Section 6(b) only one registration initiated by the
Warrantholder.
(iv) Notwithstanding the foregoing provisions of this
Section 6, in the event that the Company is requested
to file any registration statement pursuant to this
Section 6, (1) the Company shall not be obligated to
effect the filing of such registration statement:
(a) during the 90 days following the
effective date of any other registration
statement pertaining to an underwritten
public offering of securities for the
account of the Company or any Holder;
(b) if, in the case of the initial public
offering of the Company's securities, the
Company and the Warrantholder are unable to
obtain the commitment of the underwriter
selected pursuant to Section 6(b)(ii) to
underwrite the offering on a firm commitment
basis; or
(c) for a period of up to 90 days after the
date of a request for registration pursuant
to this Section 6 if at the time of such
request (1) the Company is engaged, or has
fixed plans to engage, within 90 days of the
time of such request, in a firm commitment
underwritten public offering of Common Stock
in which the holders of Registrable
Securities include Registrable Securities
pursuant to Section 6(c); or (2) the Company
is currently engaged in a self-tender or
exchange offer and the filing of a
registration statement would cause a
violation of the Securities Exchange Act of
1934, as amended (the "1934 Act");
or (2) if the Company shall furnish to the Holders
requesting such registration statement a certificate
signed by the Chief Executive Officer of the Company
stating that, in the good faith judgment of the Board
of Directors, it would not be in the best interests
of the Company and its
Page 5 - Purchase Warrant
<PAGE>
shareholders generally for such registration
statement to be filed, the Company shall have the
right to defer such filing for a period of not more
than 90 days after receipt of the request of the
relevant Warrantholder; provided, however, that the
Company may not utilize the right set forth in this
Section 6(b)(iv)(2) more than once in any
twelve-month period.
(c) COMPANY REGISTRATION. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for shareholders other than the Warrantholder) any of
its capital stock or other securities under the Act in connection with the
public offering of such securities solely for cash (other than a registration on
Form S-8 relating solely to the sale of securities to participants in a Company
stock plan or a registration on Form S-4 or a Rule 145 transaction), the Company
shall, at such time, promptly give each Holder written notice of such
registration. Upon the written request of any Holder given within 20 days after
mailing of such notice by the Company, the Company shall, subject to the
provisions of Section 6, cause a registration statement covering all of the
Registrable Securities that each such Holder has requested to be registered to
become effective under the Act.
(d) OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 6 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible, prepare and file with the SEC a
registration statement with respect to such Registrable Securities and cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for up to 180 days or until such earlier
time at which such Holders have informed the Company in writing that the
distribution of their securities has been completed (such 180-day or shorter
period, the "Effectiveness Period"). In addition, the Company shall:
(i) Prepare and file with the SEC such amendments and
supplements to such registration statement and the
prospectus used in connection with such registration
statement, and cause each such amendment and
supplement to become effective, as may be necessary
to comply with the provisions of the Act with respect
to the disposition of all securities covered by such
registration statement during the Effectiveness
Period.
(ii) Furnish to the Holders such number of copies of
a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Act, and such
other documents as they may reasonably request in
order to facilitate the disposition of Registrable
Securities owned by them.
(iii) Register or qualify the securities covered by
such registration statement under such other
securities or Blue Sky laws of such states and
jurisdictions as shall be reasonably requested by the
Holders, except that the Company shall not be
required in connection therewith or as a condition
thereto to qualify to do business, subject itself to
taxation or file a general consent to service of
process in any such state or jurisdiction.
(iv) In the event of any underwritten public
offering, enter into and perform its obligations
under an underwriting agreement, in usual and
customary form, with the managing underwriter of such
offering. Each Holder participating in such
underwriting shall also enter into and perform
Page 6 - Purchase Warrant
<PAGE>
its obligations under such an underwriting agreement,
including furnishing any opinion of counsel or
entering into a lock-up agreement reasonably
requested by the managing underwriter.
(v) Notify each Holder of Registrable Securities
covered by such registration statement, at any time
when a prospectus relating thereto covered by such
registration statement is required to be delivered
under the Act, of the happening of any event as a
result of which the prospectus included in such
registration statement, as then in effect, includes
an untrue statement of a material fact or omits to
state a material fact required to be stated therein
or necessary to make the statements therein not
misleading in the light of the circumstances then
existing and promptly file such amendments and
supplements which may be required pursuant to Section
6(d)(ii) on account of such event and use its best
efforts to cause each such amendment and supplement
to become effective.
(vi) Furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to
this Section 6, on the date that such Registrable
Securities are delivered to the underwriters for sale
in connection with a registration pursuant to this
Section 6, if such securities are being sold through
underwriters, or, if such securities are not being
sold through underwriters, on the date that the
registration statement with respect to such
securities becomes effective, (i) an opinion or
opinions, dated such date, of the counsel
representing the Company for the purposes of such
registration, in form and substance as is customarily
given by company counsel to the underwriters in an
underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a
letter dated such date, from the independent
certified public accountant of the Company, in form
and substance as is customarily given by independent
certified public accountants to underwriters in an
underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting
registration of Registrable Securities.
(vii) Apply for listing and list the Registrable
Securities being registered on any national
securities exchange on which a class of the Company's
equity securities is listed or, if the Company does
not have a class of equity securities listed on a
national securities exchange, apply for qualification
and use its best efforts to qualify the Registrable
Securities being registered for inclusion on the
automated quotation system of the National
Association of Securities Dealers, Inc.
(viii) Without in any way limiting the types of
registrations to which this Section 6 shall apply, in
the event that the Company shall effect a "shelf
registration" under Rule 415 promulgated under the
Act, the Company shall take all necessary action,
including, without limitation, the filing of
post-effective amendments, to permit the Holders to
include their Registrable Securities in such
registration in accordance with the terms of this
Section 6.
Page 7 - Purchase Warrant
<PAGE>
(e) FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 6 in
respect of the Registrable Securities of any selling Holder that such selling
Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of its
Registrable Securities.
(f) EXPENSES OF DEMAND REGISTRATION. All expenses other than
underwriting discounts and commissions relating to Registrable Securities
incurred in connection with each registration, filing or qualification pursuant
to Section 6(b)(i) including (without limitation) all registration, filing and
qualification fees, printing and accounting fees, fees and disbursements of
counsel for the Company, and the fees and disbursements of counsel for the
selling Holders, shall be borne by the Company. All underwriting discounts and
commissions relating to Registrable Securities included in any registration
effected pursuant to Section 6(b)(i) will be borne and paid ratably by the
Holders of such Registrable Securities.
(g) EXPENSES OF COMPANY REGISTRATION. The Company shall bear
and pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to any registration
pursuant to Section 6(c) for each Holder, including, without limitation, all
registration, filing and qualification fees, printing and accounting fees, fees
and disbursements of counsel for the Company and the fees and disbursements of
counsel for the selling Holders. Underwriting discounts and commissions relating
to Registrable Securities included in any registration effected pursuant to
Section 6(c) will be borne and paid ratably by the Holders of such Registrable
Securities.
(h) UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of securities being issued by the Company, the Company
shall not be required under Section 6(c) to include any of the Holders'
securities in such underwriting unless such Holders accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it, and then only in such quantity, if any, as in the reasonable opinion of the
underwriters, marketing factors allow. If the managing underwriter for the
offering shall advise the Company in writing that the total amount of
securities, including Registrable Securities, requested by shareholders to be
included in such offering exceeds the amount of securities to be sold other than
by the Company that marketing factors allow, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, which the managing underwriter believes marketing
factors allow (the securities so included to be reduced as follows: (a) all
securities which shareholders other than the Company and the Holders seek to
include in the offering shall be excluded from the offering to the extent
limitation on the number of shares included in the underwriting is required, and
(b) if further limitation on the number of shares to be included in the
underwriting is required, then the number of shares held by Holders that may be
included in the underwriting shall be reduced so that the number of shares
included in the underwriting are pro rata in accordance with the number of
shares of Registrable Securities held by each such Holder), but in no event
shall the amount of securities of the selling Holders included in the offering
be reduced below 25% of the total amount of securities included in such
offering, unless such offering is the initial public offering of the Company's
securities in which case the selling Holders may be excluded if the managing
underwriter makes the determination described above and no securities other than
those of the Company are included. For purposes of the preceding parenthetical
concerning apportionment, for any selling shareholder which is a Holder of
Registrable Securities and which is a partnership, a limited liability company
or a
Page 8 - Purchase Warrant
<PAGE>
corporation, the partners, retired partners, members, retired members and
shareholders of such Holder, or the estates and family members of such partners,
retired partners, members and retired members and any trusts for the benefit of
any of the foregoing persons shall collectively be deemed to be a "Selling
Holder," and any pro rata reduction with respect to such "Selling Holder" shall
be based upon the aggregate amount of shares carrying registration rights owned
by all entities and individuals included in such "Selling Holder," as defined in
this sentence.
(i) INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under this Section 6:
(i) The Company will indemnify and hold harmless each
Holder, the officers, directors, partners, members,
agents and employees of each Holder, any underwriter
(as defined in the Act) for such Holder and each
person, if any, who controls or is deemed to control
such Holder or underwriter within the meaning of the
Act or the 1934 Act, against any losses, claims,
damages or liabilities (joint or several) to which
they may become subject under the Act, the 1934 Act
or any other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any
of the following statements, omissions or violations
(each a "Violation"): (i) any untrue statement or
alleged untrue statement of a material fact contained
in such registration statement, including any
preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto,
(ii) the omission or alleged omission to state
therein a material fact required to be stated therein
or necessary to make the statements therein, in light
of the circumstances in which they were made, not
misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act,
any state securities law or any rule or regulation
promulgated under the Act, the 1934 Act or any state
securities law in connection with any matter relating
to such registration statement. The Company will
reimburse each such Holder, officer, director,
partner, member, agent, employee, underwriter or
controlling person or person who is deemed to control
for any legal or other expenses reasonably incurred
by them in connection with investigating or defending
any such loss, claim, damage, liability, or action.
The indemnity agreement contained in this Section
6(i)(i) shall not apply to amounts paid in settlement
of any loss, claim, damage, liability or action if
such settlement is effected without the consent of
the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable to a
Holder in any such case for any such loss, claim,
damage, liability or action (1) to the extent that it
arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with
written information furnished expressly for use in
connection with such registration by or on behalf of
such Holder, underwriter or controlling person or (2)
in the case of a sale directly by a Holder of
Registrable Securities (including a sale of such
Registrable Securities through any underwriter
retained by such Holder engaging in a distribution
solely on behalf of such Holder), such untrue
statement or alleged untrue statement or omission or
alleged omission was contained in a
Page 9 - Purchase Warrant
<PAGE>
preliminary prospectus and corrected in a final or
amended prospectus, and such Holder failed to deliver
a copy of the final or amended prospectus at or prior
to the confirmation of the sale of the Registrable
Securities to the person asserting any such loss,
claim, damage or liability in any case in which such
delivery is required by the Act.
(ii) Each Holder which includes any Registrable
Securities in any registration statement will
indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the
registration statement, each person, if any, who
controls the Company within the meaning of the Act,
each employee, agent, and any underwriter for the
Company, and any other Holder or other shareholder
selling securities in such registration statement or
any of its directors, officers, partners, members,
agents or employees or any person who controls such
Holder or such other shareholder or such underwriter,
against any losses, claims, damages, or liabilities
(joint or several) to which the Company or any such
director, officer, controlling person, employee,
agent, or underwriter or controlling person, or other
such Holder, shareholder, director, officer or
controlling person may become subject, under the Act,
the 1934 Act or other federal or state law, insofar
as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based
upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in
reliance upon and in conformity with written
information furnished by or on behalf of such Holder
expressly for use in connection with such
registration, and each such Holder will reimburse any
legal or other expenses reasonably incurred by the
Company or any such director, officer, controlling
person, agent or underwriter or controlling person,
other Holder or other shareholder, officer, director,
partner, member, agent, employee, or controlling
person in connection with investigating or defending
any such loss, claim, damage, liability, or action;
provided, however, that the liability of any Holder
hereunder shall be limited to the amount of net
proceeds (after deduction of all underwriters'
discounts and commissions paid by such Holder in
connection with the registration in question)
received by such Holder, in the offering giving rise
to the Violation; and provided, further, that the
indemnity agreement contained in this Section
6(i)(ii) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the
consent of the Holder, which consent shall not be
unreasonably withheld or delayed nor, in the case of
a sale directly by the Company of its securities
(including a sale of such securities through any
underwriter retained by the Company to engage in a
distribution solely on behalf of the Company), shall
the Holder be liable to the Company in any case in
which such untrue statement or alleged untrue
statement or omission or alleged omission was
contained in a preliminary prospectus and corrected
in a final or amended prospectus, and the Company
failed to deliver a copy of the final or amended
prospectus at or prior to the confirmation of the
sale of the securities to the person asserting any
such loss, claim, damage or liability in any case in
which such
Page 10 - Purchase Warrant
<PAGE>
delivery is required by the Act. The obligations of
the Holders hereunder are several, and not joint.
(iii) Promptly after receipt by an indemnified party
under this Section 6(i) of notice of the commencement
of any action (including any governmental action),
such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party
under this Section 6(i), deliver to the indemnifying
party a written notice of the commencement thereof
and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying
party similarly noticed, to assume and control the
defense thereof with counsel mutually satisfactory to
the parties; provided, however, that an indemnified
party shall have the right to retain its own counsel,
with the fees and expenses to be paid by the
indemnifying party, if representation of such
indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to
actual or potential differing interests, as
reasonably determined by either party, between such
indemnified party and any other party represented by
such counsel in such proceeding. The failure to
deliver written notice to the indemnifying party
within a reasonable time of the commencement of any
such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of
any liability to the indemnified party under this
Section 6(i) to the extent of such prejudice, but the
omission so to deliver written notice to the
indemnifying party will not relieve it of any
liability that it may have to any indemnified party
otherwise than under this Section 6(i).
(iv) The obligations of the Company and the Holders
under this Section 6(i) shall survive the completion
of any offering of Registrable Securities in a
registration statement whether under this Section 6
or otherwise.
(j) Notwithstanding anything to the contrary herein, any
indemnification obligation arising out of any claims subject to the
indemnification provisions contained in the Underwriting Agreement shall be
governed entirely by the Underwriting Agreement, and not by the provisions of
this Warrant.
(k) REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934; RESALES
UNDER RULE 144; FORM S-3 REGISTRATION. With a view to making available to the
Holders the benefits of Rule 144 promulgated under the Act ("Rule 144") and any
other rule or regulation of the SEC that may at any time permit a Holder to sell
securities of the Company to the public without registration, and with a view to
making it possible for Holders to have the resale of the Registrable Securities
registered pursuant to a registration statement on Form S-3, the Company agrees
to:
(i) make and keep public information available, as
those terms are understood and defined in Rule 144,
at all times after 90 days after the effective date
of the first registration statement filed by the
Company for the offering of its securities to the
general public;
Page 11 - Purchase Warrant
<PAGE>
(ii) concurrently with the first registered public
offering, take such action, including the voluntary
registration of its Common Stock under Section 12 of
the 1934 Act or compliance with the reporting
requirements of Section 15(d) of the 1934 Act, as is
necessary to enable the Holders to utilize Form S-3
for the sale of their Registrable Securities;
(iii) after the first registered public offering,
file with the SEC in a timely manner all reports and
other documents required of the Company under the Act
and the 1934 Act; and
(iv) furnish to any Holder, so long as the Holder
owns any Registrable Securities, forthwith upon
request (1) a written statement by the Company as to
its compliance with the reporting requirements of
Rule 144 (at any time after 90 days after the
effective date of the first registration statement
filed by the Company for the offering of the
securities to the general public), the Act and the
1934 Act (at any time after it has become subject to
such reporting requirements), or as to its
qualification as a registrant whose securities may be
resold pursuant to Form S-3 (at any time after it so
qualifies), (2) a copy of the most recent annual or
quarterly report of the Company and such other
reports and documents so filed by the Company, and
(3) such other documents as may be reasonably
requested in availing any Holder of any rule or
regulation of the SEC which permits the selling of
any such securities without registration or pursuant
to such form.
(l) LOCK-UP AGREEMENTS. If reasonably requested by the Company
and the managing underwriter, the Holders agree to enter into lock-up agreements
pursuant to which they will not, for a period of no more than 180 days following
the effective date of the first registration statement for a public offering of
the Company's securities, offer, sell or otherwise dispose of the Registrable
Securities or other equity securities of the Company, except the Registrable
Securities sold pursuant to such registration statement, without the prior
consent of the Company and the underwriter, provided that the officers,
directors and all holders of more than 1% of the shares of Common Stock prior to
the public offering (calculated for the purpose as if all securities convertible
into or exercisable for Common Stock, directly or indirectly, are so converted
or exercised) of the Company enter such lock-up agreements for the same period
and on the same terms.
(m) ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Section 6 may be
assigned by any Holder to a transferee, and by such transferee to a subsequent
transferee, but only if such rights are transferred (a)(i) to an affiliate,
subsidiary, partner (former or current), member or shareholder of such Holder or
transferee or an account managed or advised by the manager or adviser of such
Holder or transferee, (ii) by gift or bequest or through inheritance to, or for
the benefit of, any member or members of such Holder's immediate family or to a
trust for the benefit of any member or members of such Holder's immediate
family, or (iii) to a trust in respect of which such Holder serves as trustee,
provided, however, that the trust instrument governing such trust shall provide
that such Holder, as trustee, shall retain sole and exclusive control over the
voting and disposition of such rights until the termination of this Agreement,
or (b) in connection with the sale or other transfer of not fewer than an
aggregate of 25,000 Registrable Securities (as adjusted for stock splits,
Page 12 - Purchase Warrant
<PAGE>
combinations, stock dividends and similar recapitalization events which affect
the number of issued and outstanding shares of Registrable Securities) or some
lesser number, if such lesser number represents all the Registrable Securities
then held by such Holder. Any transferee to whom rights under this Agreement are
transferred shall (i) as a condition to such transfer, deliver to the Company a
written instrument by which such transferee agrees to be bound by the
obligations imposed upon Holders under this Agreement to the same extent as if
such transferee were a Holder under this Agreement and (ii) be deemed to be a
Holder hereunder.
(n) UNDERWRITERS AND ADVISORS. The Company shall not engage an
underwriter or acquisition advisor without such underwriter or advisor first
being approved of by the Warrantholder.
7. NO RIGHTS AS A SHAREHOLDER. Except as otherwise provided herein, the
Warrantholder will not, by virtue of ownership of the Warrant, be entitled to
any rights of a shareholder of the Company but will, upon written request to the
Company, be entitled to receive such quarterly or annual reports as the Company
distributes to its shareholders.
8. NOTICE. Any notices required or permitted to be given hereunder will
be in writing and may be served personally or by mail; and if served will be
addressed as follows:
If to the Company:
10833 Thornmint Road
San Diego, California 92127
Attn: President
If to the Warrantholder:
at the address furnished
by the Warrantholder to the
Company for the purpose of
notice.
Any notice so given by mail will be deemed effectively given 48 hours
after mailing when deposited in the United States mail, registered or certified
mail, return receipt requested, postage prepaid and addressed as specified
above. Any party may by written notice to the other specify a different address
for notice purposes.
9. OPTIONAL CONVERSION.
(a) In addition to and without limiting the right of any
Holder under the terms of this Warrant, the Warrantholder shall have the right
(the "Conversion Right") to convert this Warrant or any portion thereof into
Securities as provided in this Section 9 at any time or from time to time after
the Issue Date and prior to its expiration. Upon exercise of the Conversion
Right with respect to a particular number of Securities subject to this Warrant
(the "Converted Securities"), the Company shall deliver to the holder of this
Warrant, without payment by the holder of any exercise price or any cash or
other consideration, that number of Securities equal to the quotient obtained by
dividing the Net Value (as hereinafter defined) of the Converted Securities
Page 13 - Purchase Warrant
<PAGE>
by the sum of the fair market value (as defined in paragraph (c) below) of a
single share of Common Stock , determined in each case as of the close of
business on the Conversion Date (as hereinafter defined). The "Net Value" of the
Converted Securities shall be determined by subtracting the aggregate Exercise
Price of the Converted Securities from the aggregate fair market value of the
Converted Securities. Notwithstanding anything in this Section 9 to the
contrary, the Conversion Right cannot be exercised with respect to a number of
Converted Securities having a Net Value below $100. No fractional shares shall
be issuable upon exercise of the Conversion Right, and if the number of shares
to be issued in accordance with the foregoing formula is other than a whole
number, the Company shall pay to the holder of this Warrant an amount in cash
equal to the fair market value of the resulting fractional share.
(b) The Conversion Right may be exercised by the holder of
this Warrant by the surrender of this Warrant at the principal office of the
Company together with a written statement specifying that the holder thereby
intends to exercise the Conversion Right and indicating the number of Securities
subject to this Warrant which are being surrendered (referred to in paragraph
(a) above as the Converted Securities) in exercise of the Conversion Right. Such
conversion shall be effective upon receipt by the Company of this Warrant
together with the aforesaid written statement, or on such later date as is
specified therein (the "Conversion Date"), but not later than the expiration
date of this Warrant. Certificates for the shares of Common Stock issuable upon
exercise of the Conversion Right, together with a check in payment of any
fractional share and, in the case of a partial exercise, a new Warrant
evidencing the Securities remaining subject to this Warrant, shall be issued as
of the Conversion Date, and shall be delivered to the holder of this Warrant
within seven days following the Conversion Date.
(c) For purposes of this Section 9, the "fair market value" of
a share of Common Stock as of a particular date shall be the mean between the
bid and asked price of the Common Stock, as the case may be, as quoted in the
over the counter market, or, if applicable, the closing sale price of the Common
Stock, as the case may be, on the Nasdaq Stock Market or a national exchange.
10. APPLICABLE LAW. This Warrant Certificate will be governed by and
construed in accordance with the laws of the State of Oregon, without reference
to conflict of laws principles thereunder. All disputes relating to this Warrant
Certificate shall be tried before the courts of Oregon located in Multnomah
County, Oregon, to the exclusion of all other courts that might have
jurisdiction.
Dated as of ___________ , 2000.
IMAGEWARE SOFTWARE, INC.
By:________________________________
___________________________________
Page 14 - Purchase Warrant
<PAGE>
Agreed and Accepted as of _____________, 2000
PAULSON INVESTMENT COMPANY, INC.
By:________________________________
___________________________________
Page 15 - Purchase Warrant
<PAGE>
TEAMING AGREEMENT
BETWEEN
HEWLETT-PACKARD SINGAPORE (SALES) PTE LTD
("HP")
AND
IMAGEWARE SOFTWARE INC.
("COMPANY")
<PAGE>
TABLE OF CONTENTS
SECTIONS OF THE AGREEMENT
<TABLE>
<S> <C>
1 Definitions
2 Scope of Agreement
3 Obligations of the Parties
4 Intellectual Property/Trademarks
5 Warranty
6 Confidentiality
7 Limitation of Liability
8 Term and Termination
9 Indemnity
10 Miscellaneous
</TABLE>
Exhibits to the Agreement
Exhibit A Work to be Provided by the Parties
<PAGE>
TEAMING AGREEMENT
This Teaming Agreement ("Agreement") is made as of this day of 30th April
30th 1999 ("the Effective Date") by and between HEWLETT-PACKARD SINGAPORE
(SALES) PTE LTD, a company incorporated in the Republic of Singapore with
offices at 450 Alexandra Road, Singapore 119960 ("HP") and IMAGEWARE SOFTWARE
INC., a company incorporated under the laws of The United States Of America
with registered offices at 10883 Thornmint Rd. San Diego, CA
92127 ("Company").
WHEREAS
A. The parties desire to jointly participate in the preparation of a
proposal ("the Proposal") to be submitted to Singapore Police Force
("the Customer") in response to the Customer's Request for Proposal
("RFP") to implement the Criminal Photo Identification System Project -
CPIDS ("the Project").
B. HP, in consultation with the Sub-Contractor, intends to submit a
Proposal to the Customer. The Proposal will designate HP as the prime
contractor and the Sub-Contractor as subcontractor for part of the
products and services to be provided.
C. If the proposal is selected, HP will enter into an agreement ("Prime
Contract") with the Customer to provide the products and services as set
out in the Proposal, and HP will enter into a subcontract with the
Company for the Company to provide products and services as contemplated
in the jointly-prepared Proposal to Customer.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1 DEFINITIONS
1.1 "PROPOSAL" means the parties' response to the Request.
1.2 "REQUEST" means the request for proposal or invitation to bid
issued by Customer with respect to the Project.
1.3 "WORK" means the customized products and/or services detailed in
Exhibit A to be offered to Customer in the Proposal.
2 SCOPE OF AGREEMENT
2.1 HP and Company shall cooperate in the preparation of a Proposal to
be submitted by HP in response to the Request.
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2.2 Each party agrees to undertake the activities set forth in this
Agreement and in Exhibit A. Unless otherwise agreed in writing,
the parties intend for HP to be the prime contractor, and Company
to be the subcontractor to HP in accord with Section 3.3, with
respect to the Project. If the parties are selected based on the
Proposal, HP will enter into an agreement with Customer ("Prime
Contract") to provide the Work as set forth in the Proposal, and HP
will enter into a subcontract with the Company for the company to
provide products and services as contemplated in the
jointly-prepared Proposal to Customer.
2.3 Neither of the parties shall enter into any other collaboration,
teaming or similar arrangement with other individuals or entities
to provide the same or similar Work with respect to the Project as
are to be provided by the other. However, HP may enter into
agreements with other individuals or entities to serve as a
subcontractor to HP for products or services other than those to be
provided by Company.
3 OBLIGATIONS OF THE PARTIES
3.1 GENERAL.
3.1.1 The Work to be provided by each of the parties is
described in general terms in Exhibit A.
3.1.2 Each party shall appoint a representative to supervise
and co-ordinate its performance of its obligations under
this Agreement. The representative shall provide
professional and prompt liaison with the other party
and have the necessary expertise and authority to commit
the appointing party.
3.1.3 All contacts with Customer pertaining to the Request,
Proposal and Prime Contract shall be co-ordinated through
HP. Company agrees to promptly notify HP if it is
directly contacted by Customer concerning the Request,
Proposal, Prime Contract or any related matter.
3.1.4 Unless otherwise agreed by the parties in writing, each
party shall bear its own costs and expenditures incurred
in connection with the preparation, submission and
negotiation of the Proposal. Neither party shall be
liable for the costs incurred or other obligations
undertaken by the other party in connection with the
Proposal or any such negotiation.
3.1.5 Company will be available for consultation with HP
during any negotiations with Customer. Company shall,
upon HP's reasonable request, attend any negotiations
or discussions between HP and Customer which pertain
to the Proposal or Prime Contract.
3.2 PREPARATION AND SUBMISSION OF THE PROPOSAL.
3.2.1 HP will furnish Company with a copy of the Request,
including any terms and conditions required by
Customer to be incorporated into the Prime Contract.
Upon receipt of the Request, HP and Company shall agree
on the format of Company's proposal and the time frame
for its submission to HP, provided however, that HP
cannot bind the Company to terms and conditions in the
Prime Contract without the Company's prior consent.
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3.2.2 HP shall be responsible for the preparation, content,
evaluation and submission to Customer of the Proposal
and Prime Contract. Company will be provided with an
opportunity to review the areas of the Proposal relating
to the portions of the Work to be supplied by Company
during the preparation of the Proposal, and Company's
comments will be reviewed and taken into account by HP.
Company acknowledges that HP retains ultimate control
over the form and content of the Proposal.
3.2.3 Each party shall draw up at its own cost a proposal with
respect to its responsibilities detailed in Exhibit A
and as required by the Request. Each party shall be
solely responsible for its proposal, including the
accuracy and adequacy of designs, interface and technical
data, appropriate performance parameters, Work, support
and all other matters proposed by it and for the
completion and delivery times for the Work proposed by
it in its proposal. In addition, Company will provide
HP with any exceptions it may have to the terms and
conditions required by the Request to be incorporated
into the Prime Contract. During preparation of their
respective proposals, the parties shall meet regularly
to review and discuss progress and resolve any issues.
3.2.4 In the event that the Request calls for the Work of
Company and HP to be compatible, the parties shall
consult with one another and ensure that their respective
proposals meet such requirements.
3.2.5 Company shall submit to HP its proposal, including
prices, at the agreed time and in the agreed format,
in the form of an irrevocable offer valid until the
latest date for acceptance of the Proposal by the
Customer, or any extension thereto agreed by HP and
Customer.
3.2.6 Company shall identify in its proposal any pre-existing
proprietary rights, and any reservations or restrictions
pertaining thereto, involved in its Work. The Proposal
shall clearly indicate any areas which the parties
consider to contain pre-existing proprietary rights,
and HP shall be responsible for notifying Customer of
any reservations or restrictions pertaining thereto.
3.2.7 Each party shall use reasonable commercial efforts in the
preparation of a competitive Proposal and further shall
engage in any other reasonable activity which shall
result in the acceptance of the Proposal by Customer
and the award of the contract to HP.
3.2.8 HP shall supply a copy of the Proposal, excluding
costing data and any material covered by third party
confidentiality obligations, to Company no later than
five (5) working days after its submission to Customer.
3.2.9 If, after submission of the Proposal, Customer requires
changes to the Proposal, HP shall co-ordinate with
Company and submit any response. Company shall make
available at HP's request employees empowered to make
commitments in respect of the matters to be discussed.
3.2.10 In the event Customer requires demonstrations or
prototypes prior to Company's execution of a subcontract,
Company will provide HP, at no charge, with the resources
necessary to meet Customer's request, solely for
demonstration purposes and as is commercially reasonable,
without transfer of any right, title or interest.
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3.2.11 HP will notify Company as soon as reasonably possible
of the receipt by HP of the written acceptance or refusal
by Customer of the Proposal.
3.3 SUBCONTRACT.
3.3.1 In the event that the Customer accepts the Proposal and
approves the provision of all or part of the products
and performance of all or part of the services offered
by the Company, the parties will execute a mutually
agreed subcontract whereby Company will provide products
and services consistent with the commitments agreed upon
in the Proposal. The subcontract shall include those
provisions of the Prime Contract which by its terms are
require to be flowed down to the Company.
3.3.2 The subcontract shall be negotiated between HP and Company
in advance of negotiation and execution of the Prime
Contract with the understanding that such subcontract
terms may need to be modified as a result of subsequent
negotiations between HP and Customer. The parties will
work in good faith to include such modifications in the
subcontract.
3.3.3 In the event a mutually acceptable subcontract cannot
be negotiated and executed by the parties within a
reasonable period of time, and in any event within
thirty (30) days after notice of the award of the Prime
Contract, HP shall have the right upon ten (10) days
prior notice to Company to terminate the relationship
and to make other arrangements for the performance of
the Work to have been covered by the subcontract.
3.3.4 The Company understands and agrees that HP may enter
into other arrangements with other individuals or
entities under which such individuals or entities
would serve as subcontractor to HP for other products
and/or services under the Proposal.
3.3.5 This Agreement shall not be construed as precluding
either party from selling its standard commercially
available products and technology to competing bidders.
4. INTELLECTUAL PROPERTY/TRADEMARKS
4.1 All intellectual property rights existing prior to the Effective
Date of this Agreement shall belong to the party that owned such
rights immediately prior to the Effective Date. Neither party shall
gain by virtue of this Agreement any rights of ownership of
copyrights, patents, trade secrets, trademarks or any other
intellectual property rights owned by the other. If the parties
decide to undertake any joint development pursuant to this
Agreement, any such joint development shall be governed by a
separate joint development agreement to be negotiated in good faith
by the parties and executed prior to the commencement of any joint
development efforts.
4.2 Neither party, without the express prior written consent of the other
party, shall use the trademarks, service marks, proprietary words or
symbols of the other party.
4.3 Nothing in this Agreement shall affect either party's right to use
any trademarks, service marks or proprietary words or symbols of the
other party to properly identify the goods or
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services of such other party to the extent otherwise permitted by
applicable law or by written agreement between the parties.
5. WARRANTY
5.1 The Sub-Contractor warrants that it has or will have the full power
and authority to supply to HP for resale or sublicense to the
Customer as the case may be all products, services and other
assistance represented by it in the Proposal and will indemnify HP
against any actions, claims, demands, liabilities, damages, costs
and expenses arising out of a breach or claimed breach of this
warranty or arising out of the Sub-Contractor's intentional or
negligent acts or omissions under this Agreement, subject to 7.1.
5.2 The Sub-Contractor warrants that the products, services and other
assistance to be provided will be as claimed in the Proposal and
will be performed in accordance with its specifications whether
published or not.
5.3 The Sub-Contractor warrants that each hardware, software and
firmware product covered by the Agreement, is "Year 2000 Compliant".
Year 2000 Compliant Products shall be able to accurately process
date data (including, but not limited to, calculating, comparing and
sequencing) from, into, and between the twentieth and twenty-first
centuries, including leap year calculations, when used in accordance
with the product documentation provided by the Sub-Contractor,
provided that all listed or unlisted products (e.g. hardware,
software, firmware) used in combination with such listed products
properly exchange date data with it. If this Agreement requires that
specific products must perform as a system in accordance with the
foregoing warranty, then that warranty shall apply to those products
as a system. The duration of this warranty and the remedies
available for breach of this warranty shall be defined in, and
subject to, the terms and limitations of the warranty contained in
this Agreement, or of the Sub-Contractor's standard commercial
warranties if no such contractual warranty exists. Nothing in this
warranty shall be construed to limit any rights or remedies provided
elsewhere in this Agreement with respect to matters other than Year
2000 performance, except that the period of this Year 2000 warranty
shall extend through December 31, 2000, notwithstanding any other
warranty period specified in this Agreement.
6. CONFIDENTIALITY
6.1 During the term of this Agreement, either party may receive or have
access to technical information, as well as information about
product plans and strategies, promotions, customers and related
non-technical business information which the disclosing party
considers to be confidential ("Confidential Information"). In the
event Confidential Information is to be disclosed, the parties shall
first agree to disclose and receive such information in confidence.
If then disclosed, the Confidential Information shall be marked as
confidential at the time of disclosure, or if disclosed orally but
stated to be confidential, shall be designated as confidential in a
writing by the disclosing party
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summarising the Confidential Information disclosed and sent to the
receiving party within 30 days after such oral disclosure.
6.2 Confidential Information may be used by the receiving party only
with respect to the performance of its obligations under this
Agreement or the Proposal, and only by those employees of the
receiving party and its subcontractors who have a need to know such
information for purposes related to this Agreement, provided that
such subcontractors have signed separate agreements containing
substantially similar confidentiality provisions. The parties shall
not use the Confidential Information in violation of any federal or
state securities laws. The receiving party shall protect the
Confidential Information of the disclosing party by using the same
degree of care (but not less than a reasonable degree of care) to
prevent the unauthorized use, dissemination or publication of such
Confidential Information, as the receiving party uses to protect its
own confidential information of like nature.
6.3 The obligations stated in this Section 6 shall not apply to any
information which is:
6.3.1 Already known by the receiving party prior to disclosure.
6.3.2 Publicly available through no fault of the receiving party.
6.3.3 Rightfully received from a third party without a duty of
confidentiality.
6.3.4 Disclosed by the disclosing party to a third party without
a duty of confidentiality on such third party.
6.3.5 Independently developed by the receiving party prior to or
independent of the disclosure.
6.3.6 Disclosed under operation of law, provided however, that
upon issuance of any court or administration order or any
subpoena, the receiving party shall promptly notify the
disclosing part and shall provide the disclosing party
with an opportunity (if then available) to contest the
proprietary of such order or subpoena (or to arrange
appropriate safeguards against further disclosure by
the entity seeking to compel disclosure of such
Confidential Information.)
6.3.7 Disclosed by the receiving party with the disclosing
party's prior written approval.
7. LIMITATION OF LIABILITY
7.1 EXCEPT FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR BREACH OF
CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES
ARISING FROM ANY CLAIM OR ACTION HEREUNDER, WHETHER BASED ON
CONTRACT, TORT OR OTHER LEGAL THEORY.
8. TERM AND TERMINATION
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8.1 This Agreement shall come into force on the Effective Date and
shall continue (unless terminated earlier) until both parties have
fulfilled all of their obligations.
8.2 This Agreement shall automatically terminate upon the happening of
one of the following events, whichever shall occur first:
8.2.1 Written notice from Customer that it is cancelling
Request or Project.
8.2.2 Written notice from Customer of award of the Prime
Contract to a firm other than HP.
8.2.3 Written notice from Customer of award stating its
disapproval of the use of Company as a subcontractor
or direction to select someone other than Company for the
Work identified as Company's responsibility in the
Proposal or otherwise.
8.2.4 Execution of a subcontract by and between the parties for
performance of portions of the Project.
8.2.5 The expiration of a 12-month period from the date of this
Agreement; provided however, this Agreement may be
extended for one additional year by mutual agreement of
the parties to extend the Agreement.
8.2.6 The insolvency, bankruptcy, reorganization under the
bankruptcy laws, or assignment for the benefit of
creditors of either party.
8.2.7 Notice by HP that it is terminating the Agreement
pursuant to Section 3.3.3 above.
8.2.8 Mutual agreement of the parties to terminate the
Agreement.
8.3 Either party may terminate this Agreement if the other party is in
material breach of any of its obligations under this Agreement and
fails to remedy the breach for a period of thirty (30) days after a
written notice by the other party which specifies the material
breach.
9. INDEMNITY
9.1 The employees of each party shall obey all rules and regulations of
the other party while on the premises of the other party or the
Customer, provided the party's employees have been informed of such
rules and regulations.
9.2 Each party shall indemnify and hold harmless the other from and
against all claims for:
9.2.1 Damage to, or loss of use of, the property of third
parties to the extent that such damage is caused by the
negligent act or omission of the indemnifying party's
employees in connection with the performance under this
Agreement; and
9.2.2 Injury or death of any person, to the extent that such
injury or death is caused by the negligent act or
omission of the indemnifying party's employees in
connection with the performance under this Agreement.
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10. MISCELLANEOUS
10.1 NO PUBLICITY. Neither party shall publicize or disclose to any
third party without the consent of the other party, either the
terms of this Agreement or the fact of its existence and execution,
except as may be necessary to comply with other obligations stated
in this Agreement or as required by law or regulation.
10.2 NO JOINT VENTURE. Nothing contained in this Agreement shall be
construed as creating a joint venture, partnership or employment
relationship between the parties hereto, nor shall either party
have the right, power or authority to create any obligation or
duty, express or implied, on behalf of the other.
10.3 NO ASSIGNMENT. Except as provided in 2.3, neither party may assign
any rights or obligations under this Agreement without the prior
written consent of the other party.
10.4 FORCE MAJEURE. Neither party will be liable for performance delays
or for non-performance due to causes beyond its reasonable control.
10.5 NOTICES. Any notice pursuant to this Agreement shall be given in
writing and shall be deemed to have been properly given when
personally delivered or mailed by certified or registered mail,
postage pre-paid, addressed as follows:
Company : HEWLETT-PACKARD SINGAPORE (SALES) PTE LTD
Representative : Rick Ng (Project Manager)
Hewlett Packard Consulting
Company : Paul Devermann
Representative : ImageWare Software, Inc.
10.6 WAIVER. Either party's failure to exercise any of its rights under
this Agreement shall not constitute or be deemed to constitute a
waiver or forfeiture of such rights.
10.7 SEVERABILITY. If any term or provision of this Agreement is held
to be illegal or unenforceable, the validity or enforceability of
the remainder of this Agreement shall not be affected.
10.8 EXHIBITS. The following document is attached hereto as an exhibit,
the terms of which are incorporated by reference in their entirety:
Exhibit A Work to be Provided by the Parties.
10.9 PRECEDENCE. In the event of conflict between the provisions of
this Agreement and any attached Exhibit, the provisions of this
Agreement shall to the extent of such conflict take precedence.
10.10 SURVIVAL OF PROVISIONS. Notwithstanding any other provisions of
this Agreement, the provisions of paragraphs 5, 6, 7, 9, 10.1,
10.12 shall expressly survive the termination of this Agreement.
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10.11 ENTIRE AGREEMENT. This Agreement and its exhibits constitute the
entire agreement between HP and Company, and supersede any previous
or contemporaneous communications, representations or agreements
between the parties, whether oral or written, regarding the subject
matter of this Agreement. The terms and conditions of this Agreement
may not be changed except by an amendment signed by an authorized
representative of each party.
10.12 APPLICABLE LAW. This Agreement is made under and shall be construed
in accordance with the law of the Republic of Singapore. The courts
of Singapore have non-exclusive jurisdiction.
10.13 Any dispute arising out of or in connection with this Agreement,
including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by
arbitration in Singapore in accordance with the Arbitration Rules of
the Singapore International Arbitration Centre ("SIAC Rules") for
the time being in force which rules are deemed to be incorporated by
reference into this clause.
[10.14 This Agreement may be executed in counterparts and by fascimile
signature. Each counterpart, including a signature page executed by
the parties, shall be an original counterpart of the Agreement, but
all such counterparts shall constitute one instrument.]
Agreed under seal, as of the date set forth above.
SIGNED FOR AND ON BEHALF OF SIGNED FOR AND ON BEHALF OF
HEWLETT-PACKARD SINGAPORE COMPANY
(SALES) PTE LTD
By: /s/ Alwi Hafiz By: /s/ Paul Devermann
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Name: Mr. Alwi Hafiz Name: Paul Devermann
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Title: Country Manager, HP Consulting Title: Vice President
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Date: 30th April 1999 Date: April 19, 1999
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EXHIBIT A
WORK TO BE PROVIDED BY THE PARTIES
Project CPIDS's key objective is to use the facial recognition technology for
the purpose of criminal investigation.
HP and Company will work together to submit a proposal of a facial
recognition technology based system to meet the Customer's requirements.
Company will be regarded as the solution and technology expert for facial
recognition solution, and will supply its facial recognition
products/components, with customized work to be performed by the Company.
These items must be integrated into the complete system to ensure a seamless
integrated solution. As the solution provider, the Company will provide the
necessary professional services to maximize the use of the facial recognition
technology.
Requirements for facial recognition will include 1-1 matching and 1-n matching
of a) scanned photo vs facial database and b) graphically constructed facial
image vs facial database. The facial database will be constructed from either
scanned photo or image captured using digital cameras.
Company will provide, either directly or through its relations with its other
partners, the expertise to incorporate value added components such as
graphics software for digitally constructing a photo-realistic facial image.
Photo aging is highly desirable. This is to replace the manual process of
photo-fitting. The constructed image will be submitted to the system for
facial recognition.
Company will work together with HP on the necessary components to enable the
database conversion (or construction) from card-based records to the proposed
system database.
Company will be the key contributor in a likely system benchmark to verify
the facial recognition accuracy. Company will be responsible for ensuring
that the system achieves the proposed facial recognition accuracy.
Company will work with HP in devising the appropriate system management
solution, using HP OpenView.
All components must be able to be integrated into a 3-tier client/server
web-based architecture. Expected operating systems for the facial recognition
engine is HP-UX 11 and/or WinNT 4.0. Expected client and application server
operating system is WinNT 4.0.
Please note, Unix will require a customized port of the technology. NT is no
problem today.
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Exhibit 10.13
IMAGEWARE SOFTWARE, INC.
INTERNATIONAL RESELLER AGREEMENT
1. GENERAL TERMS
1.1 TERM OF AGREEMENT. This Agreement shall become effective on
1st January 1999, and shall remain in force for one (1) year unless
terminated or extended as provided below. Neither party is
obligated to renew this agreement.
1.2 APPOINTMENT. ImageWare Software, Inc. ("IWS") agrees to appoint
Intelligence and Strategic Processes Pty. Ltd. ("ISP") as our
exclusive RESELLER for ImageWare Software, Inc. software products
and related services (the "Software"), and ISP accept this
appointment. IWS authorizes ISP to License the Software only to end
user customers ("Customers") within Australia and New Zealand.
Other markets will be nominated on a case by case basis. ISP agrees
to transfer the Software to customers only through the use of
C.R.I.M.E.S.-Trademark- (Crime Reduction, Image Management and
Enhancement System) Software License Agreement or related
agreements.
1.3 RESELLER Representation and Covenant.
1.3.1 RESELLER represents and covenants that the Product(s)
purchased or licensed by RESELLER under this Agreement will
be resold or licensed to RESELLER's Customers only and
exclusively within a "Value-Added-Context" created by
RESELLER. A Value-Added-Context is created when one or
more of the following products and services is furnished
and/or delivered by RESELLER to the Customer along with,
and at the same time, the Product(s):
a) Pre-Sale prospect needs analysis and system
definition/configuration;
b) Turnkey computer systems;
c) RESELLER's proprietary software and hardware products
that enable the use of the Product(s);
d) RESELLER's integration of the Products(s) into the
Customer's existing computing environment.
1.3.2. RESELLER acknowledges and agrees that the prices for the
Product(s) in this Agreement are offered to the RESELLER in
consideration of the foregoing representation and covenant
being true during the term of this Agreement. Any resale of
Product(s) by RESELLER other than represented and
covenanted shall constitute a material breach of this
Agreement.
2. RESELLER RESPONSIBILITIES
It is the Reseller's responsibility under this Agreement to:
a) Comply with this Agreement;
b) Deliver to the end user Customer all software
purchased by Customer, including all media,
documentation, and related materials;
c) Make certain that every Customer understands and
accepts the Software License Agreement provided with
the Software;
d) Make certain that IWS receives a copy of the signed
contract.
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e) Work with the Customers, face to face, in a competent,
professional, and effective manner;
f) Utilize best efforts to ensure that Customers are
satisfied and able to use the Software;
g) Execute Confidentiality Agreement attached hereto as
Appendix B, and incorporated herein by this reference.
3. RELATIONSHIP
RESELLER is an independent contractor and not an IWS agent, partner, or
representative. RESELLER has no power to bind IWS, or to change or vary any
of IWS terms, conditions, warranties, or promises.
4. PRODUCTS AVAILABLE UNDER THIS AGREEMENT
IWS grants to RESELLER for the term of this agreement the right to
license product(s) identified generally as C.R.I.M.E.S. and in more
detail in the appendices. IWS may modify any product or may discontinue
the supply of any product at any time only if it is also discontinued for
all customers and distributors. IWS will use its best effort to notify
RESELLER sixty (120) days prior to such discontinuance by registered mail.
5. OWNERSHIP AND PROPRIETARY RIGHTS
RESELLER acknowledges that all right, title, and interest in the Software
is the property of IWS and its Licensors. RESELLER ACKNOWLEDGES THAT THE
SOFTWARE IS COPYRIGHTED AND THAT YOU MAY NOT REPRODUCE ANY COPIES OF THE
SOFTWARE. RESELLER is expressly prohibited from reverse engineering, or
decompiling of the Software. RESELLER may not sublicense, assign, or
transfer any of the rights relating to the use of the Software, except as
expressly permitted in writing by ImageWare Software. RESELLER
indemnifies and hold harmless IWS from and against any loss, liability,
damage, or expense (including attorney's fees) incurred by RESELLER, as a
result of any IWS breach of any of their obligations under this section,
or under applicable copyright or intellectual property law.
6. SOFTWARE RIGHTS
For Product(s) which are themselves software, or which incorporate
software in any form, and for which IWS provides software license terms
as part of the Product documentation, RESELLER must:
a) Operate and demonstrate those Product(s) only in
accordance with the software license terms;
b) Convey to RESELLER's Customers the applicable software
license terms; and
c) When applicable, obtain the Customer's signature on
software license Agreements and return the signed
license to:
ImageWare Software, Inc.
10883 Thornmint Road
San Diego, CA 92127
7. TRADEMARKS AND SERVICE MARKS
"Marks" shall mean all trademarks, service marks, tradenames, logos of other
words identifying or used in connection with the Software. RESELLER
acknowledges that all Marks are and will remain our
2
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exclusive property. RESELLER agrees not to use the Marks in any advertising
or in any other way, except you may use the Marks to:
a) State that RESELLER is authorized to sell the Software and/or to
provide services for the Software, as set forth in this Agreement;
and
b) Refer to the Software items by their associated Marks, provided
that such references are truthful and not misleading, and that
RESELLER clearly identifies IWS as the owners of the Marks.
8. WARRANTY AND LIMITATION ON WARRANTY
8.1 WARRANTY/LIMITATION. IWS warrant all Software licensed by RESELLER
under this Agreement in accordance with our standard written
warranties, in effect at the time of sale.
SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, RESPECTING THE SOFTWARE AND ANY SERVICES
PROVIDED BY IWS, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
IWS SHALL HAVE NO OBLIGATION TO ANY END USER UNDER ANY WARRANTY
GIVEN BY RESELLER, ITS AGENT OR ITS EMPLOYEES.
IN NO EVENT SHALL IWS BE LIABLE FOR INDIRECT, CONSEQUENTIAL OR
INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND
THE LIKE) ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE
SOFTWARE, EVEN IF IWS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
IN ANY EVENT, IWS LIABILITY (a) UNDER ANY PROVISION OF THIS
AGREEMENT OR ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT, OR (b)
FOR ANY DAMAGES CAUSED BY SOFTWARE OR DEFECT OR FAILURE IN
SOFTWARE, OR (c) AIRING FROM A COURT OF ARBITRATION PANEL OF PROPER
JURISDICTION HOLDING ANY OF THE ABOVE WARRANTIES OR DISCLAIMERS OF
WARRANTIES INVALID, SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY
RESELLER TO IWS PURSUANT TO THIS AGREEMENT AND ARISING OUT OF THE
TRANSACTIONS(S) GIVING RISE TO SUCH LIABILITY.
8.2 INDEMNITY. RESELLER agrees to indemnify IWS and to hold it harmless
from and against any loss, damage, claim or demand whatsoever
arising out of RESELLER activities, including but not limited to,
any express warranties or representations made by RESELLER, its
agents or employees, which are not part of the written warranty and
approved specification for the Software.
8.3 REMEDY FOR DEFECTIVE SOFTWARE. RESELLER remedy from IWS under this
Agreement for any breach of warranty or other claim of defect in
the software shall be limited to, at IWS selection, either a credit
to the RESELLER account of the corresponding original purchase
price of the software, or replacement of the Software with charge
for any applicable exchange fee.
8.4 NO OTHER WARRANTY. RESELLER agrees that with respect to the
Software, RESELLER will give and make no other or different
warranty or representations as to quality, merchantability,
fitness, or any other feature of the Software other than has been
made in writing by IWS in our written warranty and software
documentation.
9. PRODUCT PROMOTION AND ADVERTISING
RESELLER may use the trade names of IWS Product(s) in advertising that
promotes IWS Product(s), provided that RESELLER agrees to comply and
require its Customers to comply with
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such advertising guidelines that IWS may issue from time to time and
correct at RESELLER's own expense such materials that IWS determines to
be objectionable or misleading. RESELLER shall provide to IWS for prior
review and approval all advertising and promotional materials using such
trade names.
10. CONFIDENTIALITY
RESELLER agrees not to disclose any confidential information that you
receive from IWS, whether oral or written, or in other tangible form and
that is identified by IWS as confidential or proprietary, to any
employees who do not have a specific need to use such information, or to
any other party, without IWS's prior written consent. All employees or
other persons who receive IWS confidential information must be bound by
a written agreement not to disclose such information to any other
parties without our prior written consent.
11. COMPETITION
During the term of this agreement, RESELLER shall not distribute, sell
or license products or technology of third parties that is similar to or
competitive with the business of IWS unless authorized by IWS in
writing.
12. RENEWAL/TERMINATION OF THIS AGREEMENT
12.1 This Agreement renews:
a) if all terms and conditions are satisfactorily met by both
parties in any current year, this agreement renews for a period
of one additional year upon written consent by both parties.
12.2 This Agreement terminates:
a) ten (10) days after IWS notifies RESELLER of any material
breach of any provisions of this Agreements; unless such breach
is cured by you within ten (10) days of such notice; or
b) automatically, if RESELLER is the subject of a proceeding in
bankruptcy, placed in receivership, or enter into an
arrangement for the benefit of RESELLER'S creditors.
RESELLER may not assign this Agreement without written approval from
IWS. Such consent may not be reasonably withheld. IWS may assign this
Agreement and its interest in the Software to any party. This Agreement
shall inure to the benefit of any successor of us.
Neither party shall be liable to the other for any damages, losses or
expenses related to the termination of this Agreement. RESELLER
obligations to pay for Software delivered and to protect IWS
confidential information continues after termination for a period of 24
months.
13. PRODUCT PRICING
Product(s) purchased pursuant to this Agreement, shall as of the
effective date of the Agreement, be priced in accordance with the price
schedules in the Appendices. Product pricing is subject to revision in
accordance with the provisions of Section 13 (Price Revisions) and the
above identified Appendices of this Agreement. Pricing for specific
customer system configurations will be on a customized basis.
14. PRICE REVISIONS
14.1 IWS reserves the right to increase the Product price of any
Product upon ninety (90) days written notice to RESELLER by
registered mail. Product(s) ordered by RESELLER prior to or during
the ninety (90) day notification period will be invoiced in
accordance with the price
4
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schedule in effect at the time such written notice is given if
such Product(s) are to be shipped within ninety (90) days of the
date of such notice or at IWS's convenience.
14.2. Product ordered prior to or during the ninety (90) day
notification period with a specified delivery date of more than
thirty (30) days after the date of written notice or price
increase, shall be invoiced at the increased price for the product.
14.3. In the event of a price decrease, all Product(s) shipped to the
RESELLER, on or after the date of IWS's written notice to
RESELLER, will be invoiced at the decreased product price.
15. ORDERS
15.1. RESELLER shall issue purchase orders or changes to purchase orders
by facsimile transmission, telephone, or by letter followed by
written purchase orders. All forms of such orders shall state that
the order is submitted pursuant to this Agreement and indicate
product quantity, order number, price, ship to location and product
description. Every order will be governed exclusively by the terms
an condition of this Agreement and any conflicting term or
condition set forth in any order form or IWS's acknowledge form
shall have no force or effect except where mutually agreed upon in
writing.
15.2. No deliveries of Product(s) by IWS subsequent to the expiration or
termination of this Agreement shall extend or renew this Agreement
but RESELLERS's obligations to pay for Product(s) shall be
governed by the Agreement terms and conditions.
16. PAYMENT OF INVOICES AND TAXES
16.1. Subject to credit approval by IWS, any purchase order will be paid
in advance of shipment by wire transfer. In case of partial
shipments, pro-rata payments shall become due in accordance with
terms on each such shipment, or RESELLER may submit an Irrevocable
Letter of Credit to IWS for its approval. RESELLER must submit a
completed credit application, which IWS must approve for any other
terms to apply.
16.2. RESELLER must pay any applicable sales or use taxes, customs or
duties, imposed under the authority of any federal, state or local
taxing jurisdiction, so long as they are billed as a separate item
on each invoice, unless RESELLER furnishes IWS with appropriate
exemption certificates in advance of shipment.
16.3. RESELLER shall be liable for any default in payments under this
Section and shall make payment in full to IWS within ten (10) days
of receiving notice of such default, subject to the provisions of
Section 11 (Termination).
16.4. Regardless of any prior approval of credit, IWS may modify the
foregoing terms of payment by, including but not limited to,
placing the account on a letter-of-credit basis, requiring full or
partial payment in advance and suspending deliveries of Product(s)
until RESELLER provides assurance of performance reasonably
satisfactory to both parties and on mutually agreeable terms.
16.5. Shipment is FOB, San Diego California
17. RISK OF LOSS
17.1. All risk of loss for copies of the Software shall pass from us
to you at the time and place of delivery to you or the carrier for
delivery to you, whichever occurs first.
18. ARBITRATION
18.1. Any disputes between us arising under this Agreement shall be
resolved by submission to binding arbitration in accordance with
the rules of the American Arbitration Associations.
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The arbitration shall be held in San Diego, CA. The prevailing
party in the arbitration shall bear the expenses in the
arbitration preceeding, including reasonable attorney's fees,
unless the arbitration determines otherwise. Judgment upon the
award may not be entered in any court of competent jurisdiction.
19. MISCELLANEOUS
19.1. Entire Agreement. This written Agreement and any agreement
incorporated herein constitutes the entire agreement between us
with respect to the subject matters and supersedes all previous
agreements between the parties, as well as all proposals, oral and
written, and all negotiations, conversations or discussions between
the parties related to these subjects. RESELLER acknowledges that
it has not been induced to enter into this Agreement by any
representations of statements, oral or written, except those set
forth in this Agreement.
19.2. Modifications. This Agreement may not be modified, except by
written amendments signed by both parties.
19.3. Conflicts. In the event that any of the terms of this agreement
are in conflict with an applicable rule of law or statutory
provision, such terms shall be deemed stricken from this
Agreement, but shall not invalidate any other terms of this
Agreement, and the Agreement shall continue in full force and
effect.
19.4. Terms Control. The terms of this Agreement shall control any
conflicting or inconsistent standard terms or conditions on any
purchase order or invoice of either party, notwithstanding any
provision to the contrary in any such purchase order or invoice.
19.5. Notices. Notice under this Agreement shall be deemed sufficient
and effective upon receipt if given by: (a) certified mail,
postage prepaid, return receipt requested, (b) FedEx, or (c)
telefax. Notices will be addressed to the addresses set forth in
this Agreement, or such other addresses as the respective parties
may designated by like notice from time to time.
19.6. Choice of Law. This Agreement is made and executed by us in San
Diego, CA. RESELLER consents to the exercise of jurisdiction by
the court of California, in connection with any dispute arising
out of this contract which is not capable of being submitted to
arbitration. The Agreement shall be governed by and construed in
accordance with the laws of California. Any dispute submitted to
arbitration in accordance with the Agreement shall be determined
in accordance with the laws of California.
<TABLE>
<S> <C>
RESELLER IMAGEWARE SOFTWARE, INC.
By: Intelligence and Strategic Processes Pty. Ltd. By:
---------------------------------------------- -------------------------
Name: Peter Harrington Name: /s/ Paul Devermann
---------------------------- -----------------------
Title: CEO Title: Vice President
--------------------------- ----------------------
Signature: /s/ Peter Harrington Signature: /s/ Paul Devermann
----------------------- ------------------
Date: 1st January 1999 Date: 1/1/99
---------------------------- -----------------------
</TABLE>
6
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<TABLE>
<CAPTION>
DESCRIPTION
<S> <C>
SOFTWARE (1 Off)
CCS Investigative WEB Software
CCS Investigative Display Software (Full)
CCS Capture Station software
Suspect ID
Crime Lab
Vehicle ID
Video Lineup Option (OZ Only)
Face ID software, server
1-10,000 records
10,001-100,000 records
100,001-250,000 records
250,001-500,000 records
500,001-1M records
>1,000,000 $.07 per additional record up to 500,000 less 10%
$.05 per additional record up to 1,000,000 less 10%
$.04 per additional record up to 2,500,000 less 10%
$.03 per additional record up to 5,000,000 less 10%
Face ID software, client
CUSTOM SOFTWARE
Livescan Interface - File transfer (separate machines) T&M
Livescan Interface - File transfer (Single Machine dual application) T&M
Livescan Interface - Full Integrated T&M
Criminal History File Interface (COPS, LEAP, PROMIS...) T&M
National Filter Pass Through (NIST Import) T&M
Australian Conversion (field changes) T&M
Data Import from Disparit Mug Vendor T&M
> T&M
Print Formats
On-site Project Management
Remote Project Management
Installation Services - Site Survey ISP
Installation Services - Capture Station Install ISP
Installation Services - Investigative Station Install ISP
Installation Services - Custom Hardware Integration (one time fee) ISP
IWS to Train ISP - Engineer
IWS to Train ISP - Installation
IWS to Train ISP - End User
SOFTWARE (15 Plus)
CCS Investigative WEB Software
CCS Investigative Display Software (Full)
CCS Capture Station software
Suspect ID
Crime Lab
Vehicle ID
Video Lineup Option (OZ Only)
Face ID software, client
SOFTWARE (50 Plus)
CCS Investigative WEB Software
CCS Investigative Display Software (Full)
CCS Capture Station software
Suspect ID
Crime Lab
Vehicle ID
Video Lineup Option (OZ Only)
Face ID software, client
</TABLE>
<PAGE>
Exhibit 10.14
EXCALIBUR TECHNOLOGIES CORPORATION
OEM & DEVELOPMENT AGREEMENT
BETWEEN
EXCALIBUR TECHNOLOGIES CORPORATION
AND
IMAGEWARE SOFTWARE, INC.
This License Agreement is made by and between Excalibur Technologies Corporation
("Excalibur"), a corporation organized and existing under the laws of the state
of Delaware, with its principal place of business at 1921 Gallows Road, Suite
200 Vienna, VA 22182, and ImageWare Software, Inc. ("OEM"), a corporation
organized and existing under the laws of the state of California, with its
principal place of business at 15373 Innovation Drive, Suite 120, San Diego, CA,
92128. This Agreement shall be effective on the date of the last signature
affixed hereto ("Effective Date").
In consideration of the mutual covenants, terms and conditions, and other
valuable consideration contained herein, Excalibur and OEM agree:
1. DEFINITIONS.
1.1 LICENSED PRODUCT. The term "Licensed Product" means the computer
programs, in object code only, as specified in Schedule 1 and as
detailed in Excalibur's Product Specifications incorporated herein by
reference.
1.2 LICENSED SOURCE CODE PRODUCT. The term "Licensed Source Code Product"
means the computer programs in object code and source code, as
specified in Schedule 2 and as detailed in Excalibur's Product
Specifications and user and developer documentation attached thereto.
1.3 INTEGRATED SYSTEM. The term "Integrated System" means OEM's
application incorporating the Licensed Product and/or additional
products to be named in writing to Excalibur during the Term of this
Agreement, and to be agreed upon in writing by Excalibur, such
agreement not to be unreasonably withheld.
1.4 END-USER. The term "End-User" means OEM's customer who accesses the
Licensed Product by using the Integrated System.
1.5 TERRITORY. The term "Territory" means Worldwide.
1.6 DOCUMENTATION. The term "Documentation" means a functional
description of the Licensed Product, directions for installation,
verification of installation, use, and any other explanatory material
necessary for an End-User to perform all of the functions of the
Licensed Product.
1.7 SUPPLEMENTS. The term "Supplements" means a computer program that
compliments or may be used in conjunction with the Licensed Product,
but which is not required for the Licensed Product to substantially
operate within the Licensed Product specifications.
1.8 INITIAL SHIP DATE. The term "Initial Ship Date" means the date OEM
ships to an End-User the first available release of the Integrated
System.
1.9 DERIVATIVE WORK. The term "Derivative Work" shall mean a work that is
based on the Licensed Product or Licensed Source Code Product, that,
if prepared without authorization of Excalibur, would constitute an
infringement of Excalibur's intellectual property rights.
1.10 BETA. The term "Beta" as it applies to the deliverable software code
under this Agreement shall mean the object code tested by Excalibur
but as of the date of delivery not installed at a commercial site.
Page 1 of 11
<PAGE>
2. LICENSE.
2.1 In accordance with the terms of this Agreement, Excalibur grants to
OEM, and OEM accepts from Excalibur, a non-exclusive, sublicensable
in combination with Integrated System, license to combine in
non-printed machine readable form the Licensed Product into OEM's
applications, to create an Integrated System and to market and make
the Licensed Product available, in the Territory. Such license shall
be perpetual so long as OEM is in compliance with the material terms
of this Agreement.
2.2 Except as provided for in section 20.6 herein, Excalibur grants to
OEM a non-exclusive, non-transferable, non-assignable, royalty
bearing license which shall be perpetual and irrevocable so long as
OEM is in compliance with the material terms of this Agreement to use
at its election the Licensed Source Code Product, in each instance,
in conducting development, and utilizing the Licensed Source Code
Product to create new products which shall be Derivative Works or
composite works and to license, sublicense or otherwise commercially
utilize or dispose of such Derivative Works as OEM shall see fit in
its sole discretion.
During the Term of this Agreement.
2.3 OEM shall require each End-User of Integrated System, in whole or in
part to be subject to the restrictions set forth in this Section 2.3.
Such restrictions shall be set forth either in a written agreement
signed by the End-User prior to or upon receipt of the Integrated
System, or in a preprinted statement that accompanies the Integrated
System in a conspicuous and fully visible manner at the time of their
transfer.
By accepting delivery of the Integrated System or by executing a
written agreement, the recipient must agree to be bound by the
restrictions in the following sections.
2.3.1 The End-User may (1) use the Licensed Product only as an
integral component of the Integrated System; (2) make one copy
of the Integrated System in machine-readable form for
nonproductive backup purposes only; and (3) use the Integrated
System only for internal purposes and not for service bureau
work, or time-sharing arrangements unless authorized in
writing by Excalibur.
2.3.2 The End-User may not use, copy, modify, or transfer the
Integrated System, or any copy, adaptation, transcription, or
merged portion thereof, except as expressly permitted by
Excalibur. The End-User rights are nonexclusive and
nonassignable. If the End-User transfers possession of any
copy, adaptation, transcription, or merged portion of the
Integrated System to any other party (except to a successor
in interest of the End-User's business that assumes all of
the End-User's obligations with respect to the Integrated
System), the End-User's rights in the Integrated System are
automatically terminated.
2.3.3 Excalibur shall have the sole and exclusive ownership of all
right, title, and interest in and to the Licensed Product,
including ownership of all trade secrets and copyrights
pertaining thereto, subject only to the rights and privileges
expressly granted by Excalibur hereunder.
2.3.4 The End-User is not entitled to receive Source Code, and
under no circumstances may the End-User reverse-compile or
reverse-assemble the Object Code.
2.3.5 The OEM must reproduce and include in all copies of the
Integrated System, the copyright notice(s) and proprietary
legend(s) of Excalibur as they appear in the Licensed Product
and on the media containing the Licensed Product supplied to
End Users by OEM or by OEM to its distributors.
2.3.6 The End-User's obligations hereunder remain in effect for as
long as it continues to possess or use the Licensed Product
as a component of the Integrated System, and such obligations
shall be for the benefit of Excalibur and shall be
enforceable by Excalibur.
2.3.7 During the term of this Agreement, Excalibur agrees that it
will not execute a license to deliver the source code that is
being licensed to OEM hereunder as Licensed Product or
Licensed Source Code Product to the firms listed in Schedule 3
attached hereto, or to directly or indirectly for a period of
six months from the date of this Agreement either by itself or
with third parties develop or market any product competing
with the Licensed Source Code Product or Licensed Product.
Page 2 of 11
<PAGE>
3. IMPLEMENTATION PROGRAM.
3.1 Within ten (10) business days of the Effective Date, Excalibur shall
commence delivery to OEM, in object code form, the Licensed Product
and in source code form, the Licensed Source Code Product.
3.2 OEM agrees to integrate the Licensed Product with an application, and
fully test and debug the Integrated System prior to licensing the
Integrated System to an End-User. Excalibur shall be responsible for
fully debugging and testing the Licensed product prior to delivery
to OEM. Excalibur shall transfer the source and object code for the
Licensed Source Code Product "as is".
3.3 During the Term of this Agreement, other Excalibur supported versions
of the Licensed Product may be delivered to OEM from time to time.
Excalibur shall be responsible for porting and testing the additional
versions prior to delivery to the OEM.
4. GENERAL DUTIES OF OEM.
4.1 During the Term and any extension of this Agreement, OEM agrees to
use its best efforts to actively promote and market in the Territory
the Licensed Product as part of the Integrated System and shall
incorporate a reference to the name EXCALIBUR TECHNOLOGIES (in
appropriate marketing literature and advertising).
4.2 OEM shall ensure that in all its marketing literature, advertising,
and dealings with End-Users relating to the Licensed Product, OEM
will clearly indicate that it is acting as the licensee of
Excalibur and not as its agent or partner.
4.3 OEM shall provide End-Users, a suitable training and support
service necessary to use the Licensed Product as part of the
Integrated System.
4.4 OEM shall be solely responsible for the Licensing of the Integrated
System to End-Users.
4.5 Upon execution of this agreement between Excalibur and OEM, and
following approval of OEM, OEM shall allow Excalibur the right to
release a general press announcement to selected publications in
addition to the right to use OEM as a reference account in selected
publications at Excalibur's discretion.
5. GENERAL DUTIES OF EXCALIBUR.
5.1 Excalibur shall support OEM's marketing activities in relation to
the Licensed Product by providing, at no charge to OEM, such advice
and assistance, in relation to the Licensed Product as OEM may
reasonably request from time to time. Such assistance may include
but shall not be limited to technical support in the preparation of
proposals and operation and use of the Licensed Product,
competitive product research and information, oral presentations to
prospective End-Users, and joint marketing, sales, and promotional
programs in which the parties agree to collaborate.
5.2 In accordance with the provisions in Section 6.0, Excalibur shall
provide OEM with an updated version of the Licensed Product and
associated Documentation as new versions become available.
Excalibur shall provide these updated versions no later than thirty
(30) days after Excalibur makes the same versions commercially
available to the marketplace.
5.3 Technical phone support to OEM for the Licensed Product will be
provided from Excalibur's Carlsbad, California engineering support
office. Support shall be available 8:00 AM to 5:00 PM Pacific time,
Monday through Friday, excluding Excalibur observed holidays. On
site support will be available to OEM at the rates described in
Subsection 6, of this Agreement.
5.4 Excalibur will assist OEM in developing a business and marketing
plan with specific goals for developing the markets for the
Integrated System as well as meeting the sales objectives
envisioned by the parties.
6. ROYALTIES AND SUPPORT FEES.
6.1 In consideration of the license granted by Excalibur to OEM under
this Agreement, OEM agrees to:
Page 3 of 11
<PAGE>
6.1.1 Pay Excalibur a non-cancelable, non-refundable 18 (eighteen)
month prepaid royalty and distribution fee of $100,000. This
distribution fee shall authorize OEM to distribute an
unlimited number of copies of the Licensed Product as an
integrated component of the Integrated System for a period
of 18 months. Payment of this distribution fee shall be on
or before July 15, 1998.
6.1.2 OEM shall be authorized to distribute copies of the Licensed
Product only as an integrated component of the Integrated
System. Any other type of distribution of the Licensed
Product is strictly prohibited.
6.1.3 OEM agrees to pay Excalibur a royalty of (1) 25% of the net
sale price net of returns, promotional discounts, and
shipping to end users of OEM's End-User Application
Integrated System or Derivative Work that incorporates all
or any portion of the Excalibur Face DataBlade Description,
or (2) a royalty of 10% of the net sale price net of returns
and promotional discounts and shipping to end users of OEM's
End User Application Integrated System or Derivative Work
that incorporates all or any portion of Excalibur Face
Recognition SDK, or (3) a royalty of 10% of the sale price
net of returns, promotional discounts and shipping to end
users of OEM's Integrated System or Derivative Works that
incorporates Excalibur Visual RetrievalWare. Until such time
that such royalties payable to Excalibur exceeds $100,000 no
royalties will be paid to Excalibur during the Agreement
Term. Thereafter, OEM agrees to pay such royalties due
Excalibur on a quarterly basis on or before the 15th of the
month following the quarter within which payment for such
sales for the OEM End-User Application product have been
made. For the purposes of this Agreement, a quarter shall be
defined as the 3 months ended March 31, June 30, September
30, and December 31.
6.2 On an as required basis, Excalibur shall provide on site technical
support to OEM during the implementation program through the
Initial Ship Date. OEM shall pay Excalibur at the rate of $2,000
per day, and reimburse for all reasonable transportation, lodging,
and per diem expenses incurred by Excalibur's technical
representative. At the beginning of each month, Excalibur shall a
provide a summary statement and invoice to the OEM for services
rendered during the previous month. Payments to Excalibur for
services provided herein are due thirty (30) days after receipt of
Excalibur's invoice. If ordered under separate agreement during a
one year period from the date of this Agreement, Excalibur will
provide consulting service to ImageWare at a rate of $1,250.00 per
day. Travel, costs and expenses shall be billed in addition.
6.3 In order for Excalibur to provide software maintenance for the
Licensed Product, OEM must purchase yearly maintenance at a rate of
15% of the distribution fee as referenced in section 6.1.1 above.
Excalibur shall have no responsibility to maintain the Licensed
Product unless OEM purchases annual maintenance provided by
Excalibur.
The Licensed Source Code Products under Schedule 12 hereto are
licensed "as is" and no maintenance shall be provided. Limited
telephone support shall be provided (1-2 hours per week) by
Excalibur for a period of 6 weeks from the date of this Agreement.
7. LIMITED WARRANTY AND DISCLAIMER OF LIABILITY.
7.1 Excalibur warrants that it is, and on the date of delivery of
Licensed Product and Licensed Source Code Product, will be, the
sole owner of all copyrights and intellectual property rights for
the Licensed Product and Licensed Source Code Product; that it has,
and on the Effective Date will have, the full right and authority
to enter into this Agreement.
7.2 Excalibur warrants that the Licensed Product and updates of the
Licensed Product provided under this Agreement will substantially
perform in accordance with the published specifications for a
period of 90 days following delivery to OEM. In the event the
Licensed Product fails to perform substantially in accourdance with
the published specifications, and Excalibur is unable to correct
any major non-conformance within 90 days of written notification by
OEM, OEM's sole remedy shall be a return of the applicable royalty
fees paid to Excalibur for the Licensed Product.
7.3 Excalibur does not warrant that the functions contained in the
Licensed Product or in any update will meet the requirements of OEM.
7.4 Except as set out in Subsections 7.1 and 7.2, the warranties
contained in Subsection 7.1 and 7.2 are made in lieu of all other
express warranties, whether oral or written. Only an authorized
officer of Excalibur may make modifications to this warranty or
additional warranties binding on Excalibur, and such modifications
or additional warranties must be in
Page 4 of 11
<PAGE>
writing. Accordingly, additional statements such as those made in
advertising or presentations, whether oral or written, do not
constitute warranties by Excalibur and should not be relied upon as
such.
7.5 DISCLAIMER OF WARRANTIES. EXCEPT AS PROVIDED IN THIS AGREEMENT,
EXCALIBUR GRANTS NO IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND NO EXPRESS WARRANTIES OTHER THAN THOSE SET
FORTH HEREIN. EXCALIBUR GRANTS NO WARRANTIES WITH RESPECT TO THE
SOURCE CODE PORTIONS OF THE LICENSED PRODUCTS.
8. INDEMNIFICATION.
8.1 Excalibur, at its own expense, will indemnify, hold harmless, and
defend OEM for any action brought against OEM to the extent that it
is based on a claim that the Licensed Source Code Product, or
Licensed Product or any update of the Licensed Product used within
the scope of this Agreement infringes any patent, copyright,
license, trade secret, or other proprietary right of a third party
in the Territory, provided that Excalibur is immediately notified
in writing of such a claim. Excalibur shall have the right to
control the defense of all such claims, lawsuits, and other
proceedings. In no event shall OEM settle any such claim, lawsuit,
or proceeding without Excalibur's prior written approval. Excalibur
shall have no liability for any claim under this section if a claim
for patent, copyright, license, or trade secret infringement is
based on the unauthorized modification of the Licensed Product by
OEM, its employees, or agents.
8.2 In the event a preliminary or final judgment shall be obtained
against OEM's use or operation of the Licensed Product, or any part
thereof, by reason of an alleged infringement, Excalibur may
replace at its election, in whole or in part, the Licensed Product
with a substantially compatible and functionally equivalent
computer program or modify the Licensed Product to avoid the
infringement.
9. TECHNICAL SUPPORT AND UPDATES.
9.1 Subject to OEM's payment of the annual support fees contained in
Subsection 6.3, Excalibur, shall provide OEM with support of a
technical nature with respect to all aspects of the Licensed
Product and updates to the Licensed Product including their
installation and use.
9.2 During the Term, and any extension thereof and subject to OEM's
payment of support fees, Excalibur shall provide to OEM all
versions of, and all updates to the Licensed Product as Excalibur
may make commercially available to its customers.
9.3 Updates include enhancements and corrections of the Licensed
Product. Use of updates with or in place of the Licensed Product
shall be fully governed by and subject to the terms of this
Agreement relating to the reproduction and use of the Licensed
Product. Any portion of the Licensed Product replaced by an update
shall be promptly destroyed by OEM.
10. CONFIDENTIALITY.
10.1 Each party shall keep secret and confidential all confidential
information disclosed by the other about its business or the
Licensed Product or trade secrets, and shall not use such
information, nor disclose such information to any third party,
except to the extent that will enable OEM to fulfill its
obligations under this Agreement, including the right to disclose
such information as may be necessary in promoting the Licensed
Product to prospective End-Users in the Territory.
10.2 If either party hereto receives from the other party written
information which is marked or understood to be "Confidential"
and/or "Proprietary", the receiving party agrees not to use such
information except in the performance of this Agreement, and to
treat such information in the same manner as it treats its own
confidential information, and to prevent unauthorized use or
disclosure, of the confidential information. The obligation to keep
information confidential shall not apply to any such information
that has been disclosed in publicly available sources; is, through
no fault of the party receiving the confidential information,
hereafter disclosed in a publicly available source; is in rightful
possession of the party receiving the confidential information
without an obligation of confidentiality; or is required to be
disclosed by operation of law.
10.3 Excalibur represents and OEM hereby acknowledges that the source
and object code constituting the Licensed Product and updates of
the Licensed Product which are embodied on magnetic or other
storage media contains confidential and trade secret material. OEM,
its employees, and agents agree that they will not attempt to
decompile or disassemble the
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<PAGE>
object code of the Licensed Product or updates. OEM further agrees
to use all reasonable endeavors to ensure that its employees and
agents observe this Subsection 10.3.
10.4 OEM agrees to maintain the confidentiality of the Licensed Product
and to protect as a trade secret any portion of the Licensed
Product which has not been publicly disclosed by using reasonable
endeavors to prevent any unauthorized copying, use, distribution,
installation, or transferring possession of the Licensed Product as
described in Subsection 12.2 of this Agreement by OEM, its
employees, or agents.
11. PROPRIETARY NOTICES.
11.1 OEM agrees to reproduce fully the trade secret or copyright notice
or other proprietary notices provided by Excalibur from time to
time and shall ensure that they appear clearly on all copies of the
Integrated System being licensed to End-Users. In order to protect
Excalibur's trade secrets and copyrights in the Licensed Product,
OEM agrees not to attempt in any way to obliterate or destroy the
trade secret or copyright notice. Violation of any provision in
this Subsection shall be the basis for the immediate termination of
this Agreement.
12. TITLE TO AND RIGHTS IN LICENSED PRODUCT & LICENSED SOURCE CODE PRODUCT.
12.1 The Licensed Product and updates of the Licensed Product are
proprietary to Excalibur, and title to them shall remain with
Excalibur. All applicable common law and statutory rights in the
Licensed Product and updates of the Licensed Product, including,
but not limited to, rights in confidential and trade secret
material, source code, object code, trademarks, service marks,
patents, and copyrights, shall be and will remain the property of
Excalibur. OEM shall have no right, title, or interest in such
proprietary rights except as provided in this Agreement.
12.2 OEM is prohibited from distributing, transferring possession of, or
otherwise making available copies of the Licensed Product to any
person other than its employees with the right to know, and from
reproducing and installing the Licensed Product, except as
authorized under Section 2 of this Agreement. OEM shall advise all
End-Users that they are prohibited from reproducing, distributing,
transferring possession of, or otherwise making available copies of
the Licensed Product, and from installing copies of the Licensed
Product on any computer not within the Territory. OEM is prohibited
from making any modifications, adaptations, enhancements, changes,
or derivative works of the Licensed Product, and OEM shall advise
all users that they are prohibited from making any modifications,
adaptations, enhancements, changes, or derivative works of the
Licensed Product. Violation of any provision in this Subsection
shall be the basis for immediate termination of this Agreement in
accordance with Subsection 18.1.1.
12.3 The parties expressly recognize that intellectual property rights
may be created pursuant to this Agreement. The parties hereto
expressly agree that both during and upon termination of this
Agreement, any intellectual property rights of any nature
whatsoever that are conceived and arise directly or indirectly from
use by OEM of the Licensed Source Code Product, including, without
limitation, all rights in collective and Derivative Works, in their
entirety, including without limitation all rights in the portion of
such work or intellectual property rights comprising all or part of
the Licensed Source Code Product, shall be owned in full and
without reservation by OEM. However, all title to the Licensed
Source Code Product in the version licensed under the terms of this
Agreement, as at the date of this Agreement, shall remain with
Excalibur. However, in addition, so long as any product created by
OEM shall include such portions of Licensed Source Code Product
such that such new product would constitute a Derivative Work, OEM
shall pay Excalibur the applicable royalty set out above for the
term of this Agreement.
13. LIMITATION OF REMEDIES.
13.1 IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS DIRECTORS, OFFICERS,
AGENTS, EMPLOYEES OR ADVISORS BE LIABLE IN CONTRACT OR IN TORT
(INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE) OR
FOR ANY WARRANTY OR UPON ANY OTHER LEGAL OR EQUITABLE GROUND FOR
ANY LOSS OF USE, PROFIT OR REVENUE, OR FOR ANY LOSS OR EXPENSE, OR
ANY DIRECT, INDIRECT CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE,
EXEMPLARY OR OTHER DAMAGES INCURRED OR SUFFERED, IN CONNECTION WITH
THIS AGREEMENT, THE LICENSED PRODUCT, OR THE DOCUMENTATION. THE
LIABILITY OF EXCALIBUR FOR ANY CLAIM, LIABILITY,
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<PAGE>
DAMAGE, PENALTY, LOSS OR EXPENSE SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY OEM
TO EXCALIBUR HEREUNDER. THE PROVISIONS OF THIS CLAUSE SHALL BE SUBJECT TO, AND
SHALL NOT LIMIT, THE PROVISIONS OF CLAUSE 8 AND 10 OF THIS AGREEMENT.
14. RELATIONSHIP OF THE PARTIES.
14.1 For purposes of this Agreement, OEM is not an agent of Excalibur,
and OEM has no express or implied authority to act on behalf of or
make any representations whatsoever on behalf of Excalibur.
Excalibur has no right to control any activities of OEM outside
the terms of this Agreement.
15. TAXES.
15.1 OEM shall, in addition to other amounts payable under this
Agreement, pay all taxes, with the exception of income taxes,
levied or imposed by reason of the transactions contemplated in
this Agreement. OEM shall promptly pay to Excalibur an amount
equal to any such tax(es) actually paid or required to be
collected or paid by Excalibur. Excalibur shall be liable for
payment of all taxes levied on its net income arising out of or
related to this Agreement.
16. SUPPLEMENTS.
16.1 From time to time, Excalibur may make supplements available to
OEM. SUPPLEMENTS ARE NOT LICENSED UNDER THE TERMS OF THIS
AGREEMENT. Subject to availability, OEM may make special
arrangements with Excalibur to license the Supplement for use as
part of the Integrated System.
17. AGREEMENT TERM.
17.1 This Agreement shall commence on the Effective Date and shall
remain in effect perpetually for a period of 3 (three) years with
respect to Licensed Source Code Product and for 18 (eighteen)
months with respect to Licensed Product ("Term"). Thereafter it
shall automatically terminate with the understanding that the
parties shall make best efforts to renegotiate a mutually
beneficial agreement.
18. DEFAULT AND TERMINATION.
18.1 Either party may terminate this Agreement immediately by notice in
writing to the other if:
18.1.1. one party materially defaults on any of its obligations
under this Agreement, and the other party shall give
written notice of such default, and, if the party in
default has not cured the default within thirty (30) days
of the notice, the other party shall have the right to
terminate this Agreement; or
18.1.2. the other party becomes or threatens to become or is at
risk of becoming insolvent or declares bankruptcy; or
18.1.3. the other party ceases or threatens to cease the
operations of its business.
18.2 Excalibur may terminate this Agreement immediately if OEM fails to
make timely payment to Excalibur for the distribution fee, and/or
support fees contained in Section 6 of this Agreement.
18.3 Upon termination of this Agreement the license granted under this
Agreement to use the Licensed Product is immediately revoked. In
the event this Agreement is terminated OEM shall cease the
licensing and all marketing activities of the Integrated System
and return to Excalibur all copies of the Licensed Product,
updates and Documentation in OEM's possession or control. In the
alternative, upon request of Excalibur, OEM shall destroy all such
copies of the Licensed Product, updates and Documentation and
certify in writing that they have been destroyed. TERMINATION
SHALL NOT RELIEVE OEM OF THEIR OBLIGATIONS REGARDING THE
CONFIDENTIALITY OF THE LICENSED PRODUCT AND UPDATES. OEM's End
Users that have purchased perpetual licenses of the Integrated
System(s) shall have the right to continue to use the Licensed
Product or Licensed Source Code Product as part of an Integrated
System.
18.4 Without limiting any of the provisions contained in Subsection
18.1, in the event of termination as a result of OEM's failure to
comply with any of its obligations under this Agreement, OEM shall
continue to be obligated for any
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<PAGE>
payments due as of the date of termination. Termination of the
license shall be in addition to, and not in lieu of, any equitable
remedies available to Excalibur.
19. ARBITRATION.
19.1 Except for the right of either party to apply to a court of
competent jurisdiction for a temporary restraining order, a
preliminary injunction, or other equitable relief to preserve the
status quo or prevent irreparable harm, any controversy or claim
arising out of or relating to this Agreement or to its breach
shall be finally settled by binding arbitration. Any such
arbitration will to be conducted in the in the State of
California, by one arbitrator, to be appointed, and to conduct
arbitration pursuant to the RULES OF THE AMERICAN ARBITRATION
ASSOCIATION. The parties hereby agree to exclude any right of
application or appeal to any court in any jurisdiction whatsoever,
arising from or with respect to any award, by such arbitrator.
20. GENERAL.
20.1 Each party acknowledges that it has read this Agreement and any
exhibit, understands them, and agrees to be bound by their terms
and conditions, and further agrees that they are the complete and
exclusive statement of the agreement between the parties which
supersedes and merges all prior proposals, understandings, and all
other agreements, oral and written, between the parties relating
to this Agreement. This Agreement may not be modified or altered
except by written instrument duly executed by both parties.
20.2 Any notice or communication required or permitted in this
Agreement shall be in writing and shall be deemed to have been
duly given on the day of service if served personally, or by
electronic means, or three (3) days after mailing if mailed by
first class mail, registered or certified, postage prepaid, and
addressed as follows:
TO: EXCALIBUR: TO: OEM:
Excalibur Technologies Corporation ImageWear Software, Inc.
1921 Gallows Road, Suite 200 15373 Innovation Drive, Suite 120
Vienna, VA 22102 San Diego, CA 92128
Attn: Contracts Manager Attn:
20.3 Governing Laws. This Agreement and performance under this
Agreement shall be governed by the laws of the State of Virginia.
20.4 Limitations Period. No action, regardless of form, arising out of
this Agreement may be brought by either party more than two (2)
years after the cause of action has arisen.
20.5 Severability. If any provision of this Agreement is invalid under
any applicable statute or rule of law, it is to that extent to be
deemed omitted. The remainder of the Agreement shall be valid and
enforceable to the maximum extent possible.
20.6 Assignment. This License is personal to OEM and its affiliates
and subsidiaries of 51% or greater ownership and may not be
assigned or sub-let except with the express prior written consent
of Excalibur, such consent not to be unreasonably withheld or
delayed.
20.8 Waiver. The waiver or failure of either party to exercise in any
respect any right provided for in this Agreement shall not be
deemed a waiver of any further right under this Agreement.
20.9 Headings. The headings that appear at the beginning of the
several sections contained in this Agreement have been inserted
for identification and reference purposes only and shall not be
used in the construction and interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement.
AGREED: AGREED:
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<PAGE>
EXCALIBUR TECHNOLOGIES CORPORATION: IMAGEWARE SOFTWARE, INC.
Signature /s/ Dan C. Stroman Signature /s/ Paul Devermann
Dan C. Stroman Paul Devermann
- ---------------------- ----------------
Name Name
Director of Customer Accounting Vice President
- ------------------------------ ---------------
Title Title
Date April 30, 1998 Date 4/30/98
SCHEDULES TO THIS AGREEMENT
Schedule 1: Licensed Product
Schedule 2: Licensed Source Code Products
Schedule 3: List of Firms that will not be licensed the source code licensed to
OEM hereunder as Licensed Product or Licensed Source Code Product
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<PAGE>
SCHEDULE 1
LICENSED PRODUCT
The Licensed Product shall be comprised of the following components.
1. Excalibur's Visual RetrievalWare (SDK
The Excalibur Visual RetrievalWare SDK
The Excalibur Visual RetrievalWare Software Developers Kit (SDK) is a
programming toolkit for building image analysis and pattern recognition
applications involving the recognition and retrieval of images. The components
include C and C++ class libraries, a Tel/Tk interpreter, several sample programs
with source code, and thorough reference documentation. The SDK enables the
generic manipulation, indexing and retrieval of images and is being provided for
image conversion and manipulation. It includes an Image Processing Library,
Feature Extraction support library and other related tools to support the
development of customer applications and Feature Extractors. The SDK could be
enhanced to support other non-image datatypes to allow the creation of a wider
range of multimedia or rich data type feature extractors.
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SCHEDULE 2
LICENSED SOURCE CODE PRODUCT
1. Face DataBlade for the Informix Universal Server (Includes source code).
2. Face Recognition SDK and Face Feature Extractors (Includes source code and
test/sample programs).
Excalibur Face DataBlade Description (EFR)
Excalibur is providing ImageWare with an "as is" source code license for the EFR
DataBlade. Additionally Excalibur is providing an "as is" source code license
for the Excalibur Face Recognition SDK and a binary copy of the current version
of Visual RetrievalWare.
The EFR DataBlade Module is based on feature vector algorithms and processing
techniques unique to Excalibur. This DataBlade will allow the creation of user
applications to create databases based on the characteristics, or features,
extracted from a face. These features will be learned into image indices (using
the secondary access method, efrnet), and will be used to search for images
containing characteristics similar to a clue image.
The EFR DataBlade will consist of the following components:
- THE FACE CLIENT COMPONENT. This component contains the client
functions that perform the necessary preprocessing steps on an image that
contains one or more faces.
- THE FACE FEATURES COMPONENT. A variety of types and server
functions that make up the efrnet secondary access method. This access method
will provide the necessary functions to create and maintain face indices, and
allows for indexing and searching a database of faces.
- THE FACE PROCESSING COMPONENT. This component provides the server
functions to support indexing, search and retrieval of face images. The
function, which extracts the facial features, will be included in this group, as
will the positive identification capability.
- - SQL interface for client application development. The SQL API will allow
third parties to develop database applications that incorporate tables
derived from the results of learning image data into indices produced by the
EFR DataBlade.
Excalibur Face Recognition SDK
The Excalibur Face Recognition SDK, provides an API for indexing, searching and
retrieving face images. Components of the Face SDK are embedded within the EFR
DataBlade. Additionally, specific Face Recognition feature extraction algorithms
are included for functions such as face and eye location in addition to the face
indexing and retrieval.
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STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE--GROSS
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
[LOGO]
1. BASIC PROVISIONS ("BASIC PROVISIONS").
1.1 PARTIES: This Lease ("LEASE"), dated for reference purposes
only, June 9, 1998, is made by and between Thornmint I, a California Limited
Partnership ("LESSOR") and ImageWare Software, Inc. ("LESSEE"), (collectively
the "PARTIES," or individually a "PARTY").
1.2(a) PREMISES: That certain portion of the Building, including
all improvements therein or to be provided by Lessor under the terms of this
Lease, commonly known by the street address of 10883 Thornmint Road,
located in the City of San Diego, County of San Diego, State of California,
with zip code 92127, as outlined on Exhibit A attached hereto ("PREMISES").
The "BUILDING" is that certain building containing the Premises and generally
described as (describe briefly the nature of the Building): a one and two
story office building attached to and part of a one story
manufacturing/warehouse building. In addition to Lessee's rights to use and
occupy the Premises as hereinafter specified, Lessee shall have non-exclusive
rights to the Common Areas (as defined in Paragraph 2.7 below) as hereinafter
specified, but shall not have any rights to the roof, exterior walls or
utility raceways of the Building or to any other buildings in the Industrial
Center. The Premises, the Building, the Common Areas, the land upon which
they are located, along with all other buildings and improvements thereon,
are herein collectively referred to as the "INDUSTRIAL CENTER." (Also see
Paragraph 2.)
1.2(b) PARKING: 48 unreserved vehicle parking spaces ("UNRESERVED
PARKING SPACES"); and 0 reserved vehicle parking spaces ("RESERVED PARKING
SPACES"). (Also see Paragraph 2.6.)
1.3 TERM: five (5) years and 0 months ("ORIGINAL TERM") commencing
August 1, 1998 ("COMMENCEMENT DATE") and ending July 31, 2003 ("EXPIRATION
DATE"). (Also see Paragraph 3.)
1.4 EARLY POSSESSION: N/A ("EARLY POSSESSION DATE"). (Also see
Paragraphs 3.2 and 3.3.)
1.5 BASE RENT: $21,306.60 per month ("BASE RENT"), payable on the
first day of each month commencing August 1, 1998 (Also see Paragraph 4.)
/X/ If this box is checked, this Lease provides for the Base Rent to be
adjusted per Addendum No. 1 attached hereto.
1.6(a) BASE RENT PAID UPON EXECUTION: $21,306.60 as Base Rent for the
period August, 1998.
1.6(b) LESSEE'S SHARE OF COMMON AREA OPERATING EXPENSES: Thirty-Five
and Sixty-One percent (35.61%) ("LESSEE'S SHARE") as determined by [ ]
prorata square footage of the Premises as compared to the total square
footage of the Building or [ ] other criteria as described in Addendum ___.
1.7 SECURITY DEPOSIT: $21,306.60 ("SECURITY DEPOSIT"). (Also see
Paragraph 5.)
1.8 PERMITTED USE: General office research and development,
computer integration use consistent with County of San Diego zoning and laws.
("PERMITTED USE") (Also see Paragraph 6.)
1.9 INSURING PARTY. Lessor is the "INSURING PARTY." (Also see
Paragraph 8.)
1.10(a) REAL ESTATE BROKERS. The following real estate broker(s)
(collectively, the "BROKERS") and brokerage relationships exist in this
transaction and are consented to by the Parties (check applicable boxes):
/X/ CB Richard Ellis, Inc. represents Lessor exclusively ("LESSOR'S
BROKER");
/X/ Irving Hughes Group, Inc. represents Lessee exclusively ("LESSEE'S
BROKER"); or
/ / ________________________ represents both Lessor and Lessee
("DUAL AGENCY"). (Also see Paragraph 15.)
1.10(b) PAYMENT TO BROKERS. Upon the execution of this Lease by both
Parties, Lessor shall pay to said Broker(s) jointly, or in such separate
shares as they may mutually designate in writing, a fee as set forth in a
separate written agreement between Lessor and said Broker(s) (or in the event
there is no separate written agreement between Lessor and said Broker(s), the
sum of $_______) for brokerage services rendered by said Broker(s) in
connection with this transaction.
1.11 GUARANTOR. The obligations of the Lessee under this Lease are
to be guaranteed by See Addendum No. 1
_____________________________________________________________________________
("GUARANTOR"). (Also see Paragraph 37.)
1.12 ADDENDA AND EXHIBITS. Attached hereto is an Addendum or
Addenda consisting of Paragraphs 49 through 69, and Exhibits A through D, all
of which constitute a part of this Lease.
2. PREMISES, PARKING AND COMMON AREAS.
2.1 LETTING. Lessor hereby leases to Lessee, and Lessee hereby
leases from Lessor, the Premises, for the term, at the rental, and upon all
of the terms, covenants and conditions set forth in this Lease. Unless
otherwise provided herein, any statement of square footage set forth in this
Lease, or that may have been used in calculating rental and/or Common Area
Operating Expenses, is an approximation which Lessor and Lessee agree is
reasonable and the rental and Lessee's Share (as defined in Paragraph 1.6(b))
based thereon is not subject to revision whether or not the actual square
footage is more or less.
2.2 CONDITION. Lessor shall deliver the Premises to Lessee clean
and free of debris on the Commencement Date and warrants to Lessee that the
existing plumbing, electrical systems, fire sprinkler system, lighting, air
conditioning and heating systems and loading doors, if any, in the Premises,
other than those constructed by Lessee, shall be in good operating condition
on the Commencement Date. If a non-compliance with said warranty exists as of
the Commencement Date, Lessor shall, except as otherwise provided in this
Lease, promptly after receipt of written notice from Lessee setting forth
with specificity the nature and extent of such non-compliance, rectify same
at Lessor's expense. If Lessee does not give Lessor written notice of a
non-compliance with this warranty within thirty (30) days after the
Commencement Date, correction of that non-compliance shall be the obligation
of Lessee at Lessee's sole cost and expense.
2.3 COMPLIANCE WITH COVENANTS, RESTRICTIONS AND BUILDING CODE.
Lessor warrants that any improvements (other than those constructed by Lessee
or at Lessee's direction) on or in the Premises which have been constructed
or installed by Lessor or with Lessor's consent or at Lessor's direction
shall comply with all applicable covenants or restrictions of record and
applicable building codes, regulations and ordinances in effect on the
Commencement Date. Lessor further warrants to Lessee that Lessor has no
knowledge of any claim having been made by any governmental agency that a
violation or violations of applicable building codes, regulations, or
ordinances exist with regard to the Premises as of the Commencement Date.
Said warranties shall not apply to any Alterations or Utility Installations
(defined in Paragraph 7.3(a)) made or to be made by Lessee. If the Premises
do not comply with said warranties, Lessor shall, except as otherwise
provided in this Lease, promptly after receipt of written notice from Lessee
given within six (6) months following the Commencement Date and setting forth
with specificity the nature and extent of non-compliance, take such action,
at Lessor's expense, as may be reasonable or appropriate to rectify the
non-compliance. Lessor makes no warranty that the Permitted Use in Paragraph
1.8 is permitted for the Premises under Applicable Laws (as defined in
Paragraph 2.4).
2.4 ACCEPTANCE OF PREMISES. Lessee hereby acknowledges: (a) that
it has been advised by the Broker(s) to satisfy itself with respect to the
condition of the Premises (including but not limited to the electrical and
fire sprinkler systems, security, environmental aspects, seismic and
earthquake requirements, and compliance with the Americans with Disabilities
Act and applicable zoning, municipal, county, state and federal laws,
ordinances and regulations and any covenants or restrictions of record
(collectively, "APPLICABLE LAWS") and the present and future suitability of
the Premises for Lessee's intended use; (b) that Lessee has made such
investigation as it deems necessary with reference to such matters, is
satisfied with reference thereto, and assumes all responsibility therefore as
the same relate to Lessee's occupancy of the Premises and/or the terms of
this Lease; and (c) that neither Lessor, nor any of Lessor's agents, has made
any oral or written representations or warranties with respect to said
matters other than as set forth in this Lease.
2.5 LESSEE AS PRIOR OWNER/OCCUPANT. The warranties made by Lessor
in this Paragraph 2 shall be of no force or effect if immediately prior to
the date set forth in Paragraph 1.1 Lessee was the owner or occupant of the
Premises. In such event, Lessee shall, at Lessee's sole cost and expense,
correct any non-compliance of the Premises with said warranties.
INITIALS: [ILLEGIBLE]
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<PAGE>
2.6 VEHICLE PARKING. Lessee shall be entitled to use the number of
Unreserved Parking Spaces and Reserved Parking Spaces specified in Paragraph
1.2(b) on those portions of the Common Areas designated from time to time by
Lessor for parking. Lessee shall not use more parking spaces than said number.
Said parking spaces shall be used for parking by vehicles no larger than
full-size passenger automobiles or pick-up trucks, herein called "PERMITTED
SIZE VEHICLES." Vehicles other than Permitted Size Vehicles shall be parked
and loaded or unloaded as directed by Lessor in the Rules and Regulations (as
defined in Paragraph 40) issued by Lessor. (Also see Paragraph 2.9.)
(a) Lessee shall not permit or allow any vehicles that
belong to or are controlled by Lessee or Lessee's employees, suppliers,
shippers, customers, contractors or invitees to be loaded, unloaded, or parked
in areas other than those designated by Lessor for such activities.
(b) If Lessee permits or allows any of the prohibited
activities described in this Paragraph 2.6, then Lessor shall have the right,
in addition to such other rights and remedies that it may have, to remove or
tow away the vehicle involved and charge the cost to Lessee, which cost shall
be immediately payable upon demand by Lessor.
(c) Lessor shall at the Commencement Date of this Lease,
provide the parking facilities required by Applicable Law.
2.7 COMMON AREAS - DEFINITION. The term "COMMON AREAS" is defined
as all areas and facilities outside the Premises and within the exterior
boundary line of the Industrial Center and interior utility raceways within
the Premises that are provided and designated by the Lessor from time to time
for the general non-exclusive use of Lessor, Lessee and other lessees of the
Industrial Center and their respective employees, suppliers, shippers,
customers, contractors and invitees, including parking areas, loading and
unloading areas, trash areas, roadways, sidewalks, walkways, parkways,
driveways and landscaped areas.
2.8 COMMON AREAS - LESSEE'S RIGHTS. Lessor hereby grants to
Lessee, for the benefit of Lessee and its employees, suppliers, shippers,
contractors, customers and invitees, during the term of this Lease, the
non-exclusive right to use, in common with others entitled to such use, the
Common Areas as they exist from time to time, subject to any rights, powers,
and privileges reserved by Lessor under the terms hereof or under the terms
of any rules and regulations or restrictions governing the use of the
Industrial Center. Under no circumstances shall the right herein granted to
use the Common Areas be deemed to include the right to store any property,
temporarily or permanently, in the Common Areas. Any such storage shall be
permitted only by the prior written consent of Lessor or Lessor's designated
agent, which consent may be revoked at any time. In the event that any
unauthorized storage shall occur then Lessor shall have the right, without
notice, in addition to such other rights and remedies that it may have, to
remove the property and charge the cost to Lessee, which cost shall be
immediately payable upon demand by Lessor.
2.9 COMMON AREAS - RULES AND REGULATIONS. Lessor or such other
person(s) as Lessor may appoint shall have the exclusive control and
management of the Common Areas and shall have the right, from time to time,
to establish, modify, amend and enforce reasonable Rules and Regulations with
respect thereto in accordance with Paragraph 40. Lessee agrees to abide by
and conform to all such Rules and Regulations, and to cause its employees,
suppliers, shippers, customers, contractors and invitees to so abide and
conform. Lessor shall not be responsible to Lessee for the non-compliance
with said rules and regulations by other lessees of the Industrial Center.
2.10 COMMON AREAS - CHANGES. Lessor shall have the right, in
Lessor's sole discretion, from time to time:
(a) To make changes to the Common Areas, including,
without limitation, changes in the location, size, shape and number of
driveways, entrances, parking spaces, parking areas, loading and unloading
areas, ingress, egress, direction of traffic, landscaped areas, walkways and
utility raceways;
(b) To close temporarily any of the Common Areas for
maintenance purposes so long as reasonable access to the Premises remains
available;
(d) To add additional improvements to the Common Areas;
(e) To use the Common Areas while engaged in making
additional improvements, repairs or alterations to the Industrial Center, or
any portion thereof; and
(f) To do and perform such other acts and make such other
changes in, to or with respect to the Common Areas and Industrial Center as
Lessor may, in the exercise of sound business judgment, deem to be
appropriate.
3. TERM.
3.1 TERM. The Commencement Date, Expiration Date and Original Term
of this Lease are as specified in Paragraph 1.3.
3.2 EARLY POSSESSION. If an Early Possession Date is specified in
Paragraph 1.4 and if Lessee totally or partially occupies the Premises after
the Early Possession Date but prior to the Commencement Date, the obligation
to pay Base Rent shall be abated for the period of such early occupancy. All
other terms of this Lease, however, (including but not limited to the
obligations to pay Lessee's Share of Common Area Operating Expenses and to
carry the insurance required by Paragraph 8) shall be in effect during such
period. Any such early possession shall not affect nor advance the Expiration
Date of the Original Term.*
3.3 DELAY IN POSSESSION. If for any reason Lessor cannot deliver
possession of the Premises to Lessee by the Early Possession Date, if one is
specified in Paragraph 1.4, or if no Early Possession Date is specified, by
the Commencement Date, Lessor shall not be subject to any liability therefor,
nor shall such failure affect the validity of this Lease, or the obligations
of Lessee hereunder, or extend the term hereof, but in such case, Lessee
shall not, except as otherwise provided herein, be obligated to pay rent or
perform any other obligation of Lessee under the terms of this Lease until
Lessor delivers possession of the Premises to Lessee. If possession of the
Premises is not delivered to Lessee within sixty (60) days after the
Commencement Date, Lessee may, at its option, by notice in writing to Lessor
within ten (10) days after the end of said sixty (60) day period, cancel this
Lease, in which event the parties shall be discharged from all obligations
hereunder; provided further, however, that if such written notice of Lessee
is not received by Lessor within said ten (10) day period, Lessee's right to
cancel this Lease hereunder shall terminate and be of no further force or
effect. Except as may be otherwise provided, and regardless of when the
Original Term actually commences, if possession is not tendered to Lessee
when required by this Lease and Lessee does not terminate this Lease, as
aforesaid, the period free of the obligation to pay Base Rent, if any, that
Lessee would otherwise have enjoyed shall run from the date of delivery of
possession and continue for a period equal to the period during which the
Lessee would have otherwise enjoyed under the terms hereof, but minus any
days of delay caused by the acts, changes or omissions of Lessee.
4. RENT.
4.1 BASE RENT. Lessee shall pay Base Rent and other rent or
charges, as the same may be adjusted from time to time, to Lessor in lawful
money of the United States, without offset or deduction, on or before the day
on which it is due under the terms of this Lease. Base Rent and all other
rent and charges for any period during the term hereof which is for less than
one full month shall be prorated based upon the actual number of days of the
month involved. Payment of Base Rent and other charges shall be made to
Lessor at its address stated herein or to such other persons or at such other
addresses as Lessor may from time to time designate in writing to Lessee.
4.2 COMMON AREA OPERATING EXPENSES. Lessee shall pay to Lessor
during the term hereof, in addition to the Base Rent, Lessee's Share (as
specified in Paragraph 1.6(b)) of all Common Area Operating Expenses, as
hereinafter defined in excess of the base year of this Lease, in
accordance with the following provisions:
(a) "COMMON AREA OPERATING EXPENSES" are defined, for
purposes of this Lease, as all costs incurred by Lessor relating to the
ownership and operation of the Industrial Center, including, but not limited
to, the following:
(i) The operation, repair and maintenance, in
neat, clean, good order and condition, of the following:
(aa) The Common Areas, including parking
areas, loading and unloading areas, trash areas, roadways, sidewalks,
walkways, parkways, driveways, landscaped areas, striping, bumpers,
irrigation systems, Common Area lighting facilities, fences and gates,
elevators and roof.
(bb) Exterior signs and any tenant
directories.
(cc) Fire detection and sprinkler systems.
(ii) The cost of water, gas, electricity and
telephone to service the Common Areas.
(iii) Trash disposal, property management and
security services and the costs of any environmental inspections.
(iv) Reserves set aside for maintenance and repair
of Common Areas.
(v) Any increase above the Base Real Property
Taxes (as defined in Paragraph 10.2(b)) for the Building and the Common Areas.
(vi) Any "Insurance Cost Increase" (as defined in
Paragraph 8.1).
(vii) The cost of insurance carried by Lessor with
respect to the Common Areas.
(viii) Any deductible portion of an insured loss
concerning the Building or the Common Areas.
(ix) Any other services to be provided by Lessor
that are stated elsewhere in this Lease to be a Common Area Operating Expense.
(b) Any Common Area Operating Expenses and Real Property
Taxes that are specifically attributable to the Building or to any other
building in the Industrial Center or to the operation, repair and maintenance
thereof, shall be allocated entirely to the Building or to such other
building. However, any Common Area Operating Expenses and Real Property Taxes
that are not specifically attributable to the Building or to any other
building or to the operation, repair and maintenance thereof, shall be
equitably allocated by Lessor to all buildings in the Industrial Center.
(c) The inclusion of the improvements, facilities and
services set forth in Subparagraph 4.2(a) shall not be deemed to impose an
obligation upon Lessor to either have said improvements or facilities or to
provide those services unless the Industrial Center already has the same,
Lessor already provides the services, or Lessor has agreed elsewhere in this
Lease to provide the same or some of them.
(d) Lessee's Share of Common Area Operating Expenses shall
be payable by Lessee within ten (10) days after a reasonably detailed
statement of actual expenses is presented to Lessee by Lessor. At Lessor's
option, however, an amount may be estimated by Lessor from time to time of
Lessee's Share of annual Common Area Operating Expenses and the same shall be
payable monthly or quarterly, as Lessor shall designate, during each 12-month
period of the Lease term, on the same day as the Base Rent is due hereunder.
Lessor shall deliver to Lessee within sixty (60) days after the expiration of
each calendar year a reasonably detailed statement showing Lessee's Share of
the actual Common Area Operating Expenses incurred during the preceding year.
If Lessee's payments under this Paragraph 4.2(d) during said preceding year
exceed Lessee's Share as indicated on said statement, Lessee shall be
credited the amount of such over-
* SEE ADDENDUM
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payment against Lessee's Share of Common Area Operating Expenses next
becoming due. If Lessee's payments under this Paragraph 4.2(d) during said
preceding year were less than Lessee's Share as indicated on said statement,
Lessee shall pay to Lessor the amount of the deficiency within ten (10) days
after delivery by Lessor to Lessee of said statement. *
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon Lessee's
execution hereof the Security Deposit set forth in Paragraph 1.7 as security
for Lessee's faithful performance of Lessee's obligations under this Lease.
If Lessee fails to pay Base Rent or other rent or charges due hereunder, or
otherwise Defaults under this Lease (as defined in Paragraph 13.1), Lessor
may use, apply or retain all or any portion of said Security Deposit for the
payment of any amount due Lessor or to reimburse or compensate Lessor for any
liability, cost, expense, loss or damage (including attorneys' fees) which
Lessor may suffer or incur by reason thereof. If Lessor uses or applies all
or any portion of said Security Deposit, Lessee shall within ten (10) days
after written request therefore deposit monies with Lessor sufficient to
restore said Security Deposit to the full amount required by this Lease. Any
time the Base Rent increases during the term of this Lease, Lessee shall,
upon written request from Lessor, deposit additional monies with Lessor as an
addition to the Security Deposit so that the total amount of the Security
Deposit shall at all times bear the same proportion to the then current Base
Rent as the initial Security Deposit bears to the initial Base Rent set forth
in Paragraph 1.5. Lessor shall not be required to keep all or any part of the
Security Deposit separate from its general accounts. Lessor shall, at the
expiration or earlier termination of the term hereof and after Lessee has
vacated the Premises, return to Lessee (or, at Lessor's option, to the last
assignee, if any, of Lessee's interest herein), that portion of the Security
Deposit not used or applied by Lessor. Unless otherwise expressly agreed in
writing by Lessor, no part of the Security Deposit shall be considered to be
held in trust, to bear interest or other increment for its use, or to be
prepayment for any monies to be paid by Lessee under this Lease.
6. USE.
6.1 PERMITTED USE.
(a) Lessee shall use and occupy the Premises only for the
Permitted Use set forth in Paragraph 1.8, or any other legal use which is
reasonably comparable thereto, and for no other purpose. Lessee shall not use
or permit the use of the Premises in a manner that is unlawful, creates waste
or a nuisance, or that disturbs owners and/or occupants of, or causes damage
to the Premises or neighboring premises or properties.
(b) Lessor hereby agrees to not unreasonably withhold or
delay its consent to any written request by Lessee, Lessee's assignees or
subtenants, and by prospective assignees and subtenants of Lessee, its
assignees and subtenants, for a modification of said Permitted Use, so long
as the same will not impair the structural integrity of the improvements on
the Premises or in the Building or the mechanical or electrical systems
therein, does not conflict with uses by other lessees, is not significantly
more burdensome to the Premises or the Building and the improvements thereon,
and is otherwise permissible pursuant to this Paragraph 6. If Lessor elects
to withhold such consent, Lessor shall within five (5) business days after
such request give a written notification of same, which notice shall include
an explanation of Lessor's reasonable objections to the change in use.
6.2 HAZARDOUS SUBSTANCES.
(a) REPORTABLE USES REQUIRE CONSENT. The term "HAZARDOUS
SUBSTANCE" as used in this Lease shall mean any product, substance, chemical,
material or waste whose presence, nature, quantity and/or intensity of
existence, use, manufacture, disposal, transportation, spill, release or
effect, either by itself or in combination with other materials expected to
be on the Premises, is either: (i) potentially injurious to the public
health, safety or welfare, the environment, or the Premises; (ii) regulated
or monitored by any governmental authority; or (iii) a basis for potential
liability of Lessor to any governmental agency or third party under any
applicable statute or common law theory. Hazardous Substance shall include,
but not be limited to, hydrocarbons, petroleum, gasoline, crude oil or any
products or by-products thereof. Lessee shall not engage in any activity in
or about the Premises which constitutes a Reportable Use (as hereinafter
defined) of Hazardous Substances without the express prior written consent of
Lessor and compliance in a timely manner (at Lessee's sole cost and expense)
with all Applicable Requirements (as defined in Paragraph 6.3). "REPORTABLE
USE" shall mean (i) the installation or use of any above or below ground
storage tank, (ii) the generation, possession, storage, use, transportation,
or disposal of a Hazardous Substance that requires a permit from, or with
respect to which a report, notice, registration or business plan is required
to be filed with, any governmental authority, and (iii) the presence in, on
or about the Premises of a Hazardous Substance with respect to which any
Applicable Laws require that a notice be given to persons entering or
occupying the Premises or neighboring properties. Notwithstanding the
foregoing, Lessee may, without Lessor's prior consent, but upon notice to
Lessor and in compliance with all Applicable Requirements, use any ordinary
and customary materials reasonably required to be used by Lessee in the
normal course of the Permitted Use, so long as such use is not a Reportable
Use and does not expose the Premises or neighboring properties to any
meaningful risk of contamination or damage or expose Lessor to any liability
therefor. In addition, Lessor may (but without any obligation to do so)
condition its consent to any Reportable Use of any Hazardous Substance by
Lessee upon Lessee's giving Lessor such additional assurances as Lessor, in
its reasonable discretion, deems necessary to protect itself, the public, the
Premises and the environment against damage, contamination or injury and/or
liability therefor, including but not limited to the installation (and, at
Lessor's option, removal on or before Lease expiration or earlier
termination) of reasonably necessary protective modifications to the Premises
(such as concrete encasements) and/or the deposit of an additional Security
Deposit under Paragraph 5 hereof.
(b) DUTY TO INFORM LESSOR. If Lessee knows, or has
reasonable cause to believe, that a Hazardous Substance has come to be
located in, on, under or about the Premises or the Building, other than as
previously consented to by Lessor, Lessee shall immediately give Lessor
written notice thereof, together with a copy of any statement, report,
notice, registration, application, permit, business plan, license, claim,
action, or proceeding given to, or received from, any governmental authority
or private party concerning the presence, spill, release, discharge of, or
exposure to, such Hazardous Substance including but not limited to all such
documents as may be involved in any Reportable Use involving the Premises.
Lessee shall not cause or permit any Hazardous Substance to be spilled or
released in, on, under or about the Premises (including, without limitation,
through the plumbing or sanitary sewer system).
(c) INDEMNIFICATION. Lessee shall indemnify, protect,
defend and hold Lessor, its agents, employees, lenders and ground lessor, if
any, and the Premises, harmless from and against any and all damages,
liabilities, judgments, costs, claims, liens, expenses, penalties, loss of
permits and attorneys' and consultants' fees arising out of or involving any
Hazardous Substance brought onto the Premises by or for Lessee or by anyone
under Lessee's control. Lessee's obligations under this Paragraph 6.2(c)
shall include, but not be limited to, the effects of any contamination or
injury to person, property or the environment created or suffered by Lessee,
and the cost of investigation (including consultants' and attorneys' fees and
testing), removal, remediation, restoration and/or abatement thereof, or of
any contamination therein involved, and shall survive the expiration or
earlier termination of this Lease. No termination, cancellation or release
agreement entered into by Lessor and Lessee shall release Lessee from its
obligations under this Lease with respect to Hazardous Substances, unless
specifically so agreed by Lessor in writing at the time of such agreement.
6.3 LESSEE'S COMPLIANCE WITH REQUIREMENTS. Lessee shall, at
Lessee's sole cost and expense, fully, diligently and in a timely manner,
comply with all "APPLICABLE REQUIREMENTS," which term is used in this Lease
to mean all laws, rules, regulations, ordinances, directives, covenants,
easements and restrictions of record, permits, the requirements of any
applicable fire insurance underwriter or rating bureau, and the
recommendations of Lessor's engineers and/or consultants, relating in any
manner to the Premises (including but not limited to matters pertaining to
(i) industrial hygiene, (ii) environmental conditions on, in, under or about
the Premises, including soil and groundwater conditions, and (iii) the use,
generation, manufacture, production, installation, maintenance, removal,
transportation, storage, spill, or release of any Hazardous Substance), now
in effect or which may hereafter come into effect. Lessee shall, within five
(5) days after receipt of Lessor's written request, provide Lessor with
copies of all documents and information, including but not limited to
permits, registrations, manifests, applications, reports and certificates,
evidencing Lessee's compliance with any Applicable Requirements specified by
Lessor, and shall immediately upon receipt, notify Lessor in writing (with
copies of any documents involved) of any threatened or actual claim, notice,
citation, warning, complaint or report pertaining to or involving failure by
Lessee or the Premises to comply with any Applicable Requirements.
6.4 INSPECTION; COMPLIANCE WITH LAW. Lessor, Lessor's agents,
employees, contractors and designated representatives, and the holders of any
mortgages, deeds of trust or ground leases on the Premises ("LENDERS") shall
have the right to enter the Premises at any time in the case of an emergency,
and otherwise at reasonable times, for the purpose of inspecting the
condition of the Premises and for verifying compliance by Lessee with this
Lease and all Applicable Requirements (as defined in Paragraph 6.3), and
Lessor shall be entitled to employ experts and/or consultants in connection
therewith to advise Lessor with respect to Lessee's activities, including but
not limited to Lessee's installation, operation, use, monitoring,
maintenance, or removal of any Hazardous Substance on or from the Premises.
The costs and expenses of any such inspections shall be paid by the party
requesting same, unless a Default or Breach of this Lease by Lessee or a
violation of Applicable Requirements or a contamination, caused or materially
contributed to by Lessee, is found to exist or to be imminent, or unless the
inspection is requested or ordered by a governmental authority as the result
of any such existing or imminent violation or contamination. In such case,
Lessee shall upon request reimburse Lessor or Lessor's Lender, as the case
may be, for the costs and expenses of such inspections.
7. MAINTENANCE, REPAIRS, UTILITY INSTALLATIONS, TRADE FIXTURES AND
ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS.
(a) Subject to the provisions of Paragraphs 2.2 (Condition),
2.3 (Compliance with Covenants, Restrictions and Building Code), 7.2
(Lessor's Obligations), 9 (Damage or Destruction), and 14 (Condemnation),
Lessee shall, at Lessee's sole cost and expense and at all times, keep the
Premises and every part thereof in good order, condition and repair (whether
or not such portion of the Premises requiring repair, or the means of
repairing the same, are reasonably or readily accessible to Lessee, and
whether or not the need for such repairs occurs as a result of Lessee's use,
any prior use, the elements or the age of such portion of the Premises),
including, without limiting the generality of the foregoing, all equipment or
facilities specifically serving the Premises, such as plumbing, heating, air
conditioning, ventilating, electrical, lighting facilities, boilers, fired or
unfired pressure vessels, fire hose connections if within the Premises,
fixtures, interior walls, interior surfaces of exterior walls, ceilings,
floors, windows, doors, plate glass, and skylights, but excluding any items
which are the responsibility of Lessor pursuant to Paragraph 7.2 below.
Lessee, in keeping the Premises in good order, condition and repair, shall
exercise and perform good maintenance practices. Lessee's obligations shall
include restorations, replacements or renewals when necessary to keep the
Premises and all improvements thereon or a part thereof in good order,
condition and state of repair.
(c) If Lessee fails to perform Lessee's obligations under
this Paragraph 7.1, Lessor may enter upon the Premises after ten (10) days'
prior written notice to Lessee (except in the case of an emergency, in which
case no notice shall be required), perform such obligations on Lessee's
behalf, and put the Premises in good order, condition and repair, in
accordance with Paragraph 13.2 below.
7.2 LESSOR'S OBLIGATIONS. Subject to the provisions of Paragraphs
2.2 (Condition), 2.3 (Compliance with Covenants, Restrictions and Building
Code), 4.2 (Common Area Operating Expenses), 6 (Use), 7.1 (Lessee's
Obligations), 9 (Damage or Destruction) and 14 (Condemnation), Lessor,
subject to reimbursement pursuant to Paragraph 4.2, shall keep in good order,
condition and repair, exterior roof, fire sprinkler and/or standpipe and hose
(if located in the Common Areas) or other automatic fire extinguishing system
including fire alarm and/or smoke
* SEE ADDENDUM
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-3-
<PAGE>
detection systems and equipment, fire hydrants, parking lots, walkways,
parkways, driveways, landscaping, fences, signs and utility systems serving
the Common Areas and all parts thereof, as well as providing the services for
which there is a Common Area Operating Expense pursuant to Paragraph 4.2.
Lessor shall not be obligated to paint the interior surfaces of exterior
walls nor shall Lessor be obligated to maintain, repair or replace windows,
doors or plate glass of the Premises. Lessee expressly waives the benefit of
any statute now or hereafter in effect which would otherwise afford Lessee
the right to make repairs at Lessor's expense or to terminate this Lease
because of Lessor's failure to keep the Building, Industrial Center or Common
Areas in good order, condition and repair. *
7.3 UTILITY INSTALLATIONS, TRADE FIXTURES, ALTERATIONS.
(a) DEFINITIONS; CONSENT REQUIRED. The term "UTILITY
INSTALLATIONS" is used in this Lease to refer to all air lines, power panels,
electrical distribution, security, fire protection systems, lighting
fixtures, heating, ventilating and air conditioning equipment, plumbing, and
fencing in, on or about the Premises. The term "TRADE FIXTURES" shall mean
Lessee's machinery and equipment which can be removed without doing material
damage to the Premises. The term "ALTERATIONS" shall mean any modification of
the improvements on the Premises which are provided by Lessor under the terms
of this Lease, other than Utility Installations or Trade Fixtures.
"LESSEE-OWNED ALTERATIONS AND/OR UTILITY INSTALLATIONS" are defined as
Alterations and/or Utility Installations made by Lessee that are not yet
owned by Lessor pursuant to Paragraph 7.4(a). Lessee shall not make or cause
to be made any Alterations or Utility Installations in, on, under or about
the Premises without Lessor's prior written consent. Lessee may, however,
make non-structural Utility Installations to the interior of the Premises
(excluding the roof) without Lessor's consent but upon notice to Lessor, so
long as they are not visible from the outside of the Premises, do not involve
puncturing, relocating or removing the roof or any existing walls, or
changing or interfering with the fire sprinkler or fire detection systems and
the cumulative cost thereof during the term of this Lease as extended does
not exceed $5,000.
(b) CONSENT. Any Alterations or Utility Installations that
Lessee shall desire to make and which require the consent of the Lessor shall
be presented to Lessor in written form with detailed plans. All consents
given by Lessor, whether by virtue of Paragraph 7.3(a) or by subsequent
specific consent, shall be deemed conditioned upon: (i) Lessee's acquiring
all applicable permits required by governmental authorities; (ii) the
furnishing of copies of such permits together with a copy of the plans and
specifications for the Alteration or Utility Installation to Lessor prior to
commencement of the work thereon; and (iii) the compliance by Lessee with all
conditions of said permits in a prompt and expeditious manner. Any
Alterations or Utility Installations by Lessee during the term of this Lease
shall be done in a good and workmanlike manner, with good and sufficient
materials, and be in compliance with all Applicable Requirements. Lessee
shall promptly upon completion thereof furnish Lessor with as-built plans and
specifications therefor. Lessor may, (but without obligation to do so)
condition its consent to any requested Alteration or Utility Installation
that costs $2,500.00 or more upon Lessee's providing Lessor with a lien and
completion bond in an amount equal to one and one-half times the estimated cost
of such Alteration or Utility Installation.
(c) LIEN PROTECTION. Lessee shall pay when due all claims
for labor or materials furnished or alleged to have been furnished to or for
Lessee at or for use on the Premises, which claims are or may be secured by
any mechanic's or materialmen's lien against the Premises or any interest
therein. Lessee shall give Lessor not less than ten (10) days' notice prior
to the commencement of any work in, on, or about the Premises, and Lessor
shall have the right to post notices of non-responsibility in or on the
Premises as provided by law. If Lessee shall, in good faith, contest the
validity of any such lien, claim or demand, then Lessee shall, at its sole
expense, defend and protect itself, Lessor and the Premises against the same
and shall pay and satisfy any such adverse judgment that may be rendered
thereon before the enforcement thereof against the Lessor or the Premises. If
Lessor shall require, Lessee shall furnish to Lessor a surety bond
satisfactory to Lessor in an amount equal to one and one-half times the
amount of such contested lien, claim or demand, indemnifying Lessor against
liability for the same, as required by law for the holding of the Premises
free from the effect of such lien or claim. In addition, Lessor may require
Lessee to pay Lessor's attorneys' fees and costs in participating in such
action if Lessor shall decide it is to its best interest to do so.
7.4 OWNERSHIP, REMOVAL, SURRENDER, AND RESTORATION.
(a) OWNERSHIP. Subject to Lessor's right to require their
removal and to cause Lessee to become the owner thereof as hereinafter
provided in this Paragraph 7.4, all Alterations and Utility Installations
made to the Premises by Lessee shall be the property of and owned by Lessee,
but considered a part of the Premises. Lessor may, at any time and at its
option, elect in writing to Lessee to be the owner of all or any specified
part of the Lessee-Owned Alterations and Utility Installations. Unless
otherwise instructed per Subparagraph 7.4(b) hereof, all Lessee-Owned
Alterations and Utility Installations shall, at the expiration or earlier
termination of this Lease, become the property of Lessor and remain upon the
Premises and be surrendered with the Premises by Lessee.
(b) REMOVAL. Unless otherwise agreed in writing, Lessor
may require that any or all Lessee-Owned Alterations or Utility Installations
be removed by the expiration or earlier termination of this Lease,
notwithstanding that their installation may have been consented to by Lessor.
Lessor may require the removal at any time of all or any part of any
Alterations or Utility Installations made without the required consent of
Lessor.
(c) SURRENDER/RESTORATION. Lessee shall surrender the
Premises by the end of the last day of the Lease term or any earlier
termination date, clean and free of debris and in good operating order,
condition and state of repair, ordinary wear and tear excepted. Ordinary wear
and tear shall not include any damage or deterioration that would have been
prevented by good maintenance practice or by Lessee performing all of its
obligations under this Lease. Except as otherwise agreed or specified herein,
the Premises, as surrendered, shall include the Alterations and Utility
Installations. The obligation of Lessee shall include the repair of any
damage occasioned by the installation, maintenance or removal of Lessee's
Trade Fixtures, furnishings, equipment, and Lessee-Owned Alterations and
Utility Installations, as well as the removal of any storage tank installed
by or for Lessee, and the removal, replacement, or remediation of any soil,
material or ground water contaminated by Lessee, all as may then be required
by Applicable Requirements and/or good practice. Lessee's Trade Fixtures
shall remain the property of Lessee and shall be removed by Lessee subject to
its obligation to repair and restore the Premises per this Lease.
8. INSURANCE; INDEMNITY.
8.1 PAYMENT OF PREMIUM INCREASES.
(a) As used herein, the term "INSURANCE COST INCREASE" is
defined as any increase in the actual cost of the insurance applicable to the
Building and required to be carried by Lessor pursuant to paragraphs 8.2(b),
8.3(a) and 8.3(b), ("REQUIRED INSURANCE"), over and above the Base Premium,
as hereinafter defined, calculated on an annual basis. "Insurance Cost
Increase" shall include, but not be limited to, requirements of the holder of
a mortgage or deed of trust covering the Premises, increased valuation of the
Premises, and/or a general premium rate increase. The term "Insurance Cost
Increase" shall not, however, include any premium increases resulting from
the nature of the occupancy of any other lessee of the Building. If the
parties insert a dollar amount in Paragraph 1.9, such amount shall be
considered the "BASE PREMIUM." If a dollar amount has not been inserted in
Paragraph 1.9 and if the Building has been previously occupied during the
twelve (12) month period immediately preceding the Commencement Date, the
"Base Premium" shall be the annual premium applicable to such twelve (12)
month period. If the Building was not fully occupied during such twelve (12)
month period, the "Base Premium" shall be the lowest annual premium
reasonably obtainable for the Required Insurance as of the Commencement Date,
assuming the most nominal use possible of the Building. In no event, however,
shall Lessee be responsible for any portion of the premium cost attributable
to liability insurance coverage in excess of $1,000,000 procured under
Paragraph 8.2(b).
(b) Lessee shall pay any Insurance Cost Increase to Lessor
pursuant to Paragraph 4.2. Premiums for policy periods commencing prior to,
or extending beyond, the term of this Lease shall be prorated to coincide
with the corresponding Commencement Date or Expiration Date.
8.2 LIABILITY INSURANCE.
(a) CARRIED BY LESSEE. Lessee shall obtain and keep in force
during the term of this Lease a Commercial General Liability policy of
insurance protecting Lessee, Lessor and any Lender(s) whose names have been
provided to Lessee in writing (as additional insureds) against claims for
bodily injury, personal injury and property damage based upon, involving or
arising out of the ownership, use, occupancy or maintenance of the Premises
and all areas appurtenant thereto. Such insurance shall be on an occurrence
basis providing single limit coverage in an amount not less than $1,000,000
per occurrence with an "Additional Insured-Managers or Lessors of Premises"
endorsement and contain the "Amendment to the Pollution Exclusion"
endorsement for damage caused by heat, smoke or fumes from a hostile fire.
The policy shall not contain any intra-insured exclusions as between insured
person or organizations, but shall include coverage for liability assumed
under this Lease as an "INSURED CONTRACT" for the performance of Lessee's
indemnity obligations under this Lease. The limits of said insurance required
by this Lease or as carried by Lessee shall not, however, limit the liability
of Lessee nor relieve Lessee of any obligation hereunder. All insurance to be
carried by Lessee shall be primary to and not contributory with any similar
insurance carried by Lessor, whose insurance shall be considered excess
insurance only.
(b) CARRIED BY LESSOR. Lessor shall also maintain liability
insurance described in Paragraph 8.2(a) above, in addition to and not in lieu
of, the insurance required to be maintained by Lessee. Lessee shall not be
named as an additional insured therein.
8.3 PROPERTY INSURANCE-BUILDING, IMPROVEMENTS AND RENTAL VALUE.
(a) BUILDING AND IMPROVEMENTS. Lessor shall obtain and keep
in force during the term of this Lease a policy or policies in the name of
Lessor, with loss payable to Lessor and to any Lender(s), insuring against
loss or damage to the Premises. Such insurance shall be for full replacement
cost, as the same shall exist from time to time, or the amount required by
any Lender(s), but in no event more than the commercially reasonable and
available insurable value thereof if, by reason of the unique nature or age
of the improvements involved, such latter amount is less than full
replacement cost. Lessee-Owned Alterations and Utility Installations, Trade
Fixtures and Lessee's personal property shall be insured by Lessee pursuant
to Paragraph 8.4. If the coverage is available and commercially appropriate,
Lessor's policy or policies shall insure against all risks of direct physical
loss or damage (except the perils of flood and/or earthquake unless required
by a Lender), including coverage for any additional costs resulting from
debris removal and reasonable amounts of coverage for the enforcement of any
ordinance or law regulating the reconstruction or replacement of any
undamaged sections of the Building required to be demolished or removed by
reason of the enforcement of any building, zoning, safety or land use laws as
the result of a covered loss, but not including plate glass insurance. Said
policy or policies shall also contain an agreed valuation provision in lieu
of any co-insurance clause, waiver of subrogation, and inflation guard
protection causing an increase in the annual property insurance coverage
amount by a factor of not less than the adjusted U.S. Department of Labor
Consumer Price Index for All Urban Consumers for the city nearest to where
the Premises are located.
(b) RENTAL VALUE. Lessor shall also obtain and keep in force
during the term of this Lease a policy or policies in the name of Lessor,
with loss payable to Lessor and any Lender(s), insuring the loss of the full
rental and other charges payable by all lessees of the Building to Lessor for
one year (including all Real Property Taxes, insurance costs, all Common Area
Operating Expenses and any scheduled rental increases). Said insurance may
provide that in the event the Lease is terminated by reason of an insured
loss, the period of indemnity for such coverage shall be extended beyond the
date of the completion of repairs or replacement of the Premises, to provide
for one full year's loss of rental revenues from the date of any such loss.
Said insurance shall contain an agreed valuation provision in lieu of any
co-insurance clause, and the amount of coverage shall be adjusted annually to
reflect the projected rental income, Real Property Taxes, insurance premium
costs and other expenses, if any, otherwise payable, for the next 12-month
period. Common Area Operating Expenses shall include any deductible amount in
the event of such loss.
(c) ADJACENT PREMISES. Lessee shall pay for any increase in
the premiums for the property insurance of the Building and for the Common
Areas or other buildings in the Industrial Center if said increase is caused
by Lessee's acts, omissions, use or occupancy of the Premises.
* SEE ADDENDUM
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(d) LESSEE'S IMPROVEMENTS. Since Lessor is the Insuring
Party, Lessor shall not be required to insure Lessee-Owned Alterations and
Utility Installations unless the item in question has become the property of
Lessor under the terms of this Lease.
8.4 LESSEE'S PROPERTY INSURANCE. Subject to the requirements of
Paragraph 8.5, Lessee at its cost shall either by separate policy or,
by endorsement to a policy already carried, maintain insurance coverage on all
of Lessee's personal property, Trade Fixtures and Lessee-Owned Alterations and
Utility Installations in, on, or about the Premises similar in coverage to
that carried by Lessor as the Insuring Party under Paragraph 8.3(a). Such
insurance shall be full replacement cost coverage with a deductible not to
exceed $2,500 per occurrence. The proceeds from any such insurance shall be
used by Lessee for the replacement of personal property and the restoration of
Trade Fixtures and Lessee-Owned Alterations and Utility Installations. Upon
request from Lessor, Lessee shall provide Lessor with written evidence that
such insurance is in force.
8.5 INSURANCE POLICIES. Insurance required hereunder shall be in
companies duly licensed to transact business in the state where the Premises
are located, and maintaining during the policy term a "General Policyholders
Rating" of at least B+, V, or such other rating as may be required by a
Lender, as set forth in the most current issue of "Best's Insurance Guide."
Lessee shall not do or permit to be done anything which shall invalidate the
insurance policies referred to in this Paragraph 8. Lessee shall cause to be
delivered to Lessor, within seven (7) days after the earlier of the Early
Possession Date or the Commencement Date, certified copies of, or
certificates evidencing the existence and amounts of, the insurance required
under Paragraph 8.2(a) and 8.4. No such policy shall be cancelable or
subject to modification except after thirty (30) days' prior written notice
to Lessor. Lessee shall at least thirty (30) days prior to the expiration of
such policies, furnish Lessor with evidence of renewals or "insurance
binders" evidencing renewal thereof, or Lessor may order such insurance and
charge the cost thereof to Lessee, which amount shall be payable by Lessee to
Lessor upon demand.
8.6 WAIVER OF SUBROGATION. Without affecting any other rights or
remedies, Lessee and Lessor each hereby release and relieve the other, and waive
their entire right to recover damages (whether in contract or in tort) against
the other, for loss or damage to their property arising out of or incident to
the perils required to be insured against under Paragraph 8. The effect of such
releases and waivers of the right to recover damages shall not be limited by the
amount of insurance carried or required, or by any deductibles applicable
thereto. Lessor and Lessee agree to have their respective insurance companies
issuing property damage insurance waive any right to subrogation that such
companies may have against Lessor or Lessee, as the case may be, so long as the
insurance is not invalidated thereby.
8.7 INDEMNITY. Except for Lessor's negligence and/or breach of
express warranties, Lessee shall indemnify, protect, defend and hold harmless
the Premises, Lessor and its agents, Lessor's master or ground lessor, partners
and Lenders, from and against any and all claims, loss of rents and/or damages,
costs, liens, judgements, penalties, loss of permits, attorneys' and
consultants' fees, expenses and/or liabilities arising out of, involving, or in
connection with, the occupancy of the Premises by Lessee, the conduct of
Lessee's business, any act, omission or neglect of Lessee, its agents,
contractors, employees or invitees, and out of any Default or Breach by Lessee
in the performance in a timely manner of any obligation on Lessee's part to be
performed under this Lease. The foregoing shall include, but not be limited to,
the defense or pursuit of any claim or any action or proceeding involved
therein, and whether or not (in the case of claims made against Lessor)
litigated and/or reduced to judgment. In case any action or proceeding be
brought against Lessor by reason of any of the foregoing matters, Lessee upon
notice from Lessor shall defend the same at Lessee's expense by counsel
reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee in such
defense. Lessor need not have first paid any such claim in order to be so
indemnified.
8.8 EXEMPTION OF LESSOR FROM LIABILITY. Lessor shall not be liable
for injury or damage to the person or goods, wares, merchandise or other
property of Lessee, Lessee's employees, contractors, invitees, customers, or
any other person in or about the Premises, whether such damage or injury is
caused by or results from fire, steam, electricity, gas, water or rain, or
from the breakage, leakage, obstruction or other defects of pipes, fire
sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures, or from any other cause, whether said injury or damage results from
conditions arising upon the Premises or upon other portions of the Building
of which the Premises are a part, from other sources or places, and
regardless of whether the cause of such damage or injury or the means of
repairing the same is accessible or not. Lessor shall not be liable for any
damages arising from any act or neglect of any other lessee of Lessor nor
from the failure by Lessor to enforce the provisions of any other lease in
the Industrial Center. Notwithstanding Lessor's negligence or breach of this
Lease, Lessor shall under no circumstances be liable for injury to Lessee's
business or for any loss of income or profit therefrom.
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(a) "PREMISES PARTIAL DAMAGE" shall mean damage or
destruction to the Premises, other than Lessee-Owned Alterations and Utility
Installations, the repair cost of which damage or destruction is less than fifty
percent (50%) of the then Replacement Cost (as defined in Paragraph 9.1(d)) of
the Premises (excluding Lessee-Owned Alterations and Utility Installations and
Trade Fixtures) immediately prior to such damage or destruction.
(b) "PREMISES TOTAL DESTRUCTION" shall mean damage or
destruction to the Premises, other than Lessee-Owned Alterations and Utility
Installations, the repair cost of which damage or destruction is fifty
percent (50%) or more of the then Replacement Cost of the Premises (excluding
Lessee-Owned Alterations and Utility Installations and Trade Fixtures)
immediately prior to such damage or destruction. In addition, damage or
destruction to the Building, other than Lessee-Owned Alterations and Utility
Installations and Trade Fixtures of any lessees of the Building, the cost of
which damage or destruction is fifty percent (50%) or more of the then
Replacement Cost (excluding Lessee-Owned Alterations and Utility Installations
and Trade Fixtures of any lessees of the Building) of the Building shall, at the
option of Lessor, be deemed to be Premises Total Destruction.
(c) "INSURED LOSS" shall mean damage or destruction to the
Premises, other than Lessee-Owned Alterations and Utility Installations and
Trade Fixtures, which was caused by an event required to be covered by the
insurance described in Paragraph 8.3(a) irrespective of any deductible amounts
or coverage limits involved.
(d) "REPLACEMENT COST" shall mean the cost to repair or
rebuild the improvements owned by Lessor at the time of the occurrence to their
condition existing immediately prior thereto, including demolition, debris
removal and upgrading required by the operation of applicable building codes,
ordinances or laws, and without deduction for depreciation.
(e) "HAZARDOUS SUBSTANCE CONDITION" shall mean the
occurrence or discovery of a condition involving the presence of, or a
contamination by, a Hazardous Substance as defined in Paragraph 6.2(a), in, on,
or under the Premises.
9.2 PREMISES PARTIAL DAMAGE - INSURED LOSS. If Premises Partial
Damage that is an Insured Loss occurs, then Lessor shall, at Lessor's
expense, repair such damage (but not Lessee's Trade Fixtures or Lessee-Owned
Alterations and Utility Installations) as soon as reasonably possible and
this Lease shall continue in full force and effect. In the event, however,
that there is a shortage of insurance proceeds and such shortage is due to
the fact that, by reason of the unique nature of the improvements in the
Premises, full replacement cost insurance coverage was not commercially
reasonable and available, Lessor shall have no obligation to pay for the
shortage in insurance proceeds or to fully restore the unique aspects of the
Premises unless Lessee provides Lessor with the funds to cover same, or
adequate assurance thereof, within ten (10) days following receipt of written
notice of such shortage and request therefor. If Lessor receives said funds
or adequate assurance thereof within said ten (10) day period, Lessor shall
complete them as soon as reasonably possible and this Lease shall remain in
full force and effect. If Lessor does not receive such funds or assurance
within said period, Lessor may nevertheless elect by written notice to Lessee
within ten (10) days thereafter to make such restoration and repair as is
commercially reasonable with Lessor paying any shortage in proceeds, in which
case this Lease shall remain in full force and effect. If Lessor does not
receive such funds or assurance within such ten (10) day period, and if
Lessor does not so elect to restore and repair, then this Lease shall
terminate sixty (60) days following the occurrence of the damage or
destruction. Unless otherwise agreed, Lessee shall in no event have any
right to reimbursement from Lessor for any funds contributed by Lessee to
repair any such damage or destruction. Premises Partial Damage due to flood
or earthquake shall be subject to Paragraph 9.3 rather than Paragraph 9.2,
notwithstanding that there may be some insurance coverage, but the net
proceeds of any such insurance shall be made available for the repairs if
made by either Party.
9.3 PARTIAL DAMAGE - UNINSURED LOSS. If Premises Partial Damage
that is not an Insured Loss occurs, unless caused by a negligent or willful act
of Lessee (in which event Lessee shall make the repairs at Lessee's expense and
this Lease shall continue in full force and effect), Lessor may at Lessor's
option, either (i) repair such damage as soon as reasonably possible at Lessor's
expense, in which event this Lease shall continue in full force and effect, or
(ii) give written notice to Lessee within thirty (30) days after receipt by
Lessor of knowledge of the occurrence of such damage of Lessor's desire to
terminate this Lease as of the date sixty (60) days following the date of such
notice. In the event Lessor elects to give such notice of Lessor's intention to
terminate this Lease, Lessee shall have the right within ten (10) days after the
receipt of such notice to give written notice to Lessor of Lessee's commitment
to pay for the repair of such damage totally at Lessee's expense and without
reimbursement from Lessor. Lessee shall provide Lessor with the required funds
or satisfactory assurance thereof within thirty (30) days following such
commitment from Lessee. In such event this Lease shall continue in full force
and effect, and Lessor shall proceed to make such repairs as soon as reasonably
possible after the required funds are available. If Lessee does not give such
notice and provide the funds or assurance thereof within the times specified
above, this Lease shall terminate as of the date specified in Lessor's notice of
termination.
9.4 TOTAL DESTRUCTION. Notwithstanding any other provision hereof,
if Premises Total Destruction occurs (including any destruction required by
any authorized public authority), this Lease shall terminate sixty (60) days
following the date of such Premises Total Destruction, whether or not the
damage or destruction is an Insured Loss or was caused by a negligent or
willful act of Lessee. In the event, however, that the damage or destruction
was caused by Lessee, Lessor shall have the right to recover Lessor's damages
from Lessee except as released and waived in Paragraph 9.7.
9.5 DAMAGE NEAR END OF TERM. If at any time during the last six (6)
months of the term of this Lease there is damage for which the cost to repair
exceeds one month's Base Rent, whether or not an Insured Loss, Lessor may, at
Lessor's option, terminate this Lease effective sixty (60) days following the
date of occurrence of such damage by giving written notice to Lessee of Lessor's
election to do so within thirty (30) days after the date of occurrence of such
damage. Provided, however, if Lessee at that time has an exercisable option to
extend this Lease or to purchase the Premises, then Lessee may preserve this
Lease by (a) exercising such option, and (b) providing Lessor with any shortage
in insurance proceeds (or adequate assurance thereof) needed to make the
repairs on or before the earlier of (i) the date which is ten (10) days after
Lessee's receipt of Lessor's written notice purporting to terminate this Lease,
or (ii) the day prior to the date upon which such option expires. If Lessee
duly exercises such option during such period and provides Lessor with funds (or
adequate assurance thereof) to cover any shortage in insurance proceeds, Lessor
shall, at Lessor's expense repair such damage as soon as reasonably possible and
this Lease shall continue in full force and effect. If Lessee fails to exercise
such option and provide such funds or assurance during such period, then this
Lease shall terminate as of the date set forth in the first sentence of this
Paragraph 9.5.
9.6 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(a) In the event of (i) Premises Partial Damage or (ii)
Hazardous Substance Condition for which Lessee is not legally responsible,
the Base Rent, Common Area Operating Expenses and other charges, if any,
payable by Lessee hereunder for the period during which such damage or
condition, its repair, remediation or restoration continues, shall be abated
in proportion to the degree to which Lessee's use of the Premises is
impaired, but not in excess of proceeds from insurance required to be carried
under Paragraph 8.3(b). Except for abatement of Base Rent, Common Area
Operation Expenses and other charges, if any, as aforesaid, all other
obligations of Lessee hereunder shall be performed by Lessee, and Lessee
shall have no claim against Lessor for any damage suffered by reason of any
such damage, destruction, repair, remediation or restoration.
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(b) If Lessor shall be obligated to repair or restore the
Premises under the provisions of this Paragraph 9 and shall not commence, in
a substantial and meaningful way, the repair or restoration of the Premises
within ninety (90) days after such obligation shall accrue, Lessee may, at
any time prior to the commencement of such repair or restoration, give
written notice to Lessor and to any Lenders of which Lessee has actual notice
of Lessee's election to terminate this Lease on a date not less than sixty
(60) days following the giving of such notice. If Lessee gives such notice
to Lessor and such Lenders and such repair or restoration is not commenced
within thirty (30) days after receipt of such notice, this Lease shall
terminate as of the date specified in said notice. If Lessor or a Lender
commences the repair or restoration of the Premises within thirty (30) days
after the receipt of such notice, this Lease shall continue in full force and
effect. "COMMENCE" as used in this Paragraph 9.6 shall mean either the
unconditional authorization of the preparation of the required plans, or the
beginning of the actual work on the Premises, whichever occurs first.
9.7 HAZARDOUS SUBSTANCE CONDITIONS. If a Hazardous Substance
Condition occurs, unless Lessee is legally responsible therefor (in which
case Lessee shall make the investigation and remediation thereof required by
Applicable Requirements and this Lease shall continue in full force and
effect, but subject to Lessor's rights under Paragraph 6.2(c) and Paragraph
13), Lessor may at Lessor's option either (i) investigate and remediate such
Hazardous Substance Condition, if required, as soon as reasonably possible at
Lessor's expense, in which event this Lease shall continue in full force and
effect, or (ii) if the estimated cost to investigate and remediate such
condition exceeds twelve (12) times the then monthly Base Rent or $100,000
whichever is greater, give written notice to Lessee within thirty (30) days
after receipt by Lessor of knowledge of the occurrence of such Hazardous
Substance Condition of Lessor's desire to terminate this Lease as of the date
sixty (60) days following the date of such notice. In the event Lessor
elects to give such notice of Lessor's intention to terminate this Lease,
Lessee shall have the right within ten (10) days after the receipt of such
notice to give written notice to Lessor of Lessee's commitment to pay for the
excess costs of (a) investigation and remediation of such Hazardous Substance
Condition to the extent required by Applicable Requirements, over (b) an
amount equal to twelve (12) times the then monthly Base Rent or $100,000,
whichever is greater. Lessee shall provide Lessor with the funds required of
Lessee or satisfactory assurance thereof within thirty (30) days following
said commitment by Lessee. In such event this Lease shall continue in full
force and effect, and Lessor shall proceed to make such investigation and
remediation as soon as reasonably possible after the required funds are
available. If Lessee does not give such notice and provide the required
funds or assurance thereof within the time period specified above, this Lease
shall terminate as of the date specified in Lessor's notice of termination.
9.8 TERMINATION - ADVANCE PAYMENTS. Upon termination of this Lease
pursuant to this Paragraph 9, Lessor shall return to Lessee any advance payment
made by Lessee to Lessor and so much of Lessee's Security Deposit as has not
been, or is not then required to be, used by Lessor under the terms of this
Lease.
9.9 WAIVER OF STATUTES. Lessor and Lessee agree that the terms of
this Lease shall govern the effect of any damage to or destruction of the
Premises and the Building with respect to the termination of this Lease and
hereby waive the provisions of any present or future statute to the extent it is
inconsistent herewith.
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF TAXES. Lessor shall pay the Real Property Taxes, as
defined in Paragraph 10.2(a), applicable to the Industrial Center, and except
as otherwise provided in Paragraph 10.3, any increases in such amounts over
the Base Real Property Taxes shall be included in the calculation of Common
Area Operating Expenses in accordance with the provisions of Paragraph 4.2.
10.2 REAL PROPERTY TAX DEFINITIONS.
(a) As used herein, the term "REAL PROPERTY TAXES" shall
include any form of real estate tax or assessment, general, special, ordinary
or extraordinary, and any license fee, commercial rental tax, improvement
bond or bonds, levy or tax (other than inheritance, personal income or estate
taxes) imposed upon the Industrial Center by any authority having the direct
or indirect power to tax, including any city, state or federal government, or
any school, agricultural, sanitary, fire, street, drainage, or other
improvement district thereof, levied against any legal or equitable interest
of Lessor in the Industrial Center or any portion thereof, Lessor's right to
rent or other income therefrom, and/or Lessor's business of leasing the
Premises. The term "REAL PROPERTY TAXES" shall also include any tax, fee,
levy, assessment or charge, or any increase therein, imposed by reason of
events occurring, or changes in Applicable Law taking effect, during the term
of this Lease, including but not limited to a change in the ownership of the
Industrial Center or in the improvements thereon, the execution of this
Lease, or any modification, amendment or transfer thereof, and whether or not
contemplated by the Parties.
(b) As used herein, the term "BASE REAL PROPERTY TAXES"
shall be the amount of Real Property Taxes, which are assessed against the
Premises, Building or Common Areas in the calendar year during which the
Lease is executed. In calculating Real Property Taxes for any calendar year,
the Real Property Taxes for any real estate tax year shall be included in the
calculation of Real Property Taxes for such calendar year based upon the
number of days which such calendar year and tax year have in common.
10.3 ADDITIONAL IMPROVEMENTS. Common Area Operating Expenses shall
not include Real Property Taxes specified in the tax assessor's records and work
sheets as being caused by additional improvements placed upon the Industrial
Center by other lessees or by Lessor for the exclusive enjoyment of such other
lessees. Notwithstanding Paragraph 10.1 hereof, Lessee shall, however, pay to
Lessor at the time Common Area Operating Expenses are payable under Paragraph
4.2, the entirety of any increase in Real Property Taxes if assessed solely by
reason of Alterations, Trade Fixtures or Utility Installations placed upon the
Premises by Lessee or at Lessee's request.
10.4 JOINT ASSESSMENT. If the Building is not separately assessed,
Real Property Taxes allocated to the Building shall be an equitable proportion
of the Real Property Taxes for all of the land and improvements included within
the tax parcel assessed, such proportion to be determined by Lessor from the
respective valuations assigned in the assessor's work sheets or such other
information as may be reasonably available. Lessor's reasonable determination
thereof, in good faith, shall be conclusive.
10.5 LESSEE'S PROPERTY TAXES. Lessee shall pay prior to delinquency
all taxes assessed against and levied upon Lessee-Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all personal property
of Lessee contained in the Premises or stored within the Industrial Center.
When possible, Lessee shall cause its Lessee-Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of Lessor.
If any of Lessee's said property shall be assessed with Lessor's real property,
Lessee shall pay Lessor the taxes attributable to Lessee's property within ten
(10) days after receipt of a written statement setting forth the taxes
applicable to Lessee's property.
11. UTILITIES. Lessee shall pay directly for all utilities and services
supplied to the Premises, including but not limited to electricity, telephone,
security, gas and cleaning of the Premises, together with any taxes thereon. If
any such utilities or services are not separately metered to the Premises or
separately billed to the Premises, Lessee shall pay to Lessor a reasonable
proportion to be determined by Lessor of all such charges jointly metered or
billed with other premises in the Building, in the manner and within the time
periods set forth in Paragraph 4.2(d).
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED.
(a) Lessee shall not voluntarily or by operation of law
assign, transfer, mortgage or otherwise transfer or encumber (collectively,
"assign") or sublet all or any part of Lessee's interest in this Lease or in the
Premises without Lessor's prior written consent given under and subject to the
terms of Paragraph 36. *
(b) A change in the control of Lessee shall constitute an
assignment requiring Lessor's consent. The transfer, on a cumulative basis, of
thirty-five percent (35%) or more of the voting control of Lessee shall
constitute a change in control for this purpose.
(c) The involvement of Lessee or its assets in any
transaction, or series of transactions (by way of merger, sale, acquisition,
financing, refinancing, transfer, leveraged buy-out or otherwise), whether or
not a formal assignment or hypothecation of this Lease or Lessee's assets
occurs, which results or will result in a reduction of the Net Worth of
Lessee, as hereinafter defined, by an amount equal to or greater than
twenty-five percent (25%) of such Net Worth of Lessee as it was represented
to Lessor at the time of full execution and delivery of this Lease or at the
time of the most recent assignment to which Lessor has consented, or as it
exists immediately prior to said transaction or transactions constituting
such reduction, at whichever time said Net Worth of Lessee was or is greater,
shall be considered an assignment of this Lease by Lessee to which Lessor may
reasonably withhold its consent. "NET WORTH OF LESSEE" for purposes of this
Lease shall be the net worth of Lessee (excluding any Guarantors) established
under generally accepted accounting principles consistently applied.
(d) An assignment or subletting of Lessee's interest in
this Lease without Lessor's specific prior written consent shall, at Lessor's
option, be a Default curable after notice per Paragraph 13.1, or a
non-curable Breach without the necessity of any notice and grace period. If
Lessor elects to treat such unconsented to assignment or subletting as a
non-curable Breach, Lessor shall have the right to either: (i) terminate this
Lease, or (ii) upon thirty (30) days' written notice ("LESSOR'S NOTICE"),
increase the monthly Base Rent for the Premises to the greater of the then
fair market rental value of the Premises, as reasonably determined by Lessor,
or one hundred ten percent (110%) of the Base Rent then in effect. Pending
determination of the new fair market rental value, if disputed by Lessee,
Lessee shall pay the amount set forth in Lessor's Notice, with any
overpayment credited against the next installment(s) of Base Rent coming due,
and any underpayment for the period retroactively to the effective date of
the adjustment being due and payable immediately upon the determination
thereof. Further, in the event of such Breach and rental adjustment, (i) the
purchase price of any option to purchase the Premises held by Lessee shall be
subject to similar adjustment to the then fair market value as reasonably
determined by Lessor (without the Lease being considered an encumbrance or
any deduction for depreciation or obsolescence, and considering the Premises
at its highest and best use and in good condition) or one hundred ten percent
(110%) of the price previously in effect, (ii) any index-oriented rental or
price adjustment formulas contained in this Lease shall be adjusted to
require that the base index be determined with reference to the index
applicable to the time of such adjustment, and (iii) any fixed rental
adjustments scheduled during the remainder of the Lease term shall be
increased in the same ratio as the new rental bears to the Base Rent in
effect immediately prior to the adjustment specified in Lessor's Notice.
(e) Lessee's remedy for any breach of this Paragraph 12.1 by
Lessor shall be limited to compensatory damages and/or injunctive relief.
12.2 TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND SUBLETTING.
(a) Regardless of Lessor's consent, any assignment or
subletting shall not (i) be effective without the express written assumption by
such assignee or sublessee of the obligations of Lessee under this Lease, (ii)
release Lessee of any obligations hereunder, nor (iii) alter the primary
liability of Lessee for the payment of Base Rent and other sums due Lessor
hereunder or for the performance of any other obligations to be performed by
Lessee under this Lease.
(b) Lessor may accept any rent or performance of Lessee's
obligations from any person other than Lessee pending approval or disapproval
of an assignment. Neither a delay in the approval or disapproval of such
assignment nor the acceptance of any rent for performance shall constitute a
waiver of estoppel of Lessor's right to exercise its remedies for the Default
or Breach by Lessee of any of the terms, covenants or conditions of this
Lease.
(c) The consent of Lessor to any assignment or subletting
shall not constitute a consent to any subsequent assignment or subletting by
Lessee or to any subsequent or successive assignment or subletting by the
assignee or sublessee. However, Lessor may consent to subsequent sublettings
and assignments of the sublease or any amendments or modifications thereto
without notifying Lessee or anyone else liable under this Lease or the sublease
and without obtaining their consent, and such action shall not relieve such
persons from liability under this Lease or the sublease.
* SEE ADDENDUM
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(d) In the event of any Default or Breach of Lessee's
obligation under this Lease, Lessor may proceed directly against Lessee, any
Guarantors or anyone else responsible for the performance of the Lessee's
obligations under this Lease, including any sublessee, without first exhausting
Lessor's remedies against any other person or entity responsible therefor to
Lessor, or any security held by Lessor.
(e) Each request for consent to an assignment or
subletting shall be in writing, accompanied by information relevant to
Lessor's determination as to the financial and operational responsibility and
appropriateness of the proposed assignee or sublessee, including but not
limited to the intended use and/or required modification of the Premises, if
any, together with a non-refundable deposit of $1,000 or ten percent (10%) of
the monthly Base Rent applicable to the portion of the Premises which is the
subject of the proposed assignment or sublease, whichever is less, as
reimbursement for actual costs incurred by Lessor to include Lessor's time
processing the request for consent. Lessee agrees to provide Lessor with such
other or additional information and/or documentation as may be reasonably
requested by Lessor.
(f) Any assignee of, or sublessee under, this Lease
shall, by reason of accepting such assignment or entering into such sublease,
be deemed, for the benefit of Lessor, to have assumed and agreed to conform
and comply with each and every term, covenant, condition and obligation
herein to be observed or performed by Lessee during the term of said
assignment or sublease, other than such obligations as are contrary to or
inconsistent with provisions of an assignment or sublease to which Lessor has
specifically consented in writing.
(g) The occurrence of a transaction described in
Paragraph 12.2(c) shall give Lessor the right (but not the obligation) to
require that the Security Deposit be increased by an amount equal to six (6)
times the then monthly Base Rent, and Lessor may make the actual receipt by
Lessor of the Security Deposit increase a condition to Lessor's consent to
such transaction.
12.3 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. The
following terms and conditions shall apply to any subletting by Lessee of all
or any part of the Premises and shall be deemed included in all subleases
under this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of
Lessee's interest in all rentals and income arising from any sublease of all
or a portion of the Premises heretofore or hereafter made by Lessee, and
Lessor may collect such rent and income and apply same toward Lessee's
obligations under this Lease; provided, however, that until a Breach (as
defined in Paragraph 13.1) shall occur in the performance of Lessee's
obligations under this Lease, Lessee may, except as otherwise provided in
this Lease, receive, collect and enjoy the rents accruing under such
sublease. Lessor shall not, by reason of the foregoing provision or any other
assignment of such sublease to Lessor, nor by reason of the collection of the
rents from a sublessee, be deemed liable to the sublessee for any failure of
Lessee to perform and comply with any of Lessee's obligations to such
sublessee under such Sublease. Lessee hereby irrevocably authorizes and
directs any such sublessee, upon receipt of a written notice from Lessor
stating that a Breach exists in the performance of Lessee's obligations under
this Lease, to pay to Lessor the rents and other charges due and to become
due under the sublease. Sublessee shall rely upon any such statement and
request from Lessor and shall pay such rents and other charges to Lessor
without any obligation or right to inquire as to whether such Breach exists
and notwithstanding any notice from or claim from Lessee to the contrary.
Lessee shall have no right of claim against such sublessee, or, until the
Breach has been cured, against Lessor, for any such rents and other charges
so paid by said sublessee to Lessor.*
(b) In the event of a Breach by Lessee in the performance
of its obligations under this Lease, Lessor, at its option and without any
obligation to do so, may require any sublessee to attorn to Lessor, in which
event Lessor shall undertake the obligations of the sublessor under such
sublease from the time of the exercise of said option to the expiration of
such sublease; provided, however, Lessor shall not be liable for any prepaid
rents or security deposit paid by such sublessee to such sublessor or for any
other prior defaults or breaches of such sublessor under such sublease.
(c) Any matter or thing requiring the consent of the
sublessor under a sublease shall also require the consent of Lessor herein.
(d) No sublessee under a sublease approved by Lessor shall
further assign or sublet all or any part of the Premises without Lessor's
prior written consent.
(e) Lessor shall deliver a copy of any notice of Default
or Breach by Lessee to the sublessee, who shall have the right to cure the
Default of Lessee within the grace period, if any, specified in such notice.
The sublessee shall have a right of reimbursement and offset from and against
Lessee for any such Defaults cured by the sublessee.
13. DEFAULT; BREACH; REMEDIES.
13.1 DEFAULT; BREACH. Lessor and Lessee agree that if an attorney
is consulted by Lessor in connection with a Lessee Default or Breach (as
hereinafter defined), $350.00 is a reasonable minimum sum per such occurrence
for legal services and costs in the preparation and service of a notice of
Default, and that Lessor may include the cost of such services and costs in
said notice as rent due and payable to cure said default. A "DEFAULT" by
Lessee is defined as a failure by Lessee to observe, comply with or perform
any of the terms, covenants, conditions or rules applicable to Lessee under
this Lease. A "BREACH" by Lessee is defined as the occurrence of any one or
more of the following Defaults, and, where a grace period for cure after
notice is specified herein, the failure by Lessee to cure such Default prior
to the expiration of the applicable grace period, and shall entitle Lessor to
pursue the remedies set forth in Paragraphs 13.2 and/or 13.3:
(a) The vacating of the Premises without the intention to
reoccupy same, or the abandonment of the Premises.
(b) Except as expressly otherwise provided in this Lease,
the failure by Lessee to make any payment of Base Rent, Lessee's Share of
Common Area Operating Expenses, or any other monetary payment required to be
made by Lessee hereunder as and when due, the failure by Lessee to provide
Lessor with reasonable evidence of insurance or surety bond required under
this Lease, or the failure of Lessee to fulfill any obligation under this
Lease which endangers or threatens life or property, where such failure
continues for a period of three (3) days following written notice thereof by
or on behalf of Lessor to Lessee.
(c) Except as expressly otherwise provided in this Lease,
the failure by Lessee to provide Lessor with reasonable written evidence (in
duly executed original form, if applicable) of (i) compliance with Applicable
Requirements per Paragraph 6.3, (ii) the inspection, maintenance and service
contracts required under Paragraph 7.1(b), (iii) the rescission of an
unauthorized assignment or subletting per Paragraph 12.1, (iv) a Tenancy
Statement per Paragraphs 16 or 37, (v) the subordination or non-subordination
of this Lease per Paragraph 30, (vi) the guaranty of the performance of
Lessee's obligations under this Lease if required under Paragraphs 1.11 and
37, (vii) the execution of any document requested under Paragraph 42
(easements), or (viii) any other documentation or information which Lessor
may reasonably require of Lessee under the terms of this lease, where any
such failure continues for a period of ten (10) days following written notice
by or on behalf of Lessor to Lessee.
(d) A Default by Lessee as to the terms, covenants,
conditions or provisions of this Lease, or of the rules adopted under
Paragraph 40 hereof that are to be observed, complied with or performed by
Lessee, other than those described in Subparagraphs 13.1(a), (b) or (c),
above, where such Default continues for a period of thirty (30) days after
written notice thereof by or on behalf of Lessor to Lessee; provided,
however, that if the nature of Lessee's Default is such that more than thirty
(30) days are reasonably required for its cure, then it shall not be deemed
to be a Breach of this Lease by Lessee if Lessee commences such cure within
said thirty (30) day period and thereafter diligently prosecutes such cure to
completion.
(e) The occurrence of any of the following events: (i) the
making by Lessee of any general arrangement or assignment for the benefit of
creditors; (ii) Lessee's becoming a "debtor" as defined in 11 U.S. Code
Section 101 or any successor statute thereto (unless, in the case of a
petition filed against Lessee, the same is dismissed within sixty (60) days);
(iii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to Lessee within
thirty (30) days; or (iv) the attachment, execution or other judicial seizure
of substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where such seizure is not discharged within thirty
(30) days; provided, however, in the event that any provision of this
Subparagraph 13.1(e) is contrary to any applicable law, such provision shall
be of no force or effect, and shall not affect the validity of the remaining
provisions.
(f) The discovery by Lessor that any financial statement
of Lessee or of any Guarantor, given to Lessor by Lessee or any Guarantor,
was materially false.
(g) If the performance of Lessee's obligations under this
Lease is guaranteed: (i) the death of a Guarantor, (ii) the termination of a
Guarantor's liability with respect to this Lease other than in accordance
with the terms of such guaranty, (iii) a Guarantor's becoming insolvent or
the subject of a bankruptcy filing, (iv) a Guarantor's refusal to honor the
guaranty, or (v) a Guarantor's breach of its guaranty obligation on an
anticipatory breach basis, and Lessee's failure, within sixty (60) days
following written notice by or on behalf of Lessor to Lessee of any such
event, to provide Lessor with written alternative assurances of security,
which, when coupled with the then existing resources of Lessee, equals or
exceeds the combined financial resources of Lessee and the Guarantors that
existed at the time of execution of this Lease.
13.2 REMEDIES. If Lessee fails to perform any affirmative duty or
obligation of Lessee under this Lease, within ten (10) days after written
notice to Lessee (or in case of an emergency, without notice), Lessor may at
its option (but without obligation to do so), perform such duty or obligation
on Lessee's behalf, including but not limited to the obtaining of reasonably
required bonds, insurance policies, or governmental licenses, permits or
approvals. The costs and expenses of any such performance by Lessor shall be
due and payable by Lessee to Lessor upon invoice therefor. If any check given
to Lessor by Lessee shall not be honored by the bank upon which it is drawn,
Lessor, at its own option, may require all future payments to be made under
this Lease by Lessee to be made only by cashier's check. In the event of a
Breach of this Lease by Lessee (as defined in Paragraph 13.1), with or
without further notice or demand, and without limiting Lessor in the exercise
of any right or remedy which Lessor may have by reason of such Breach, Lessor
may:
(a) Terminate Lessee's right to possession of the Premises
by any lawful means, in which case this Lease and the term hereof shall
terminate and Lessee shall immediately surrender possession of the Premises
to Lessor. In such event Lessor shall be entitled to recover from Lessee: (i)
the worth at the time of the award of the unpaid rent which had been earned
at the time of termination; (ii) the worth at the time of award of the amount
by which the unpaid rent which would have been earned after termination until
the time of award exceeds the amount of such rental loss that the Lessee
proves could have been reasonably avoided; (iii) the worth at the time of
award of the amount by which the unpaid rent for the balance of the term
after the time of award exceeds the amount of such rental loss that the
Lessee proves could be reasonably avoided; and (iv) any other amount
necessary to compensate Lessor for all the detriment proximately caused by
the Lessee's failure to perform its obligations under this Lease or which in
the ordinary course of things would be likely to result therefrom, including
but not limited to the cost of recovering possession of the Premises,
expenses of reletting, including necessary renovation and alteration of the
Premises, reasonable attorneys' fees and that portion of any leasing
commission paid by Lessor in connection with this Lease applicable to the
unexpired term of this Lease. The worth at the time of award of the amount
referred to in provision (iii) of the immediately preceding sentence shall be
computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco or the Federal Reserve Bank District in which
the Premises are located at the time of award plus one percent (1%). Efforts
by Lessor to mitigate damages caused by Lessee's Default or Breach of this
Lease shall not waive Lessor's right to recover damages under this Paragraph
13.2. If termination of this Lease is obtained through the provisional remedy
of unlawful detainer, Lessor shall have the right to recover in such
pro-
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ceeding the unpaid rent and damages as are recoverable therein, or Lessor
may reserve the right to recover all or any part thereof in a separate suit
for such rent and/or damages. If a notice and grace period required under
Subparagraph 13.1(b), (c) or (d) was not previously given a notice to pay
rent or quit, or to perform or quit, as the case may be, given to Lessee
under any statute authorizing the forfeiture of leases for unlawful detainer
shall also constitute the applicable notice for grace period purposes
required by Subparagraph 13.1(b), (c) or (d). In such case, the applicable
grace period under the unlawful detainer statute shall run concurrently after
the one such statutory notice, and the failure of Lessee to cure the Default
within the greater of the two (2) such grace periods shall constitute both an
unlawful detainer and a Breach of this Lease entitling Lessor to the remedies
provided for in this Lease and/or by said statute.
(b) Continue the Lease and Lessee's right to possession in
effect (in California under California Civil Code Section 1951.4) after
Lessee's Breach and recover the rent as it becomes due, provided Lessee has
the right to sublet or assign, subject only to reasonable limitations. Lessor
and Lessee agree that the limitations on assignment and subletting in this
Lease are reasonable. Acts of maintenance or preservation, efforts to relet
the Premises, or the appointment of a receiver to protect the Lessor's
interest under this Lease, shall not constitute a termination of the Lessee's
right to possession.
(c) Pursue any other remedy now or hereafter available to
Lessor under the laws or judicial decisions of the state wherein the Premises
are located.
(d) The expiration or termination of this Lease and/or the
termination of Lessee's right to possession shall not relieve Lessee from
liability under any indemnity provisions of this Lease as to matters
occurring or accruing during the term hereof or by reason of Lessee's
occupancy of the Premises.
13.3 INDUCEMENT RECAPTURE IN EVENT OF BREACH. Any agreement by
Lessor for free or abated rent or other charges applicable to the Premises,
or for the giving or paying by Lessor to or for Lessee of any cash or other
bonus, inducement or consideration for Lessee's entering into this Lease, all
of which concessions are hereinafter referred to as "INDUCEMENT PROVISIONS"
shall be deemed conditioned upon Lessee's full and faithful performance of
all of the terms, covenants and conditions of this Lease to be performed or
observed by Lessee during the term hereof as the same may be extended. Upon
the occurrence of a Breach (as defined in Paragraph 13.1) of this Lease by
Lessee, any such Inducement Provision shall automatically be deemed deleted
from this Lease and of no further force or effect, and any rent, other charge,
bonus, inducement or consideration theretofore abated, given or paid by
Lessor under such an Inducement Provision shall be immediately due and
payable by Lessee to Lessor, and recoverable by Lessor, as additional rent due
under this Lease, notwithstanding any subsequent cure of said Breach by
Lessee. The acceptance by Lessor of rent or the cure of the Breach which
initiated the operation of this Paragraph 13.3 shall not be deemed a waiver
by Lessor of the provisions of this Paragraph 13.3 unless specifically so
stated in writing by Lessor at the time of such acceptance.
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by
Lessee to Lessor of rent and other sums due hereunder will cause Lessor to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed upon
Lessor by the terms of any ground lease, mortgage or deed of trust covering
the Premises. Accordingly, if any installment of rent or other sum due from
Lessee shall not be received by Lessor or Lessor's designee within ten (10)
days after such amount shall be due, then, without any requirement for notice
to Lessee, Lessee shall pay to Lessor a late charge equal to six percent (6%)
of such overdue amount. The parties hereby agree that such late charge
represents a fair and reasonable estimate of the costs Lessor will incur by
reason of late payment by Lessee. Acceptance of such late charge by Lessor
shall in no event constitute a waiver of Lessee's Default or Breach with
respect to such overdue amount, nor prevent Lessor from exercising any of the
other rights and remedies granted hereunder. In the event that a late charge
is payable hereunder, whether or not collected, for three (3) consecutive
installments of Base Rent, then notwithstanding Paragraph 4.1 or any other
provision of this Lease to the contrary, Base Rent shall, at Lessor's option,
become due and payable quarterly in advance.
13.5 BREACH BY LESSOR. Lessor shall not be deemed in breach of this
Lease unless Lessor fails within a reasonable time to perform an obligation
required to be performed by Lessor. For purposes of this Paragraph 13.5, a
reasonable time shall in no event be less than thirty (30) days after receipt
by Lessor, and by any Lender(s) whose name and address shall have been
furnished to Lessee in writing for such purpose, of written notice specifying
wherein such obligation of Lessor has not been performed; provided, however,
that if the nature of Lessor's obligation is such that more than thirty (30)
days after such notice are reasonably required for its performance, then
Lessor shall not be in breach of this Lease if performance is commenced
within such thirty (30) day period and thereafter diligently pursued to
completion.
14. CONDEMNATION. If the Premises or any portion thereof are taken under
the power of eminent domain or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority
takes title or possession, whichever first occurs. If more than ten percent
(10%) of the floor area of the Premises, or more than twenty-five percent
(25%) of the portion of the Common Areas designated for Lessee's parking, is
taken by condemnation, Lessee may, at Lessee's option, to be exercised in
writing within ten (10) days after Lessor shall have given Lessee written
notice of such taking (or in the absence of such notice, within ten (10) days
after the condemning authority shall have taken possession) terminate this
Lease as of the date the condemning authority takes such possession. If
Lessee does not terminate this Lease in accordance with the foregoing, this
Lease shall remain in full force and effect as to the portion of the Premises
remaining, except that the Base Rent shall be reduced in the same proportion
as the rentable floor area of the Premises taken bears to the total rentable
floor area of the Premises. No reduction of Base Rent shall occur if the
condemnation does not apply to any portion of the Premises. Any award for the
taking of all or any part of the Premises under the power of eminent domain
or any payment made under threat of the exercise of such power shall be the
property of Lessor, whether such award shall be made as compensation for
diminution of value of the leasehold or for the taking of the fee, or as
severance damages; provided, however, that Lessee shall be entitled to any
compensation, separately awarded to Lessee for Lessee's relocation expenses
and/or loss of Lessee's Trade Fixtures. In the event that this Lease is not
terminated by reason of such condemnation, Lessor shall to the extent of its
net severance damages received, over and above Lessee's Share of the legal
and other expenses incurred by Lessor in the condemnation matter, repair any
damage to the Premises caused by such condemnation authority. Lessee shall be
responsible for the payment of any amount in excess of such net severance
damages required to complete such repair.
15. BROKERS' FEES.
15.1 PROCURING CAUSE. The Broker(s) named in Paragraph 1.10 is/are
the procuring cause of this Lease.
15.2 ADDITIONAL TERMS. Unless Lessor and Broker(s) have otherwise
agreed in writing, Lessor agrees that: (a) if Lessee exercises any Option (as
defined in Paragraph 39.1) granted under this Lease or any Option
subsequently granted, or (b) if Lessee acquires any rights to the Premises or
other premises in which Lessor has an interest, or (c) if Lessee remains in
possession of the Premises with the consent of Lessor after the expiration of
the term of this Lease after having failed to exercise an Option, or (d) if
said Brokers are the procuring cause of any other lease or sale entered into
between the Parties pertaining to the Premises and/or any adjacent property
in which Lessor has an interest, or (e) if Base Rent is increased, whether by
agreement or operation of an escalation clause herein, then as to any of said
transactions, Lessor shall pay said Broker(s) a fee in accordance with the
schedule of said Broker(s) in effect at the time of the execution of this
Lease.
15.3 ASSUMPTION OF OBLIGATIONS. Any buyer or transferee of Lessor's
interest in this Lease, whether such transfer is by agreement or by operation
of law, shall be deemed to have assumed Lessor's obligation under this
Paragraph 15. Each Broker shall be an intended third party beneficiary of the
provisions of Paragraph 1.10 and of this Paragraph 15 to the extent of its
interest in any commission arising from this Lease and may enforce that right
directly against Lessor and its successors.
15.4 REPRESENTATIONS AND WARRANTIES. Lessee and Lessor each
represent and warrant to the other that is has had no dealings with any
person, firm, broker or finder other than as named in Paragraph 1.10(a) in
connection with the negotiation of this Lease and/or the consummation of the
transaction contemplated hereby, and that no broker or other person, firm or
entity other than said named Broker(s) is entitled to any commission or
finder's fee in connection with said transaction. Lessee and Lessor do each
hereby agree to indemnify, protect, defend and hold the other harmless from
and against liability for compensation or charges which may be claimed by any
such unnamed broker, finder or other similar party by reason of any dealings
or actions of the indemnifying Party, including any costs, expenses, and/or
attorneys' fees reasonably incurred with respect thereto.*
16. TENANCY AND FINANCIAL STATEMENTS.
16.1 TENANCY STATEMENT. Each Party (as "RESPONDING PARTY") shall
within ten (10) days after written notice from the other Party (the
"REQUESTING PARTY") execute, acknowledge and deliver to the Requesting Party a
statement in writing in a form similar to the then most current "TENANCY
STATEMENT" form published by the American Industrial Real Estate Association,
plus such additional information, confirmation and/or statements as may be
reasonably requested by the Requesting Party.
16.2 FINANCIAL STATEMENT. If Lessor desires to finance, refinance,
or sell the Premises or the Building, or any part thereof, Lessee and all
Guarantors shall deliver to any potential lender or purchaser designated by
Lessor such financial statements of Lessee and such Guarantors as may be
reasonably required by such lender or purchaser, including but not limited to
Lessee's financial statements for the past three (3) years. All such
financial statements shall be received by Lessor and such lender or purchaser
in confidence and shall be used only for the purposes herein set forth.
17. LESSOR'S LIABILITY. The term "LESSOR" as used herein shall mean the
owner or owners at the time in question of the fee title to the Premises. In
the event of a transfer of Lessor's title or interest in the Premises or in
this Lease, Lessor shall deliver to the transferee or assignee (in cash or by
credit) any unused Security Deposit held by Lessor at the time of such
transfer or assignment. Except as provided in Paragraph 15.3, upon such
transfer or assignment and delivery of the Security Deposit, as aforesaid,
the prior Lessor shall be relieved of all liability with respect to the
obligations and/or covenants under this Lease thereafter to be performed by
the Lessor. Subject to the foregoing, the obligations and/or covenants in
this Lease to be performed by the Lessor shall be binding only upon the
Lessor as hereinabove defined.
18. SEVERABILITY. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
19. INTEREST ON PAST-DUE OBLIGATIONS. Any monetary payment due Lessor
hereunder, other than late charges, not received by Lessor within ten (10)
days following the date on which it was due, shall bear interest from the
date due at the prime rate charged by the largest state chartered bank in the
state in which the Premises are located plus four percent (4%) per annum, but
not exceeding the maximum rate allowed by law, in addition to the potential
late charge provided for in Paragraph 13.4.
20. TIME OF ESSENCE. Time is of the essence with respect to the
performance of all obligations to be performed or observed by the Parties
under this Lease.
21. RENT DEFINED. All monetary obligations of Lessee to Lessor under the
terms of this Lease are deemed to be rent.
22. NO PRIOR OR OTHER AGREEMENTS; BROKER DISCLAIMER. This Lease contains
all agreements between the Parties with respect to any matter mentioned
herein, and no other prior or contemporaneous agreement or understanding
shall be effective. Lessor and Lessee each represents and warrants to the
Brokers that it has made, and is relying solely upon, its own investigation
as to the nature, quality, character and financial responsibility of the
other Party to this Lease and as to the nature, quality and character of the
Premises. Brokers have no responsibility with respect thereto or with respect
to any default or breach hereof by either Party. Each Broker shall be an
intended third party beneficiary of the provisions of this Paragraph 22.
* SEE ADDENDUM
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23. NOTICES.
23.1 NOTICE REQUIREMENTS. All notices required or permitted by this
Lease shall be in writing and may be delivered in person (by hand or by
messenger or courier service) or may be sent by regular, certified or
registered mail or U.S. Postal Service Express Mail, with postage prepaid, or
by facsimile transmission during normal business hours, and shall be deemed
sufficiently given if served in a manner specified in this Paragraph 23. The
addresses noted adjacent to a Party's signature on this Lease shall be that
Party's address for delivery or mailing of notice purposes. Either Party may
by written notice to the other specify a different address for notice
purposes, except that upon Lessee's taking possession of the Premises, the
Premises shall constitute Lessee's address for the purpose of mailing or
delivering notices to Lessee. A copy of all notices required or permitted to
be given to Lessor hereunder shall be concurrently transmitted to such party
or parties at such addresses as Lessor may from time to time hereafter
designate by written notice to Lessee.
23.2 DATE OF NOTICE. Any notice sent by registered or certified
mail, return receipt requested, shall be deemed given on the date of delivery
shown on the receipt card, or if no delivery date is shown, the postmark
thereon. If sent by regular mail, the notice shall be deemed given
forty-eight (48) hours after the same is addressed as required herein and
mailed with postage prepaid. Notices delivered by United States Express Mail
or overnight courier that guarantees next day delivery shall be deemed given
twenty-four (24) hours after delivery of the same to the United States Postal
Service or courier. If any notice is transmitted by facsimile transmission or
similar means, the same shall be deemed served or delivered upon telephone or
facsimile confirmation of receipt of the transmission thereof, provided a
copy is also delivered via delivery or mail. If notice is received on a
Saturday or a Sunday or a legal holiday, it shall be deemed received on the
next business day.
24. WAIVERS. No waiver by Lessor of the Default or Breach of any term,
covenant or condition hereof by Lessee, shall be deemed a waiver of any other
term, covenant or condition hereof, or of any subsequent Default or Breach by
Lessee of the same or any other term, covenant or condition hereof. Lessor's
consent to, or approval of, any such act shall not be deemed to render
unnecessary the obtaining of Lessor's consent to, or approval of, any
subsequent or similar act by Lessee, or be construed as the basis of an
estoppel to enforce the provision or provisions of this Lease requiring such
consent. Regardless of Lessor's knowledge of a Default or Breach at the time
of accepting rent, the acceptance of rent by Lessor shall not be a waiver of
any Default or Breach by Lessee of any provision hereof. Any payment given
Lessor by Lessee may be accepted by Lessor on account of moneys or damages
due Lessor, notwithstanding any qualifying statements or conditions made by
Lessee in connection therewith, which such statements and/or conditions shall
be of no force or effect whatsoever unless specifically agreed to in writing
by Lessor at or before the time of deposit of such payment.
25. RECORDING. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a short form memorandum of
this Lease for recording purposes. The Party requesting recordation shall be
responsible for payment of any fees or taxes applicable thereto.
26. NO RIGHT TO HOLDOVER. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or earlier termination of
this Lease. In the event that Lessee holds over in violation of this
Paragraph 26 then the Base Rent payable from and after the time of the
expiration or earlier termination of this Lease shall be increased to one
hundred seventy-five percent (175%) of the Base Rent applicable during the
month immediately preceding such expiration or earlier termination. Nothing
contained herein shall be construed as a consent by Lessor to any holding
over by Lessee.
27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies
at law or in equity.
28. COVENANTS AND CONDITIONS. All provisions of this Lease to be observed
or performed by Lessee are both covenants and conditions.
29. BINDING EFFECT; CHOICE OF LAW. This Lease shall be binding upon the
Parties, their personal representatives, successors and assigns and be
governed by the laws of the State in which the Premises are located. Any
litigation between the Parties hereto concerning this Lease shall be
initiated in the county in which the Premises are located.
30. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE.
30.1 SUBORDINATION. This Lease and any Option granted hereby shall
be subject and subordinate to any ground lease, mortgage, deed of trust, or
other hypothecation or security device (collectively, "SECURITY DEVICE"), now
or hereafter placed by Lessor upon the real property of which the Premises
are a part, to any and all advances made on the security thereof, and to all
renewals, modifications, consolidations, replacements and extensions thereof.
Lessee agrees that the Lenders holding any such Security Device shall have no
duty, liability or obligation to perform any of the obligations of Lessor
under this Lease, but that in the event of Lessor's default with respect to
any such obligation, Lessee will give any Lender whose name and address have
been furnished Lessee in writing for such purpose notice of Lessor's default
pursuant to Paragraph 13.5. If any Lender shall elect to have this Lease
and/or any Option granted hereby superior to the lien of its Security Device
and shall give written notice thereof to Lessee, this Lease and such Options
shall be deemed prior to such Security Device, notwithstanding the relative
dates of the documentation or recordation thereof.
30.2 ATTORNMENT. Subject to the non-disturbance provisions of
Paragraph 30.3, Lessee agrees to attorn to a Lender or any other party who
acquires ownership of the Premises by reason of a foreclosure of a Security
Device, and that in the event of such foreclosure, such new owner shall not:
(i) be liable for any act or omission of any prior lessor or with respect to
events occurring prior to acquisition of ownership, (ii) be subject to any
offsets or defenses which Lessee might have against any prior lessor, or
(iii) be bound by prepayment of more than one month's rent.
30.3 NON-DISTURBANCE. With respect to Security Devices entered
into by Lessor after the execution of this lease, Lessee's subordination of
this Lease shall be subject to receiving assurance (a "non-disturbance
agreement") from the Lender that Lessee's possession and this Lease,
including any options to extend the term hereof, will not be disturbed so
long as Lessee is not in Breach hereof and attorns to the record owner of the
Premises.
30.4 SELF-EXECUTING. The agreements contained in this Paragraph 30
shall be effective without the execution of any further documents; provided,
however, that upon written request from Lessor or a Lender in connection with
a sale, financing or refinancing of Premises, Lessee and Lessor shall execute
such further writings as may be reasonably required to separately document
any such subordination or non-subordination, attornment and/or
non-disturbance agreement as is provided for herein.
31. ATTORNEYS' FEES. If any Party or Broker brings an action or
proceeding to enforce the terms hereof or declare rights hereunder, the
Prevailing Party (as hereafter defined) in any such proceeding, action, or
appeal thereon, shall be entitled to reasonable attorneys' fees. Such fees may
be awarded in the same suit or recovered in a separate suit, whether or not
such action or proceeding is pursued to decision or judgment. The term
"PREVAILING PARTY" shall include, without limitation, a Party or Broker who
substantially obtains or defeats the relief sought, as the case may be,
whether by compromise, settlement, judgment, or the abandonment by the other
Party or Broker of its claim or defense. The attorneys' fee award shall not
be computed in accordance with any court fee schedule, but shall be such as to
fully reimburse all attorneys' fees reasonably incurred. Lessor shall be
entitled to attorneys' fees, costs and expenses incurred in preparation and
service of notices of Default and consultations in connection therewith,
whether or not a legal action is subsequently commenced in connection with
such Default or resulting Breach. Broker(s) shall be intended third party
beneficiaries of this Paragraph 31.
32. LESSOR'S ACCESS; SHOWING PREMISES; REPAIRS. Lessor and Lessor's
agents shall have the right to enter the Premises at any time, in the case of
an emergency, and otherwise at reasonable times for the purpose of showing
the same to prospective purchasers, lenders, or lessees, and making such
alterations, repairs, improvements or additions to the Premises or to the
Building, as Lessor may reasonably deem necessary. Lessor may at any time
place on or about the Premises or Building any ordinary "For Sale" signs and
Lessor may at any time during the last one hundred eighty (180) days of the
term hereof place on or about the Premises any ordinary "For Lease" signs.
All such activities of Lessor shall be without abatement of rent or liability
to Lessee.
33. AUCTIONS. Lessee shall not conduct, nor permit to be conducted,
either voluntarily or involuntarily, any auction upon the Premises without
first having obtained Lessor's prior written consent. Notwithstanding
anything to the contrary in this Lease, Lessor shall not be obligated to
exercise any standard of reasonableness in determining whether to grant such
consent.
34. SIGNS. Lessee shall not place any sign upon the exterior of the
Premises or the Building, except that Lessee may, with Lessor's prior written
consent, install (but not on the roof) such signs as are reasonably required
to advertise Lessee's own business so long as such signs are in a location
designated by Lessor and comply with Applicable Requirements and the signage
criteria established for the Industrial Center by Lessor. The installation of
any sign on the Premises by or for Lessee shall be subject to the provisions of
Paragraph 7 (Maintenance, Repairs, Utility Installation, Trade Fixtures and
Alterations). Unless otherwise expressly agreed herein, Lessor reserves all
rights to the use of the roof of the Building, and the right to install
advertising signs on the Building, including the roof, which do not
unreasonably interfere with the conduct of Lessee's business; Lessor shall be
entitled to all revenues from such advertising signs.
35. TERMINATION; MERGER. Unless specifically stated otherwise in writing
by Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for
Breach by Lessee, shall automatically terminate any sublease or lesser estate
in the Premises; provided, however, Lessor shall in the event of any such
surrender, termination or cancellation, have the option to continue any one
or all of any existing subtenancies. Lessor's failure within ten (10) days
following any such event to make a written election to the contrary by
written notice to the holder of any such lesser interest, shall constitute
Lessor's election to have such event constitute the termination of such
interest.
36. CONSENTS.
(a) Except for Paragraph 33 hereof (Auctions) or as
otherwise provided herein, wherever in this Lease the consent of a Party is
required to an act by or for the other Party, such consent shall not be
unreasonably withheld or delayed. Lessor's actual reasonable costs and
expenses (including but not limited to architects', attorneys', engineers'
and other consultants' fees) incurred in the consideration of, or response
to, a request by Lessee for any Lessor consent pertaining to this Lease or
the Premises, including but not limited to consents to an assignment a
subletting or the presence or use of a Hazardous Substance, shall be paid by
Lessee to Lessor upon receipt of an invoice and supporting documentation
therefor. In addition to the deposit described in Paragraph 12.2(e), Lessor
may, as a condition to considering any such request by Lessee, require that
Lessee deposit with Lessor an amount of money (in addition to the Security
Deposit held under Paragraph 5) reasonably calculated by Lessor to represent
the cost Lessor will incur in considering and responding to Lessee's request.
Any unused portion of said deposit shall be refunded to Lessee without
interest. Lessor's consent to any act, assignment of this Lease or subletting
of the Premises by Lessee shall not constitute an acknowledgement that no
Default or Breach by Lessee of this Lease exists, nor shall such consent be
deemed a waiver of any then existing Default or Breach, except as may be
otherwise specifically stated in writing by Lessor at the time of such
consent.
(b) All conditions to Lessor's consent authorized by this
Lease are acknowledged by Lessee as being reasonable. The failure to specify
herein any particular condition to Lessor's consent shall not preclude the
impositions by Lessor at the time of consent of such further or other
conditions as are then reasonable with reference to the particular matter for
which consent is being given.
37. GUARANTOR.
37.1 FORM OF GUARANTY. If there are to be any Guarantors of this
Lease per Paragraph 1.11, the form of the guaranty to be executed by each
such Guarantor shall be in the form most recently published by the American
Industrial Real Estate Association, and each such Guarantor shall have the
same obligations as Lessee under this lease, including but not limited to the
obligation to provide the Tenancy Statement and information required in
Paragraph 16.
MULTI-TENANT--GROSS
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<PAGE>
37.2 ADDITIONAL OBLIGATIONS OF GUARANTOR. It shall constitute a
Default of the Lessee under this Lease if any such Guarantor fails or
refuses, upon reasonable request by Lessor to give: (a) evidence of the due
execution of the guaranty called for by this Lease, including the authority
of the Guarantor (and of the party signing on Guarantor's behalf) to obligate
such Guarantor on said guaranty, and resolution of its board of directors
authorizing the making of such guaranty, together with a certificate of
incumbency showing the signatures of the persons authorized to sign on its
behalf, (b) current financial statements of Guarantor as may from time to
time be requested by Lessor, (c) a Tenancy Statement, or (d) written
confirmation that the guaranty is still in effect.
38. QUIET POSSESSION. Upon payment by Lessee of the rent for the
Premises and the performance of all of the covenants, conditions and
provisions on Lessee's part to be observed and performed under this Lease,
Lessee shall have quiet possession of the Premises for the entire term hereof
subject to all of the provisions of this Lease.
39. OPTIONS.
39.1 DEFINITION. As used in this Lease, the word "OPTION" has the
following meaning: (a) the right to extend the term of this Lease or to renew
this Lease or to extend or renew any lease that Lessee has on other property
of Lessor; (b) the right of first refusal to lease the Premises or the right
of first offer to lease the Premises or the right of first refusal to lease
other property of Lessor or the right of first offer to lease other property
of Lessor; (c) the right to purchase the Premises, or the right of first
refusal to purchase the Premises, or the right of first offer to purchase the
Premises, or the right to purchase other property of Lessor, or the right of
first refusal to purchase other property of Lessor, or the right of first
offer to purchase other property of Lessor.
39.2 OPTIONS PERSONAL TO ORIGINAL LESSEE. Each Option granted to
Lessee in this Lease is personal to the original Lessee named in Paragraph
1.1 hereof, and cannot be voluntarily or involuntarily assigned or exercised
by any person or entity other than said original Lessee while the original
Lessee is in full and actual possession of the Premises and without the
intention of thereafter assigning or subletting. The Options, if any, herein
granted to Lessee are not assignable, either as a part of an assignment of
this Lease or separately or apart therefrom, and no Option may be separated
from this Lease in any manner, by reservation or otherwise.
39.3 MULTIPLE OPTIONS. In the event that Lessee has any multiple
Options to extend or renew this Lease, a later option cannot be exercised
unless the prior Options to extend or renew this Lease have been validly
exercised.
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary: (i)
during the period commencing with the giving of any notice of Default under
Paragraph 13.1 and continuing until the noticed Default is cured, or (ii)
during the period of time any monetary obligation due Lessor from Lessee is
unpaid (without regard to whether notice thereof is given Lessee), or (iii)
during the time Lessee is in Breach of this Lease, or (iv) in the event that
Lessor has given to Lessee three (3) or more notices of separate Defaults
under Paragraph 13.1 during the twelve (12) month period immediately
preceding the exercise of the Option, whether or not the Defaults are cured.
(b) The period of time within which an Option may be
exercised shall not be extended or enlarged by reason of Lessee's inability
to exercise an Option because of the provisions of Paragraph 39.4(a)
(c) All rights of Lessee under the provisions of an Option
shall terminate and be of no further force or effect, notwithstanding
Lessee's due and timely exercise of the Option, if, after such exercise and
during the term of this Lease, (i) Lessee fails to pay to Lessor a monetary
obligation of Lessee for a period of thirty (30) days after such obligation
becomes due (without any necessity of Lessor to give notice thereof to
Lessee), or (ii) Lessor gives to Lessee three (3) or more notices of separate
Defaults under Paragraph 13.1 during any twelve (12) month period, whether or
not the Defaults are cured, or (iii) if Lessee commits a Breach of this
Lease.
40. RULES AND REGULATIONS. Lessee agrees that it will abide by, and keep
and observe all reasonable rules and regulations ("Rules and Regulations")
which Lessor may make from time to time for the management, safety, care, and
cleanliness of the grounds, the parking and unloading of vehicles and the
preservation of good order, as well as for the convenience of other
occupants or tenants of the Building and the Industrial Center and their
invitees.
41. SECURITY MEASURES. Lessee hereby acknowledges that the rental
payable to Lessor hereunder does not include the cost of guard service or
other security measures, and that Lessor shall have no obligation whatsoever
to provide same. Lessee assumes all responsibility for the protection of the
Premises, Lessee, its agents and invitees and their property from the acts of
third parties.
42. RESERVATIONS. Lessor reserves the right, from time to time, to
grant, without the consent or joinder of Lessee, such easements, rights of
way, utility raceways, and dedications that Lessor deems necessary, and to
cause the recordation of parcel maps and restrictions, so long as such
easements, rights of way, utility raceways, dedications, maps and
restrictions do not reasonably interfere with the use of the Premises by
Lessee. Lessee agrees to sign any documents reasonably requested by Lessor to
effectuate any such easement rights, dedication, map or restrictions.
43. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to
any amount or sum of money to be paid by one Party to the other under the
provisions hereof, the Party against whom the obligation to pay the money is
asserted shall have the right to make payment "under protest" and such
payment shall not be regarded as a voluntary payment and there shall survive
the right on the part of said Party to institute suit for recovery of such
sum. If it shall be adjudged that there was no legal obligation on the part
of said Party to pay such sum or any part thereof, said Party shall be
entitled to recover such sum or so much thereof as it was not legally
required to pay under the provisions of this Lease.
44. AUTHORITY. If either Party is a corporation, trust, or general or
limited partnership, each individual executing this Lease on behalf of such
entity represents and warrants that he or she is duly authorized to execute
and deliver this Lease on its behalf. If Lessee is a corporation, trust or
partnership, Lessee shall, within thirty (30) days after request by Lessor,
deliver to Lessor evidence satisfactory to Lessor of such authority.
45. CONFLICT. Any conflict between the printed provisions of this Lease
and the typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions.
46. OFFER. Preparation of this Lease by either Lessor or Lessee or
Lessor's agent or Lessee's agent and submission of same to Lessee or Lessor
shall not be deemed an offer to lease. This Lease is not intended to be
binding until executed and delivered by all Parties hereto.
47. AMENDMENTS. This Lease may be modified only in writing, signed by
the parties in interest at the time of the modification. The Parties shall
amend this Lease from time to time to reflect any adjustments that are made
to the Base Rent or other rent payable under this Lease. As long as they do
not materially change Lessee's obligations hereunder, Lessee agrees to make
such reasonable non-monetary modifications to this Lease as may be reasonably
required by an institutional insurance company or pension plan Lender in
connection with the obtaining of normal financing or refinancing of the
property of which the Premises are a part.
48. MULTIPLE PARTIES. Except as otherwise expressly provided herein, if
more than one person or entity is named herein as either Lessor or Lessee,
the obligations of such multiple parties shall be the joint and several
responsibility of all persons or entities named herein as such Lessor or
Lessee.
INITIALS: [ILLEGIBLE]
----------------
MULTI-TENANT--GROSS
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-10-
<PAGE>
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM
AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY
REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH
RESPECT TO THE PREMISES.
IF THIS LEASE HAS BEEN FILLED IN, IT HAS BEEN PREPARED FOR YOUR ATTORNEY'S
REVIEW AND APPROVAL. FURTHER, EXPERTS SHOULD BE CONSULTED TO EVALUATE THE
CONDITION OF THE PROPERTY FOR THE POSSIBLE PRESENCE OF ASBESTOS,
UNDERGROUND STORAGE TANKS OR HAZARDOUS SUBSTANCES. NO REPRESENTATION OR
RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
OR BY THE REAL ESTATE BROKERS OR THEIR CONTRACTORS, AGENTS OR EMPLOYEES AS
TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE
OR THE TRANSACTION TO WHICH IT RELATES; THE PARTIES SHALL RELY SOLELY UPON
THE ADVICE OF THEIR OWN COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF
THIS LEASE. IF THE SUBJECT PROPERTY IS IN A STATE OTHER THAN CALIFORNIA, AN
ATTORNEY FROM THE STATE WHERE THE PROPERTY IS LOCATED SHOULD BE CONSULTED.
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
<TABLE>
<S> <C>
Executed at: Executed at:
-------------------------------------- -------------------------------------
on: 4/9/99 on: 4/9/99
---------------------------------------------- ----------------------------------------------
By LESSOR: By LESSEE:
Thornmint I ImageWare Software, Inc.
- ------------------------------------------------- -------------------------------------------------
a California Limited Partnership
- ------------------------------------------------- -------------------------------------------------
By: David C. Price By: /s/ [ILLEGIBLE]
---------------------------------------------- ----------------------------------------------
Name Printed: /s/ David C. Price Name Printed: Wayne Wetherell
------------------------------------- -------------------------------------
Title: General Partner Title: VP & CFO
------------------------------------------- -------------------------------------------
By: By:
---------------------------------------------- ----------------------------------------------
Name Printed: Name Printed:
------------------------------------- -------------------------------------
Title: Title:
------------------------------------------- -------------------------------------------
Address: c/o Price Industries Address:
----------------------------------------- -----------------------------------------
10883 Thornmint Road
- ------------------------------------------------- -------------------------------------------------
Telephone: (619) 673-4451 Telephone: (619) 673-8600
------------------------------- -------------------------------
Facsimile: (619) 673-4277 Facsimile: (619) 673-0291
------------------------------- -------------------------------
</TABLE>
NOTE: The forms are often modified to meet changing requirements of law and
needs of the industry. Always write or call to make sure you are
utilizing the most current form: AMERICAN INDUSTRIAL REAL ESTATE
ASSOCIATION, 700 South Flower Street, Suite 600, Los Angeles, CA
90017. (213) 687-8777.
INITIALS: [ILLEGIBLE]
-------------
MULTI-TENANT--GROSS
- -C- American Industrial Real Estate Association 1993
-11-
<PAGE>
ADDENDUM NO.1
THIS ADDENDUM NO.1 TO THAT CERTAIN STANDARD INDUSTRIAL/COMMERCIAL
MULTI-TENANT LEASE-GROSS JUNE 9, 1998 BY AND BETWEEN THORNMINT I, A
CALIFORNIA LIMITED PARTNERSHIP, HEREINAFTER REFERRED TO AS ("LESSOR"),
AND IMAGEWARE SOFTWARE, INC., HEREINAFTER REFERRED TO AS ("LESSEE"),
FOR THE PROPERTY COMMONLY KNOWN AS 10883 THORNMINT ROAD, CITY OF
SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA.
- -------------------------------------------------------------------------------
Page 1 of 4 July 6, 1998
49. SQUARE FOOTAGE:
This 16,020 square feet shall be recalculated and all numbers shall change
accordingly in this Lease and Addendum to include the square footage to be
added for the additional staging area, truck door and side door adjacent
to the southeast side of the Premises.
50. COMMENCEMENT:
The Lease shall commence upon substantial completion of Tenant
Improvements currently estimated to be August 1, 1998. Lessee also
acknowledges that the staging area referenced above shall occur while
Lessee is in occupancy of the Premises and after the Commencement Date.
Completion of this staging area is estimated to be approximately three (3)
months after execution of the Lease by the Lessee and Lessor, subject to
issues that are within Lessor's control.
51. BASE RENTAL RATE SCHEDULE:
Months 01-12 $21,306.60
Months 13-24 $22,158.86
Months 25-36 $23,045.22
Months 37-48 $23,967.03
Months 49-60 $24,925.71
The above rental rate schedule is net of Lessee's separately submetered
electricity and janitorial services to the Premises and shall include all
project Operating Expenses up to the Base Year amount.
52. UTILITIES:
Lessee shall pay its pro rata share of electricity provided to the
Premises as billed by Lessor. Lessee's pro rata share shall be determined
by the Lessor periodically reading the electric submeter to be installed
by Lessor. Lessor shall calculate Lessee's pro rata share by charging
Lessee their mathematical proportion of the kilowatt hours used (as read
on the new submeter) in relation to the total number of kilowatt hours on
the main meter. Lessor shall charge Lessee based on actual costs billed
by the service provider. Lessor shall not profit or charge a fee for this
service. Lessee shall have reasonable inspection of bills and submeters.
Bills shall be submitted accordingly by Lessor to Lessee upon request from
Lessee.
53. OPERATING EXPENSES:
Not withstanding anything contained in the Lease, Lessee shall pay its
proportionate share of Operating Expenses associated with the Premises and
the project above the 1998 Base Year. Operating Expenses shall include,
but not be limited to, the real estate taxes, common area maintenance
expenses, insurance, and all Operating Expenses under 4.2 of the Lease.
These expenses are more thoroughly defined in Section 4.2 of the Lease.
54. OPERATING HOURS:
Lessee may utilize the HVAC system during typical business hours, not to
exceed sixty (60) hours per week. Lessee shall pay their own separately
submetered electricity for such usage. Lessor shall maintain HVAC service
contracts as part of the project Operating Expenses. The foregoing will
not restrict Lessee's opportunity to access the Premises seven (7) days a
week, twenty-four (24) hours a day. Lessee reserves the right, in the
future, if necessary, to install a supplemental air conditioning unit for
after hours usage, with Lessor's reasonable approval, at Lessee's cost.
Said air conditioning unit shall be at a location mutually acceptable
between Lessor and Lessee.
<PAGE>
ADDENDUM NO.1
THIS ADDENDUM NO.1 TO THAT CERTAIN STANDARD INDUSTRIAL/COMMERCIAL
MULTI-TENANT LEASE-GROSS JUNE 9, 1998 BY AND BETWEEN THORNMINT I, A
CALIFORNIA LIMITED PARTNERSHIP, HEREINAFTER REFERRED TO AS ("LESSOR"),
AND IMAGEWARE SOFTWARE, INC., HEREINAFTER REFERRED TO AS ("LESSEE"),
FOR THE PROPERTY COMMONLY KNOWN AS 10883 THORNMINT ROAD, CITY OF
SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA.
- -------------------------------------------------------------------------------
Page 2 of 4 July 6, 1998
55. TENANT IMPROVEMENTS:
Lessor shall provide Tenant Improvement Allowance up to Two and No/100ths
($2.00) Dollars per rentable square foot ($32,040.00) for the cost of
tenant improvement construction and all related fees and expenses. Lessee
shall pay any and all additional costs in excess of the Tenant Improvement
Allowance. In no event shall Lessee receive a credit for any unused
portion of this Tenant Improvement Allowance.
56. REAR SERVICE AREA/LOADING DOOR:
Lessor shall, in the area to the southeast of the current Premises,
currently a portion of the adjacent warehouse (to be further defined on a
future Exhibit), create a loading truck door and landing area for Lessee
to operate their forklift/lift device. Lessor shall complete mutually
acceptable improvements to include, but not be limited to (and to be
further defined by mutually acceptable plans) a smaller truck door, a
demising wall separating the Premises from the current warehouse, install
an additional double door and create additional upstairs access. The
area shall be approximately 13 feet by 30 feet, and all rents will change
accordingly to account for the addition of this new square footage. The
gross per square foot rent on this additional square footage shall be
$.85 per square foot, net of Lessee's janitorial service and electricity.
Lessor's maximum contribution to the above referenced improvements shall
be Twenty-Seven Thousand Five Hundred and No/100ths ($27,500.00) Dollars.
In no event shall Lessee receive a credit for any unused portion of this
Twenty-Seven Thousand Five Hundred and No/100ths ($27,500.00) Dollars.
57. CONSTRUCTION:
Lessor shall utilize Lessor's contractor and shall not charge any
additional fees for Lessor's profit. The contractor's supervision and
profit shall be at market rate. Lessor shall not impose any Lessor
charge/profit, for construction management in connection with the
construction of the Tenant Improvements which would result in a deduction
from the Tenant Improvement Allowance.
58. ARCHITECT:
Lessor is expected to hire an architect in order to properly design the
staging area as described above. The cost for such service shall be
deducted as part of the Tenant Improvement Allowance.
59. SIGNAGE:
Lessee shall be allowed to install signage adjacent to Lessee's main
suite entrance and monument signage at Lessee's sole cost and expense.
The cost associated with the purchase, installation, maintenance and
eventual removal of such signage shall be borne by Lessee. All signage
shall conform to all zoning and CC&R's and Lessor shall have reasonable
review and approval rights of Lessee signage.
60. PARKING:
Lessee will have common usage of the forty-eight (48) parking spaces in
front of the building with any other lessee in the project. Such parking
spaces shall be free for the Term of the Lease and Lessee, with Lessor's
approval, may designate four (4) spaces for common visitor parking with
a mutually acceptable location between Lessor and Lessee.
61. BROKERAGE COMMISSION:
In addition to what is outlined in Section 1.10(b) of the Lease, Lessor
shall agree to pay Irving Hughes Group four (4%) percent of the aggregate
rental for years one (1) through five (5). Such commission shall be paid
by Lessor fifty (50%) percent upon mutual Lease execution and fifty (50%)
percent upon commencement of Lease.
<PAGE>
ADDENDUM NO.1
THIS ADDENDUM NO.1 TO THAT CERTAIN STANDARD INDUSTRIAL/COMMERCIAL
MULTI-TENANT LEASE-GROSS JUNE 9, 1998 BY AND BETWEEN THORNMINT I, A
CALIFORNIA LIMITED PARTNERSHIP, HEREINAFTER REFERRED TO AS ("LESSOR"),
AND IMAGEWARE SOFTWARE, INC., HEREINAFTER REFERRED TO AS ("LESSEE"),
FOR THE PROPERTY COMMONLY KNOWN AS 10883 THORNMINT ROAD, CITY OF
SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA.
- -------------------------------------------------------------------------------
Page 3 of 4 July 6, 1998
62. LETTER OF CREDIT
Lessee shall provide Lessor additional security for the Lease in the form
of a letter of credit (the "LC"), issued by a bank acceptable to Lessor
with offices located in San Diego County, California. Such LC shall be on
behalf of Lessor, to be drawn down by Lessor in the event of a default of
the Lease by Lessee. The LC amount shall be for One Hundred Fifty
Thousand and No/100ths ($150,000.00) Dollars and shall automatically
reduce by twenty percent (20%) on each annual anniversary of the Lease
Commencement Date. From and after the third (3rd) anniversary of the
Lease Commencement Date, Lessor shall surrender the LC, provided Lessee,
by its current year Audited Consolidated Financial Statements, has a net
worth of not less than Four Million and No/100ths ($4,000,000.00) Dollars,
Current Assets to Current Liabilities ratio of not less than 2:1 (subject
to adjustments approved by Lessee's outside auditors, CPA firm, currently
Coopers and Lybrand or any other recognized CPA firm to Lessor. The
current ratio calculation shall exclude deferred revenues and advance
billings, which are considered not a cash liability, and are unique to
Lessee's maintenance contract and contract billings), and provided that
there have been no uncured defaults at any time during the Lease.
63. EARLY POSSESSION -- ARTICLE 3.2 OF LEASE
Lessee may make Tenant Improvements, install trade fixtures and install
network cabling and communications equipment prior to the commencement
date without paying rent on the Premises as long as they are not operating
their business and Lessor is given reasonable prior notice of the times
they will be working in the space. Additionally, Lessee shall have a
representative on site with any subcontractors for supervision purposes.
64. BASE YEAR (DEFINED AS 1998) -- ARTICLE 4.2 OF LEASE
Such Base Year is defined as the actual Operating Expenses for the
calendar year 1998.
65. COMMON AREA OPERATING EXPENSES -- ARTICLE 4.2(d) OF LEASE
Should any operating expense for the property exceed Five Thousand and
No/100ths ($5,000) Dollars on any single item or issue, Lessor shall
fully amortize this expense over its useful life prior to including the
appropriate amount in the Operating Expenses. The portion of the annual
amortization shall be included in the Operating Expenses for that year
and subsequent years of its useful life.
66. LESSOR'S OBLIGATIONS -- ARTICLE 7.2 OF LEASE
Lessor, at Lessor's sole cost, shall maintain all structural components
of the building including structural walls, foundation and underground
utilities.
67. LESSOR'S CONSENT REQUIRED -- ARTICLE 12.1(a) OF LEASE
Such consent shall not be reasonably withheld or delayed by Lessor.
68. ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING -- ARTICLE
12.3(a) OF LEASE
Insert the following at the beginning of Paragraph 12.3(a)
"After deducting Lessee's reasonable actual costs of subleasing including
commissions, ..."
69. REPRESENTATIONS AND WARRANTIES -- ARTICLE 15.4 OF LEASE
Lessee shall indemnify Lessor for any claims by third parties as it
relates to additional claims for commissions.
<PAGE>
EXHIBIT "A"
[SITE MAP]
<PAGE>
ADDENDUM NO.1
THIS ADDENDUM NO.1 TO THAT CERTAIN STANDARD INDUSTRIAL/COMMERCIAL
MULTI-TENANT LEASE-GROSS JUNE 9, 1998 BY AND BETWEEN THORNMINT I, A
CALIFORNIA LIMITED PARTNERSHIP, HEREINAFTER REFERRED TO AS ("LESSOR"),
AND IMAGEWARE SOFTWARE, INC., HEREINAFTER REFERRED TO AS ("LESSEE"),
FOR THE PROPERTY COMMONLY KNOWN AS 10883 THORNMINT ROAD, CITY OF
SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA.
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Page 4 of 4 July 6, 1998
70. LOCKS
Lessor shall permit Lessee the right to change locks within, and to their
Premises, provided the costs are at Lessee's sole cost and a complete set
of new keys are provided to the Lessor for the exterior doors, for
non-business hours security and fire protection services.
BROKER DISCLOSURE: The parties hereby expressly acknowledge that Broker has
made no independent determination or investigation regarding the following:
present or future use or zoning of the property; environmental matters
affecting the property; the condition of the property including, but not limited
to, structural, mechanical, and soils conditions as well as issues surrounding
hazardous wastes or substances; violations of the Occupational Safety and Health
Act or any other federal, state, county or municipal laws, ordinances, or
statutes; measurements of land and/or buildings. Lessee agrees to make its own
investigation and determination regarding such items.
Owners or tenants of real property may be subject to the Americans with
Disabilities Act (ADA), a federal law codified at 42 USC Section 12101 et seq.
Among other requirements of the ADA that could apply to the property, Title III
of the Act requires owners and tenants of "public accommodations" to remove
barriers to access by disabled persons and provide auxiliary aids and services
for hearing, vision, or speech impaired persons. The regulations under Title
III of the ADA are codified at 28 CFR Part 36. Broker recommends that both
Landlord and Tenant review the ADA and the regulations to determine if this law
would apply to them and the nature of the requirements. These are legal issues.
The parties are responsible for conducting their own independent investigation
of these issues.
Compliance with Laws: The parties hereto agree to comply with all applicable
federal, state, and local laws, regulations, codes, ordinances, and
administrative orders having jurisdiction over the parties, the property, or the
subject matter of this document including, but not limited to, the 1964 Civil
Rights Act and all amendments thereto, the Foreign Investment in Real Property
Tax Act, the Comprehensive Environmental Response Compensation and Liability
Act, and The Americans With Disabilities Act.
LESSOR: LESSEE:
Thornmint I ImageWare Software, Inc.
a California Limited Partnership
By: /s/ David C. Price By: /s/ Wayne Wetherell
-------------------------- --------------------------------
Date: 4/9/99 Date: 4/9/99
-------------------------- --------------------------------
<PAGE>
EXHIBIT "B"
(FIRST FLOOR)
[FLOOR PLAN]
<PAGE>
EXHIBIT "B"
(SECOND FLOOR)
[FLOOR PLAN]
<PAGE>
EXHIBIT "C"
[LOGO]
FAX COVER LETTER
DATE: 6/9/98
--------------------------------------------------
TO: Jeb Bakke
--------------------------------------------------
COMPANY: CB COMMERCIAL
--------------------------------------------------
RE: Thornmint
--------------------------------------------------
FAX #: 546-3985
--------------------------------------------------
FROM: Michele Arnold-Kush
--------------------------------------------------
MESSAGE: Jeb,
The square footage calculations we determined from
our field measurements are as follows:
Vacant space: 1st flr. 6,076.08 u.s.f.
2nd flr. 9,545.54 u.s.f.
---------------
Total 15,621.62 u.s.f.
1st flr occupied space: 3,408.85 u.s.f.
Core factor: This only includes 1st floor lobby,
stairs have been included in 2nd floor
tenant space. 1.0255
Total rentable vacant space is 16,020 r.s.f.
Total rentable occupied is 3,498 r.s.f.
c.c. David Price - Thornmint I Partnership
3978 SORRENTO
VALLEY BLVD. TOTAL PAGES, INCLUDING COVER LETTER: 1
S U I T E K
SAN DIEGO
CALIFORNIA 92121
TEL: 619-457-6860
FAX: 619-457-6862
<PAGE>
EXHIBIT "D"
RULES AND REGULATIONS
1. No sign, placard, pictures, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside
or inside of the Building without the written consent of Lessor first had
and obtained and Lessor shall have the right to remove any such sign,
placard, picture, advertisement, name or notice without notice to and at
the expense of Lessee.
All approved signs or lettering on doors shall be printed, painted, affixed
or inscribed at the expense of Lessee by a person approved by Lessor
outside the Premises; provided, however, that Lessor may furnish and
install a Building standard window covering at all exterior windows.
Lessee shall not, without prior written consent of Lessor, cause or
otherwise sunscreen any window.
2. The sidewalks, halls, passages, exists, entrances, elevators and stairways
shall not be obstructed by any of the Lessees or used by them for any
purpose other than for ingress and egress from their respective Premises.
3. Lessee shall not alter any lock or install any new or additional locks or
any bolts on any doors or windows of the Premises. Lessee shall be
permitted to change the locks on the Premises provided they provide a copy
of the new keys to Lessor. Such changes are at Lessee's expense.
4. The toilet rooms, urinals, wash bowls and other apparatus shall not be used
for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein and the
expense of any breakage, stoppage or damage resulting from the violation of
the rule shall be borne by the Lessee who, or whose employees or invitees
shall have caused it.
5. Lessee shall not overload the floor of the Premises or in any way deface
the Premises or any part thereof.
6. No furniture, freight or equipment of any kind shall be brought into the
Building without the prior notice to Lessor and all moving of the same
into or out of the Building shall be done at such time and in such manner
as Lessor shall designate. Lessor shall have the right to prescribe the
weight, size and position of all safes and other heavy equipment brought
into the Building and also the times and manner of moving the same in and
out of the Building. Safes and other heavy objects shall, if considered
necessary by Lessor, stand on supports of such thickness as is necessary
to properly distribute the weight. Lessor will not be responsible for loss
of or damage to any such safe or property from any cause and all damage
done to the Building by moving or maintaining any such safe or other
property shall be repaired at the expense of Lessee.
7. Lessee shall not use, keep or permit to be used or kept any foul or
noxious gas or substances in the Premises, or permit or suffer the
Premises to be occupied or used in a manner offensive or objectionable
to the Lessor or other occupants of the Building by reason of noise,
odors and/or vibrations, or interfere in any way with other Lessees or
those having business therein, nor shall any animals or birds be brought
in or kept in or about the Premises or the Building.
8. No commercial cooking shall be done or permitted by any Lessee on the
Premises, nor shall the Premises be used for washing clothes, for lodging
or for any improper, objectionable or immoral purposes. Lessee shall be
permitted use of a microwave, refrigerator, and coffee machine on the
Premises.
9. Lessee shall not use or keep in the Premises or the Building any kerosene,
gasoline or inflammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied by Lessor.
10. Lessor will direct electricians as to where and how telephone and telegraph
wires are to be introduced. No boring or cutting for wires will be allowed
without the consent of the Lessor. The location of telephones, call boxes
and other office equipment affixed to the Premises shall be subject to the
approval of Lessor, Lessor's approval shall not be unreasonably withheld
or delayed.
11. On Saturdays, Sundays and legal holidays, and on other days between the
hours of 6:00 p.m. and 8:00 a.m. the following day, access to the Building
or to the halls, corridors, elevators or stairways in the Building, or to
the Premises may be refused unless the person seeking access is known to
the person or employee of the Building in charge and has a pass or is
properly identified. The Lessor shall in no case be liable for damages
for any error with regard to the admission to or exclusion from the
Building of any person. In case of invasion, mob, riot, public excitement,
or other commotion, the Lessor reserves the right to prevent access to the
Building during the continuance of the same by closing of the doors or
otherwise, for the safety of the Lessees and protection of property in the
Building and the Building.
12. Lessor reserves the right to exclude or expel from the Building any person
who, in the judgment of Lessor, is intoxicated or under the influence of
liquor or drugs, or who shall in any manner do any act in violation of any
of the rules and regulations of the Building.
13.
14. Lessor shall have the right, exercisable with notice and without liability
to Lessee, to change the name and street address of the Building of which
the Premises are a part. This right shall not be exercised by Lessor
unless required by County or other municipality or agencies that have
jurisdiction.
15. Lessee shall not disturb, solicit, or canvass any occupant of the Building
and shall cooperate to prevent same.
16. Without the written consent of Lessor, Lessee shall not use the name of
the Building in connection with or in promoting or advertising the
business of Lessee except as Lessee's address.
17. Lessor shall have the right to control and operate the public portions of
the Building, and the public facilities, and heating and air conditioning,
as well as facilities furnished for the common use of the Lessees, in such
manner as it deems best for the benefit of the Lessees generally.
18. All entrance doors in the Premises shall be left locked when the Premises
are not in use, and all doors opening to public corridors shall be kept
closed except for normal ingress and egress from the Premises.
/s/ [ILLEGIBLE]
- ----------------- -----------------
Lessor's Initials Lessee's Initials
<PAGE>
Exhibit 10.16
MOU - MEMORANDUM OF UNDERSTANDING
Between, on the one hand:
SIEMENS BUSINESS SERVICES S.A.,
CHAUSSEE DE CHARLEROI 116
B-1060 BRUSSELS
BELGIUM
represented by:
FRANK GRONET,
PORTFOLIO MANAGER,
hereinafter referred to as "Siemens"
and, on the other:
IMAGEWARE SOFTWARE, INC
10883 THORNMINT ROAD
SAN DIEGO, CA 92127
USA
represented by:
PATRICIA RYAN
hereinafter referred to as IWS
PURPOSE OF THE AGREEMENT:
Cooperation between the parties to prepare and send in a bid and the
execution of the project resulting therefrom, in response to a call for
offers for PHOTO LIBRARY PROJECT (PDF), which is to be/will be put out by
BELGIAN POLICE (Gendarmerie in French) and for which the date of submission
is 30/09/99.
- ------------------------------------------------------------------------------
Memorandum of Understanding MOU V2.doc page 1/4
<PAGE>
27/09/99
- ------------------------------------------------------------------------------
THE PARTIES AGREE AS FOLLOWS:
1. RESPONSIBILITIES
1. The responsibilities are defined as follows:
- Siemens shall be the principal contractor.
- IWS shall operate as Sub-Contractor to Siemens.
2. Each of the parties shall carry its own share of the costs involved in
drawing up and submitting the offer. Each party shall, however, at its
own expense, make available to the other party's personnel who are
working jointly on the offer adequate space for offices, infrastructure
and such facilities as may be properly regarded as being a necessary part
of office equipment.
3. Regardless of any provisions or conditions elsewhere in this
document, neither of the parties shall be held liable by and to the
other for any injury, whether direct or indirect, specific or general,
economic or moral, or any loss of income, without any limitation,
regardless of whether the other party has or has not been informed of
the probability of such injury or loss.
4. Siemens shall forward a copy of the significant pages of the call
for offers to IWS.
5. The parties acknowledge the importance of achieving the highest
possible level of compliance with the specifications given in the call
for offers. IWS shall make every reasonable and possible effort on the
commercial level to accept said call for offers and all the conditions
mentioned in it, including the operational specifications and legal
requirements.
6. The parties are aware of the importance of optimising the budgetary
implications of their contribution to the project and will,
consequently, make every effort to reduce costs and margins to enhance
the added value of their respective contributions to the solutions
proposed.
7. IWS shall forward to Siemens an offer and a project plan - for which
the specifications are given in an appendix - which contains a
description of his own contribution to the project, IWS shall submit his
final offer and project plan not later than a week before the deadline
set for the delivery of the submission to Belgian Police in compliance
with the provisions set out in the call for offers.
8. Before Belgian Police reaches a decision on the award of the
contract, a Quality Assurance agreement - of which a model is appended -
shall be signed between the two companies regarding the measures to be
taken into account to guarantee the level of quality required in the
execution of the project.
9. Siemens shall forward the submission to the Belgian Police, conduct
the negotiations for the award of the contract and, if it seems
necessary to them, invite the IWS also to attend the discussions.
10. The two companies shall sign an agreement on confidentiality and
intellectual property before the Belgian Police decides upon the award
of the contract, covering the manner of dealing with their respective
intellectual property rights over the information and the titles which
to be claimed by each party to the systems created by their development
work.
2. EXCLUSIVITY
Relations shall be non-exclusive, with each company retaining the
right to submit an alternative offer with other partners. However, to
avoid any undertaking which might involve a conflict of interest, both
parties agree to keep each other informed of any situation which might
involve other partners. Nevertheless, Siemens wants to be considered as
preferred partner i.e. full support of IWS in customer relations,
presenting Siemens as preferred partner to Belgian Police, better
prices,...
3. SERVICES
1. IWS shall offer the following types of services, taking account of
the conditions set out below:
a. the results of the services offered should comply with the
requirements specified by Belgian Police (in application of
clause 1.5). The services provided shall include a complete technical
- ------------------------------------------------------------------------------
Memorandum of Understanding MOU V2.doc page 2/4
<PAGE>
27/09/99
- ------------------------------------------------------------------------------
turn-key solution covering all the technical aspects of the PDF
project described in the tender (analyse, design, implementation,
installation, software delivery, maintenance). Siemens will be
responsible for the Project Manager and the customer relationship
as well as the hardware delivery and installation based on IWS
recommendations.
b. IWS shall supply these services as specified in the provisions and
conditions set out in the call for offers (in application of clause
1.5)(back-to-back condition).
c. IWS shall offer said services at competitive prices considering
Siemens as preferred partner.
2. IWS shall make available to Siemens all information which might
reasonably be required in the performance of the tasks to which they
contribute in preparing the offer.
3. IWS shall make available to Siemens the technical documents needed to
enable those of their staff concerned to carry out their tasks in the
preparation and dispatch of the submission (e.g. calculations of
performance and capacity).
4. EXCHANGE OF INFORMATION
The two companies shall exchange between themselves the technical and
commercial information needed to prepare the bid (e.g. performance,
calculations of capacity and prices). This also covers all possible
remarks (e.g. about performance, functions) needed to facilitate full
cover of the services and products requested by Belgian Police.
5. FROM THE TIME WHEN THE CONTRACT IS AWARDED TO SIEMENS AND IWS
1. Subject to the reservation that Siemens may terminate work on
preparing the bid in cooperation with IWS not more than 15 days after
Belgian Police has decided to entrust the project to Siemens, Siemens
and IWS shall sign a subcontracting contract. Said contract shall
refer to the call for offers, the final offer and the project plan
submitted by IWS to Siemens (in application of clause 1.7.) and any
new elements (jointly agreed) which emerge during the negotiations
with Belgian Police.
SBS reserves the right to terminate at any time the present M.O.U. by
written notice to IWS, whenever a new element arises that encumbers
the set going co-operation.
2. Definition of responsibilities in the project:
a. Siemens shall be responsible for the project as a whole. IWS
shall be responsible for the technical solution.
b. Siemens shall also be responsible for the following specific areas:
- Project Management for the undertaking as a whole.
- Maintenance for the hardware provided based on the IWS
recommendations;
- First level support of the project (to be defined).
c. IWS shall be responsible for the following specific areas:
- Project Leading for those technical parts of the project for
which it is responsible.
- Complete technical turn-key solution covering all the technical
aspects of the PDF project described in the tender (analyse,
design, implementation, installation, software delivery,
maintenance).
3. IWS agrees to deposit the Source Code of the software at a Belgian
Escrow agent, within 30 days after written notice by SBS, with copy to
the Escrow Agent of its election to have the Source Code deposited in
Escrow
6. THE CONTACTS AT EACH OF THE PARTNERS ARE:
for the IWS: Patricia Ryan
for Siemens: Frank Grognet
- ------------------------------------------------------------------------------
Memorandum of Understanding MOU V2.doc page 3/4
<PAGE>
27/09/99
- ------------------------------------------------------------------------------
7. APPENDICES
- English translation of the call for tender
- Quality Assurance agreement model
8. PERIOD OF VALIDITY
1. This Memorandum will remain in effect:
- until Siemens sends an order to IWS
- until the date when Belgian Police awards the contract if it is
not awarded to Siemens
- until the 01/04/2000 at the latest
- until Siemens decides to cancel the preparation of the bid in
cooperation with IWS.
2. The period of validity of this agreement can be extended by common
agreement.
9. LAWS APPLICABLE - JURISDICTION
1. This agreement is governed by Belgian law.
2. Except in the event the other party doesn't agree, any dispute
concerning the validity, the interpretation or the execution of the
present MOU shall be definitively settled in accordance with the rules
of Cepani, by three arbitrators appointed in accordance with these
rules. The place or arbitration shall be Brussels. The language of
the proceedings shall be Dutch and/or English. The applicable law
shall be exclusively the Belgian Law. Besides the event of
arbitration, the Belgian courts are exclusively competent.
SIEMENS BUSINESS SERVICES S.A.. IMAGEWARE SOFTWARE, INC
/s/ Illegible /s/ Paul Devermann
Paul Devermann
Vice President
ImageWare Software
- ------------------------------------------------------------------------------
Memorandum of Understanding MOU V2.doc page 4/4
<PAGE>
SIEMENS BUSINESS SERVICES S.A./N.V. PROJECT "PROJECT NAME"
- ------------------------------------------------------------------------------
MODEL
QAA - QUALITY ASSURANCE AGREEMENT FOR SUBCONTRACTING
Appendix (B) to sub-contracting contract n (CONTRACT_NUMBER)
dated (CONTRACT_DATE):
BETWEEN Siemens Business Services s.a./n.v.
(hereinafter referred to as Siemens)
AND ImageWare Software
---------------------------------------
(hereinafter referred to as Sub-Contractor)
The Sub-Contractor agrees to apply all the quality assurance (QA) measures
mentioned below and to produce proof of their effective application to
Siemens on their request. Any divergence from the rules thus established
must be approved in writing by Siemens.
1. The Sub-Contractors quality system must comply with the requirements
of (OTHER STANDARD). The Sub-Contractor shall produce proof of such
compliance by submitting a certificate issued by an accredited body or
a formal declaration by the Sub-Contractor. In this latter case
Siemens shall be authorised to proceed to an evaluation of the quality
system installed by the Sub-Contractor to verify its compliance with
the standards required by ISO 9001.
2. By accepting this document, the Sub-Contractor confirms that the
activities involved in its execution shall be conducted according to a
specific Project Plan/Quality Assurance Plan developed for the project
concerned. Said PP/QAP shall also be presented in such a way as
comply on every point with the (SUB-CONTRACTOR'S QUALITY ASSURANCE
SYSTEM) for subsequent submission to Siemens for approval.
3. The Sub-Contractor agrees to appoint a representative (QAR) to be
responsible for quality assurance. It shall be his responsibility to
ensure the effective application of all measures having to do with
quality assurance. Said representative shall be granted all necessary
independence and authority to carry out this task.
4. The activities covered by the Offer are deemed to have been accepted
when the supplies it indicates have been furnished in the form
specified and accepted by Siemens and the Client. All reports of
errors or faults must consequently be closed out with the agreement of
all the parties concerned.
5. The supplies to be delivered are the property of Siemens and shall,
consequently, be so identified. The indications appearing in
identification marks affixed to all supplies shall include name,
version and, if appropriate, the identification given in the
description of the configuration of the group of supplies.
6. A certificate of compliance attesting that the supplies meet the
design specifications and contractual requirements, shall be attached
to supplies on delivery. Proof of such compliance shall be
substantiated by inspections and final tests.
7. The Sub-Contractor agrees to allow a representative of Siemens and/or
an authorised representative of the Client access to the premises
where the project is executed. In such case, said representatives
shall be given an opportunity to check the application of QA measures
and verify their practical efficacy. They shall be permitted to
participate in checks, trials and reviews.
[8. Siemens representatives may carry out acceptance tests of the group of
supplies. Consequently, it is advisable to prepare specifications for
such tests and submit them to Siemens for acceptance in compliance
with the deadlines set in the PP/QAP. Siemens shall give 10 notice of
the date of such acceptance tests. Reports on checks, trials and
final reviews and other relevant documents shall be submitted to
Siemens before acceptance tests begin.]
9. Clients shall accept supplies in the manner agreed between Siemens and
the Client. The Sub-Contractor agrees to draw up specifications for
said acceptance.
- ------------------------------------------------------------------------------
QUALITY ASSURANCE AGREEMENT QAA-E1D1.DOC PAGE 1/1
<PAGE>
TEAMING AGREEMENT
THIS AGREEMENT, made as of 11-5, 1998 by and between PRC Inc., a
corporation with a place of business at 1500 PRC Drive, McLean, Virginia,
22102, hereinafter referred to as PRC, and ImageWare Software, Inc., a
corporation with a place of business at 10833 Thornmint Road, San Diego, CA
92127, hereinafter referred to as Teammate.
WITNESSETH:
WHEREAS, the Las Vegas Metropolitan Police Department (LVMPD) has issued
a Request for Proposal (RFP #0501-98) for their POSITIVE IDENTIFICATION AND
INFORMATION MANAGEMENT SYSTEMS, hereinafter referred to as the Program; and
WHEREAS, the above parties each have unique capabilities which are
complementary and which are not independently available within either of
their respective companies; and
WHEREAS, the above parties wish to enter into this Agreement in order to
develop the best management and technical approach to the Program to be
procured by the LVMPD;
NOW, THEREFORE, the parties hereby agree as follows:
1. SCOPE OF EFFORT
(a) PROGRAM PROPOSAL AND MARKETING ACTIVITIES:
During the term of this Agreement, PRC as Prime Contractor
shall submit a proposal for the Program and will include Teammate as
subcontractor for its work as delineated in Exhibit A. Teammate shall use its
best efforts to assist PRC in submitting the proposal and securing the
Program through its endeavors in the areas of work described in the attached
Exhibit A as follows: Teammate will cooperate with PRC (i) to provide such
assistance as may be required during the pre-proposal, proposal and
post-proposal stages, (ii) to furnish proposal material including
manuscripts, graphic material and cost and pricing data backup information as
appropriate, (iii) to assure availability of management and technical
personnel, and (iv) to submit management, technical and cost proposal
materials and proposal clarifications within the time frames requested by
PRC. PRC will identify Teammate as a proposed subcontractor and contributor
to the proposal effort in both the proposal and in communications with the
LVMPD and identify the areas of work attributable to Teammate as set forth in
Exhibit A. PRC will keep Teammate informed of communications with the LVMPD
relating to the areas of work attributable to Teammate. It is understood that
PRC shall be the sole contact with the LVMPD in the performance of this
agreement.
1
<PAGE>
(b) PROGRAM PERFORMANCE ACTIVITIES
If PRC consummates a prime contract for the Program, PRC
will subcontract with Teammate that portion of the work as described in
Exhibit A, provided a reasonable subcontract may be negotiated, and provided
the LVMPD Contracting Officer approves or does not disapprove such a
subcontract. Immediately following award to PRC of the Program prime
contract, PRC and Teammate agree to commence good faith negotiations of a
subcontract which shall include: (i) required terms and conditions as are
contained in the prime contract, (ii) applicable statutes or regulations
required to be included in subcontracts and (iii) other terms and conditions
as may be mutually agreed upon. It is anticipated the subcontract type will
be FIRM FIXED PRICE or, as mutually agreed upon. In the event mutually agreed
upon contracting method, price, and terms and conditions cannot be negotiated
by the parties within a reasonable time, and in any event within three (3)
months from award of the prime contract to PRC, PRC shall have the right to
enter into subcontracts with other business entities for the performance of
work which was to have been covered by the above referenced subcontract; this
right is in addition to other rights PRC may have hereunder or under
applicable law and when exercising this right PRC shall be without further
obligation to Teammate.
2. EXCLUSIVE EFFORT
For the term of this agreement, PRC and Teammate mutually agree
that Teammate will team exclusively with PRC with regard to the Program, and
will not collaborate with any other business entity regarding this Program.
3. PROPRIETARY INFORMATION
The party receiving the information described below shall be
hereinafter referred to as the receiving party and the party furnishing the
information the transmitting party. The receiving party agrees to keep in
confidence and prevent the unauthorized disclosure to any person or persons
outside its organization, and agrees further not to use for a purpose other
than for which furnished (and then only with appropriate restrictions
governing its use), any and all data and information including all data and
information previously furnished by the transmitting party relating to the
subject areas of expertise of the transmitting party to which the Program
pertains. This includes all data and information which is designated in
writing, or by appropriate stamp or legend, by the transmitting party to be
of a proprietary nature. The receiving party shall not be liable for
unauthorized disclosure of any such data or information if the same:
(a) is in the public domain at the time it was disclosed; or
(b) is known to the receiving party at the time of receipt; or
(c) is disclosed inadvertently despite the exercise of the same
degree of care as the receiving party takes to preserve and safeguard its own
proprietary information, provided also that any person having access to such
information shall be advised of the contents of this Agreement; or
(d) is disclosed with a written approval of the transmitting
party; or
2
<PAGE>
(e) was independently developed by the receiving party; or
(f) becomes known to the receiving party from a source other than
the transmitting party who is legally entitled to such information without
breach of this Agreement; or
(g) was not identified in writing, or by application of the
appropriate identifying stamp or legend, as proprietary information subject
to this Agreement; or
(h) is disclosed more than (3) years after it was first received
under this Agreement.
Each party shall designate in writing the individual or individuals
authorized to receive proprietary information under this Agreement and either
party may change its designation by written notice to the other.
4. CLASSIFIED INFORMATION
To the extent the obligations of the parties hereunder require
the handling or the access to classified U.S. Government security
information, the same shall be subject to the requirements of the Department
of Defense, Industrial Security Manual for Safeguarding Classified
Information.
5. TERMINATION
This Agreement and all rights and duties hereunder, except those
under paragraph 3, above, cease and terminate upon the first to occur of the
following events:
(a) in the event PRC is awarded a prime contract for the
Program, the disapproval of the PRC subcontract to Teammate or direction by
the LVMPD to utilize a subcontract source other than Teammate for a
substantial portion of the work described in Exhibit A for the Program.
(b) the award of a prime contract for the Program to other than
PRC.
(c) the failure of the LVMPD to award a prime contract as
contemplated by this Agreement within two (2) years from the date hereof.
(d) mutual consent of both parties by execution of a recision
agreement.
(e) the expiration of two (2) years from the effective date of
this Agreement unless: (i) it is extended by mutual agreement of the parties,
or (ii) PRC obtains a prime contract as contemplated herein.
(f) the failure of the parties to consummate a subcontract
within three (3) months of the award of a prime contract as contemplated
herein.
3
<PAGE>
(g) the award of a subcontract to Teammate as contemplated by
this Agreement.
(h) PRC decides not to submit a proposal for the Program.
(i) during the term hereof it is determined that either party
is ineligible to receive an award (e.g. Consolidated List of Debarred,
Suspended and Ineligible Contractors or Conflict of Interest-FAR 9.505-3).
6. PATENTS AND INVENTIONS
During the performance of this Agreement, the following shall
apply with respect to patentable inventions:
(a) no license, express or implied, shall inure to the other
participating party under any trademark, patent or copyright, as a result of
such trademark, patent or copyright having now issued or hereafter being
granted to one of the parties for efforts or activities made exclusively by
its employees. It is understood that each party will use its best effort to
convey information to the other party which is clear of third party rights,
however, none of the information which may be submitted or exchanged by the
parties shall constitute any representation, warranty, assurance, guarantee
or inducement by either party to the other with respect to the unknown or
unasserted infringement of trademark, patents, copyrights or any right to
privacy, or other rights of third persons.
(b) rights to file patent applications and rights in, and
reporting of said inventions, applications and patents issued thereon in all
countries shall be subject to the provisions of the Patent Rights clause in
the LVMPD prime contract or subcontract, as the case may be, with the party
whose employee(s) solely made such invention.
(c) in the case of inventions made jointly by one or more
employees of both parties hereto, each party shall have an equal undivided
one-half interest in and to such joint inventions, as well as in and to
patent applications and patents thereon in all countries, subject to rights
conveyed to the LVMPD under the Patent Rights clause of the prime contract
with the LVMPD.
(d) in the case of such joint inventions, where both parties
wish to protect their rights therein, the right to file patent applications
in any country, subject, however, to the provisions of the said Patent Rights
clause of said prime contract, shall be determined by mutual agreement of the
parties. In the event the parties are unable to agree, such application(s)
shall be filed jointly.
(e) the expenses for preparing, filing, and prosecuting each
application, and for issue of the respective patent shall be borne by the
party which prepares and files the application. The other party shall
furnish the filing party or the LVMPD, as the case may be, with all
documents, or other assistance that may be necessary for the filing and
prosecution of each application at the expense of the filing party. In the
case of joint filing, each party shall bear its own expenses.
4
<PAGE>
(f) in the case of joint inventions where one party does not
wish to participate in the filing of a patent application, the party which
files the application shall, prior to filing, request the other party to
indicate whether it will agree to pay one-half of such fees and expenses of
filing. If, within sixty (60) days of receiving such request, the non-filing
party fails to assume in writing the obligation to pay its proportionate
share of such fees and expenses, or if either party subsequently fails to
continue such payments, the non-filing party shall after sixty (60) days of
demand for payment from the filing party, forfeit to the filing party its
share of the title to such application and payment, provided the filing party
continues its payments.
7. EXPENSES
Except as otherwise set forth herein, or as may be mutually
agreed by the parties, and except for the compensation which may be paid to
the parties in accordance with any such contracts and subcontracts, each
party shall bear all of its own expenses incurred in connection with the
Program referred to herein.
8. PUBLICITY
No publicity or advertising regarding any proposal or contract
under the Program or relating to this Agreement shall be released without
prior approval of PRC, except that this Agreement may be made known to the
LVMPD.
9. NEGATION OF FORMATION OF A BUSINESS ORGANIZATION
This Agreement shall not constitute, create, or in any way be
interpreted as a partnership, joint venture or formal business organization
of any kind.
10. ASSIGNMENTS
Neither party may assign or transfer its interest herein without
the prior written consent of the other. This approval requirement shall not
apply to the assignment to any successor corporation in the event of a merger
or consolidation. Any consent required shall not be unreasonably withheld.
11. COMPLIANCE WITH LAW
The parties shall comply with all applicable federal, state and
local laws and regulations including Executive Orders of the President of the
United States.
12. LIMITATION OF LIABILITY
Neither party shall be liable to the other for any indirect,
incidental, special or consequential damages, however caused, whether as a
consequence of the negligence of the one party or otherwise.
5
<PAGE>
13. SEVERABILITY
If any provision of this Agreement or part of such provision is
or becomes invalid or unenforceable, then the remaining provisions hereof
shall continue to be effective.
14. WAIVERS
No waiver by a party of any of its rights or remedies shall be
construed as a waiver by such party of any other rights or remedies that such
party may have under this Agreement.
15. DISPUTES
(a) GOOD-FAITH NEGOTIATIONS. If any dispute arises under this
agreement that is not settled promptly in the ordinary course of business,
the parties shall seek to resolve any such dispute between them, first, by
negotiating promptly with each other in good faith in face-to-face
negotiations. If the parties are unable to resolve the dispute within 20
business days (or such period as the parties shall otherwise agree) through
these face-to-face negotiations, then any such dispute shall be resolved in
the following manner.
(b) EXCLUDED CAUSES. If the only dispute relates to unpaid fees,
costs or other charges, the party owed the money may commence legal action in
court for outstanding moneys due under this Agreement.
(c) BINDING ALTERNATIVE DISPUTE RESOLUTION. Any remaining dispute
arising under this Agreement shall be resolved by using alternative dispute
resolution (ADR) procedures, which can hopefully avoid or reduce the acrimony
resulting from adversarial litigation. If the efforts through face-to-face
negotiations in paragraph 1, above, are not successful, the parties will
initiate a mini-trial (ADR) process with selection of a neutral advisor, who
will schedule a mini-trial to occur approximately 30 business days after the
selection of the neutral advisor. The neutral advisor will introduce an
impartial opinion approximately 15 business days after completion of the
mini-trial. Throughout the ADR process, the neutral will provide an element
of mediation with the goal of having the parties resolve the dispute without
issuance of the impartial opinion. However, if the parties do not reach
agreement, the impartial opinion rendered by the neutral advisor will be
binding and judgment upon that opinion may be entered in any court having
jurisdiction thereof. The parties may elect to use an arbitration/mediation
service which specializes in timely ADR, such as ENDISPUTE or the Judicial
Arbitration and Mediation Services, Inc. All expenses such as the cost of
the neutral advisor or the hearing facility will be shared equally.
16. ENTIRE AGREEMENT
This Agreement contains the entire Agreement between the
parties with respect to the Program and supersedes any previous
understanding, commitments, or agreement, oral or written. This Agreement
shall not be amended nor shall any waiver of any right hereunder be
effective, unless set forth in a document executed by duly authorized
representatives of both Teammate and PRC. The laws of the Commonwealth of
Virginia shall govern the validity, construction, scope and performance of
this Agreement.
6
<PAGE>
17. HIRING OF EMPLOYEES
During the period that this Agreement is in force and
throughout the period of performance of any resultant contract or subcontract
arrangements, including extensions or modifications thereto, the parties
hereto agree that neither shall solicit for employment, any technical or
professional employees of the other assigned to work on the
contract/subcontract, without the prior written agreement of the party whose
employee is being considered for employment.
IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be duly executed on the date noted above.
IMAGEWARE SOFTWARE, INC.
By /s/ S. James Miller, Jr.
----------------------------
Name S. James Miller, Jr.
----------------------------
Title Chairman and CEO
----------------------------
Date Nov. 9, 1998
----------------------------
PRC INC.
By [ILLEGIBLE]
----------------------------
Name David A. Capizzi
----------------------------
Title Vice President - Procurement
----------------------------
Date 11/9/98
----------------------------
7
<PAGE>
EXHIBIT "A"
STATEMENT OF WORK
FOR
IMAGEWARE SOFTWARE
This Exhibit A specifies the work share and roles and responsibilities
between PRC and ImageWare during the proposal and post award phases of the
Las Vegas Metropolitan Police Department Positive Identification and
Information Management System (LVMPD). As an exclusive subcontractor to PRC,
ImageWare agrees to provide the support specified herein to help PRC in
submitting a successful bid in response to the LVMPD solicitation. If
awarded the LVMPD contract, PRC agrees to negotiate in good faith, a
subcontract to include responsibility for the functional areas contained
herein.
1.0 PROPOSAL PHASE
During the proposal development phase, ImageWare will provide accurate and
timely response to PRC requests for information required for the LVMPD
proposal. Proposal support will include providing such input as, past
performance data, resumes, cost data, technical capabilities and designs,
management processes, practices, and procedure definitions,etc. If tasked by
PRC, ImageWare will complete specific writing assignments relevant to their
areas of expertise and work assignment areas. If tasked by PRC, ImageWare
will provide senior technical and management personnel to participate in key
proposal reviews such as the Blue Team and/or Red Team. ImageWare are
expected to participate in the proposal development activity to the maximum
extent possible, consistent with its work areas and assigned areas of lead
responsibility.
2.0 CONTRACT EXECUTION PHASE
As a core team member of PRC's LVMPD team, ImageWare will support the LVMPD
program with general expertise across the full spectrum of the program as
requested by PRC. Assuming a successful proposal, PRC agrees to allocate work
share to ImageWare as described in paragraphs 3.1. Additionally, PRC will
consider ImageWare participation in other tasks for which ImageWare is
interested and qualified.
3.1 AREAS OF RESPONSIBILITY
ImageWare will be assigned responsibility in the functional areas listed
below. These functional areas are based on the functional content of the
LVMPD RFP, and may be subject to change given final negotiation of the LVMPD
contract.
- - PHOTO ID CARD PRINTER SYSTEM: ImageWare shall provide the hardware and
software for the ID Card Printer System, which will generate the inmate ID
cards and user defined ID badges, as detailed in section 2.3.1.1.1 of the
LVMPD RFP.
- - BARCODE BRACELETS: ImageWare shall provide the capability of creating
barcode wristbands for use during the Booking Operations as detailed in
section 2.3.1.2.1 of the LVMPD RFP.
<PAGE>
- - MUGSHOT IDENTIFICATION FUNCTIONS: ImageWare shall provide an automated
on-line storage, access retrieval and update capability for digitized color
mugshot and photo images, as detailed in section 3.1.3.6 of the LVMPD RFP.
- - AUTOMATED FACIAL RECOGNITION SOFTWARE: ImageWare shall provide an optional
modular component, and automated facial recognition capability, that will
provide the capability to automatically compare surveillance photographs to
the photo mugshot database and to identify matching photographs in the
database as detailed in section 2.2.1 and 3.1.3.6 of the LVMPD RFP.
- - PHOTO IMAGE CAPTURE WORKSTATION: ImageWare shall provide the hardware and
software for the photo image capture workstation which shall be a standard
workstation with an integrated Photo Capture Subsystem, as detailed in
section 3.1.6.4.1 of the LVMPD RFP.
- - PHOTO CAPTURE SUBSYSTEM: ImageWare shall provide the hardware and software
components for the PhotoCapture Subsystem as detailed in section 3.1.6.12
of the LVMPD RFP.
- - MUGSHOT DISPLAY AND INVESTIGATIONS SOFTWARE PACKAGES: ImageWare shall
provide all of the Record Retrieval & Display Capabilities detailed in
section 3.1.7.1.2 of the LVMPD RFP. ImageWare shall provide an Mugshot
Investigations Software Package which will provide special purpose
interactive search and mugshot analysis tools as detailed in section
3.1.7.1.3 of the LVMPD RFP.
- - ImageWare shall also provide any required support in documentation,
training, development, installation, and maintenance services for those
areas of responsibility detailed above.
<PAGE>
MEMORANDUM OF UNDERSTANDING
BETWEEN
POLAROID CORPORATION AND IMAGEWARE SOFTWARE, INC.
This will serve as a Memorandum of Understanding (MOU) between Polaroid
Corporation (Polaroid) and ImageWare Software, Inc. (ImageWare) for
activities relating to joint efforts that facilitate interchange between
state-wide drivers license image databases and local/county/state criminal
mugshot and ID databases.
1. Polaroid and ImageWare agree to collaborate to facilitate the ability for
law enforcement personnel to search drivers license databases using a
facial recognition client (Face ID) supplied by ImageWare. ImageWare will
be responsible for the selling and marketing of this ability to law
enforcement throughout the state and Polaroid will be responsible for the
access to the drivers license database.
2. Polaroid and ImageWare agree to jointly market the ability to create a
state-wide repository of digital images for local/county law enforcement
users. ImageWare will supply the software applications and system for the
capture of mugshot/ID images. Polaroid will be responsible for contract
negotiation with the state agency and act in the capacity of "prime
contractor". Once implemented Polaroid personnel may serve the additional
function of service and support.
3. Polaroid and ImageWare agree to work together on an exclusive basis on
these activities for a period of one year of the date of this agreement. At
that time the two parties may agree to extend the agreement or terminate.
4. Both Polaroid and ImageWare will be responsible for their own expenses
for any activities related to the activities of this agreement, unless
otherwise agreed.
5. The states that will be the initial targets for the activities are
Minnesota, California, Virginia and Georgia. Additional target accounts will
be added as appropriate.
/s/ Kevin Keipper /s/ Paul J. Devermann
- -------------------------------- ----------------------------
9/13/99 9/17/99
- -------------------------------- ----------------------------
Kevin Keipper Paul J. Devermann
National Sales Manager Vice President of Sales and
Digital Identification Solutions New Business Development
<PAGE>
Exhibit 10.19
SALES ORDER
Sales Order Number: SO1201
Sales Order Date: 04/02/99
Sold
To: HTE, Inc. Page: 1
Barbara Espinola Ship
1000 Business Center Drive To: HTE, Inc.
Lake Mary, FL 32746 Barbara Espinola
1000 Business Center Drive
Lake Mary, FL 32746
Customer ID HTE, INC.
Ship Via United Parcel Service - ground P.O. Number PRVD07
Ship Date 04/11/99 P.O. Date 04/02/99
Terms Net 30 days SalesPerson
<TABLE>
<CAPTION>
ITEM NO. DESCRIPTION UNIT QUANTITY UNIT PRICE TOTAL PRICE
<S> <C> <C> <C> <C> <C>
CCS CCS - Capture Stations EA 3 16,624.50 49,873.50
Capture Station to include:
CCS Software, Capture
View software - 5 copies
Computers lens
Pan & Tilt Camera mount
Cable Bundle
NIST compliance capture software
Capture cards - MV Pro
CCS - OTHER Enroll existing 7,000 VB images EA 4 900.00 3,600.00
CCS - OTHER shipping, handling, installation, trng EA 1 7,481.03 7,481.03
Transferred to page 2..................... 60,954.53
</TABLE>
<PAGE>
SALES ORDER
Sales Order Number: SO1201
Sales Order Date: 04/02/99
Sold
To: HTE, Inc. Page: 2
Barbara Espinola Ship
1000 Business Center Drive To: HTE, Inc.
Lake Mary, FL 32746 Barbara Espinola
1000 Business Center Drive
Lake Mary, FL 32746
Customer ID HTE, INC.
Ship Via United Parcel Service - ground P.O. Number
Ship Date 04/11/99 P.O. Date 04/02/99
Terms Net 30 days SalesPerson
<TABLE>
<CAPTION>
ITEM NO. DESCRIPTION UNIT QUANTITY UNIT PRICE TOTAL PRICE
<S> <C> <C> <C> <C> <C>
Transferred from page 1................... 60,954.53
MAINT - DEFERRE Annual software maintenance EA 1 3,740.52 3,740.52
MAINT-DEFERRED Annual hardware maintenance EA 1 3,740.52 3,740.52
Amount Subject to Amount Exempt Subtotal: 68,435.57
Sales Tax from Sales Tax Invoice Discount: 0.00
0.00 68,435.57 Sales Tax: 0.00
Total: 68,435.57
</TABLE>
<PAGE>
PURCHASE ORDER
[LOGO]
HTE, INC. NBR PRVD07
GOVERNMENT SOLUTIONS MORE THAN SOFTWARE
1000 BUSINESS CENTER DRIVE This HTE purchase order
number must appear on
LAKE MARY, FL 32745 all correspondence,
shipping documents,
(407) 304-3235 FAX (407) 304-1005 and invoices.
- ------------------------------------------------------------------------------
ORDERED BY: ORDER DATE TERMS DATE REQUIRED SHIPPING METHOD
BARBARA ESPINOLA 4/2/99 NET 30 REGULAR GROUND
- ------------------------------------------------------------------------------
PURCHASED FROM: BILL TO: SHIP TO:
- --------------- -------- --------
ImageWare Software, Inc. HTE, Inc. HTE, INC.
10883 Thornmint Road Attn: Accounts Payable 1000 BUSINESS CTR DR
San Diego, CA 92127 1000 Business Center Drive LAKE MARY, FL 32746
Lake Mary, FL 32746
CUST CONTACT: BARBARA/B.LORENZE
Vendor ID: V003204 CONTACT: Patricia Ryan
PHONE: 407-304-3105 x
Ph: (619) 673-8600 FAX: (619) 673-1770
CUST FAX:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
PRODUCT NBR PRODUCT DESCRIPTION QTY UNIT PRICE DISC AMT EXT PRICE
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
CCS/SOFTWARE CCS Software, Capture 3 10,000.00 0.00 30,000.00
CLIENT VIEW View Software 5 750.00 0.00 3,750.00
COMPUTER LEN Camera Sub-System - Computer Lens 3 1,147.50 0.00 3,442.50
PAN/TILT CAM Camera Sub-System - Pan & Tilt Camera Mount 3 1,620.00 0.00 4,860.00
CABLE BUNDLE Camera Sub-System - Cable Bundle 3 202.50 0.00 607.50
NIST Camera Sub-System - NIST Compliance capture 3 1,500.00 0.00 4,500.00
software
CAPTURE CARD Camera Sub-System - Capture Card MVPro 3 904.50 0.00 2,713.50
MISC. SVCS Enroll existing 7,000 VB images into CCS 4 900.00 0.00 3,600.00
SERVICE CHGS Shipping/Handling/Installation/Training 1 7,481.03 0.00 7,481.03
SUPPORT CHGS 1st Year Support 1 7,481.03 0.00 7,481.03
- --------------------------------------------------------------------------------------------------------------------------
GROSS PO AMT $68,435.56
SPECIAL COMMENTS:
DISCOUNT: 0.00
THIS PURCHASE ORDER IS FOR THE MUG SHOT PHOTO IMAGING -
PER QUOTE: CAPTURE STATIONS - QTY (3) OF 200MHZ PENTIUM W/ 32 MB ORDER SUB-TOTAL $68,435.56
RAM - PROVIDED ******PLEASE SHIP OUT PRODUCT ON THIS PURCHASE
ORDER AS REQUESTED BY BILL SPENCER PROJECT MGR (407)304-5184 FREIGHT CHARGE 0.00
------------------
TOTAL PURCHASE ORDER $68.435.56
------------------
------------------
</TABLE>
Authorized Signature: /s/ Barbara A. Espinola 4/2/99
1. Please send one copy of your invoice.
2. Enter this order in accordance with the prices, terms, delivery method,
and specifications as indicated above.
<PAGE>
TEAMING AGREEMENT
BETWEEN
H.T.E., INC.
AND
IMAGEWARE SOFTWARE, INC.
This Agreement, made and entered into this 6th day of August, 1999,
constitutes an non-exclusive teaming agreement between H.T.E., Inc., 1000
Business Center Drive, Lake Mary, Florida 32746, a Florida Corporation and
ImageWare Software, Inc. whose address is 10883 Thornmint Road, San Diego,
California, 92127, a California Corporation, hereinafter referred to as "the
parties", for joint participation to develop, market and support an
integrated Imaging/RMS and Imaging/Jail Management solution for law
enforcement and public safety. This agreement will provide both IWS and HTE
a competitive advantage by adding additional functionality to the respective
product lines and by broadening customer reach.
NOW, THEREFORE, the parties agree as follows:
1. IWS and HTE will develop a Statement of Work for the development of an
API to allow a single image to be retrieved from within ImageWare's CCS
database by HTE'S RMS or JMS application using an unique identifier as
the link. In addition the two parties will identify the steps
necessary to create integrated solution.
2. IWS and HTE will each assign a technical and business point of contact.
3. The technical and business points of contact will develop the statement
of work and technical specifications document by November 30, 1999.
4. IWS & HTE sales reps will formally be made aware of the relationship and
standard pricing sheet for the integrated imaging products will be
developed.
5. HTE and ImageWare agree to work together on a non-exclusive but
"preferred vendor" basis on current and future opportunities.
6. Both HTE and ImageWare will be responsible for their own expenses for any
activities related to the activities of this agreement, unless otherwise
agreed.
7. The agencies that will encompass the initial scope of work targets are
New London, CT, Highland Park, TX, and Providence, Rhode Island Police
Departments.
8. This Agreement and all rights and duties hereunder will cease and
terminate upon written notice by either party.
This Agreement shall not constitute, create, give effect to or otherwise
imply a joint venture, partnership or formal business organization of any
kind. Each party to this Agreement shall act as an independent contractor
and not as agent for the other, and neither party shall have any authority to
bind the other except to the extent specifically provided for herein.
IMAGEWARE SOFTWARE, INC. H.T.E., INC.
BY: /s/ Patricia Ryan BY: /s/ ILLEGIBLE
----------------------- -----------------------
TITLE: ILLEGIBLE TITLE: ILLEGIBLE
------------------- -------------------
DATE: August 6, 1999 DATE: 08/06/99
-------------------- --------------------
<PAGE>
SOFTWARE LICENSE AND SERVICES
SUBCONTRACT
BY
AND
BETWEEN
PRC INC.
AND
IMAGEWARE SOFTWARE, INC.
<PAGE>
SUBCONTRACT
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE 1. DEFINITIONS ................................................ 4
ARTICLE 2. GRANT OF LICENSE AND FEES .................................. 4
ARTICLE 3. SCOPE OF WORK .............................................. 5
ARTICLE 4. SUBCONTRACT TYPE ........................................... 5
ARTICLE 5. PRE-CONTRACT AUTHORIZATION ................................. 5
ARTICLE 6. TERM AND PERIOD OF PERFORMANCE ............................. 5
ARTICLE 7. OPTION TO RENEW ............................................ 5
ARTICLE 8. SUBCONTRACT PRICE .......................................... 6
ARTICLE 9. DELIVERY ORDERS ............................................ 6
ARTICLE 10. PAYMENTS ................................................... 6
ARTICLE 11. TERMS AND CONDITIONS ....................................... 7
ARTICLE 12. TERMINATION ................................................ 7
ARTICLE 13. CONTINUITY UPON TERMINATION ................................ 8
ARTICLE 14. WARRANTY ................................................... 8
ARTICLE 15. SUBCONTRACTOR REPRESENTATIONS AND WARRANTIES ............... 8
ARTICLE 16. DELIVERY TERMS ............................................. 9
ARTICLE 17. INSPECTION AND ACCEPTANCE .................................. 9
ARTICLE 18. PROGRAM MANAGEMENT ......................................... 10
ARTICLE 19. HIRING OF EMPLOYEES ........................................ 10
ARTICLE 20. PROPRIETARY DATA ........................................... 10
ARTICLE 21. PATENT, COPYRIGHT AND PROPRIETARY RIGHTS INDEMNITY ......... 11
ARTICLE 22. DISPUTES ................................................... 12
ARTICLE 23. CONTRACT ADMINISTRATION .................................... 14
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE 24. MISCELLANEOUS .............................................. 15
ARTICLE 25. EXECUTION OF AGREEMENT OF SUBCONTRACT ...................... 16
</TABLE>
APPLICABLE DOCUMENTS
EXHIBIT A STATEMENT OF WORK
EXHIBIT B GENERAL PROVISIONS (FROM PRIME CONTRACT)
EXHIBIT C PRICING SCHEDULE
3
<PAGE>
SOFTWARE LICENSE AND SERVICES SUBCONTRACT
THIS SUBCONTRACT is made and entered into with an effective date of
______, 1999, by and between PRC Inc., a Delaware corporation, having offices
at 1500 PRC Drive, McLean, Virginia (hereinafter "Contractor") and IMAGEWARE
SOFTWARE, INC., A CALIFORNIA CORPORATION, having offices AT 10883 THORNMINT,
SAN DIEGO, CA 92127 (hereinafter "Subcontractor").
PREAMBLE
WITNESSETH
WHEREAS, the contractor has been awarded contract, hereinafter referred to
as "Prime Contract" to provide Systems Integration, Hardware, Software,
Documentation and Services in support of the LAS VEGAS METROPOLITAN POLICE
DEPARTMENT (LVMPD) PROGRAM; and
WHEREAS, the Statement of Work of the Prime Contract sets forth a
description of the scope of and manner in which the Subcontractor shall provide
the Hardware, Software, Documentation and Services; and
WHEREAS, the contractor has need of certain Systems Integration,
Hardware, Software, Documentation and Services to be provided by the
Subcontractor as set forth herein; and
WHEREAS, the Subcontractor wishes to provide the contractor the said
Systems Integration, Hardware, Software, Documentation and Services as set forth
herein;
THEREFORE, in consideration of the mutual covenants herein set forth and other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
THE SCHEDULE
ARTICLE 1. DEFINITIONS
As used herein, the following terms have the following meanings:
1.1 "Prime Contract" means LVMPD/PRC INC. AGREEMENT, as renewed by written
amendment.
1.2 "Contractor" means PRC Inc., (PRC) or its authorized Contracting Official.
1.3 "Subcontractor" means IMAGEWARE SOFTWARE, INC., or its authorized
representative.
1.4 Customer means CLARK COUNTY, LAS VEGAS, AND/OR LVMPD.
ARTICLE 2. GRANT OF LICENSE AND FEES
Subcontractor shall deliver to Contractor the following software license types
as specified in Exhibits A and C:
1. Mugshot Investigative Site License, Unlimited User
2. CCS Software, Capture-Workstation Client License
3. Third Party Embedded Software -- Subcontractor delivered and accepted
solution under this subcontract shall entitle Contractor's Customer with
proper license requirements for any unidentified software in Exhibits A and
C.
Also see Exhibit B, General Provisions, number 9 entitled Ownership.
4
<PAGE>
ARTICLE 3. SCOPE OF WORK
Subcontractor shall be responsible for providing the Hardware, Software,
Documentation, Software Support, and Upgrades as set forth in EXHIBIT A.
ARTICLE 4. SUBCONTRACT TYPE
This Subcontract is a Firm Fixed Price--Indefinite Delivery/Indefinite
Quantity Agreement which provides for the Subcontractor to furnish supplies
and services purchased through Delivery Orders as described under the Scope
of Work set forth in Article 3 herein, at the fixed unit prices set forth in
EXHIBIT C, all in accordance with the terms, conditions and provisions
included in this Subcontract, and Delivery Orders, or incorporated as
Exhibit's hereto and made a part hereof.
ARTICLE 5. PRE-CONTRACT AUTHORIZATION
Allowable costs incurred prior to the issuance of this subcontract shall include
all costs incurred by Subcontractor in connection with work covered under PRC
Purchase Order number 32256 issued to Subcontractor on May 28, 1999.
Subcontractor was authorized to begin work not to exceed the amount of
$95,696.78 and provide hardware, software and services specified therein.
Purchase Order number 32256 amount of $95,696.78 supercedes amount of $100,000,
allowable costs and allocable costs provided in Pre-contract Cost Auto Route
letter dated May 13, 1999. Purchase order 32256 is hereby incorporated in this
subcontract as Delivery Order Number One (see Article 9).
ARTICLE 6. TERM AND PERIOD OF PERFORMANCE
The term of this Agreement for hardware, software, and all other service with
the exception of Maintenance shall begin May 13, 1999 and shall continue
through May 12, 2002 unless sooner terminated or extended as hereinafter
provided. The term of this Agreement for warranty and maintenance period shall
commence upon Functional Acceptance of the system and shall continue for a
period of 10 years.
ARTICLE 7. OPTION TO RENEW
PRC shall have the option to make additional purchases of products designated
under Optional CLIN 9300 at prices set forth in EXHIBIT C for the following
period of performance:
Facial Recognition Capability Option: May 13, 1999 through May 12, 2002
70MM Conversion Option: May 13, 1999 through May 12, 2002
ID Card Formats and Reports Options: May 13, 1999 through May 12, 2002
Printer Supply Options: May 13, 1999 through May 12, 2000
Contractor shall acquire these services through the issuance of Delivery Orders
to Subcontractor.
5
<PAGE>
ARTICLE 8. SUBCONTRACT PRICE
The ceiling price for this subcontract shall be $729,270.00 for the hardware,
software and services as set forth in EXHIBIT C that shall remain valid for
the term of the Subcontract. The annual ceiling price shall be $91,375.00 for
Maintenance as set forth in EXHIBIT C that shall remain valid for the term of
the Subcontract. The prices specified in EXHIBIT C is an all-inclusive price
for the hardware, software and services and includes all charges for
performance of the Subcontract services as specified herein. There shall be
no charge for software and services provided by the Subcontractor unless
specifically set forth under this Subcontract. The Subcontractor's products
and services shall be acquired only through the issuance Delivery Orders by
authorized Contractor personnel.
ARTICLE 9. DELIVERY ORDERS.
The Subcontractor's products and services shall be acquired only through
the issuance Delivery Orders by authorized Contractor personnel.
Delivery Orders placed under this subcontract shall contain, at a
minimum, the following information, which shall be consistent with the
subcontract terms and conditions:
a. Date of order;
b. Subcontract Number and Delivery Order Number;
c. Contract Line Item Numbers (CLINs), Sub-Line Item Number (SLINs), or
Subcontractor's Product Number, description, quantity ordered, and
contract price;
d. The delivery or performance date;
e. The place of delivery or performance (e.g., PRC Integration Center);
f. Packaging, packing, and shipping, uncrating and placement
instructions, IF ANY;
g. Accounting and appropriation data (as applicable);
h. If partial delivery is acceptable, the items to be shipped will be
specified;
i. Any other pertinent information.
It shall be the responsibility of the Subcontractor to deliver the items
listed on the Delivery Orders strictly in accordance with the terms and
conditions of this Subcontract. The Contractor is not liable to the
Subcontractor for any cost or expenses other than for items ordered under
each Contractor Delivery Order or agreed upon modification thereto.
Delivery order 1 to this subcontract has been issued Under PRC Purchase Order
32256 issued to Subcontractor on May 28, 1999 where Image Ware Software Inc.
was authorized to begin work and provide supplies and services in the amount
of $95,696.78. This purchase order is hereby considered Delivery Order 1 to
this subcontract.
ARTICLE 10. PAYMENTS
10.1 Contractor will pay the Subcontractor within 30 days of receipt of
invoice. Subcontractor may invoice after Delivery, Installation and
Functional Acceptance of Subcontractor's Hardware and Software products.
In the case of the Mugshot Investigative Site License, Subcontractor may
invoice for the amount of $15,000.00, after delivery, installation, and
functional acceptance of the software license to be used during
development and test. Once the first license is deployed to the
Customer, Subcontractor may invoice for the outstanding balance for the
Mugshot Investigative Site License. For Development Services (Other
Services), the Subcontractor may invoice based upon the following
milestone payment schedule:
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30% July 31, 1999
40% September 30, 1999
30% December 31, 1999
10.2 Invoices shall provide the following information as a minimum:
(a) Subcontractor name and address; (b) Invoice date;
(c) Subcontract and Delivery Order numbers; (d) Description of
services; (e) Total charge for each item or monthly charge for each
item; and (f) Total charges.
10.3 Invoices, in the original plus two (2) copies, shall be directed to the
following:
PRC Inc.
1500 PRC Drive
Mail Stop 4N2
McLean, VA 22102
Attention: Accounts Payable
ARTICLE 11. TERMS AND CONDITIONS
This Subcontract is subject to the following terms and conditions as set
forth herein attached hereto and made part hereof.
Statement of Work EXHIBIT A
General Provisions EXHIBIT B
Pricing Schedule EXHIBIT C
ARTICLE 12. TERMINATION
12.1 In addition to the termination provisions of EXHIBIT B hereto, a
Delivery Order may be terminated in writing by the contractor upon
occurrence of any of the following:
a. Termination of the Contracting Agency/Organization of the Prime
Contract Delivery Order upon which the Subcontractor's Delivery
Order is issued upon at least 25 days' notice prior to delivery date.
b. Failure of the Subcontractor to perform a Delivery Order in
accordance with the terms and conditions of this Subcontract or
failure by the Subcontractor to perform or comply with any other
provision of this Subcontract. The Subcontractor shall have ten (10)
days from receipt of written notice to cure the failure or to provide
Subcontractor with a written cure plan. Such a plan must be
approved by the Subcontractor and contain sufficient detail and
schedules by which the failure will be corrected.
12.2 In the event that a Deliverables under prime contract is canceled by
LVMPD or the Prime Subcontractor due to lack of funding or other cause,
the services ordered may be diverted to subsequent deliveries under
subsequent Delivery Orders.
12.3 The termination of this Subcontract shall not rescind any license
granted or right accrued by contractor to use the Licensed Software
previously accepted and paid for by contractor under this Subcontract;
provided,
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however, this provision shall not restrict Subcontractor or contractor
in any way after termination from recovering damages for any breach of
this Subcontract.
12.4 It is the intention of Contractor only to issue Delivery Orders
hereunder that are supported by full funded prime contract orders.
ARTICLE 13. CONTINUITY UPON TERMINATION
Without prejudice to any rights which either party may have to claim
damages or to be indemnified on account of a breach of this Subcontract,
upon termination by contractor and for any cause, Subcontractor will, if
requested by contractor, take all reasonable steps to achieve an
orderly transition and termination and will, if requested by
Contractor, provide reasonable training and other services for
contractor personnel to permit continuity in the performance of the
Prime Contract by contractor. Contractor may pay Subcontractor a fee
for such training and other services based upon the lower of
Subcontractor's then lowest prevailing commercial rates for personnel
and materials, or as otherwise agreed to by the parties.
ARTICLE 14. WARRANTY
14.1 Subcontractor's hardware and software products shall be warranted to
substantially conform to the product description applicable at the time
of shipment.
14.2 Subcontractor shall be obligated to remedy, at no cost, any
non-conformance of the hardware and software product as defined in the
published user documentation; however, this provision shall not
restrict contractor from pursuing any and all available remedies under
this Subcontract.
14.3 Subcontractor shall provide a 90 day (no charge) warranty from
functional acceptance of the software. Such warranty shall include all
minor updates to major upgrades to the software at no charge during the
initial warranty period
14.4 Subcontractor agrees to warrant that each hardware, software, and
firmware product delivered under this agreement and listed herein shall
be able to accurately process date/time data (including, but not
limited to, calculating, comparing, and sequencing) from, into, and
between the twentieth and twenty-first centuries, and the years 1999
and 2000 and leap-year calculations, to the extent that other
information technology, used in combination with the information
technology being provided hereunder, properly exchanges date/time data
with it. The remedies available to contractor under this warranty shall
include, but not be limited to, repair or replacement of any listed
product. Nothing in this warranty shall be construed to limit any
rights or remedies contractor may otherwise have under this agreement
with respect to defects other than year 2000 performance.
ARTICLE 15. SUBCONTRACTOR REPRESENTATIONS AND WARRANTIES
15.1 Subcontractor Software Warranties
Subcontractor represents and warrants that:
A. It has the unrestricted right to license the Licensed Software;
B. The Licensed Software is free from any known defects;
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C. The Licensed Software will operate in accordance with its stated
functional performance specifications and standards; and
D. The use of the Licensed Software will not infringe or violate any
third party rights. Subcontractor will defend any action brought
against contractor based on a claim that the Licensed Software,
when used within the scope of this Agreement, infringes or violates
any third party rights. Subcontractor will pay any award against
contractor based on such infringement or violation if contractor had
notified Subcontractor promptly in writing of the claim and had
permitted Subcontractor to participate in the defense.
15.2 This clause shall not affect, change or impair any additional
warranties provided by Subcontractor or any third party under any
contract or lease with Subcontractor for equipment with which the
Licensed Software is used.
ARTICLE 16. DELIVERY TERMS
Delivery of the items set forth herein shall be F.O.B. destination.
ARTICLE 17. INSPECTION AND ACCEPTANCE
17.1 Should any software failure occur during acceptance testing which
renders the software package unusable, the Subcontractor agrees to
promptly correct the fault in accordance with Article 14 of the
Subcontract.
17.2 The acceptance testing specific to Subcontractor's responsibility, the
Photo Imaging System should consist of two distinct elements:
a. Functional Acceptance -- testing during the initial delivery, and
installation of hardware and software. This will include a check
list of hardware and software, and testing of input screens,
responses, peripherals. Subcontractor will develop mutually agreed
set of tests to demonstrate the operational functionality of the
software installed, including a simulation of all applicable
external interfaces and formats.
b. System Acceptance Testing (final module acceptance) -- performance
testing, availability testing performed by Contractor and Customer
with subcontractor's support.
17.3 System Acceptance Testing states that the Customer shall develop the
System Acceptance testing plan and procedures and that the Contractor
and Subcontractor shall provide support. Just as the design of the
system shall be a cooperative effort, the development of the system
acceptance test plans and methodology shall also be a cooperative effort
that is mutually agreed to by the Customer and PRC and occurs early in
the Project schedule. PRC will provide the System Acceptance Test Plan
as a formal deliverable for Customer acceptance which is not to be
unreasonably held.
17.4 During the System Acceptance Test period, system availability (both
functional and performance) will be calculated using a mutually agreed
set of criteria to be determined after PRC's Factory Acceptance Test.
These criteria will include definitions of preconditions for start of
testing, operational availability metrics, data collection methods,
performance characteristics of system elements (hardware and software),
partial vs. full availability, problem reporting procedures, and
responsibilities. Installation testing shall not be conducted as part
of the system acceptance test.
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17.5 Should the system fail for any reason to pass acceptance testing, the
preferred course of action will be for Subcontractor to take the system
out of the live environment to make any corrections necessary to
restart the acceptance test. Such access will be coordinated with the
Contractor so as not to unreasonably impact ongoing operations. During
this period, the Customer shall not have access to the system.
Subcontractor shall give notice to the Contractor as to when the system
shall be ready for the restart of the acceptance test.
ARTICLE 18. PROGRAM MANAGEMENT
18.1 The contractor's Program Manager, or its duly authorized Contracting
Officer's Technical Representative (COTR), shall provide technical
direction to the Subcontractor relative to the specific Software to be
delivered hereunder, monitor all technical aspects and assist in
administration of the Subcontract. The types of action within the
COTR's authority are to monitor Subcontractor technical performance;
perform or cause to be performed inspections necessary for performance
of the Subcontract; maintain written and oral communications with the
Subcontractor regarding the technical requirements of the Subcontract;
assist Subcontractor with Technology Improvements (ECP) preparations;
and notify the Subcontractor and contractor designated representative
of any problems or deficiencies.
18.2 In the event direction is given that will affect the price or period of
performance or otherwise is in conflict with the terms and conditions
of this Subcontract or Delivery Orders issued hereunder, the
Subcontractor shall notify the contractor's designated representative,
as set forth in Article 24 herein.
18.3 The contractor's designated representative, specified in Article 24, is
the only person authorized to approve changes or modify any of the
requirements contained elsewhere in this Subcontract. No change in
cost, schedule, or specification shall be made, except in writing, on a
Subcontract Modification Form which shall be signed by designated
representatives of both parties.
18.4 All meetings and other contacts involving Subcontractor personnel or
their representatives with representatives of the Contracting
Agency/Organization, relative to the efforts herein, shall be arranged
through the Subcontractor's duly authorized representative. Only the
contractor can direct the Subcontractor or modify the terms and
conditions of this Subcontract. Subcontractor shall immediately notify
contractor of any/all requests issued by the Contracting
Agency/Organization to Subcontractor with respect to the Program.
ARTICLE 19. HIRING OF EMPLOYEES
Except as otherwise agreed to in writing during the period that this
Subcontract is in effect, including any extentions hereto, the Subcontractor
and the contractor shall not actively recruit or otherwise induce the other
party's employees assigned in connection with the effort hereunder to accept
a position of employment with the other party unless mutually agreed to in
writing by both parties.
ARTICLE 20. PROPRIETARY DATA
20.1 Unless otherwise subject to a separate non-disclosure agreement which
shall remain in effect during the term of this Subcontract, each of the
parties to this Subcontract acknowledges that certain technical data,
drawings, designs, specifications and information provided to the other
party are and shall be during the performance of this Subcontract,
Proprietary Information of the providing party. "Proprietary
Information" is defined as any information, data or material which is
conspicuously marked with an appropriate legend indicating its
proprietary nature, or verbal information which is identified as
Proprietary Information at the time of its disclosure, and is reduced
to writing and marked with an appropriate legend within forty-eight
(48) hours of its disclosure. The parties agree that all Proprietary
Information of either party shall be protected from unauthorized
disclosure, will be made available only to those members of their
staffs and
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related parties who need such Proprietary Information in the
performance of this Subcontract, and that all of the persons to whom
such Proprietary Information is made available will be duly instructed
as to the need for confidentiality of, and protection for, such
Proprietary Information.
20.2 Upon completion of this Subcontract, or its earlier termination for any
reason, each party to this Subcontract shall promptly return the
respective Proprietary Information, records, technical data, drawings,
designs, specifications and all copies thereof to the party who
provided such Proprietary Information.
20.3 The parties may by written agreement exempt certain of their Proprietary
Information from the restrictions of this Article or permit the
retention thereof by the other party.
20.4 Subcontractor shall prominently mark as "proprietary" all Software,
which it represents as proprietary to Subcontractor. Contractor shall
take reasonable steps to safeguard the Licensed Software designated by
Subcontractor as "proprietary" received pursuant to this Agreement from
disclosure to third parties for five (5) years from the effective date
of this Agreement. Contractor shall be deemed to discharge its entire
obligation hereunder for said period if it exercises the same degree of
care to safeguard such Licensed Software received as it uses to
safeguard its own similar programs and program documentation in similar
circumstances.
20.5 Contractor shall not be liable to the Subcontractor for disclosure of
any Licensed Software designated as "proprietary" under subparagraph b,
below, which:
a. is now in or hereafter comes into the public domain without breach
of this Agreement, or
b. is known to the contractor prior to disclosure, or
c. is independently developed by the contractor, or
d. becomes known to the contractor without like restrictions to those
herein, or
e. is, without breach of this Agreement, disclosed by Subcontractor to
a third party without restrictions similar to those in this
Agreement.
20.6 In rendering services to Contractor, Subcontractor, its employees,
independent Subcontractors and agents may have access to information
and proprietary data of contractor. Subcontractor agrees to take
reasonable steps to safeguard the confidentiality of contractor's
information and proprietary data from disclosure to third parties, and
to not otherwise use such information and proprietary data for its own
benefit.
ARTICLE 21. PATENT, COPYRIGHT AND PROPRIETARY RIGHTS INDEMNITY
Subcontractor shall indemnify and hold contractor harmless from any claim,
proceeding, suit or judgement brought against contractor, and from all costs
and expenses (including reasonable attorney fees) associated therewith, based
upon a claim that any product licensed hereunder constitutes an infringement
of any patent, copyright, trademark or similar proprietary right.
Subcontractor shall pay any legal and court costs as well as damages finally
awarded or agreed to by the parties in any suit or proceeding, provided
Subcontractor is informed and furnished a copy of each communication, notice,
or other action relating to the alleged infringement and is given necessary
authority, and cooperation of contractor necessary to defend or settle said
suit or proceeding.
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ARTICLE 22. DISPUTES
22.1 Disputes Under This Subcontract
If any dispute arises under this Agreement that is not settled promptly
in the ordinary course of business, the parties shall seek to resolve any
such dispute between them, first, by negotiating promptly with each other
in good faith in face-to-face negotiations. These negotiations shall be
conducted by a designated senior management representative of each party,
who was not previously involved in the dispute. If the parties are unable
to resolve the dispute within twenty (20) business day (or such period as
the parties shall otherwise agree) through these face-to-face
negotiations, then any such dispute shall be resolved in the following
manner.
a. If the only dispute relates to unpaid fees, costs or other
charges, the party owed the money may commence legal action in any
Virginia court of competent jurisdiction for outstanding monies
due under this Agreement.
b. Any remaining dispute arising under this Agreement shall be
resolved by using alternative dispute resolution ("ADR")
procedures, which can hopefully avoid or reduce the acrimony
resulting from adversarial litigation. If the efforts through
face-to-face negotiations above are not successful, the parties
will initiate a mini-trial through the ADR process with the
selection of a neutral advisor, who will schedule a mini-trial
to occur approximately thirty (30) business days after the
selection of the neutral advisor. The neutral advisor will
introduce an impartial opinion approximately fifteen (15)
business days after completion of the mini-trial, if the
parties have not settled remaining issues. Throughout the ADR
process, the neutral advisor will provide an element of
mediation with the goal of having the parties resolve the
dispute without issuance of the impartial opinion. However, if
agreement is not reached by the parties, the impartial opinion
rendered by the neutral advisor will be binding and judgment
upon that opinion may be entered in any Virginia court having
jurisdiction thereof. The parties should use an
arbitration/mediation service which specializes in timely ADR,
such as ENDISPUTE or the Judicial Arbitration and Mediation
Services, Inc. All expenses such as the cost of the neutral
advisor or the hearing facility will be shared equally.
22.2 Disputes Under the Prime Contract
a. If a decision on a question of fact is issued by the Contracting
Officer under the Prime Contract "Disputes" clause and the
decision relates to this Subcontract, said decision, if binding
upon contractor under the Prime Contract, shall also be binding
upon Contractor and Subcontractor with respect to this
Subcontract. However, if Subcontractor is affected by such
decision, and if contractor elects not to appeal such decision
under the "Disputes" clause of the Prime Contract, contractor
shall notify Subcontractor promptly. After receipt of such notice
from Contractor, if Subcontractor submits a timely request to
Contractor to appeal such decision, Contractor shall file an
appeal. If Contractor appeals such decision, whether at its
election or at Subcontractor's request, a decision upon such
appeal, if binding upon Contractor under the Prime contract, shall
be binding upon Contractor and Subcontractor as it relates to this
Subcontract. Appeals under the "Dispute" clause of the Prime
Contract do not preclude consideration of questions of law in
connection with decisions referenced above.
b. For any claims to be submitted under 1. above in excess of
$50,000, a senior company officer in charge at the Subcontractor
location shall certify to Contractor as to its portion of the
claim that: (a) the claim is made in good faith, (b) the
supporting data are accurate and complete to the best of
Subcontractor's knowledge and belief, and (c) the amount requested
accurately reflects the
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Subcontract adjustment for which Subcontractor believes the
Contracting Agency/Organization is liable.
c. If any such appeal is denied or otherwise decided adversely to
Contractor's interest, or if Contractor is otherwise adversely
affected by any decision made by any representative of the
Contracting Agency/Organization on any question of fact and/or
law arising under the Prime contract which is also related to
the Subcontract, from which appeal under the "Disputes" clause
in the Prime Contract is not available, said decision, if
binding upon Contractor under the Prime Contract, shall in turn
be binding upon Contractor and Subcontractor with respect to
such question as it relates to this Subcontract; provided,
however, if the Subcontractor is adversely affected by any such
decision, and if Contractor elects not to bring suit against
the Contracting Agency/Organization with respect to such
decision, Contractor shall notify Subcontractor promptly. If
Subcontractor submits a timely request to Contractor to bring
suit against the Contracting Agency/Organization, Contractor
shall start such suit. If Contractor brings suit against the
Contracting Agency/Organization with respect to any such
decision, whether at its election or at Subcontractor's
request, a final judgement in any such suit, if binding upon
Contractor under the Prime Contract, shall in turn be binding
upon Contractor and Subcontractor under this Subcontract with
respect to the question decided as it relates to this
Subcontract.
d. If any such appeal or suit is taken or brought by Contractor,
whether at its election or at Subcontractor's request,
Subcontractor shall assist Contractor in its prosecution
thereof in every reasonable manner; and Subcontractor shall be
afforded reasonable opportunity to participate in the
prosecution thereof to the extent Subcontractor's interest may
be affected. To the extent requested by Contractor,
Subcontractor shall prosecute for Contractor any appeal or suit
taken or brought at Subcontractor's request and, in such event,
Contractor shall assist Subcontractor in every reasonable
manner. All cost and expenses incurred by Subcontractor and
Contractor in prosecuting any appeal or suit taken or brought
solely at Subcontractor's request shall be paid by the
Subcontractor. Where possible, Contractor shall, in good faith,
consult with Subcontractor concerning the presentation to the
Contracting Officer, or other cognizant representatives of the
Contracting Agency/Organization, of the questions referred to
in paragraph 1. and 3. above, to the extent they may affect
Subcontractor's interest.
e. If as a result of any decision or judgment which is binding upon
Subcontractor and Contractor, Contractor is unable to obtain
reimbursement from the Contracting Agency/Organization under the
Prime contract, or is required to refund or credit to the
Contracting Agency/Organization, for any amount with respect to
any item of cost or fee for which Contractor has reimbursed
Subcontractor, Subcontractor shall, on demand, promptly repay such
amount to Contractor.
f. The rights and obligations herein shall survive completion of and
final payment under this Subcontract.
Provided, however, Subcontractor shall not be bound by any such
Contracting Officer's decision, appeals board decision, or judgement if
such is not determinative of an obligation imposed upon Subcontractor
under this Subcontract, or any amendment hereto.
Pending the resolution of any dispute, Subcontractor shall proceed as
directed by Contractor in writing.
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ARTICLE 23. CONTRACT ADMINISTRATION
In regard to administrative and contractual matters relating to this
Subcontract, the parties hereby appoint the persons listed below, or their duly
authorized designees, as the only persons empowered to make written commitments
on behalf of their respective organizations to effect changes to any portion of
this Subcontract.
For the Contractor: Mr. Darry Green
Senior Procurement Specialist
PRC Inc.
1500 PRC Drive
McLean, VA 22102-5050
(703) 883-8766
(703) 556-1561
For the Subcontractor: Ms. Carmen Errejon
ImageWare Software, Inc.
10883 Thornmint
San Diego, CA 92127
(619) 673-8600
(619) 673-1770
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ARTICLE 24. MISCELLANEOUS
24.1 NOTICES. Whenever under this Subcontract one party is required or
permitted to give notice to the other, such notice shall be in writing
and shall be deemed to have been given when delivered in hand, by
facsimile, or when sent by registered or certified United States mail,
return receipt requested, postage prepaid, and addressed as follows:
1. In the case of the Contractor:
Mr. Darry Green
Senior Procurement Specialist
PRC Inc.
1500 PRC Drive
McLean, VA 22102-5050
2. In the case of the Subcontractor:
Ms. Carmen Errejon
Contract Administrator
ImageWare Software, Inc.
10883 Thornmint
San Diego, CA 92127
24.2 ENTIRE AGREEMENT. This Subcontract constitutes the complete agreement
between the parties and supersedes all previous agreements or
representations, written or oral, with respect to the Programs and
services specified herein. This Subcontract may not be modified or
amended except in writing signed by a duly authorized representative
of each party.
It is expressly agreed that any terms and conditions of any Delivery
Order, purchase order or other ordering document shall be considered
void and superseded in their entirety by the terms and conditions of
this Subcontract. This Subcontract shall also supersede the terms of
any unsigned license agreement included in any package for software.
24.3 GOVERNING LAW. The construction, enforceability, validity and
interpretation of this Subcontract shall be in accordance with the laws
of the Commonwealth of Virginia.
24.4 HEADINGS AND INTERPRETATIONS. The article and section headings and table
of contents used herein are for reference and convenience only and shall
not enter into the interpretation thereof.
24.5 SEVERABILITY. If any of the provisions of this Subcontract or part of
such provisions are or become invalid or unenforceable, the remaining
provisions shall continue to be effective to the extent that these
portions of this Subcontract embodying the material intent of the parties
remain unaffected.
24.6 WAIVERS. No waiver by a party of any of its rights or remedies hereunder
shall be construed as a waiver by such party of any other rights or
remedies that such party may have under this Subcontract.
24.7 NEGATION OF THE FORMATION OF A BUSINESS ORGANIZATION. This Subcontract
shall not constitute, create, or in any way be interpreted to create a
partnership, joint venture, or formal business organization of any kind
between the Subcontractor and the Subcontractor.
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24.8 PUBLICITY. No publicity or advertising regarding this Subcontract shall
be released without the reasonable prior written approval of the
Contractor, except that this Subcontract may be made known to the U.S.
Contracting Agency/Organization, and except such publicity as may be
required to comply with federal and state securities laws. Any consent
with regard to this clause shall not be unreasonably withheld.
24.9 ORDER OF PRECEDENCE. In the event of an inconsistency between the
sections of this subcontract, the inconsistency shall be resolved by
giving precedence in the following order: (a) the Subcontract Terms and
Conditions; (b) Pricing Schedule (EXHIBIT C); (c) General Provisions
(EXHIBIT B); (d) Statement of Work (EXHIBIT (a); (e) Delivery Orders; (f)
future documents as may be incorporated by duly authorized written
modification.
24.10 SUPERSEDING EFFECT. This Subcontract supersedes all written and oral
agreements. Further, this agreement constitutes the entire Subcontract
between the parties hereto with respect to this Subcontract. All work
performed by the Subcontractor, actions taken, and payments made, if
any, under any other prior written or oral Subcontracts, with respect
to this Subcontract, shall be deemed to have been work performed,
actions taken, or payments made under this Subcontract.
24.11 ASSIGNMENT. Neither this Subcontract nor any interest hereunder may be
assigned or otherwise transferred by either party to third parties other
than corporate affiliates of either party without the prior written
consent of the other party, which consent shall not be unreasonably
withheld. This Subcontract shall be binding upon and inure to the benefit
of the heirs, successors, assigns, and delegates of the parties hereto.
ARTICLE 25. EXECUTION OF AGREEMENT OF SUBCONTRACT
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed
as of the day and year first above written.
PRC Inc. ImageWare Software, Inc.
BY: /s/ John Ciro BY: /s/ S. James Miller, Jr.
------------------------- -------------------------
NAME: John Ciro NAME: S. James Miller, Jr.
---------------------- ---------------------
TITLE: Procurement Manager TITLE: Chm + CEO
---------------------- ---------------------
DATE: June 29, 1999 DATE: June 28, 1999
---------------------- ---------------------
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EXHIBIT A
STATEMENT OF WORK
This document identifies the product to be delivered and specifies work to be
performed by ImageWare Software Inc. as a Subcontractor to PRC/Litton for the
Clark County, Nevada system.
TECHNICAL OVERVIEW
The purpose of the Crime Capture System (CCS) is to provide, through its
Capture module, a method for capturing digital images and inputting data in a
NT based digital mugshot/ID system. The Investigative module will allow the
read only searching, viewing and printing of any records created or edited
with Capture module. Upon completion of the install, the new system will meet
all NIST standards, will be Y2K compliant and will store captured images in a
standard jpg format.
I. WORK TO BE PERFORMED BY IMAGEWARE (PER RFP RESPONSE AND DETAILS OF
SPECIFIC DELIVERABLES PER SECTION II)
1. Server configuration and initial installation
2. Installation of quoted and ordered camera subsystem(s) and capture
software(s)
3. Installation of quoted and ordered investigative software
4. Installation of quoted and ordered printers
5. Custom requests as quoted, ordered and detailed in the functional
specifications document
6. Training as quoted and ordered
II. HARDWARE/SOFTWARE (ALL SOFTWARE DELIVERABLES SHALL BE LICENSED IN
ACCORDANCE WITH ARTICLE 2 AND EXHIBIT C)
CLIN 1000 METROCOMM/CIS
PHOTO ID SERVER SOFTWARE
CLIN 1004.a The server will be configured to share .jpg images
CLIN 1004.b The Mugshot Investigative tool will be configured so it can be
installed from any connected workstation.
CLIN 2000 CITY HALL INFORMATION SERVICES
CLIN 2000 Documentation will be delivered. Training on Capture will be done
at this site.
DTS PHOTO ID SERVER SOFTWARE
CLIN 2003.a The server will be configured to share .jpg images
FINGERPRINT ANALYSIS WORKSTATION SUBSYSTEM (RECORD SEALING)
CLIN 2010 Capture software will be installed and configured
CLIN 2100 CITY HALL/CITY JAIL
CLIN 2100 Documentation will be delivered. Training on Capture and
Investigative will be done at this site.
DATA ENTRY WORKSTATION SUBSYSTEM
CLIN 2101 Investigative software will be installed and configured
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PHOTO IMAGE CAPTURE WORKSTATION
CLIN 2104 Capture software will be installed and configured
PHOTO IMAGE CAPTURE SUBSYSTEM
CLIN 2105 Photo capture subsystem will be installed and configured
LAN SERVER SUBSYSTEM
CLIN 2107 LAN server subsystem will be installed and configured
CLIN 3000 CCDC
CLIN 3000 4 Documentation packages will be delivered. Training on Capture and
Investigative will be done at this site.
DATA ENTRY WORKSTATION SUBSYSTEM W/ID VERIFICATION
CLIN 3001 4 Investigative software packages will be installed and configured
PHOTO IMAGE CAPTURE WORKSTATION
CLIN 3004 4 Capture software packages will be installed and configured
PHOTO IMAGE CAPTURE SUBSYSTEM
CLIN 3005 4 Photo capture subsystems will be installed and configured
ID VERIFICATION WORKSTATION (INTAKE/RELEASE)
CLIN 3007 Investigative software will be installed and configured
LAN SERVER SUBSYSTEM
CLIN 3008 LAN server subsystem will be installed and configured
CLIN 4000 ADTECH -- WORK CARD AND REGISTRATION OPERATIONS
CLIN 4000 Documentation will be delivered. Training on Capture and
Investigative will be done at this site.
DATA ENTRY WORKSTATION SUBSYSTEM W/ID VERIFICATION
CLIN 4001 2 Investigative software packages will be installed and configured
DATA ENTRY WORKSTATION SUBSYSTEM W/PHOTO CAPTURE
CLIN 4002 Capture software will be installed and configured
PHOTO IMAGE CAPTURE SUBSYSTEM
CLIN 4003 Photo capture subsystem will be installed and configured
PHOTO IMAGE CAPTURE WORKSTATION
CLIN 4006 Capture software will be installed and configured
PHOTO IMAGE CAPTURE SUBSYSTEM
CLIN 4007 Photo capture subsystem will be installed and configured
ID CARD PRINTER, DUPLEX SUBSYSTEM
CLIN 4008 2 Photo ID Printers will be installed and configured for Duplex
printing.
LAN SERVER SUBSYSTEM
18
<PAGE>
CLIN 4011 LAN server subsystem will be installed and configured
CLIN 5000 LAUGHLIN -- WORK CARD AND REGISTRATION OPERATIONS
CLIN 5000 Documentation will be delivered. Training on Capture and
Investigative will be done at this site.
DATA ENTRY WORKSTATION SUBSYSTEM
CLIN 5001 Investigative software will be installed and configured
PHOTO IMAGE CAPTURE WORKSTATION
CLIN 5004 Capture software will be installed and configured
PHOTO IMAGE CAPTURE SUBSYSTEM
CLIN 5005 Photo capture subsystem will be installed and configured
ID CARD PRINTER, DUPLEX SUBSYSTEM
CLIN 5006 Photo ID Printer will be installed and configured for Duplex
printing.
LAN SERVER SUBSYSTEM
CLIN 5008 LAN server subsystem will be installed and configured
CLIN 5100 LAUGHLIN -- DETENTION CENTER
CLIN 5100 Documentation will be delivered. Training on Capture and
Investigative will be done at this site.
DATA ENTRY WORKSTATION SUBSYSTEM
CLIN 5101 Investigative software will be installed and configured
PHOTO IMAGE CAPTURE WORKSTATION
CLIN 5104 Capture software will be installed and configured
PHOTO IMAGE CAPTURE SUBSYSTEM
CLIN 5105 Photo capture subsystem will be installed and configured
ID CARD PRINTER, DUPLEX SUBSYSTEM
CLIN 5109 Photo ID Printer will be installed and configured for Duplex
printing.
CLIN 7000 CRIMINALISTICS -- LATENT FINGERPRINT SECTION
CAMERA SUBSYSTEM W/LIGHT TABLE
CLIN 7008 Mavica camera system and documentation will be delivered
CLIN 8000 CORONER'S OFFICE
CLIN 8000 Documentation will be delivered. Training on Capture will be done
at this site.
CORONER'S SPECIAL PURPOSE WORKSTATION SUBSYSTEM
CLIN 8001 Capture software will be installed and configured
HANDHELD COLOR CAMERA SUBSYSTEM
CLIN 8004 Mavica camera system and documentation will be delivered
19
<PAGE>
OTHER SERVICES
PRC SERVER INTERCONNECT ImageWare Software will develop and provide a
table interconnect with proper documentation to
allow import of records to IWS database.
SYSTEMS INTEGRATION ImageWare Software will make a San Diego based
developer available to the Contractor to provide
technical assistance for the project for a
limited time period on an as available basis.
IWS will send a developer to Virginia provide
technical assistance for the project for 5
business days. ImageWare Software will modify
IWS code to introduce modifications for
compliance with the Request for Proposal.
SPECIFICATIONS GATHERING ImageWare Software will conduct preliminary
site inspections and will provide assistance
to define system specifications and requirements.
DATABASE CUSTOMIZATION ImageWare Software Inc. will provide changes to
the Capture and Investigative database to
support the fields necessary for compliance with
the Request for Proposal, and will provide
technical support for these changes through the
term of the warranty and maintenance period.
III. INTEGRATION AND TEST
ImageWare Software Inc. will assist in the testing procedures related to
its deliverables for System Acceptance.
IV. PROJECT MANAGEMENT
ImageWare Software Inc. will provide project management under that of
the Prime Contractor that shall include:
- Planning and monitoring ImageWare Software Inc.'s contracted tasks.
- Working with the Prime Contractor to resolve actual and/or potential
problems related to contracted deliverables.
- Reporting status of ImageWare Software Inc.'s contract tasks on a
monthly basis.
- Providing analytical and technical expertise related to the
contracted deliverables.
- Scheduling the use of required ImageWare Software Inc.'s resources.
20
<PAGE>
EXHIBIT B
GENERAL PROVISIONS
1. RESPONSIBILITY OF SUBCONTRACTOR
A. It is understood that in the performance of the services herein provided
for, Subcontractor shall be, and is, an independent Subcontractor, and is
not an agent or employee of Contractor and Customer and shall furnish
such services in its own manner and method except as required by this
Agreement. Further, Subcontractor has and shall retain the right to
exercise full control over the employment, direction, compensation and
discharge of all persons employed by Subcontractor in the performance of
the services hereunder. Subcontractor shall be solely responsible for,
and shall indemnify, defend and save Contractor and Customer harmless
from all matters relating to the payment of its employees, including
compliance with social security, withholding and all other wages,
salaries, benefits, taxes, exemptions, and regulations of any nature
whatsoever.
B. Subcontractor acknowledges that Subcontractor and any Subcontractors,
agents or employees employed by Subcontractor shall not, under any
circumstances, be considered employees of the Contractor and Customer,
and that they shall not be entitled to any of the benefits or rights
afforded employees of Contractor and Customer, including, but not limited
to, sick leave, vacation leave, holiday pay, Public Employees Retirement
System benefits, or health, life, dental, long-term disability or
workers' compensation insurance benefits. Contractor and Customer will
not provide or pay for any liability or medical insurance, retirement
contributions or any other benefits for or on behalf of Subcontractor or
any of its officers, employees or other agents.
C. Subcontractor shall be responsible for the professional quality,
technical accuracy, timely completion, and coordination of all services
furnished by the Subcontractor, its Subcontractors and its and their
principals, officers, employees and agents under this Agreement. In
performing the specified services, Subcontractor shall follow practices
consistent with generally accepted professional and technical standards.
D. It shall be the duty of Subcontractor to assure that all products of its
effort are technically sound and in conformance with all pertinent
Federal, State and Local statutes, codes, ordinances, resolutions and
other regulations. Subcontractor will not produce a work product which
violates or infringes on any copyright or patent rights. Subcontractor
shall, without additional compensation, correct or revise any errors or
omissions in its work products. Permitted or required approval by the
Contractor of any products or services furnished by Subcontractor shall
not in any way relieve the Subcontractor of responsibility for the
professional and technical accuracy and adequacy of its work.
Contractor's review, approval, acceptance, or payment for any of
Subcontractor's services herein shall not be construed to operate as a
waiver of any rights under this Agreement or of any cause of action
arising out of the performance of this Agreement, and Subcontractor shall
be and remain liable in accordance with the terms of this Agreement for
damages to Customer caused by Subcontractor's performance or failures to
perform under this Agreement.
E. Subcontractor shall appoint a Manager who will manage the performance of
services. All of the services specified by this Agreement shall be
performed by the Manager, or by Subcontractor's associates and employees
under the personal supervision of the Manager. Should the Manager, or any
employee of Subcontractor designated as key personnel be unable to
complete his or her responsibility for any reason, the Subcontractor will
replace him or her with a qualified person. If Subcontractor fails to
make a required replacement within thirty (30) days, Contractor may
terminate this Agreement for default.
F. Subcontractor agrees that its officers and employees will cooperate with
the Contractor in the performance of services under this Agreement and
will be available for consultation with Contractor at such reasonable
times with advance notice as to not conflict with their other
responsibilities.
21
<PAGE>
G. Subcontractor has or will retain such employees, as it may need to
perform the services required by this Agreement. Such employees shall not
be employed by the State of Nevada, the Customer or any other political
subdivision of the State of Nevada.
H. Subcontractor shall cooperate with the Customer on all security matters
and shall promptly comply with any Project security requirements
established by the Customer. Such compliance with these security
requirements shall not relieve Subcontractor of responsibility for
maintaining proper security for the sites, nor shall it be construed as
limiting in any manner Subcontractor's obligation to undertake reasonable
action as required to establish and maintain secure conditions at the
sites.
I. All Subcontractor employees that will be working at a Customer location
must pass a state and local security background investigation.
Subcontractor shall promptly replace any employee who fails such
background investigation. The Customer shall bear the cost for these
investigations.
J. The rights and remedies of the Contractor provided for under this section
are in addition to any other rights and remedies provided by law or under
other sections of this Agreement.
2. CHANGES TO SCOPE OF WORK
A. The Customer may at any time, by written order, make changes within the
general scope of this Agreement and in the services or work to be
performed. If such changes cause an increase or decrease in
Subcontractor's cost or time required for performance of any services
under this Agreement, an equitable adjustment limited to an amount within
current unencumbered budgeted appropriations for the Project shall be
made and this Agreement shall be modified in writing accordingly. All
such amendments shall state any increase or decrease in the amount of the
compensation due the Subcontractor for the change in scope and/or
schedule, if any. Should Subcontractor and Contractor be unable to agree
on the impact on price and schedule, there will be no obligation on the
part of Subcontractor to proceed with the change. Any claim of
Subcontractor for an adjustment under this clause must be asserted in
writing within thirty (30) calendar days from the date of receipt by
Subcontractor of notification of change unless the Contractor grants a
further period of time before the date of final payment under this
Agreement.
Any delays caused by Customer and/or Contractor which have a cost and/or
schedule impact to the Project, including but not limited to:
1. Failure to timely approve documents as provided herein,
2. Failure to comply with responsibilities set forth in the Project Plan,
3. Failure to provide reasonable access to facilities or information
required for Subcontractor to perform,
Shall be regarded as constructive changes and shall entitle Subcontractor
to receive from Contractor an equitable adjustment in price and schedule
limited to an amount within current unencumbered budgeted appropriations
for the Project. Contractor agrees to make reasonable best efforts to
obtain funding necessary to accommodate equitable adjustments that may
result from Customer caused delays or constructive change activity.
22
<PAGE>
3. SUBCONTRACTS
A. Services specified by this Agreement shall not be subcontracted by
Subcontractor, without prior written approval of Customer. Unless
otherwise notified, award of the contract shall serve as the Customer's
approval to subcontract the services as specified in the Subcontractor's
proposal. Subsequent to award, the Customer will accept or reject
proposed Subcontractors as promptly as practicable, with such concurrence
not to be be unreasonably withheld.
B. Approval by Customer of Subcontractor's request to subcontract or
acceptance of or payment for subcontracted work by Customer shall not in
any way relieve Subcontractor of responsibility for the professional and
technical accuracy and adequacy of the work. Subcontractor shall be and
remain liable for all damages to Customer caused by negligent performance
or non-performance of work under this Agreement by Customer's
Subcontractors of any tier.
B. The compensation due under Section 3 shall not be affected by Customer's
approval of Subcontractor's request to subcontract.
4. TERMINATION
1) This Agreement may be terminated in whole or in part by either party in
the event of substantial failure of the other party to fulfill its
obligations under this Agreement through no fault of the terminating
party; but only after the other party is given:
a. not less than ten (10) calendar days' written notice of intent
to terminate; and
b. An opportunity for consultation with the terminating party prior
to termination.
2) This Agreement may be terminated in whole or in part by the Customer for
its convenience; but only after Subcontractor is given:
a. not less than ten (10) calendar days' written notice of intent
to terminate; and
b. an opportunity for consultation with the Customer prior to
termination.
3) If termination for default is effected by the Customer, the Customer will
pay Subcontractor that portion of the compensation which has been earned
as of the effective date of termination but:
a. no amount shall be allowed for anticipated profit or unperformed
services or other unperformed work.
4) Upon receipt or delivery by Subcontractor of a termination notice,
Subcontractor shall promptly discontinue all services affected (unless
the notice directs otherwise) and deliver or otherwise make available to
the Customer's representative, copies of all deliverables.
5) Upon termination, the Customer may take over the work and prosecute the
same to completion by agreement with another party or otherwise. In the
event that Subcontractor shall cease conducting business, the Customer
shall have the right to make an unsolicited offer of employment to any
employees of Customer assigned to the performance of this Agreement.
6) If after termination for failure of Subcontractor to fulfill contractual
obligations it is determined that Subcontractor has not so failed, the
termination shall be deemed to have been effected for the convenience of
the Customer.
23
<PAGE>
7) The rights and remedies of the Customer and Subcontractor provided in
this section are in addition to any other rights and remedies provided
by law or under this Agreement.
8) Neither party shall be considered in default in the performance of its
obligations hereunder, nor any of them, to the extent that performance
of such obligations, nor any of them, is prevented or delayed by any
cause, existing or future, which is beyond the reasonable control of
such party. Delays arising from the actions or inactions of one or
more of Subcontractor's principals, officers, employees, agents,
Subcontractors, vendors or suppliers are expressly recognized to be
within Subcontractor's control.
5. COVENANT AGAINST CONTINGENT FEES
Subcontractor warrants that no person or selling agency has been
employed or retained to solicit or secure this Agreement upon an
agreement or understanding for a commission, percentage, brokerage, or
contingent fee, excepting bona fide permanent employees. For breach
or violation of this warranty, the Customer shall have the right to
annul this Agreement without liability or in its discretion to deduct
from the Agreement price or consideration or otherwise recover the full
amount of such commission, percentage, brokerage, or contingent fee.
6. GRATUITIES
A. The Customer may, by written notice to Subcontractor, terminate this
Agreement if it is found after notice and hearing by the Customer
that gratuities (in the form of entertainment, gifts or otherwise)
were offered or given by Subcontractor or any agent or representative
of Subcontractor to any officer or employee of the Customer with a
view toward securing a contract or securing favorable treatment with
respect to the awarding or amending or making of any determinations
with respect to the performance of this Agreement.
B. In the event this Agreement is terminated as provided in paragraph 1
hereof, the Customer shall be entitled:
1. to pursue the same remedies against Subcontractor as it
could pursue in the event of a breach of his Agreement by
Subcontractor; and
2. as a penalty in addition to any other damages to which it
may be entitled by law, to exemplary damages in an amount
(as determined by the Customer) which shall be not less
than three (3) nor more then ten (10) times the costs
incurred by Subcontractor in providing any such gratuities
to any such officer or employee.
C. The rights and remedies of the Customer provided in this clause
shall not be exclusive and are in addition to any other rights and
remedies provided by law or under this Agreement.
7. COVENANT
Subcontractor covenants that it presently has no interest and that
it will not acquire any interest, direct or indirect, which would
conflict in any manner or degree with the performance of services
required to be performed under this Agreement. Subcontractor further
covenants, to its knowledge and ability, that in the performance of
said services no person having any such interest shall be employed.
24
<PAGE>
8. ASSIGNMENT
Any attempt by Subcontractor to assign or otherwise transfer any
interest in this Agreement without the prior written consent of the
Customer shall be void.
9. OWNERSHIP
A. Notwithstanding any other provision hereof, Subcontractor retains
title to the Subcontractor-developed software including all custom
modifications, enhancements, and derivative works created thereto and
hereafter and all source code, object code, technical and functional
designs and related information in a form protectable by U.S. copyright,
patent or trade secret law.
B. For the purpose of this article, the term "Software" shall mean all of
the sets of instructions or statements, expressed, fixed, embodied, or
stored in any manner, which are to be used directly or indirectly in a
computer to bring about a specific result, and which are to be furnished
by Subcontractor to the Contractor under the contract. Software
includes, but is not limited to, application program, operating
systems, language translators, databases, database management systems,
utility program, maintenance or diagnostic program and engineering
analysis program. Intellectual Property Right(s) is any patent, petty
patent, registered design, copyright, design right, semiconductor
topography right, know-how, or any similar right exercisable in any part
of the world and shall include any applications for the registration of
any patents or registered designs or similar registrable rights in any
part of the world.
C. the Software may not be copied or modified, in whole or in part, for
any purpose whatsoever. The Software may not be reversed, compiled,
dissembled, or otherwise reverse engineered in whole or in part. The
Software and its associated documentation shall be used only with the
designed equipment for which, or with which, it was acquired.
D. The parties acknowledge that during performance under this contract,
new technologies, proprietary and confidential concepts, methods,
techniques, processes and ideas, whether or not patentable or
copyrightable, and whether or not constituting inventions may result
which the parties now agree shall constitute protectable Intellectual
Property. All right, title and interest, including trademarks,
copyright interests and other forms of intellectual property, in
and to such new technologies, proprietary and confidential concepts,
methods, techniques, processes and ideas developed and funded under
this contract shall be the exclusive property of Subcontractor. All
right, title and interest, including trademarks, copyright interests
and other forms of intellectual property, in and to such intellectual
property developed by Subcontractor, its employees, Subcontractors,
vendors or agents, in the performance of this agreement shall be the
property of Subcontractor, with Customer being granted, through
license, use thereof.
E. Upon final acceptance, Subcontractor hereby grants to the Customer a
perpetual, non-exclusive, royalty-free, irrevocable, fully-paid license
to all Software (see Article 2 and Exhibit C), and its associated
documentation. No title to or ownership of the Software or any of its
parts is transferred to the Customer. Title to the Software and all
patents, copyrights, trade secrets, and any other applicable intellectual
property rights shall remain with Subcontractor and/or its vendors and
Subcontractors whether developed prior to or during the performance of
this contract.
F. It is agreed that Subcontractor's or manufacturer's terms and
conditions accompanying or enclosed with Software, if any, shall
form a part of the Customer license with respect to such Software.
Relevant licenses will be provided to the Customer prior to delivery
of the software.
G. Source code developed by Subcontractor specifically for this contract
will be delivered to the Subcontractor provided Escrow Agent for the
purpose of granting access to the Customer under the specified terms and
conditions as set forth in the signed Escrow Agreement dated,
__________1999.
25
<PAGE>
10. COMPENSATION
CUSTOMER'S FISCAL LIMITATIONS
a. The content of this section shall apply to the entire Agreement and
shall take precedence over any conflicting terms and conditions,
and shall limit the Customer's financial responsibility as
indicated in Sections 2 and 3 below.
b. Notwithstanding any other provisions of this Agreement, this
Agreement shall terminate and Customer's obligations under it shall
be extinguished at the end of the fiscal year in which the
Customer's Governing Body fails to appropriate monies for the
ensuing fiscal year sufficient for the payment of all amounts which
will then become due.
c. Customer's total liability for all charges for services which may
become due under this Agreement is limited to the total maximum
expenditure(s) authorized in Customer's purchase order(s) to
Contractor.
11. IMMUNITY FOR INCORRECT DATE GENERATION
The Customer, its officers and employees shall be immune for any breach
of this Agreement caused by an incorrect date being produced, calculated
or generated by a computer or other information system that is owned or
operated by the Customer, its officers or employees, regardless of the
cause of the error (reference NRS 41.0321). In addition, Contractor
shall not be liable for performance impacts or other damages that result
from incorrect date or date related information that is first produced,
calculated or generated by a computer or other information system
outside the system to be delivered under this contract. In the event
Contractor's performance is impacted by incorrect date or date related
information that is first produced, calculated, or generated by a system
owned or operated by the Customer or Clark County, Contractor shall be
entitled to a contract adjustment for increased costs and/or schedule
impacts. The contract adjustment shall be limited to an amount within
current unencumbered appropriations for the Project. The Customer shall
make reasonable best efforts to obtain the funding necessary to
accommodate contract adjustments that may result under this Section. In
the event Contractor's performance is impacted by incorrect date or date
related information that is first produced, calculated, or generated by
a third party controlled system outside of Customer control, Contractor
shall be entitled to schedule relief only. Such schedule relief shall
include relief of any liquidated damages that might otherwise apply.
12. INSURANCE REQUIREMENTS
A. FORMAT/TIME: Subcontractor shall provide Contractor with Certificates of
Insurance for coverages as listed below, and endorsements affecting
coverage required by this Agreement within ten (10) calendar days after
the award by the Contractor. All policy certificates and endorsements
shall be signed by a person authorized by that insurer and who is
licensed by the State of Nevada in accordance with NRS 680A.300. All
required aggregate limits shall be disclosed and amounts entered on the
Certificate of Insurance, and shall be maintained for the duration of
the Agreement and any renewal periods.
B. BEST KEY RATING: The Contractor requires insurance carriers to maintain
during the contract term, a Best Key Rating of A-VII or higher, which
shall be fully disclosed and entered on the Certificate of Insurance.
26
<PAGE>
C. CONTRACTOR COVERAGE: The Contractor, its officers and employees, and
Customer, its officers and employees, must be expressly covered as
additional insured except on workers' compensation and professional
liability insurance coverage. Subcontractor's insurance shall be primary
as respects the Contractor, its officers and employees, and Customer, its
officers and employees.
D. ENDORSEMENT/CANCELLATION: Subcontractor's general liability insurance
policy shall be endorsed to recognize specifically Subcontractor's
contractual obligation of additional insured to Contractor, and must note
that Contractor will be given thirty (30) calendar days advance notice by
certified mail "return receipt requested" of any policy changes,
cancellations, or any erosion of insurance limits.
E. DEDUCTIBLES: All deductibles and self-insured retention shall be fully
disclosed in the Certificates of Insurance and may not exceed Ten
Thousand Dollars ($10,000) without the express written permission of the
Contractor.
F. AGGREGATE LIMITS: IF aggregate limits are imposed on bodily injury and
property damage, then the amount of such limits must not be less than Two
Million Dollars ($2,000,000).
G. COMMERCIAL GENERAL LIABILITY: Subject to paragraph 6 of this Section,
Subcontractor shall maintain limits of no less than One Million Dollars
($1,000,000) combined single limit per occurrence for bodily injury
(including death), personal injury and property damages. Commercial
general liability coverage shall be on a "per occurrence" basis only, not
"claims made," and be provided either on a Commercial General Liability
or a Broad Form Comprehensive General Liability (including a Broad Form
CGL endorsement) insurance form.
H. AUTOMOBILE LIABILITY: Subject to paragraph 6 of this Section,
Subcontractor shall maintain limits of no less than One Million Dollars
($1,000,000) combined single limit per occurrence for bodily injury and
property damage. All insurance claims for injuries to persons or damages
to property which may arise from services rendered by Subcontractor and
any auto used for the performance of services under this Agreement.
I. WORKERS' COMPENSATION: Subcontractor shall obtain and maintain a work
certificate and/or a certificate issued by the State Industrial Insurance
System (SIIS) in accordance with Nevada Revised Statutes Chapters
616A-616D, inclusive, as long as Subcontractor has an employee(s).
J. FAILURE TO MAINTAIN COVERAGE: If Subcontractor fails to maintain any of
the insurance coverages required herein, Contractor will have the option
to stop the work, declare Subcontractor in breach, suspend or terminate
the Agreement, assess liquidated damages as defined herein, or may
purchase replacement insurance or pay premiums due on existing policies.
Contractor may collect any replacement insurance costs or premium
payments made from Subcontractor or deduct the amount paid from any sums
due Subcontractor under this Agreement.
K. ADDITIONAL INSURANCE: Subcontractor is encouraged to purchase any such
additional insurance as it deems necessary.
L. DAMAGES: Subcontractor is required to remedy all injuries to persons and
damage or loss to any property of Contractor, caused in whole or in part
by Subcontractor, their Subcontractors or anyone employed, directed or
supervised by Subcontractor.
M. COST: Subcontractor shall pay all associated costs for the specified
insurance. The cost shall be included in the price(s).
27
<PAGE>
EXHIBIT C CONFIDENTIAL
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
PRODUCT MAINTENANCE
- -----------------------------------------------------------------------------------------------------------------------------------
CLIN COST ELEMENT DESCRIPTION MANUFACTURER MODEL NO. QTY UNIT PRICE TOTAL PRICE YEARLY UNIT TOTAL PRICE
Price
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1000 METROCOMM/CIS
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
1004 PHOTO ID SERVER SOFTWARE
- -----------------------------------------------------------------------------------------------------------------------------------
Digital Photo Storage & Retrieval Imageware N/A 1 NSP NSP NSP NSP
- -----------------------------------------------------------------------------------------------------------------------------------
Mugshot Investigative Software
Package Imageware N/A 1 $290,000.00 $290,000.00 $43,500.00 $43,500.00
- -----------------------------------------------------------------------------------------------------------------------------------
Record Retrieval and Display
Program Imageware N/A 1 NSP NSP NSP NSP
- -----------------------------------------------------------------------------------------------------------------------------------
Imageware Shipping/Handling/
Installation/Training Imageware N/A 1 $ 37,063.14 $37,063.14 N/A N/A
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
2000 CITY HALL INFORMATION SERVICES
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
2003 DTS PHOTO ID SERVER SOFTWARE
- -----------------------------------------------------------------------------------------------------------------------------------
Digital Photo Storage & Retrieval Imageware N/A 1 NSP NSP NSP NSP
- -----------------------------------------------------------------------------------------------------------------------------------
Mugshot Investigative Software
Package Imageware N/A 1 NSP NSP NSP NSP
- -----------------------------------------------------------------------------------------------------------------------------------
Record Retrieval and Display
Program Imageware N/A 1 NSP NSP NSP NSP
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
2010 FINGERPRINT ANALYSIS WORKSTATION
SUBSYSTEM (RECORD 1
- -----------------------------------------------------------------------------------------------------------------------------------
CCS Software, Capture Imageware N/A 1 $9,000.00 $9,000.00 $1,350.00 $1,350.00
- -----------------------------------------------------------------------------------------------------------------------------------
Imageware Shipping/Handling/
Installation/Training Imageware N/A 1 $1,080.00 $1,080.00 N/A N/A
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
2100 CITY HALL, CITY JAIL
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
2101 DATA ENTRY WORKSTATION SUBSYSTEM 1
- -----------------------------------------------------------------------------------------------------------------------------------
Mugshot Investigative Software Imageware N/A 1 NSP NSP NSP NSP
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
2104 PHOTO IMAGE CAPTURE WORKSTATION
SUBSYSTEM 1
- -----------------------------------------------------------------------------------------------------------------------------------
CCS Software, Capture Imageware N/A 1 $9,000.00 $9,000.00 $1,350.00 $1,350.00
- -----------------------------------------------------------------------------------------------------------------------------------
Imageware Shipping/Handling/
Installation/Training Imageware N/A 1 $1,080.00 $1,080.00 N/A N/A
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
2105 PHOTO CAPTURE SUBSYSTEM
- -----------------------------------------------------------------------------------------------------------------------------------
Analog 3CCD Video Camera Imageware/Hitachi HV-C20 1 $4,368.20 $4,368.20 $655.23 $655.23
- -----------------------------------------------------------------------------------------------------------------------------------
Motorized computer-controlled
Pan & Till Mount Imageware/Hitachi SS485P 1 $1,635.19 $1,635.19 $245.28 $245.28
- -----------------------------------------------------------------------------------------------------------------------------------
Zoom Lens Imageware/
Cosmicar/Pentax H15ZME(C60817) 1 $1,433.84 $1,433.84 $215.08 $215.08
- -----------------------------------------------------------------------------------------------------------------------------------
Cable, pan/tilt to PC Imageware N/A 1 $405.00 $405.00 $60.75 $60.75
- -----------------------------------------------------------------------------------------------------------------------------------
PCI Digitizer Capture board for
camera, Flashbus MV-Pro Imageware/IT 3044 1 $861.34 $861.34 $129.20 $129.20
- -----------------------------------------------------------------------------------------------------------------------------------
Cable, Camera to Board Imageware/IT 3610 1 NSP NSP NSP NSP
- -----------------------------------------------------------------------------------------------------------------------------------
Studio Lighting Imageware N/A 1 $1,276.09 $1,276.09 $191.41 $191.41
- -----------------------------------------------------------------------------------------------------------------------------------
Reflective pedestal Imageware N/A 1 $878.52 $878.52 $131.78 $131.78
- -----------------------------------------------------------------------------------------------------------------------------------
Imageware Shipping/Handling/
Installation/Training Imageware N/A 1 $1,302.98 $1,302.98 N/A N/A
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
2107 LAN SERVER SUBSYSTEM
- -----------------------------------------------------------------------------------------------------------------------------------
Store and Forward Imageware N/A 1 $5,000.00 $5,000.00 $750.00 $750.00
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
page 1
<PAGE>
EXHIBIT C
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
PRODUCT MAINTENANCE
- ---------------------------------------------------------------------------------------------------------------------------------
CLIN Cost Element Description Manufacturer Model No. Qty Unit Price Total Price Yearly Unit Total Price
Price
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Imageware Shipping/Handling/
Installation/Training Imageware N/A 1 $600.00 $600.00 N/A N/A
3000 CCDC
3001 DATA ENTRY WORKSTATION W/ID
Verification 4
Mugshot Investigative Software Imageware N/A 4 NSP NSP NSP NSP
3004 PHOTO CAPTURE WORKSTATION 4
CCS Software Capture Imageware N/A 4 $9,000.00 $36,000.00 $1,350.00 $5,400.00
Imageware Shipping/Handling/
Installation/Training Imageware N/A 4 $1,080.00 $4,320.00 N/A N/A
3005 PHOTO CAPTURE SUBSYSTEM 4
Analog 3CCD Video Camera Imageware/ HV-C20 4 $4,368.20 $17,472.80 $655.23 $2,620.92
Hitachi
Motorized computer-controlled Imageware/ SS485P 4 $1,635.19 $6,540.76 $245.28 $981.11
Pan & Tilt Mount Hitachi
Zoom Lens Imageware/ H15ZME 4 $1,433.84 $5,735.36 $215.08 $860.30
Cosmicar/ (C60817)
Pentax
Cable, pan/tilt to PC Imageware N/A 4 $405.00 $1,620.00 $60.75 $243.00
PCI Digitizer Capture board for
camera, Flashbus MV-Pro Imageware/IT 3044 4 $861.34 $3,445.36 $129.20 $516.80
Cable, Camera to Board Imageware/IT 3610 4 NSP NSP NSP NSP
Studio Lighting Imageware N/A 4 $1,276.07 $5,104.28 $191.41 $785.64
Reflective pedestal Imageware N/A 4 $878.52 $3,514.08 $131.78 $527.11
Imageware Shipping/Handling/
Installation/Training Imageware N/A 4 $1,302.98 $5,211.92 N/A N/A
3007 ID VERIFICATION WORKSTATION
(INTAKE/RELEASE) 1
Mugshot Investigative Software Imageware N/A 1 NSP NSP NSP NSP
3008 LAN SERVER
Store and Forward Imageware N/A 1 $5,000.00 $5,000.00 $750.00 $750.00
Imageware Shipping/Handling/
Installation/Training Imageware N/A 1 $600.00 $600.00 N/A N/A
4000 ADTECH WORK CARD AND REGISTRATION
OPERATIONS
4001 DATA ENTRY WORKSTATION SUBSYSTEM
W/ID VERIFICATION 2
Mugshot Investigative Software Imageware N/A 2 NSP NSP NSP NSP
4002 DATA ENTRY WORKSTATION SUBSYSTEM
W/PHOTO CAPTURE 1
CCS Software, Capture Imageware N/A 1 $9,000.00 $9,000.00 $1,350.00 $1,350.00
Imageware Shipping/Handling/
Installation/Training Imageware N/A 1 $1,080.00 $1,080.00 N/A N/A
4003 PHOTO CAPTURE SUBSYSTEM 1
Analog 3CCD Video Camera Imageware/ HV-C20 1 $4,368.20 $4,368.20 $655.23 $655.23
Hitachi
Motorized computer-controlled Imageware/ SS485P 1 $1,635.19 $1,635.19 $245.26 $245.26
Pan & Tilt Mount Hitachi
</TABLE>
page 2
<PAGE>
EXHIBIT C
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
PRODUCT MAINTENANCE
- ---------------------------------------------------------------------------------------------------------------------------------
CLIN Cost Element Description Manufacturer Model No. Qty Unit Price Total Price Yearly Unit Total Price
Price
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Zoom Lens Imageware/ H15ZME 1 $1,433.84 $1,433.84 $215.08 $215.08
Cosmicar/ (C60817)
Pentax
Cable, pan/tilt to PC Imageware N/A 1 $405.00 $405.00 $60.75 $60.75
PCI Digitizer Capture board for
camera, Flashbus MV-Pro Imageware/IT 3044 1 $861.34 $861.34 $129.20 $129.20
Cable, Camera to Board Imageware/IT 3610 1 NSP NSP NSP NSP
Studio Lighting Imageware N/A 1 $1,273.09 $1,273.09 $190.96 $190.96
Reflective pedestal Imageware N/A 1 $878.52 $878.52 $131.78 $131.78
Imageware Shipping/Handling/
Installation/Training Imageware N/A 1 $1,302.62 $1,302.62 N/A N/A
4006 PHOTO CAPTURE WORKSTATION 1
CCS Software, Capture Imageware N/A 1 $9,000.00 $9,000.00 $1,350.00 $1,350.00
Imageware Shipping/Handling/
Installation/Training Imageware N/A 1 $1,080.00 $1,080.00 N/A N/A
4007 PHOTO CAPTURE SUBSYSTEM 1
Analog 3CCD Video Camera Imageware/ HV-C20 1 $4,368.20 $4,368.20 $655.23 $655.23
Hitachi
Motorized computer-controlled Imageware/
Pan & Tilt Mount Hitachi SS485P 1 $1,635.19 $1,635.19 $245.28 $245.28
Zoom Lens Imageware/ H15ZME 1 $1,433.84 $1,433.84 $215.08 $215.08
Cosmicar/ (C60817)
Pentax
Cable, pan/tilt to PC Imageware 1 $405.00 $405.00 $60.75 $60.75
PCI Digitizer Capture board for
camera, Flashbus MV-Pro Imageware/IT 3044 1 $861.34 $861.34 $129.20 $129.20
Cable, Camera to Board Imageware/IT 3610 1 NSP NSP NSP NSP
Tripod Imageware N/A 1 NSP NSP NSP NSP
Studio Lighting Imageware N/A 1 $1,273.09 $1,273.09 $190.96 $190.96
Reflective pedestal Imageware N/A 1 $878.52 $878.52 $131.78 $131.78
Imageware Shipping/Handling/
Installation/Training Imageware N/A 1 $1,302.62 $1,302.62 N/A N/A
4008 ID CARD PRINTER, DUPLEX SUBSYSTEM 2
Photo ID printer Imageware/ 85S 2 $7,275.00 $14,550.00 $1,091.25 $2,182.50
Atlantek
Imageware Shipping/Handling/
Installation/Training Imageware N/A 2 $873.00 $1,746.00 N/A N/A
PVC card Stock; 30 Mil PVC card;
500 cards per box Imageware N/A 2 $85.00 $170.00 N/A N/A
Cleaner Tape; one roll for every
1000 cards Imageware N/A 2 $16.00 $32.00 N/A N/A
Over Laminate 150 cards per roll Imageware N/A 2 $44.00 $88.00 N/A N/A
Ribbons color/black front side and
black resin back side 500 car Imageware N/A 2 $175.00 $350.00 N/A N/A
Ribbons black front/back 500 cards Imageware N/A 2 $87.50 $175.00 N/A N/A
4011 LAN SERVER SUBSYSTEM
Store and Forward Imageware N/A 1 $5,000.00 $5,000.00 $750.00 $750.00
Imageware Shipping/Handling/
Installation/Training Imageware N/A 1 $600.00 $600.00 N/A N/A
5000 LAUGHLIN WORK CARD AND REGISTRATION
OPERATIONS
5001 DATA ENTRY WORKSTATION SUBSYSTEM 1
Mugshot Investigative Software Imageware N/A 1 NSP NSP NSP NSP
5004 PHOTO CAPTURE WORKSTATION 1
CCS Software, Capture Imageware N/A 1 $9,000.00 $9,000.00 $1,350.00 $1,350.00
</TABLE>
page 3
<PAGE>
EXHIBIT C
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
PRODUCT MAINTENANCE
- ---------------------------------------------------------------------------------------------------------------------------------
CLIN Cost Element Description Manufacturer Model No. Qty Unit Price Total Price Yearly Unit Total
Price Price
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Imageware Shipping/Handling/ Imageware N/A 1 $1,080.00 $1,080.00 N/A N/A
Installation/Training
5005 PHOTO CAPTURE SUBSYSTEM 1
Analog 3CCD Video Camera Imageware/Hitachi HV-C20 1 $4,368.20 $4,368.20 $655.23 $655.23
Motorized computer-controlled Imageware/Hitachi SS485P 1 $1,635.19 $1,635.19 $245.28 $245.28
Pan & Tilt Mount
Zoom Lens Imageware/Cosmicar/ H15ZME(C60817) 1 $1,433.84 $1,433.84 $215.08 $215.08
Pentax
Cable pan/tilt to PC Imageware N/A 1 $405.00 $405.00 $60.75 $60.75
PCI Digitzer Capture board Imageware/IT 3044 1 $861.34 $861.34 $129.20 $129.20
for camera, Flashbus MV-Pro
Cable, Camera to Board Imageware/IT 3610 1 NSP NSP NSP NSP
Studio Lighting Imageware N/A 1 $1,273.09 $1,273.09 $190.96 $190.96
Reflective pedestal Imageware N/A 1 $878.52 $878.52 $131.78 $131.78
Imageware Shipping/Handling/ Imageware N/A 1 $1,302.62 $1,302.62 N/A N/A
Installation/Training
5006 ID CARD PRINTER, DUPLEX SUBSYSTEM 1
Photo ID printer Imageware/Atlantek 85S 1 $7,275.00 $7,275.00 $1,091.25 $1,091.25
Imageware Shipping/Handling/ Imageware N/A 1 $873.00 $873.00 N/A N/A
Installation/Training
PVC card Stock: 30 Mil PVC card; Imageware N/A 1 $85.00 $85.00 N/A N/A
500 cards per pox
Cleaner Tape; one roll for Imageware N/A 1 $16.00 $16.00 N/A N/A
every 1000 cards
Over laminate 150 cards per roll Imageware N/A 1 $44.00 $44.00 N/A N/A
Ribbons color/black front side Imageware N/A 1 $175.00 $175.00 N/A N/A
and black resin back side
500 cards
Ribbons black front/back 500 Imageware N/A 1 $87.50 $87.50 N/A N/A
cards
5008 LAN SERVER SUBSYSTEM
Store and Forward Imageware N/A 1 $5,000.00 $5,000.00 $750.00 $750.00
Imageware Shipping/Handling/ Imageware N/A 1 $600.00 $600.00 N/A N/A
Installation/Training
5100 LAUGHLIN - DETENTION CENTER
5101 DATA ENTRY WORKSTATION SUBSYSTEM 1
Mugshot Investigative Software Imageware N/A 1 NSP NSP NSP NSP
5104 PHOTO IMAGE CAPTURE WORKSTATION 1
SUBSYSTEM
CCS Software, Capture Imageware N/A 1 $9,000.00 $9,000.00 $1,350.00 $1,350.00
Imageware Shipping/Handling Imageware N/A 1 $1,080.00 $1,080.00 N/A N/A
Installation/Training
5105 PHOTO CAPTURE SUBSYSTEM 1
Analog 3CCD Video Camera Imageware/Hitachi HV-C20 1 $4,368.20 $4,368.20 $655.23 $655.23
Motorized computer-controlled Imageware/Hitachi SS485P 1 $1,635.19 $1,635.19 $245.28 $248.28
Pan & Tilt Mount
Zoom Lens Imageware/Cosmicar/ H15ZME(C60817) 1 $1,433.84 $1,433.84 $215.08 $215.08
Pentax
Cable,pan/tilt to PC Imageware N/A 1 $405.00 $405.00 $60.75 $60.75
PCI Digitzer Capture board Imageware/IT 3044 1 $861.34 $861.34 $129.20 $129.20
for camera, Flashbus MV-Pro
Cable, Camera to Board Imageware/IT 3610 1 NSP NSP NSP NSP
Studio Lighting Imageware N/A 1 $1,273.09 $1,273.09 $190.96 $190.96
</TABLE>
page 4
<PAGE>
EXHIBIT C
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
PRODUCT MAINTENANCE
- ---------------------------------------------------------------------------------------------------------------------------------
CLIN Cost Element Description Manufacturer Model No. Qty Unit Price Total Price Yearly Unit Total Price
Price
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
Reflective pedestal Imageware N/A 1 $878.52 $878.52 $131.78 $131.78
- ---------------------------------------------------------------------------------------------------------------------------------
Imageware Shipping/Handling/
Installation/Training Imageware N/A 1 $1,302.62 $1,302.62 N/A N/A
- ---------------------------------------------------------------------------------------------------------------------------------
5109 ID CARD PRINTER, DUPLEX SUBSYSTEM 1
- ---------------------------------------------------------------------------------------------------------------------------------
Photo ID Printer Imageware/
Atlantek 85S 1 $7,275.00 $7,275.00 $1,091.25 $1,091.25
- ---------------------------------------------------------------------------------------------------------------------------------
Imageware Shipping/Handling/
Installation/Training Imageware N/A 1 $873.00 $873.00 N/A N/A
- ---------------------------------------------------------------------------------------------------------------------------------
PVC card Stock; 30 Mil PVC card;
500 cards per box Imageware N/A 1 $85.00 $85.00 N/A N/A
- ---------------------------------------------------------------------------------------------------------------------------------
Cleaner Tape; one roll for
every 1000 cards Imageware N/A 1 $16.00 $16.00 N/A N/A
- ---------------------------------------------------------------------------------------------------------------------------------
Over Laminate 150 cards per roll Imageware N/A 1 $44.00 $44.00 N/A N/A
- ---------------------------------------------------------------------------------------------------------------------------------
Ribbons color/black front side
and black resin back side 500
cards Imageware N/A 1 $175.00 $175.00 N/A N/A
- ---------------------------------------------------------------------------------------------------------------------------------
Ribbons black front/back 500 cards Imageware N/A 1 $87.50 $87.50 N/A N/A
- ---------------------------------------------------------------------------------------------------------------------------------
7000 CRIMINALISTICS-LATENT FINGERPRINT
SECTION
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
7008 CAMERA SUBSYSTEM W/ LIGHT TABLE: 1
- ---------------------------------------------------------------------------------------------------------------------------------
Mavica camera system ImageWare/Sony MVC-FD71 1 $1,012.50 $1,012.50 $151.88 $151.88
- ---------------------------------------------------------------------------------------------------------------------------------
Imageware Shipping/Handling/
Installation/Training Imageware N/A 1 $121.50 $121.50 N/A N/A
- ---------------------------------------------------------------------------------------------------------------------------------
8000 CORONER'S OFFICE
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
8001 CORONER'S SPECIAL PURPOSE
WORKSTATION SUBSYSTEM 1
- ---------------------------------------------------------------------------------------------------------------------------------
CCS Software, Capture Imageware N/A 1 $9,000.00 $9,000.00 $1,350.00 $1,350.00
- ---------------------------------------------------------------------------------------------------------------------------------
Imageware Shipping/Handling/
Installation/Training Imageware N/A 1 $1,080.00 $1,080.00 N/A N/A
- ---------------------------------------------------------------------------------------------------------------------------------
8004 HANDHELD COLOR CAMERA SUBSYSTEM 1
- ---------------------------------------------------------------------------------------------------------------------------------
Color Camera ImageWare/ Mavica FD-71 1 $1,012.50 $1,012.50 $151.88 $151.88
Sony
- ---------------------------------------------------------------------------------------------------------------------------------
Imageware Shipping/Handling/
Installation/Training Imageware N/A 1 $121.50 $121.50 N/A N/A
- ---------------------------------------------------------------------------------------------------------------------------------
OTHER SERVICES
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
System Integration/Setup Imageware N/A 1 $48,000.00 $48,000.00 N/A N/A
- ---------------------------------------------------------------------------------------------------------------------------------
Project Management Imageware N/A 1 $27,000.00 $27,000.00 N/A N/A
- ---------------------------------------------------------------------------------------------------------------------------------
Specifications Gathering Imageware N/A 1 $10,000.00 $10,000.00 N/A N/A
- ---------------------------------------------------------------------------------------------------------------------------------
Database Customization Imageware N/A 1 $18,000.00 $18,000.00 $2,700.00 $2,700.00
- ---------------------------------------------------------------------------------------------------------------------------------
Server Database Maintenence Imageware N/A 1 N/A N/A $5,000.00 $5,000.00
- ---------------------------------------------------------------------------------------------------------------------------------
PRC Server Interconnect Imageware N/A 1 $20,000.00 $20,000.00 $3,000.00 $3,000.00
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
page 5
<PAGE>
EXHIBIT C
<TABLE>
<CAPTION>
PRODUCT MAINTENANCE
- ------------------------------------------------------------------------------------------------------------------------------------
YEARLY UNIT
CLIN COST ELEMENT DESCRIPTION MANUFACTURER MODEL NO. QTY UNIT PRICE TOTAL PRICE PRICE TOTAL PRICE
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL $729,270.06 TOTAL $91,375.48
<S> <C> <C> <C> <C> <C> <C> <C> <C>
9300 FACIAL RECOGNITION CAPABILITY OPTION
Automated Facial Recognition Software
(FaceID) server Imageware N/A 1 $166,328.25 $166,328.25 $24,949.24 $24,949.24
Automated Facial Recognition Software
(FaceID) client Imageware N/A 1 $ 15,000.00 $ 15,000.00 $ 2,250.00 $ 2,250.00
70 MM CONVERSION OPTION
Analog 3CCD Video Camera Imageware/Hitachi HV-C20 1 $ 4,368.20 $ 4,368.20 $ 655.23 $ 655.23
Motorized computer-controlled PAN &
Tilt Mount Imageware/Hitachi SS485P 1 $ 1,635.19 $ 1,635.19 $ 245.28 $ 245.28
Zoom Lens Imageware $ 490.00 $ 490.00 $ 73.05 $ 73.50
Cable, pan/tilt to PC Imageware N/A 1 $ 405.00 $ 405.00 $ 60.75 $ 60.75
PCI Digitizer Capture board for
camera, Flashbus MV-Pro Imageware/IT 3044 1 $ 861.34 $ 861.34 $ 129.20 $ 129.20
Cable, Camera to Board Imageware/IT 3610 1 NSP NSP NSP NSP
Conversion Stand and Lighting Imageware N/A 1 $ 500.00 $ 500.00 $ 75.00 $ 75.00
Imageware Shipping/Handling/Installation/
Training Imageware N/A 1 $ 943.17 $ 943.17 N/A N/A
Customization of Code (negative to
positive image) Imageware N/A lot $ 5,000.00 $ 5,000.00 N/A N/A
Research and Development (new code and
stand construction) Imageware N/A lot $ 5,000.00 $ 5,000.00 N/A N/A
ID CARD FORMATS AND REPORTS OPTIONS
Customization of ID Card Formats and
Reports with Training Imageware N/A lot $ 15,000.00 $ 15,000.00 N/A N/A
PRINTER SUPPLY OPTIONS
PVC card Stock; 30 Mil PVC card;
500 cards per box Imageware N/A 1 $ 85.00 $ 85.00 N/A N/A
Cleaner Tape; one roll for every
1000 cards Imageware N/A 1 $ 16.00 $ 16.00 N/A N/A
Over Laminate 150 cards per roll Imageware N/A 1 $ 44.00 $ 44.00 N/A N/A
Ribbons color/black front side and
black resin back side 500 cards Imageware N/A 1 $ 175.00 $ 175.00 N/A N/A
Ribbons black front/back 500 cards Imageware N/A 1 $ 87.50 $ 87.50 N/A N/A
</TABLE>
<PAGE>
COUNTY CONTRACT NO. 308-99
AGREEMENT
FOR
KITSAP COUNTY
AND
IMAGEWARE SOFTWARE INCORPORATED
AGREEMENT
This is an agreement between ImageWare Software Incorporated (IWS), 10883
Thornmint Road, San Diego , California 92127 and the KITSAP COUNTY, 614
Division Street, Port Orchard, Washington, 98366 (COUNTY) to provide
COUNTY with IWS's Crime Capture System(CCS). This agreement (AGREEMENT)
sets out responsibilities and obligations for both parties relating to:
(1) The sale of computer hardware and related equipment.
(2) License of computer software.
(3) Installation of the computers, equipment and software at your site(s).
(4) Training of your personnel on the use of the SYSTEM.
Specifically, we agree to the following:
SCHEDULE A
SPECIFIC TERMS AND CONDITIONS
1. PURCHASE OF SYSTEM HARDWARE AND EQUIPMENT
(a) PURCHASE
IWS agrees to sell to COUNTY and COUNTY agrees to buy from IWS, subject to
the terms of this AGREEMENT, the computer hardware and related equipment
listed in the IWS Proposal, Exhibit-A of this AGREEMENT (SYSTEM HARDWARE).
The SYSTEM HARDWARE will be minimally configured as described in the IWS
Proposal, Exhibit-A and will include operation and maintenance manuals (if
any) provided by the manufacturer.
(b)
IWS independently and not as an agent of the COUNTY, shall provide all
necessary computer software, documentation, training and services, (except
that which is agreed to be supplied by the COUNTY) for COUNTY'S system as
summarized in the "ImageWare Software Kitsap County Sheriff's Office
Digital Mug System" attached
<PAGE>
hereto as Exhibit A. The negotiated Pricing Summary reflects agreements
and adjustments made during negotiations between the parties. Any changes
to the scope of work must be agreed to in writing, by both Parties, before
IWS commences any work on such changes.
(c)
IWS represents and assures COUNTY that the CCS described herein supports
either Windows 95 or Windows NT-Client and furthermore, that there can be
a mix of micro-computers with some running Windows 95 and others running
Windows NT-Client.
(d)
IWS represents and assures COUNTY that the CCS described herein will be
available on an Oracle database management system. Also, as stated in
Section 1 (c) above, the CCS on the Oracle database management system will
support either Windows 95 or Windows NT-Client and furthermore, that there
can be a mix or micro-computers with some running Windows 95 and others
running Windows NT-Client.
2. SYSTEM SOFTWARE LICENSE
(a) GRANT OF LICENSE
IWS grants to COUNTY, subject to the terms of this AGREEMENT, a
nonexclusive and nontransferable license to use the software listed in the
IWS Proposal, Exhibit-A to this AGREEMENT (SYSTEM SOFTWARE). Software
means computer programs in object code format only, (or, if an interpreted
language, the source code itself but to be used on a runtime only basis),
together with any manuals.
(1) IWS agrees to permit COUNTY to purchase additional concurrent
licenses of Crimes Capture System at $10,000.00 each for capture and
$ 6,750.00 each for viewing station for a period of one year after
the date of cut over.
(2) IWS agrees to permit COUNTY to purchase additional concurrent
licenses of Suspect ID at $ 5,000.00 each for a period of one year
after the date of cut over.
(3) IWS agrees to permit COUNTY to purchase additional concurrent
licenses of Crime Lab at $600.00 each for a period of one year after
the date of cut over.
(4) IWS agrees to permit COUNTY to purchase additional concurrent
licenses of Vehicle ID at $1,500.00 each for a period of one year
after the date of cut over.
(b) RESTRICTIONS ON USE
COUNTY agrees to use the SYSTEM SOFTWARE only for its own business and may
not sell or resell any of the SYSTEM SOFTWARE or any rights to use the
SYSTEM SOFTWARE.
COUNTY/IWS Agreement, Page 2
<PAGE>
(c) MODIFICATIONS; REVERSE ENGINEERING
COUNTY agrees that only IWS has the right to alter, enhance or otherwise
modify the SYSTEM SOFTWARE. COUNTY agrees not to disassemble, decompile or
reverse engineer the SYSTEM SOFTWARE or to allow another party to do so.
(d) PROPRIETARY RIGHTS
COUNTY acknowledges that IWS retains all title to the SYSTEM SOFTWARE.
COUNTY is neither the owner of the SYSTEM SOFTWARE nor any copies thereof,
but is licensed (pursuant to this AGREEMENT) to utilize the SYSTEM
SOFTWARE for the purpose of maintaining a Booking & Suspect Identification
System.
3. INSTALLATION OF THE SYSTEM
(a) INSTALLATION RESPONSIBILITY -- COUNTY
(1) COUNTY is responsible for the purchase and delivery of the computer
server, two (2) capture and two (2) viewing stations.
(2) COUNTY is responsible, for providing access to, and preparation of, the
installation site(s) as described in the Installation Procedures set forth
in Exhibit-B of this AGREEMENT. COUNTY also agrees to complete these
preparations at least five (5) days prior to the date installation of the
SYSTEM commences and confirm that all site(s) are ready for installation
to IWS.
(3) Any and all internal electrical work required as part of the
installation (new circuits, switches, etc.) will be the responsibility of
COUNTY. It is COUNTY'S responsibility to ensure that all electrical work
meets any and all applicable building and safety codes.
(b) INSTALLATION RESPONSIBILITY -- IWS
(1) IWS will be responsible for the delivery and installation of the SYSTEM,
imaging equipment (camera, remote pan & tilt, etc.), printers, and
miscellaneous hardware and all software. The installation will be in
accordance with Exhibit-B of this AGREEMENT.
(2) Installation will commence in accordance with the Project Schedule,
Exhibit-C, as further specified in Exhibit-J hereto.
(3) Installation of the SYSTEM HARDWARE is completed when the hardware is
functioning in accordance with the manufacturer's specifications.
Installation of the SYSTEM is complete when IWS completes functional
hardware and software testing and states in writing to COUNTY that the
SYSTEM has been successfully installed.
(c) IWS EMPLOYEE BACKGROUND INFORMATION
If COUNTY so requires, IWS will submit biographical and fingerprint
information for each person who will be engaged in performing any part of
the installation. The biographical and fingerprint information will be
sufficient to allow COUNTY to perform security background checks on all
such persons. IWS agrees to bar any person identified by COUNTY as a
security risk from COUNTY'S offices.
4. TRAINING
The training of COUNTY personnel shall be the responsibility of IWS and
shall include the training program presented in the Crime Capture System
Training Outline, Exhibit D. COUNTY shall be responsible for identifying
personnel requiring training and ensuring that
COUNTY/IWS Agreement, Page 3
<PAGE>
they are available for scheduled training. Training shall take place on
dates mutually agreed upon by IWS and COUNTY. The training schedule
presented in the Crime Capture System Training Outline, Exhibit D, may be
revised only upon written request by COUNTY and acceptance of that request
by IWS. All training provided directly by IWS shall be conducted on a
functional training system located at COUNTY'S site(s). All training
activities may be video taped at COUNTY'S expense for future in-house
training. Such video tapes shall not be sold, loaned or made available for
use to other than COUNTY'S staff and shall be used for training of
COUNTY'S staff only.
All IWS personnel costs related to the provision of training services
for COUNTY training staff for the training days specified in Crime
Capture System Training Outline, Exhibit D are included in the purchase
price of the SYSTEM in the IWS Proposal, Exhibit A. COUNTY expenses
include, but are not limited to, the provision of adequate classroom
space, training workstation and network equipment, the provision of
sufficient copies of printed materials and for video taping of training
events.
IWS training shall be sufficient to allow COUNTY to meet its
obligations and responsibilities with respect to operation and
maintenance under COUNTY'S obligations and responsibilities for
maintenance support as defined within the Hardware and Software
Maintenance Agreement, Exhibit G. IWS shall not be responsible to
provide training days in excess of those specified in Crime Capture
System Training Outline, Exhibit D, if COUNTY'S users fail to achieve
competence due to absence, turnover, failure to complete adequate
preparation and practice exercises, or due to demonstrably deficient
native ability or qualifications. COUNTY may request more training days
paying the IWS training on-going rate.
IWS shall develop and provide, in both electronic and printed format,
procedural manuals containing all procedures, methods, documentation
requirements, and techniques necessary for the successful use and
operation of the SYSTEM. IWS agrees that COUNTY may reproduce this
material for its internal use on an unlimited basis.
5. ACCEPTANCE BY COUNTY
(a) ACCEPTANCE TESTING
After installation of the SYSTEM is complete, COUNTY'S operational
personnel have been trained, and COUNTY'S REPRESENTATIVE agrees that the
SYSTEM is functioning reliably, COUNTY will immediately commence a period
of acceptance testing.
(b) ACCEPTANCE
COUNTY agrees to accept the SYSTEM after the SYSTEM has functioned
reliably for thirty (30) consecutive days of acceptance testing.
The system acceptance testing period will be considered successful if the
requirements defined in the System Acceptance Testing, Exhibit-E, are
satisfied.
Formal sign-off of acceptance of the system will take place immediately
after the successful completion of the system acceptance period.
If, upon completion of the test period, the system and/or sub-system fails
to satisfy the COUNTY operating criteria as defined by the documentation
and specifications,
COUNTY/IWS Agreement, Page 4
<PAGE>
IWS agrees to immediately work with the COUNTY to resolve said problems,
as documented by COUNTY, to provide functioning mug shot systems. A new
acceptance period of 30 days shall then be established to allow for system
testing after which the COUNTY shall provide IWS with written approval if
accepted. Should the second acceptance period a functioning application
system IWS will perform continuous acceptance testing periods, but shall
not exceed six (6) 30 day periods without written approval from the
COUNTY. The COUNTY's Sole Determiner reserves the right to terminate the
AGREEMENT with IWS should the COUNTY DEEM further acceptance testing
periods beyond the agreed term as unacceptable.
6. COUNTY MODIFICATION OF EQUIPMENT
COUNTY may connect equipment manufactured or supplied by other companies
to the SYSTEM, including peripheral equipment, computers, communications
equipment, and terminal devices, provided however, that IWS will not be
held responsible for any damage and/or downtime that may occur. COUNTY
agrees to give thirty days notice to IWS of the specific equipment to be
connected to the SYSTEM. Within 20 days of receiving such notice, IWS
will notify COUNTY whether such equipment is likely to interfere with
IWS's ability to perform maintenance.
7. PRICE AND PAYMENT TERMS
The total price for the SYSTEM is not to exceed $97,830.17 as set forth in
Exhibit-A. Payment shall be according to the following schedule and be
made within 30 days of receipt of IWS's invoice and notice of the listed
event:
<TABLE>
<CAPTION>
EVENT PERCENTAGE DUE
----- --------------
<S> <C>
Signing of this Agreement by COUNTY 30%
Installation of System and training completed 30%
Acceptance by COUNTY 40%
</TABLE>
8. WARRANTIES
(a) HARDWARE
IWS warrants that all major components of the SYSTEM HARDWARE are new at
the time of installation and will operate in conformity with its
documentation provided by IWS for a period of three (3) months after
installation. In the event the SYSTEM HARDWARE fails during this period,
IWS, at its sole option, will repair, modify or replace the failed
component(s) in a timely manner at no additional cost to COUNTY.
(b) SOFTWARE
IWS warrants that the Software will operate in conformity with its
documentation. In the event of any non-conformity for a period of three
(3) months after installation, IWS will use all commercially reasonable
efforts to correct the problem by modification, enhancement or other
repair so that the Software conforms to its documentation.
(c) YEAR 2000 WARRANTY
COUNTY/IWS Agreement, Page 5
<PAGE>
IWS warrants that any Software Product furnished by IWS pursuant to this
Agreement shall support a four-digit year format and be able to accurately
process date and tie data from, into, and between the twentieth and
twenty-first centuries, and the years 1999 and 2000, as well as leap year
calculations. For purposes of this section, "Software Product" shall
include, without limitation, any piece or component of equipment,
hardware, firmware, middleware, custom or commercial software, or internal
components of subroutines therein together with update, upgrades and
enhancements on same. This warranty shall survive termination or
expiration of this Agreement.
In the event of any decrease in Software Product functionality or accuracy
related to time and/or date related codes and/or internal subroutines that
impede the Software Product from operating correctly using dates beyond
December 31, 1999, IWS shall restore or repair the Software Product to the
same level of functionality as warranted herein, so as to minimize
interruption to COUNTY'S ongoing business processes, time being of the
essence. In the event that such warranty compliance requires the
acquisition of additional programs, the expense for any such associated or
additional acquisitions that may be required, including without
limitations, data conversion tools shall be borne exclusively by IWS.
Nothing in this warranty shall be construed to limit any rights or
remedies the COUNTY may otherwise have under this AGREEMENT with respect
to defects other than the Year 2000 performance. IWS shall obtain the same
assurances from all other suppliers whose products IWS relies upon for
operation of IWS's software and shall furnish them to COUNTY upon request.
IWS warrants that the SYSTEM is "Millennium Compliant". For the purpose of
this warranty a "Millennium Compliant" product is such that accurately
processes date data (including, but not limited to: calculating, comparing
and sequencing dates), from, into and between the twentieth and
twenty-first centuries, the years 1999 and 2000, and leap year
calculations, when used in accordance with its product documentation, and
provided that all other products used in combination with the product
properly exchange data with it.
(c) DISCLAIMER
EXCEPT FOR THESE EXPRESSED LIMITED WARRANTIES, IWS MAKES NO WARRANTIES,
EXPRESS, IMPLIED, STATUTORY OR IN ANY COMMUNICATION WITH COUNTY, AND IWS
EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE.
9. PRODUCT AND CUSTOMER SUPPORT
IWS will provide COUNTY with diagnostic software and manuals necessary to
operate and maintain the SYSTEM, including schematics, diagnostic and
maintenance manuals as provided by the manufacturer. During the warranty
period IWS will support the System without any cost to the Entity. After
the warranty period, IWS agrees to offer maintenance, customer and product
support for the SYSTEM for at least five years after installation subject
to COUNTY entering into an IWS Maintenance Agreement during that five
years. IWS will provide a copy of its current Maintenance Agreement to
COUNTY. Any such Maintenance Agreement is
COUNTY/IWS Agreement, Page 6
<PAGE>
optional for COUNTY and requires COUNTY to pay an additional fee. IWS
reserves the right to modify the terms and fees of its standard
Maintenance Agreement at any time.
10. LIMITATION OF LIABILITY
(a) MAXIMUM LIABILITY
UNDER NO CIRCUMSTANCES SHALL IWS'S LIABILITY TO COUNTY EXCEED THE AMOUNTS
PAID BY COUNTY TO IWS UNDER THIS AGREEMENT.
(b) LIMITATION
IN NO EVENT WILL IWS HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST
PROFITS, LOSS OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, ARISING UNDER ANY CAUSE OF ACTION, INCLUDING CONTRACT, WARRANTY,
STRICT LIABILITY OR TORT, WHETHER OR NOT IWS HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING
THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. TERMINATION; BREACH
(a) TERMINATION
Either party may terminate this AGREEMENT upon a breach by the other party
which is not cured in a timely manner as provided for in sub-section (b)
below. Otherwise, this AGREEMENT will terminate upon both parties'
fulfilling all of their obligations under it.
(b) BREACH
In the event of any material breach of this AGREEMENT by either party, the
aggrieved party must give written notice thereof, including a reasonably
detailed statement of the nature of such breach, to the breaching party.
The breaching party has thirty (30) days to cure such breach. In the case
of a breach that cannot reasonably be cured within 30 days, the breaching
party will provide a written estimate of the time needed to cure such
breach, will commence to cure such breach within thirty (30) days of
notice from the aggrieved party, and will diligently continue to cure such
breach to completion. If the breaching party fails to cure, to commence
cure, or diligently prosecute such cure to completion, the aggrieved party
shall be entitled to suspend its performance under this AGREEMENT for as
long as the breach remains uncorrected, and avail itself the remedies
provided by this AGREEMENT.
12. DISPUTES; BINDING ARBITRATION; ATTORNEYS' FEES
(a) DISPUTES
In the event that any dispute or controversy arises between IWS and
COUNTY, IWS and COUNTY agree to first attempt to resolve the matter
through discussions between them directly.
13. TECHNICAL AND CONTRACTUAL REPRESENTATIVES
The following authorized representatives are hereby designated for this
AGREEMENT:
COUNTY/IWS Agreement, Page 7
<PAGE>
<TABLE>
<CAPTION>
IWS CORPORATION PURCHASING ENTITY
--------------- -----------------
<S> <C>
Contractual: Carmen Errejon, Contracts Administrator Contractual: Dick Harty, Application Services Manager
Phone: (619) 673-8600 Phone: (360) 337-4407
FAX: (619) 673-1770 FAX: (360) 337-4638
Technical: Technical: Julie Lingenfelter, Programmer Analyst
Phone: Phone: (360) 337-5750
FAX: FAX: (360) 337-4638
</TABLE>
Any notice, request, document or other communication submitted by either
party to the other party under this AGREEMENT shall be in writing or
through a wire or electronic medium which produces a tangible record of
the transmission, such as telegram, cable or facsimile, and will be deemed
duly given or sent when delivered to the appropriate Contractual
Representative listed above at the following address:
<TABLE>
<CAPTION>
IMAGEWARE SOFTWARE, INC. KITSAP COUNTY
------------------------ -------------
<S> <C>
10883 Thornmint 614 Division Street (MS-21)
San Diego, CA 92127 Port Orchard, Washington 98366
</TABLE>
14. MISCELLANEOUS TERMS
(a) COUNTY CONFIDENTIAL INFORMATION; PUBLICITY
IWS will not publish or otherwise disclose any information or data
obtained from COUNTY in any manner where the identity of any particular
person or establishment can be identified, except with the consent of such
person or establishment. IWS will keep such information confidential using
the same care and discretion used with similar information that IWS
designates as confidential.
Any publicity giving reference to the sale, installation, and/or
operation of the SYSTEM, whether in the form of press release, brochure,
photographic coverage, or verbal announcement, shall be made only with
the prior approval of COUNTY, provided that IWS may refer to the SYSTEM
during its normal course of business.
(b) SOURCE CODE PROTECTION
IWS agrees to deposit the source code, documentation and related materials
for the System (DEPOSIT MATERIALS) with an Escrow Agent subject to COUNTY
entering into an IWS Software Escrow Agreement. The DEPOSIT MATERIALS will
be made available to the COUNTY for the purposes of self support if
certain events named in the IWS Software Escrow Agreement occur. IWS will
provide a copy of its current Software Escrow Agreement to COUNTY in
Exhibit F. Any such Software Escrow Agreement is optional for COUNTY and
requires COUNTY to sign and accept the terms of the Software Escrow
Agreement.
(c) INDEPENDENT CONTRACTOR
IWS is an independent contractor. The manner in which the work is to be
performed will be controlled by IWS; however, the nature of the work and
the results to be achieved shall be
COUNTY/IWS Agreement, Page 8
<PAGE>
specified by COUNTY. IWS is not an employee or agent of COUNTY and has no
authority to make any binding commitments or obligations on behalf of
COUNTY except to the extent expressly provided herein.
(d) DELAY
In the event COUNTY causes delay in the installation, testing or
acceptance of the SYSTEM, or some part of it, whether the delay is (i)
ordered by COUNTY, (ii) the result of COUNTY'S failure to perform its
installation responsibilities, (iii) caused by incompatibility with
computer programs or equipment not furnished by IWS, or (iv) because of
other actions by COUNTY, COUNTY will pay to IWS an amount based upon the
Time and Materials IWS on-going rate in addition of all expenses incurred
by IWS as a result of the delay.
(e) CHANGE ORDERS
IWS agrees to modify the SYSTEM or installation procedures, if requested
to do so by COUNTY, and such modifications will not affect the validity of
this AGREEMENT. If the modifications result in an increase in the amount
of the work required by IWS or in the cost of SYSTEM HARDWARE or SOFTWARE,
the parties agree that an appropriate price adjustment will be made. All
modifications will be in writing signed by IWS and COUNTY'S REPRESENTATIVE
and will describe the change and the cost, if any, of the modification.
(f) RISK OF LOSS OR DAMAGE
IWS will bear all risk of loss or damage to SYSTEM HARDWARE and SOFTWARE
until delivered to COUNTY'S location. After the SYSTEM HARDWARE and
SOFTWARE are delivered, COUNTY bears all risk of loss or damage, except
loss or damage attributable to IWS negligence, defects that COUNTY could
not reasonably have discovered prior to Acceptance, or IWS breach of this
AGREEMENT.
(g) FORCE MAJEURE
Any delays in or failure of performance by IWS or COUNTY, except for the
obligation to make payments, will not constitute default under this
AGREEMENT to the extent the delays or failure of performance is caused by
occurrences beyond the control of IWS or COUNTY, including, but not
limited to, acts of God or public enemy, expropriation or confiscation of
facilities, compliance with any order or request of any governmental
authority, act of war, rebellion or sabotage, fires, floods, explosions,
earthquakes, accidents, or riots.
(h) TAXES
COUNTY shall be responsible for payment of any sales, use, withholding or
other similar taxes (other than taxes based on IWS's net income) which may
be imposed on the payments due under this AGREEMENT and shall promptly
reimburse IWS for any such taxes (including interest, penalties and
additions to tax with respect thereto), whether such taxes are included
with the purchase price shown on Exhibit-A or imposed in the future.
COUNTY warrants that it is a tax exempt organization and that IWS is
therefore not responsible for payment of any personal property taxes for
property in the possession of COUNTY on the date of assessment.
(i) INDEMNITY
COUNTY/IWS Agreement, Page 9
<PAGE>
(1) OBLIGATIONS -- COUNTY:
COUNTY agrees to protect and hold IWS harmless from any and all claims,
suits, actions and procedures brought or filed by third parties and from
all damages, penalties, losses, costs and expenses (including attorney's
fees) arising out of, or related to, any act or omission of COUNTY, its
employees, or agents.
(2) OBLIGATIONS -- IWS
IWS agrees to protect and hold COUNTY harmless from any and all claims,
suits, actions and procedures brought or filed by third parties and from
all damages, penalties, losses, costs and expenses (including attorney's
fees) arising out of, or related to, any act or omission of IWS, its
employees, or agents.
In addition IWS agrees to protect and hold COUNTY harmless from any claims
brought against COUNTY alleging that the SYSTEM SOFTWARE infringes a 3rd
party's patents or copyright, provided that IWS is notified promptly by
COUNTY of any such claim (including any threatened claim) and IWS has sole
control of the defense with respect to such claims. The preceding
indemnification by IWS will not apply to any claim based, in whole or in
part, on any modification of the SOFTWARE made by any person other than
IWS. If a final injunction is issued, or, IWS believes, is likely to be
entered, prohibiting the use of the SOFTWARE by COUNTY, IWS will, at its
sole discretion and expense, either: (i) procure for COUNTY the right to
use the SOFTWARE as provided herein, (ii) replace the SOFTWARE with
non-infringing, functionally equivalent product; (iii) suitably modify the
SOFTWARE so that it is not infringing and provides similar functionality;
or (iv) accept return of the SOFTWARE and refund the purchase price. IWS'S
LIABILITY FOR ANY INFRINGING SOFTWARE IS STRICTLY LIMITED TO THE
FOREGOING.
(j) INSURANCE; WORKERS' COMPENSATION COVERAGE
IWS will maintain and require all of its subcontractors, consultants and
other agents to maintain, insurance as follows: (i) Workers' Compensation
insurance with statutory limits as required by the Labor Code of the
State of California, and (ii) Commercial general liability insurance
covering bodily injury and property damage using an occurrence policy form
in an amount of not less than one million dollars ($1,000,000) combined
single limit for each occurrence.
(k) INCORPORATED EXHIBITS
The following documents are hereby incorporated into this Agreement by
reference:
<TABLE>
<S> <C>
Exhibit A: ImageWare Proposal
Exhibit B: Installation Procedures
Exhibit C: Project Schedule
Exhibit D: CCS Training Outline
Exhibit E: System Acceptance Testing
Exhibit F: Software Escrow Agreement
Exhibit G: Software and Hardware Maintenance Agreement
Exhibit H: IWS letter regarding Outstanding Issues in Contract Negotiations. June 3,1999
Exhibit I: IWS Bid for Kitsap CSO Digital Mug System. April, 1, 1999.
</TABLE>
COUNTY/IWS Agreement, Page 10
<PAGE>
Exhibit J: Email from Carmen Errejon to Julie Lingenfelter of
June 17, 1999 fixing Work dates.
(l) WAIVER
The waiver or failure of either party to exercise in any respect any right
provided for in this AGREEMENT will not be deemed a waiver of any further
right under this AGREEMENT.
(m) NON-DISCRIMINATION
IWS will comply will all applicable federal, state and local laws, rules
and regulations in regard to non-discrimination in employment because of
race, color, ancestry, national origin, religion, sex, marital status,
age, medical condition, disability or other prohibited basis.
(n) ASSIGNMENT
COUNTY may not transfer, assign or otherwise dispose of its rights or
obligations under this AGREEMENT, including but not limited to the
SOFTWARE license, without IWS'S written permission. However, IWS will not
unreasonably withhold a request by COUNTY to assign its rights or
obligations to another party of equal fiscal soundness and business
reputation, and COUNTY may, upon a sale of all its assets, transfer its
rights and obligations under this AGREEMENT to the successor agency. This
AGREEMENT shall be binding upon and inure to the benefit of the
successors, permitted assigns and heirs of the parties.
(o) VENUE
This contract will be governed by the laws of the State of Washington,
both as to interpretation and performance, and any action at law, suit
in equity, or other proceeding for the enforcement of this Agreement of
any provision thereof will be instituted only in the courts of the
State of Washington, COUNTY of Kitsap.
(p) SURVIVAL OF PROVISIONS
Notwithstanding any termination of this AGREEMENT, the following
provisions survive and remain in effect: Sections 10, 11, 12, 13, 14 and
15.
(q) ORDER OF PRECEDENCE
IN THE EVENT OF ANY INCONSISTENCY OR CONFLICT BETWEEN OR AMONG THE
PROVISIONS OF THIS AGREEMENT, THE INCONSISTENCY SHALL BE RESOLVED BY
GIVING PRECEDENCE IN THE FOLLOWING ORDER:
<TABLE>
<S> <C>
Exhibit A: ImageWare Proposal. June 2, 1999.
SCHEDULE A SPECIFIC TERMS AND CONDITIONS
Exhibit B: Installation Procedures
Exhibit C: Project Schedule
Exhibit D: CCS Training Outline
Exhibit E: System Acceptance Testing
Exhibit F: Software Escrow Agreement
Exhibit G: Software and Hardware Maintenance Agreement
Exhibit I: IWS Bid for Kitsap CSO Digital Mug System. April, 1, 1999.
Exhibit J: Email from Carmen Errejon to Julie Lingenfelter of June 17, 1999 fixing WorkPlan dates.
</TABLE>
COUNTY/IWS Agreement, Page 11
<PAGE>
(r) ENTIRE AGREEMENT; MODIFICATIONS; INVALIDITY
This AGREEMENT, including the exhibits, constitutes the entire agreement
between the parties and supersedes all previous agreements or
representation, oral or written, relating to this AGREEMENT. This
AGREEMENT may only be modified or amended by a writing signed by each
party. Both parties acknowledge they have read this AGREEMENT, understand
its terms and conditions, and agree to be bound by it. If any provision of
this AGREEMENT is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions shall nevertheless
continue in full force without being impaired or invalidated in any way.
15. SIGNATURES
DATED THIS DAY 199 . DATED THIS 28th DAY JUNE, 1999.
AGREED TO: AGREED TO:
IMAGEWARE SOFTWARE, INC
KITSAP COUNTY BOARD OF
COMMISSIONERS
By: /s/ WAYNE WETHERELL /s/ Charlotte Garrido
---------------------------- ---------------------------------
CHARLOTTE GARRIDO, CHAIR
Name: WAYNE WETHERELL /s/ Tim Botkin
--------------------------- ---------------------------------
TIM BOTKIN, COMMISSIONER
Title: CFO & VP of FINANCE /s/ Chris Endresen
-------------------------- ---------------------------------
CHRIS ENDRESEN, COMMISSIONER
/s/ Holly Anderson
- --------------------------------
HOLLY ANDERSON, CLERK OF THE BOARD
COUNTY/IWS Agreement, Page 12
<PAGE>
COUNTY/IWS Agreement, Page A-1 CONFIDENTIAL
EXHIBIT A - IMAGEWARE PROPOSAL
CONFIDENTIAL EXHIBIT A June 2, 1999
KITSAP COUNTY Proposal for CCS
Mug Photo System
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
DESCRIPTION QTY UNIT EXT TOTAL
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------
CAMERA SUB-SYSTEMS
- -----------------------------------------------------------------------------------------------------------------------
Hitachi KP-D50 Camera, NIST standards (single chip) 2 $1,471.50 $2,943.00
- -----------------------------------------------------------------------------------------------------------------------
Computar Lens 2 $1,147.50 $2,295.00
- -----------------------------------------------------------------------------------------------------------------------
3 point Lighting system 2 $1,343.25 $2,686.50
- -----------------------------------------------------------------------------------------------------------------------
Pan and Tilt Camera mount 2 $1,620.00 $3,240.00
- -----------------------------------------------------------------------------------------------------------------------
Reflective Pedestal 2 $924.75 $1,849.50
- -----------------------------------------------------------------------------------------------------------------------
Cable bundle 2 $202.50 $405.00
- -----------------------------------------------------------------------------------------------------------------------
NIST compliance capture software 2 $1,500.00 $3,000.00
- -----------------------------------------------------------------------------------------------------------------------
Capture Card MVPro 2 $904.50 $1,809.00
- -----------------------------------------------------------------------------------------------------------------------
Power Supply (Single Chip) 2 $67.50 $135.00
- -----------------------------------------------------------------------------------------------------------------------
SUBTOTAL $18,363.00
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
SOFTWARE
- -----------------------------------------------------------------------------------------------------------------------
CCS Investigative Display Software (Full) 2 $6,750.00 $13,500.00
- -----------------------------------------------------------------------------------------------------------------------
CCS Capture Station software 2 $10,000.00 $20,000.00
- -----------------------------------------------------------------------------------------------------------------------
Suspect ID 1 $5,000.00 nc
- -----------------------------------------------------------------------------------------------------------------------
Crime Lab 1 $600.00 nc
- -----------------------------------------------------------------------------------------------------------------------
Vehicle ID 1 $1,500.00 nc
- -----------------------------------------------------------------------------------------------------------------------
SUBTOTAL $33,500.00
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
*CUSTOM SOFTWARE/INTEGRATION
- -----------------------------------------------------------------------------------------------------------------------
Systems Integration (File Transfer w/ Intergraph (RMS) to 1 $5,000.00 $5,000.00
avoid duplicate entry
- -----------------------------------------------------------------------------------------------------------------------
Systems Integration (Custom API for Image Retrieval 1 $10,000.00 $10,000.00
through Intergraph RMS)
- -----------------------------------------------------------------------------------------------------------------------
Systems Integration (Interface to update JMS) 1 $5,000.00 $5,000.00
- -----------------------------------------------------------------------------------------------------------------------
SUBTOTAL $20,000.00
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
TOTAL HARDWARE / SOFTWARE $71,863.00
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
SERVICES
- -----------------------------------------------------------------------------------------------------------------------
Additional Custom Print Formats 4 $500.00 $2,000.00
- -----------------------------------------------------------------------------------------------------------------------
Project Management 3 $900.00 $2,700.00
- -----------------------------------------------------------------------------------------------------------------------
Conversion of Records from Alternative Booking system 60000 $0.20 $12,000.00
- -----------------------------------------------------------------------------------------------------------------------
**Hardware Testing 2 $1,500.00 $3,000.00
- -----------------------------------------------------------------------------------------------------------------------
SUBTOTAL $19,700.00
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
***LICENSES
- -----------------------------------------------------------------------------------------------------------------------
<PAGE>
COUNTY/IWS Agreement, Page A-2
- -----------------------------------------------------------------------------------------------------------------------
5-User Windows NT Server License # 606670 1 $687.23 $687.23
- -----------------------------------------------------------------------------------------------------------------------
5-User Concurrent Sybase License 1 $847.27 $847.27
- -----------------------------------------------------------------------------------------------------------------------
SUBTOTAL $1,534.50
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
****SHIPPING/HANDLING/INSTALLATION $10,060.82 $10,060.82
- -----------------------------------------------------------------------------------------------------------------------
TRAINING 2 $750.00 $1,500.00 $1,500.00
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
TOTAL $104,658.32
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
AGENCY DISCOUNT $6,828.15
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
PROJECT TOTAL $97,830.17
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
*This pricing is based on previous inter-connects with different vendors.
It is not 1OO% secure and may change.
- -----------------------------------------------------------------------------------------------------------------------
**See attached installation paper
- -----------------------------------------------------------------------------------------------------------------------
***Oracle Licensing have not yet been included
- -----------------------------------------------------------------------------------------------------------------------
****See attached installation paper
- -----------------------------------------------------------------------------------------------------------------------
MAINTENANCE
- -----------------------------------------------------------------------------------------------------------------------
Paid Maintenance and Support (Year 1) Starts 90 days $14,299.92
after day of installation
- -----------------------------------------------------------------------------------------------------------------------
Maintenance and Support (Year 2) $14,871.00
- -----------------------------------------------------------------------------------------------------------------------
Maintenance and Support (Year 3) $15,466.00
- -----------------------------------------------------------------------------------------------------------------------
Maintenance and Support (Year 4) $16,084.00
- -----------------------------------------------------------------------------------------------------------------------
Maintenance and Support (Year 5) $16,727.00
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
COUNTY/IWS Agreement, Page B-1
EXHIBIT B - INSTALLATION PROCEDURES
1. INSTALLATION LOCATION
The System is to be installed at the following address(es):
KITSAP COUNTY JAIL, 614 DIVISION STREET, PORT ORCHARD WA 98366
KITSAP COUNTY SHERIFF'S DEPARTMENT, 614 DIVISION STREET, PORT ORCHARD WA
98366
SILVERDALE PRECINCT, 3951 RANDALL WAY, SILVERDALE WA 98383
JUVENILE DETENTION, 1338 OLD CLIFTON ROAD, PORT ORCHARD, WA 98366
2. COUNTY'S RESPONSIBILITIES
IWS will provide COUNTY with a copy of the CCS System Preparation and
Installation Guide. COUNTY is responsible for reviewing the Guide and
providing the following in conformance with the Guide:
(a) SITE PREPARATION -- SERVER
(1) Suitable space including tables, chairs, stands, or racks.
(2) Two telephone lines (one voice line and one modem line) and
one voice handset.
(3) Clean temperature controlled environment.
(4) Any requisite electrical and/or lighting work.
(5) Tested and operational network connection.
(b) SITE PREPARATION -- WORKSTATIONS
(1) Suitable space including tables, chairs, stands, or racks.
(2) One telephone line and one voice handset.
(3) A suitable background (plywood, plaster board, etc) secured to
the wall for any capture stations.
(4) Reasonably clean environment.
(5) Any requisite electrical and/or lighting work.
(6) Tested and operational network connection.
(c) OTHER
(1) Suitable nearby parking for IWS installation personnel.
COUNTY will pay any and all parking costs associated with
installation work performed by IWS personnel at COUNTY'S
facility.
<PAGE>
COUNTY/IWS Agreement, Page B-2
(2) COUNTY will make certain that authorized IWS personnel have
access to COUNTY'S facility(ies) 24 hours/day -- 7 days/week
while the System is being installed and tested.
(3) Labor and equipment necessary to transport the SYSTEM HARDWARE
from COUNTY'S receiving area at the receiving location to the
installation site.
(4) A clean operating environment at the installation site which
complies with temperature, humidity and operational
specifications of the SYSTEM HARDWARE.
4. IWS'S INSTALLATION RESPONSIBILITIES
IWS is responsible for providing the following relating to the SYSTEM
installation:
(1) Supervision of COUNTY employees who transport the SYSTEM
HARDWARE from the receiving area to the installation site.
(2) Installation of the SYSTEM HARDWARE at the designated sites.
(3) Operational checkout of the Equipment, including offline
verification.
(4) Installation of the SYSTEM SOFTWARE at the designated sites.
(5) Operational verification of each computer and item of
equipment on a stand-alone basis and as interfaced with
equipment furnished BY COUNTY, including transmission lines,
modems and computers.
<PAGE>
COUNTY/IWS Agreement, Page C-1
EXHIBIT C - PROGECT SCHEDULE
SEE PAGE 40, SECTION 4.0 "WORKPLAN"
OF APRIL 1ST, 1999 BID RESPONSE
<PAGE>
COUNTY/IWS Agreement, Page D-1
EXHIBIT D - CRIME CAPTURE SYSTEM TRAINING OUTLINE
CRIME CAPTURE SYSTEM TRAINING
IWS will provide one day of training for the system administrator, as well as
one day of training for the system users (Maximum of 15 trainees per session).
CRIME CAPTURE SYSTEM-TM- TRAINING OUTLINE
OPERATOR TRAINING
Objective: By the end of the training session, students will know how to book a
suspect, search a database, use the mug book function and create photo line-ups.
TRAINING OUTLINE:
I. STARTING THE PROGRAM 5 minutes
III. New Bookings 120 minutes
a. ADDING A NEW BOOKING
1. TAKING A PICTURE
2. QUALITY CONTROL
b. SEARCHING FOR MATCHES
3. LINKING RECORDS
4. UNLINKING RECORDS
c. VIEWING RECORDS
d. VIEWING MULTIPLE BOOKINGS
e. EDITING AND DELETING RECORDS
f. PRINTING INDIVIDUAL RECORDS
IV. SEARCHING
45 MINUTES
a. QUICK SEARCH
<PAGE>
COUNTY/IWS Agreement, Page D-2
b. ADVANCED SEARCH
c. SAVING A SEARCH
d. RUNNING AND EXISTING SEARCH
e. DELETING AND EXISTING SEARCH
f. PRINTING SEARCH RESULTS
V. MUG BOOK
30 MINUTES
a. SEARCHING FOR MUGSHOT
b. SAVING A MUG BOOK
c. VIEWING AN EXISTING MUG BOOK
d. DELETING A MUG BOOK
VI. PHOTO LINE-UP
40 MINUTES
a. CREATING A PHOTO LINE-UP
b. SAVING A PHOTO LINE-UP
c. VIEWING AN EXISTING PHOTO LINE-UP
d. DELETING AN EXISTING PHOTO LINE-UP
e. PRINTING A PHOTO LINE-UP
SYSTEM ADMINISTRATOR TRAINING
I. SETTING UP PASSWORDS
II. DEFINING OPERATOR RIGHTS
<PAGE>
COUNTY/IWS Agreement, Page D-3
III. BACKING UP THE SYSTEM
IV. ARCHIVING INFORMATION
V. SETTING MANDATORY FIELDS
VI. CUSTOMIZING DATA PICK LISTS
<PAGE>
COUNTY/IWS Agreement, Page E-1
EXHIBIT E - SYSTEM ACCEPTANCE TESTING
E.1 SYSTEM ACCEPTANCE TESTING (SAT)
The SAT will take place after the installation of all hardware and software and
IWS has certified the System installation completed and ready for testing.
COUNTY will conduct the SAT. The SAT team will utilize all capture and display
stations to capture live images and to make sufficient inquires of the system to
measure its conformance and compatibility with the following:
E.1.1 Each capture station must capture, display, and print images in color
and black and white.
E.1.2 Each investigative station must be able to display a minimum of 25 color
full-face images at one time, display and print images in color and black and
white.
E.1.3 Each investigative station must be able to access the database using name
or booking number, and display the proper image and data within 15 seconds or
less.
E.1.4 Each investigative station must be able to search the database using
predetermined searchable fields or using advanced search.
E.1.5 Each investigative station must be able to generate and display photo
line-ups. The line-ups must be able to be recalled by suspect name, or line-up
identification number. The identification number must appear on every copy of
the line-up that is generated and printed.
E.1.6 Each scanner must be able to scan photographs, books into the permanent
database from which they can be displayed and printed from any investigative
station.
E.1.7 The System's training mode must be accessible from any capture or
investigative station and must not effect on-line data nor interfere with other
stations on the system.
E.1.8 Standalone testing. The system must be tested to ensure booking images
can be captured when the ImageWare server(s) are down.
E.1.9 The System must be able to seal, expunge, or delete any recorded image
and associated data.
E.1.10 The System must automatically log it self off after 10 minutes of no
operator use.
E.1.11 The system must be tested to ensure that facial composites can be
created if this function is purchased by COUNTY.
<PAGE>
COUNTY/IWS Agreement, Page E-2
E.1.12 The system must be tested to make sure that the facial recognition
function is working for new images if purchased by COUNTY.
E.1.13 The System must allow for the interface to other Law Enforcement
agencies that purchase the Crimes Capture System.
<PAGE>
COUNTY/IWS Agreement, Page G-1
EXHIBIT G - SOFTWARE AND HARDWARE MAINTENANCE AGREEMENT
G.1 TERM.
G.1.1 Initial Term. The initial term of this Agreement shall commence on
the date of Installation and shall extend for five (5) years.
G.1.2 Renewal Terms. This Agreement shall be renewed thereafter,
automatically for successive one-year terms, but not more than ten
(10) such terms unless COUNTY gives IWS ninety (90) days prior
written notice of its intention not to renew this Agreement,
provided however that IWS shall be entitled, beginning upon the
commencement of the first such renewal term to increase the charges
payable by COUNTY pursuant to paragraph G.3.
G.2 MAINTENANCE SERVICE TO BE PROVIDED.
G.2.1 GENERAL. During the initial term of this Agreement, and any
renewal term thereof, IWS shall provide to COUNTY maintenance
service with respect to the System consisting of (i) Preventive
Maintenance as described in paragraph G.2.2, (ii) Remedial
Maintenance as described in paragraph G.2.3, and (iii) Extra
Services as described in paragraph G.2.4, all in accordance with
and subject to the terms and conditions of this Agreement.
G.2.2 PREVENTIVE MAINTENANCE. Preventive Maintenance shall consist of
all maintenance service, other than Excluded Services as defined in
paragraph G.2.5, performed by IWS in accordance with a
predetermined schedule and independently of any System Failure, for
the purpose of maintaining the System in good working order.
Preventive Maintenance, which shall require quarterly, semi annual,
and annual maintenance work and shall be performed by IWS personnel
on normal working days between the hours of 8:00 a.m. and 4:30 p.m.
or as otherwise arranged. Pursuant to the provisions of the IWS's
maintenance manual and in accordance with a schedule mutually
acceptable to COUNTY and IWS, consistent with COUNTY'S operating
requirements and the specific needs of the System as determined by
IWS from time to time.
For the purpose of this agreement, Normal Business Hours shall be
from 8:00 a.m. to 4:30 p.m. on working days, i.e. Monday - Friday
except holidays.
G.2.2.a QUARTERLY MAINTENANCE shall include, but not limited to, IWS's
personnel performing a quality control check of the system to
assure COUNTY that the system is performing at the prescribe
standards for System functionality.
<PAGE>
COUNTY/IWS Agreement, Page G-2
G.2.2.b SEMI ANNUAL MAINTENANCE shall include the Quarterly Maintenance in
addition, but not limited to, a general cleaning of the system.
G.2.2.c Annual Maintenance shall include a thorough inspection, cleaning,
hardware alignment, and general system check to preserve image and
system performance quality.
G.2.3 REMEDIAL MAINTENANCE. Remedial Maintenance shall mean all
maintenance, other than Excluded Services, reasonably required as a
result of, and for the purpose of correcting, a System Failure. For
purposes of this Agreement, System Failure shall mean any
malfunction in the System that prevents or materially interferes
with, the accomplishments of any or all of the System intended
functions. Following any identification of any System Failure by
COUNTY, and COUNTY's completion of the diagnostic checklist and
procedures recommended by IWS in the User Documentation Set, COUNTY
shall provide notification thereof to IWS.
In the event of any software failure, IWS shall thereafter make a
good faith effort to cause the appropriate software support person
to respond to the COUNTY within 30 minutes of the notification with
an update as to cause and/or possible solutions. Software support
shall be available 24 hours per day 7 days each week including
holidays regardless of the severity of the software failure.
In the event of any hardware failure, IWS shall thereafter make a
good faith effort to cause an authorized representative of IWS to
arrive at the location where the System is installed no later than
twenty-four (24) hours following INN'S's receipt of such
notification. IWS shall from time to time advise COUNTY of the
name(s) and location(s) of locally-based IWS personnel authorized
to receive such notifications and IWS shall ensure that such
personnel are available to COUNTY at all times that the System is
scheduled by COUNTY to be in operation. Hardware support shall be
available 7 days per week 24 hours per day for critical items as
defined in PARAGRAPH G.2.3.1, and during normal work days and hours
for non critical items as defined in PARAGRAPH G.2.3.2.
G.2.3.1 CRITICAL ITEMS: All IWS hardware associated with the Server, IWS
supplied interfaces, and Capture Stations that prohibit the COUNTY
from performing their day to day duties associated with the capture
and storage of mug photo images shall be considered as CRITICAL
ITEMS. The only hardware exception to this paragraph will be the
printers.
G.2.3.2 NON CRITICAL ITEMS: All IWS supplied hardware items not mentioned
in paragraph G.2.3.1 will be considered non critical items and
shall be repaired during the IWS's normal work hours. This will
include the printers associated
<PAGE>
COUNTY/IWS Agreement, Page G-3
with any capture station and display stations.
G.2.4 EXTRA SERVICES. Extra Services shall consist of any maintenance
services with respect to the System, other than Preventive
Maintenance and Remedial Maintenance, including without limitation,
Excluded Services. IWS shall be under no firm obligation to perform
any Extra Service but undertakes to make a good faith effort to
render such services to the extent that it is capable of doing so
without substantially interfering with its other obligations under
this Agreement or its obligations to other customers. If so
requested by COUNTY, IWS shall provide a written estimate of extra
charges likely to be incurred or accrued as a result of the
performance of such services, to the extent such services can be
reasonably ascertained in advance.
G.2.5 EXCLUDED SERVICES. For the purpose of this Agreement Excluded
Services shall be defined as; Any maintenance services necessary or
appropriate in order to correct any System Failure, or potential
failure, attributable in whole or in part to any of the following
factors or any combination thereof.
G.2.5.1 Failure by COUNTY to provide or maintain a suitable installation
environment as the System Site in accordance with the operations
documentation, and any other reasonable requirements thereafter
communicated in writing by IWS to COUNTY, including without
limitation, any electrical power, air conditioning, or humidity
control failure or changes to the environment of the System Site.
G.2.5.2 Use of supplies or materials not approved by IWS, or by the
equipment manufacture.
G.2.5.3 Use or attempted use of the System for any purpose other than that
for which it was acquired.
G.2.5.4 Alterations to the System (other than alterations installed by IWS
or authorized in writing by IWS).
G.2.5.5 Connection of the System by mechanical or electrical means to any
other machine, equipment or device (other than those installed by
IWS or authorized in writing by IWS) other than normal network
connections.
G.2.5.6 Removal, transportation or relocation of the System by any person
other than IWS, unless authorized by IWS in writing.
G.2.5.7 Neglect or misuse of the System by COUNTY or any third party,
except persons for which IWS is responsible under this Agreement.
<PAGE>
COUNTY/IWS Agreement, Page G-4
G.2.5.8 Any other intentional or negligent damage to the System by the
COUNTY or third party except for prospective customers of IWS for
which IWS is responsible.
G.2.5.9 Any other failure by COUNTY to comply with its obligations under
this agreement or the Purchase and License Agreement.
G.2.5.10 Any event of force majeure, or any other cause other than ordinary
use, unless otherwise authorized in writing by IWS.
G.2.5.11 Any maintenance services to be performed on any software, hardware
or other item not furnished by IWS to COUNTY or any other work
external to the System by anyone other than IWS.
G.2.6 REPLACEMENT OR REPAIR. In performing Preventive Maintenance and
Remedial Maintenance, IWS shall be entitled to exercise reasonable
discretion in determining whether to replace or repair any
malfunctioning item, provided, however, that any such replacement
shall be of equal or better quality and, in the event of a
malfunction of key circuit boards, to be specified by IWS, a
replacement board will be provided pending completion of repairs on
the defective board.
G.2.7 DIAGNOSTIC SOFTWARE. In order to facilitate rapid analysis of System
Failure involving software, IWS will provide a trained staff, at their
company location, capable of handling all software failures in an
expedient manner. In addition they will have diagnostic software for
the purpose of identifying the cause of any System Failure, temporarily
patching around the problem if necessary or temporarily disabling the
use of that software module so that the System can be returned to use
for all other activities with only a minor degradation in operation.
G.2.8 OFF-SITE MAINTENANCE: Any maintenance services required to be
performed under this Agreement which cannot, in IWS's reasonable
judgment, be performed effectively at or near the System Site shall
be performed at such other location(s) as IWS may determine, at no
extra cost to Customer. However, a loaned part(s) from IWS's
warehouse must be installed prior to the shipping of the item(s)
being removed for maintenance.
G.2.9 LOG ENTRIES: COUNTY shall receive monthly or have access to all
log entries with regards to system failures, and any other
malfunctions, problems or defects in the System, in accordance with
a format to be provided by IWS. Upon completion of each Preventive
Maintenance task, Remedial Maintenance task, or Extra Service, IWS
shall provide a written report to the COUNTY of the
<PAGE>
COUNTY/IWS Agreement, Page G-5
problem, resolve, and any equipment replaced. This shall be kept in
a binder on site at each capture station and display station
location.
G.2.10 NOTIFICATION: IWS shall notify COUNTY of all routine, scheduled,
unscheduled, and non-routine maintenance completed to the system.
This notification shall include the COUNTY'S reference number (if
maintenance was a result of a problem call), IWS's reference
number, point of contact for the maintenance and a description of
the maintenance or correction. Notification will be provided to the
person reporting the problem and/or COUNTY'S maintenance contact.
G.2.11 DOWN-TIME CREDIT: If IWS fails to respond to a request from the
user resulting from the total failure of a Critical Item as defined
in paragraph G.2.3.1, IWS may be assessed a downtime credit of
$50.00 per hour for every hour thereof that the response time
requirement is exceeded. Any credits resulting from excessive
down-time shall be accounted for and resolved within thirty (30)
calendar days from the date of being incurred. System downtime
shall not include the time that the System is inoperable due to (i)
Scheduled Preventative Maintenance, (ii) equipment cables, wires,
programs or other items, not supplied by IWS, which are not
rendered inoperable by the System provided by IWS, (iii) any event
described in ARTICLE VII, LETTER D (FORCE MAJEURE) of the
Agreement, (iv) COUNTY's negligence or knowing misuse of the
System, equipment, cables, wires, programs, or other items, or any
other act or omission of COUNTY or any third party (other than a
prospective customer of IWS for which IWS is responsible under any
other provisions of this Agreement) or (v) COUNTY's network failure
or (vi) any travel time, and system and problem analysis time of up
to one (1) hour for software support or six (6) hours for hardware
support beginning when IWS has received notification of each
separate and unrelated problem as distinguished from a recurring
problem within a 24-hour period.
<PAGE>
COUNTY/IWS Agreement, Page H-1
EXHIBIT H - IWS LETTER REGARDING OUTSTANDING ISSUES IN
CONTRACT NEGOTIATIONS
June 3, 1999
Reference: Outstanding Issues
Julie Lingenfelter
Kitsap County Courthouse
Department of Administrative Services
614 Division Street, MS-7
Port Orchard, WA 98366
Dear Julie:
This letter is in response to the ongoing contractual and logistical issues
concerning Kitsap County's purchase of ImageWare's Crime Capture System. Should
the items in this letter be acceptable to the County, then this letter may be
used as a binding Exhibit to the final contract.
DATABASE PLATFORM - ImageWare will install the Sybase version of CCS upon
signing of the contract. Subsequently IWS will convert this platform to Oracle
upon completion of the Oracle development at no charge for the County, this
represents a discount of $5,000. At this time we estimate that the development
of the Oracle product will be completed before the end of 1999. It is in our
joint best interest that we are offering this free conversion in order to
expedite contract negotiations and guarantee that final contract signing takes
place in the month of June of 1999.
Kitsap County shall supply the required Oracle licenses at time of conversion
to the Oracle platform.
HARDWARE - ImageWare agrees that Kitsap County will provide and maintain its own
hardware, providing the hardware meets our minimum requirements. Kitsap County
will drop ship this hardware to IWS facilities for initial configuration and
installation. ImageWare will be responsible for shipping this hardware to its
final destination for final installation. There will be a $3,000 fee (total) for
testing our application software on the provided hardware.
PRICING - The attached pricing document, maintenance included, dated 6/2/99
is the current and officially updated price quote. This pricing document
supercedes all previous price quotes from IWS to Kitsap Co.
INTERCONNECTS - If on-site configuration is needed for the Intergraph
interconnects, Kitsap County is responsible for one IWS engineer's travel and
lodging expenses. These
<PAGE>
COUNTY/IWS Agreement, Page H-2
charges will not apply if the Intergraph system is ready for interface during
our initial installation.
Thank you for your attention to these details. We are eager to begin a long
term relationship with Kitsap County. Questions pertaining to this document
may be directed towards myself, Robert Bannan or Carmen Errejon at
1-800-842-4299.
Sincerely,
Erik Carlgren
NW Sales Manager
ImageWare Software, Inc.
cc: Robert Bannan, IWS
Bill Ibbetson, IWS
<PAGE>
COUNTY/IWS Agreement, Page I-1
EXHIBIT I - IWS BID FOR KITSAP COUNTY SHERIFF'S OFFICE
DIGITAL MUG SYSTEM
<PAGE>
[LOGO]
-- BID FOR --
KITSAP COUNTY SHERIFF'S OFFICE
------------------------------
DIGITAL MUG SYSTEM
ORIGINAL COPY
April 1st, 1999
- -------------------------------------------------------------------------------
10883 Thornmint Road, Phone 619-673-8600 FAX 619-673-1770
San Diego, CA 92127
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. EXECUTIVE SUMMARY.................................................... 3
SYSTEM OVERVIEW...................................................... 4
CENTRAL SERVER.................................................... 5
CAPTURE STATIONS.................................................. 6
INVESTIGATIVE WORKSTATION......................................... 7
HISTORY.............................................................. 9
2. TECHNICAL SPECIFICATIONS............................................. 9
3. EXPERIENCE & REFERENCES.............................................. 20
C.R.I.M.E.S. SUITE OF LAW ENFORCEMENT PRODUCTS....................... 20
SUSPECT ID-REGISTERED TRADEMARK-.................................. 20
CRIME LAB-REGISTERED TRADEMARK-................................... 20
VEHICLE ID-TM-.................................................... 21
FACE ID-TM-....................................................... 21
CRIME CAPTURE SYSTEM-TM-.......................................... 21
ARIZONA DEPARTMENT OF PUBLIC SAFETY............................... 22
LOS ANGELES COUNTY, LAKEWOOD...................................... 27
NEW YORK CITY POLICE DEPARTMENT................................... 30
HENEPIN COUNTY SHERIFF'S OFFICE (MINNEAPOLIS)..................... 30
IMAGEWARE EXPERIENCE & SUCCESS STORIES............................... 31
OTHER NOTABLE BOOKING INSTALLATIONS.................................. 31
IMAGEWARE EXECUTIVES................................................. 32
KEY PROJECT STAFF.................................................... 33
OTHER C.R.I.M.E.S. REFERENCES........................................ 39
4.0 WORKPLAN............................................................. 40
PROJECT ORGANIZATION & STAFFING...................................... 40
APPROACH TO PROJECT.................................................. 40
EXHIBIT A COST PROPOSAL.................................................. 42
<PAGE>
EXHIBIT B MAINTENANCE & WARRANTIES....................................... 42
PRODUCT AND CUSTOMER SUPPORT......................................... 42
HARDWARE WARRANTIES.................................................. 42
HARDWARE MAINTENANCE................................................. 42
SOFTWARE WARRANTIES.................................................. 43
SOURCE CODE.......................................................... 43
SOFTWARE ON-GOING MAINTENANCE AND SUPPORT............................ 43
EXHIBIT C - TRAINING..................................................... 45
CRIME CAPTURE SYSTEM TRAINING OUTLINE................................ 45
EXHIBIT D - SITE PLAN.................................................... 47
</TABLE>
ImageWare Software, Inc. 2 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug SYSTEM
1. EXECUTIVE SUMMARY
- -------------------------------------------------------------------------------
ImageWare Software, Inc. (IWS) is very pleased to be able to offer the Crime
Capture System-Registered Trademark- (CCS) digital booking system to Kitsap
County Sheriffs Office. In addition to CCS, we are also offering additional
investigative software at no cost.
ImageWare Software, Inc., a San Diego, California based company, is a leader
and innovator in the emerging technology of PC-based digital imaging, with
its primary focus on law enforcement software. It has recently been awarded a
contract by the State of Arizona and is being praised for its performance.
The Arizona Department of Public Safety enjoys a powerful network of photo
and data information, no server down time to date. It seamlessly interfaces
with several disparate systems and provides a smooth and synchronized data
flow throughout. Very recently, in partnership with NEC and PRC/Litton, IWS
was awarded the digital imaging contract for Las Vegas Metro PD.
One year ago, ImageWare acquired XImage Corporation, a San Jose, California
based company also specializing in law enforcement software. XImage
Corporation is a company strong in the installation and management of very
large booking installations. The company has developed its products using Sun
SPARC servers and workstations on a UNIX operating system. Its flagship
installation is New York City Police Department as well as Henepin County MN
(Minneapolis), Indianapolis PD and Portland Police Bureau. The NYC system,
spans 76 precincts in 5 boroughs, including 100 capture stations and
redundant central servers. XImage/ImageWare has a large customer support
staff with 24 hours a day, 7 days a week availability.
ImageWare and XImage combined to form a company that is strong, technically
proficient, and leading the way in the development of tools for the law
enforcement industry. The skills of one company compliment those of the
other. The strengths and experience of XImage will enable the new joint
company to bypass many pitfalls, while enabling the introduction of new
Windows based products based on the strengths and experience of ImageWare.
The merger of these two companies, combined with the financial backing of
J. P. Morgan Financial ensures the highest quality products and services for
many years to come.
CCS runs on the Microsoft Windows operating system, specifically Windows 95,
98 and Windows NT 4.0. We configure systems using all IBM components,
ensuring our customers of state-of-the-art architecture, durability, and
reliability. By teaming with IBM as a business partner, ImageWare can and
does offer the highest quality PC products, systems software, and customer
service available. PC platforms being used include multiple Pentium Pro
processor servers, redundant servers, Xeon processors and Pentium II capture
and investigative workstations. In many cases, current hardware can be
utilized and hardware may be purchased off existing County contracts.
ImageWare Software, Inc. 3 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
IWS core products are Crime Capture System (CCS), and Face ID-Registered
Trademark- (FID). CCS is a powerful flexible and easy to use digital booking,
identification and retrieval system. Face ID-Registered Trademark- is a
state-of-the-art facial recognition and retrieval program that is leading the
way in the identification of arrestees and suspects. Face ID integrates with
both ImageWare's and Ximage's booking systems, giving the company a very
distinct and unique product line.
The proposed Crime Capture System (Digital Booking System) is one of five
modules in a suite called C.R.I.M.E.S. The other modules are Suspect
ID-Registered Trademark-, a photo-realistic composite program, Crime
Lab-Registered Trademark-, a fundamental image enhancement and editing
program, Vehicle ID-TM-, a photobased vehicle searching program, and Face
ID-TM-.
SYSTEM OVERVIEW
The proposed Crime Capture System will include a powerful central mug and
data server that interfaces with both the County's RMS and JMS. The system
includes 2 capture stations and 2 investigative stations with the ability to
add more as necessary. The entire system is fully Year 2000 compliant and
meets all ANSI/NIST standards. The system is capable of transmitting standard
NIST data packets to the State CIB. All requirements outlined will be met
unless expressly noted.
Facial Recognition can also be added to the server at a later date, without
the need to upgrade hardware or do costly conversions. Face ID-Registered
Trademark- fully integrates with CCS and used in conjunction with the other
C.R.I.M.E.S. modules, your agencies will have a very powerful and effective
arsenal of tools to solve crime.
The proposal calls for a full integration between the new Intergraph RMS and
JMS. The purpose of the first interface is to avoid duplicate entry of data.
Typically this is accomplished via flat file transfer. Upon completion of a
record within the RMS a flat text file is created and placed in a shared
directory. CCS polls this directory and when a file is recognized, it is
instantly imported into CCS and populates its fields. Any adds, edits or
deletions are done with the RMS and carried through to CCS. Both databases
stay synchronized at all times.
In addition, we will provide a custom API that will enable the RMS to display
a photo upon a record query within the RMS. The exact definition of this API
and interface is yet to be defined and further discussions are forthcoming
with Intergraph. Also, there will be an interface that enables the JMS to
display whether or not a photo has been associated with an individual.
The proposal also includes the conversion of the existing 60,000 images and
data. These mugshots and data should be delivered to IWS prior to system
installation. The database should be delivered on an agreed upon medium, with
images in JPG individual files, the data file in comma delimited format, and a
file layout included.
ImageWare Software, Inc. 4 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Nissan County Digital Mug System
The system components will connect to the existing LAN network directly, with
each agency or the county being responsible to provide LAN connections for the
new equipment. The operating system for the central server will be Microsoft
Windows NT 4.0, and Windows NT Workstation for each capture workstation. The
protocol will be TCP/IP. All connections to either the network or additional
devices will be industry standard connections.
Maintenance will be provided for the system 7 days a week, 24 hours a day,
with 1 hour call back response, and 24 hour on-site response.
The C.R.I.M.E.S. suite of software is modular in design. It is possible to
add, upgrade, or replace software modules in the system with relative ease.
Modules included in the C.R.I.M.E.S. suite of software are Suspect ID, a
photo-realistic composite program, Crime Lab, a sophisticated image
enhancement and editing program, Vehicle ID , a photo-based program to help
quickly identify vehicles, Crime Capture System, a flexible easy-to-use
digital booking system, and Face ID, a state-of-the-art facial recognition
and retrieval program.
The system will have the capability of interfacing with any other agency
electronically either via the network or modem, and send and receive
information from other cooperating criminal justice agencies as long as these
agencies comply with NIST standards for mugshot and SMT image transmission.
The Crime Capture System does include a store and forward ability, that is
transparent to the operator. The location capture station will display either
Online or Off-line (to the central server), and if Off-line, will start
accumulating data onto the local hard drive. When the network is again
available, the records are forwarded to the central server without any
operator intervention or downtime.
System security will make use of both operating system permissions as well as
database software security. This will allow access to certain functions and
data to be controlled by the system administrator. These privileges and
permissions will be given and controlled by user login. There will be an
administrative function available only to the system administrator, where
these permissions and privileges are maintained.
CENTRAL SERVER
The central server system will consist of an IBM Netfinity 3000. A UPS will
protect the system from power fluctuations and momentary outages. The system
will have a redundant power supply. The server will be equipped with a modem
and remote diagnostic software, allowing for quicker response and problem
resolution. The server is a high performance 450 MHz Pentium II system, with
a RAID V hot swap drive array. It is sized with today's performance and
tomorrow's growth in mind. Installing a RAID V system allows the storage of
business-critical data with confidence. The capture stations are high
performance systems as well, taking into account that end user acceptance
depends on system performance. The system also includes a
ImageWare Software, Inc. 5 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Nissan County Digital Mug System
tape drive for back-ups and a CD ROM Drive. Data archive and backup can be
accomplished online.
The central server wi11 not execute any client applications, meaning all
searches, viewing, and printing or data from the mugshot database must be
accomplished via either a capture or investigative station. Only the server
portion of the ImageWare applications will execute from the central server
systems.
The central server Crime Capture application software will have the ability
to both receive and send photo mugshots using the NIST standard type 1, 2,
and 10 records. The software will also send and receive the appropriate NIST
message in acknowledgment of the receipt or transmittal.
The central server will have an archive function available to allow the
off-loading of records, including images and demographic data, by date range
and control number. It is sized for the conversion of the existing 60,000
images and an additional 80,000 images over the next 5 years.
The central server will log off any station that is presently logged in but
has not had activity for some user defined time period (e.g. 5 minutes).
The central server's RAID storage system will implement a level 5 method,
which provides a very high fault tolerant data storage system while not
degrading performance. A separate hardware controller, the IBM ServeRAID II
disk controller, will implement the RAID technology.
CAPTURE STATIONS
There will be two Capture Stations, each will consist of an IBM PC 300PL
computer with Pentium II processor, 64 MB RAM and 6.4 GB of internal hard
disk storage. Each capture station will be equipped with a CD ROM drive, 1.44
floppy disk drive, 17" monitor and keyboard. The system will include a
network interface card. The camera subsystem will also be included, with the
capture card installed inside the PC housing, and the camera connected to the
capture card. The camera and capture card will meet or exceed all NIST
standards for the collection of mugshot photos. The camera will have remote
pan and tilt capability.
Software included with the capture station will allow for the live video
viewing of the arrestee, with the ability to capture a still image of the
arrestee from this on-screen viewing.
The mug photo database can be searched using the arrestee's demographic
information, for example, last name and date of birth, to find other records
for this arrestee. If and when Face ID is added, the operator will also be
able to compare a new arrestee's photo with those previously stored in the
mug photo database strictly by facial characteristics. This feature
eliminates both aliases and duplicate images.
ImageWare Software, Inc. 6 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Nissan County Digital Mug System
Each capture station will have the ability to store both images and
associated demographic data locally if the network connection is unavailable.
When the network is restored and the central server database is accessible,
those locally stored records will be transmitted to the central server.
The software will allow for a flag to be associated with each booking at the
time the mug photo is taken, with those flags being user definable including
arrests, juveniles, etc. All such flags necessary for the ENTITY operations
must be designated during the specifications gathering phase.
The software will allow the operator to view the captured image and either
reject or accept it at that time. The system will accept an unlimited number
of photos per booking record.
All images taken for a particular booking will be associated with a specific
file, or record, and will store the date and time it was recorded. Other
booking records may be linked to this booking if this is a repeat offender.
The input of demographic, or descriptive data will be available from
user-maintained lists, organized in any order the customer chooses. The user
will also be able to input free form text comments, including unusual
characteristics. All these descriptive data fields will be searchable.
Initial data will be populated via RMS interface. There will be a synchronous
data system with a smooth data flow and no duplicate entry. All creates, edits
or deletions in the RMS will be carried throughout the system.
Photos captured can be multiple views of the arrestee, and photos of all
scars, marks, and tattoos (SMT). Property, Evidence and Crime Scene
photographs can also be attached to each record. All photos taken will be
linked to the booking record. This record can be found in multiple ways;
searching by demographic data, using a photo and searching with Face ID, or
accessing the records by the booking number or other identifying numbers.
The location of the scar, mark, or tattoo on the body will be chosen from a
user-maintained list of choices. There will be a description field for each
SMT, where any words on the tattoo can be entered as free form text
information, and other descriptive information about the SMT can be entered.
Whether a photo of the SMT is taken or not, the description of the SMT can be
entered.
INVESTIGATIVE WORKSTATION
The proposal includes software for 2 investigative workstations. Searches may
be accomplished using NCIC standard demographic codes, from user maintained
tables.
The software will create photo line-ups with a specified amount of images.
The Crime Capture System will retrieve and display the images of all subjects
with characteristics that match, or substantially match, those of the line-up
subject. The user will be able to select or reject from the
ImageWare Software, Inc. 7 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Nissan County Digital Mug System
images retrieved, that together with the subject's constitute the line-up.
The line-up will be random ordered, and may be saved for future retrieval.
These photo line-ups are also printable. In addition, the investigative
workstations provide the following features:
- Portions of an image may be 'roped' for enlargement for viewing
purposes.
- The print function is available for any image with its associated
demographic data.
- The search function includes very flexible ad hoc inquiries,
including many boolean logic functions, including AND, OR, GREATER
THAN, LESS THAN, EQUAL TO, etc.
- Each agency will be able to search the database and obtain
information about the total number of bookings by date, by officer
ID, by charge code, etc.
- Any text fields entered into a booking record will be searchable,
including any comment fields.
- Fields describing SMT data will be searchable.
- Images of SMT are printable, either color or black and white.
- The search software will process hyphenated and/or multiple last,
first, and middle names correctly.
- The search software will use 'soundex' to find similar named
individuals.
Investigative workstations will have the ability to scan photos into
the system, import them, and link them with booking records. For
example, crime scene photos can be imported into booking records, as
well as weapons photos, vehicle photos, residence photos, year book
photos, etc.
ImageWare Software, Inc. 8 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
HISTORY
Incorporated in 1987, ImageWare initially focused on the entertainment industry.
The company's patented imaging technology was first used in photo imaging kiosks
at theme parks and tourist attractions in the U.S., Canada, Mexico, Japan and
the United Kingdom. The kiosks produced People Postcards!-Registered Trademark-
by superimposing customers' images onto amusing or picturesque backgrounds.
At the 1992 COMDEX Show, ImageWare introduced its first retail product,
ImageWizard-Registered Trademark- At the show, the revolutionary image
manipulation and processing program was nominated one of the "Best New Software
Programs" of the year. ImageWizard was the first application to incorporate
multiple image objects for fast and easy image enhancement and editing. In early
1994, ImageWare released a companion program to ImageWizard called
MorphWizard-Registered Trademark-. A powerful morphing application, MorphWizard
allows users to manipulate and force transformations between multiple images.
Both ImageWizard and MorphWizard sold domestically and in Japan through Canon
Sales Co.
Concurrent with the release of MorphWizard, ImageWare shifted its focus from the
entertainment and retail markets to the institutional law enforcement arena. The
C.R.I.M.E.S. (Crime Reduction, Image Management and Enhancement System),
software suite was unveiled in October 1994.
Since 1994, ImageWare has placed software in over 650 law enforcement agencies
around the country and internationally. Currently, there are over 100
departments using either XImage or ImageWare mug photo systems, with more coming
on-line every day.
2. TECHNICAL SPECIFICATIONS
- ------------------------------------------------------------------------------
(IWS ANSWERS IN BOLD/ITALICS)
<TABLE>
<S> <C>
1. The base system is in production for at least one customer site. Y
2. The system can be live in production prior to 1/1/2000. Y
3. The system is fully operational and functional for all system dates
prior to, on, and after 1/1/2000. Y
4. Source code for the current and all future releases of the source
code will be provided to the County or deposited into a third-party
escrow account. Y
5. Utilize one of the following industry-standard Database Management
Systems: Oracle, Informix or SQL Server. Y
ImageWare Software, Inc. 9 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
CURRENTLY CCS IS AVAILABLE ON SYBASE OR SQL DATABASE SYSTEMS. AN
ORACLE SOLUTION MAY BE AVAILABLE IN THE SUMMER OF 1999, HOWEVER,
A DECISION ON IT'S AVAILABILITY CANNOT BE MADE UNTIL LATE APRIL
OF 1999.
6. Utilize standard Microsoft Windows style client GUI interface. Y
7. Allow a user to have many windows within the Mug Shot system open on
the desktop at once, including search results, lineups, details about
an individual, details about an incident, etc. Y
8. Allow multiple users to perform add, inquiry and update tasks
simultaneously (not in same record). Y
9. Allow system access to specifically defined users only. Y
10. Assign record access permissions at the following
levels for a specific user:
a. Inquiry capability Y
b. Add capability Y
c. Modify capability Y
d. One-at-a-time delete capability Y
e. Mass purge capability Y
f. Print capability Y
11. Assign record permissions on the basis of the category of record,
ie., a user might be able to modify booking data, but not data
related to crime investigations. Y
PERMISSIONS ARE DEFINED IN FOUR MAIN CATEGORIES: CREATE, EDIT,
APPEND, AND VIEW. CREATE ALLOWS THE USER TO CREATE A NEW
RECORD. EDIT ALLOWS THE USER TO EDIT ANY AND EVERY FIELD IN AN
ALREADY CREATED RECORD. APPEND ALLOWS THE USER TO ADD TO AN
EXISTING RECORD, BUT NOT EDIT DATA THAT HAS BEEN ENTERED
PREVIOUSLY. VIEW ALLOWS THE USER TO VIEW ALL PORTIONS OF THE
RECORD BUT NOT EDIT OR CREATE.
12. Restrict access to juvenile records. Y
13. Restrict access to specific user-defined "sensitive" records,
such as photos and data related to investigations. N
CURRENTY, THE ANSWER IS NO, HOWEVER, THIS IS A PLANNED UPDATE
TO EXISTING SYSTEMS.
14. System response time for retrieval and update no longer then
3 seconds. (The County will have CAT 5 wiring in place in 1999.
There is switch 10 Mbit to the desktop.) Y
15. Organize all information for a particular individual under a single
master record. Y
</TABLE>
ImageWare Software, Inc. 10 Phone 619-673-8600
10883 Thornmint Rd. Pax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
16. Associate the following to the photo:
<TABLE>
<CAPTION>
Pick List Exact Match Partial Key
<S> <C> <C> <C>
a. Name Y Y
- ------------------------------------------------------------------------------
b. Aliases Y Y
- ------------------------------------------------------------------------------
c. Next of Kin, Address & Phone
- ------------------------------------------------------------------------------
d. Residential Address & Phone Y Y Y
- ------------------------------------------------------------------------------
e. Business Address & Phone
- ------------------------------------------------------------------------------
f. Date of Birth Y Y Y
- ------------------------------------------------------------------------------
g. Place of Birth Y
- ------------------------------------------------------------------------------
h. Citizenship Y
- ------------------------------------------------------------------------------
i. Age Y Y Y
- ------------------------------------------------------------------------------
j. Height Y Y Y
- ------------------------------------------------------------------------------
k. Weight Y Y Y
- ------------------------------------------------------------------------------
l. Sex Y Y Y
- ------------------------------------------------------------------------------
m. Build
- ------------------------------------------------------------------------------
n. Race Y Y Y
- ------------------------------------------------------------------------------
o. Apparent Race
- ------------------------------------------------------------------------------
p. Complexion Y Y
- ------------------------------------------------------------------------------
q. Eye Color Y Y
- ------------------------------------------------------------------------------
r. Eye Defects
- ------------------------------------------------------------------------------
s. Deafness
- ------------------------------------------------------------------------------
t. Hair Color Y Y
- ------------------------------------------------------------------------------
u. Hair Characteristics Y Y
- ------------------------------------------------------------------------------
v. Facial Abnormalities Y Y
- ------------------------------------------------------------------------------
w. Facial Hair Features Y Y
- ------------------------------------------------------------------------------
x. Teeth Characteristics
- ------------------------------------------------------------------------------
y. Wears glasses? Y Y
- ------------------------------------------------------------------------------
z. Scars, Marks & Tattoos Y Y Y
- ------------------------------------------------------------------------------
aa. Pierced Ears Y Y
- ------------------------------------------------------------------------------
bb. Body Piercings Y Y
- ------------------------------------------------------------------------------
cc. Left or Right Handed
- ------------------------------------------------------------------------------
dd. Speech Abnormalities Y Y
- ------------------------------------------------------------------------------
ee. Disabilities
- ------------------------------------------------------------------------------
ff. Physical Traits
- ------------------------------------------------------------------------------
gg Physical Health Concerns
- ------------------------------------------------------------------------------
hh. Mental Health Concerns
- ------------------------------------------------------------------------------
ii. Marital Status
- ------------------------------------------------------------------------------
jj. Occupation
- ------------------------------------------------------------------------------
kk. Employer
- ------------------------------------------------------------------------------
ll. Gang Affiliation Y Y
- ------------------------------------------------------------------------------
mm. Juvenile Status Y Y
- ------------------------------------------------------------------------------
nn. Registered Sex Offender Status Y Y
- ------------------------------------------------------------------------------
00. Drivers License Number Y Y
- ------------------------------------------------------------------------------
pp. State Drivers License Issued Y Y
ImageWare Software, Inc. 11 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
qq. Drivers License Expiration Year Y Y
- ------------------------------------------------------------------------------
rr. Inmate Booking Number Y Y Y
- ------------------------------------------------------------------------------
ss. Arrest Number Y Y
- ------------------------------------------------------------------------------
tt. Criminal Master Number Y Y
- ------------------------------------------------------------------------------
uu. Social Security Number Y Y
- ------------------------------------------------------------------------------
Washington State Process Control Y Y
- ------------------------------------------------------------------------------
vv. Number (PCN) Y Y
- ------------------------------------------------------------------------------
ww. Washington State Identification (SID) Y Y
- ------------------------------------------------------------------------------
xx. Miscellaneous ID Number Y Y
- ------------------------------------------------------------------------------
yy. Federal Bureau Number Y Y
- ------------------------------------------------------------------------------
zz. Incident Report Number Y Y
</TABLE>
<TABLE>
<S> <C>
17. Provide "soundex" search capability for the following fields, where a value
can be retrieved based on the way it sounds rather than by the actual
spelling:
a. Name Y
b. Aliases Y
c. Next of kin N
d. Street names Y
18. Allow search parameters on the user's search window to be combined, for
example, to search a given first name AND race and a certain tattoo. Y
19. Allow search results to be saved for later review. Y
20. Include a count of the number of records that match the query criteria
along with the search results. Y
21. Allow ranges of search criteria to be specified on the user's search
window, for example, to search a given age range and height range AND
weight range. Y
22. Allow default range preferences to be configured so that a user can
enter a specific height and weight, and the system will automatically
search a height range "-plus or minus" a specific number of inches,
and a weight range "plus or minus" a specific number of pounds. N
THE DEFAULT TOLERANCE IS ZERO.
23. At the time of a new booking, the booking officer can select a
previous booking for the current inmate and the system will
automatically carry that information over into the new booking,
in order to avoid re-entering characteristics that have already been
entered before. Then the booking officer can make any modifications
that are necessary for the new booking. N
CURRENTLY NO. ALL RECORDS WILL BE GENERATED FROM WITHIN THE RMS HOWEVER
AND WILL POPULATE CCS FIELD. THERE SHOULDN'T BE ANY DUPLICATE ENTRY IN
THAT SENSE.
24. Takes front and side photographs. Y
25. Live images may be captured and previewed on the screen before taking
the photograph. Y
ImageWare Software, Inc. 12 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
26. Image replacement is immediate if necessary. Y
27. Accept and catalog scanned mug shot photographs. Y
28. Accept and catalog scanned photographs of crime scenes, evidence,
graffiti, etc. Y
29. Accept and catalog photos from a digital camera. Y
30. Provide capability to display just photo, or photo and data. Y
31. Provide image enhancement capabilities, adding to or taking away
from the image. Y
IWS IS PROVIDING A FREE COPY OF CRIME LAB SOFTWARE THAT WILL PROVIDE
THIS CAPABILITY
32. Display more than one image at one time on the screen. Y
33. Display ALL the photos for a person at the same time. Y
34. Produce automatic lineups using all photos that match given
search criteria. Y
35. Produce custom lineups by selecting photos one-at-a-time, retrieved
individually by name, physical characteristic, etc. Y
36. Allow an unlimited number of photos in a lineup. Y
37. Allow lineups to be created by dragging photos retrieved by various
searches in various windows, into the current lineup window. Y
38. Allow user to return to results of original search after selecting
candidates for a line-up. Y
39. Allow photos in a lineup to be deleted, re-arranged, and added,
without starting over. Y
40. Allow photos in a lineup to be moved to any position in the lineup
simply by dragging them into place. Y
41. Provide a way for the photos in a lineup to be randomly re-arranged. Y
42. Display detail information about a photo in a lineup by clicking on it. Y
43. Allow multiple lineups to be saved with a criminal's record. Y
44. Allow multiple lineups to be saved by incident, if there is no suspect. Y
45. Provide a function that will allow witness viewing of a lineup on-line,
without identifying information. Y
46. Allow a witness to step through a line-up, going forward and
backward, at their own discretion. N
CURRENTLY THIS IS NOT A FEATURE OF CCS, HOWEVER IT IS A PLANNED FREE UPDATE.
ImageWare Software, Inc. 13 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
47. Capture each action a witness takes to review the lineup, so that
the viewing can be recreated by the system later on. N
THE AUDIT TRAIL SAVES THE FACT THAT A LINEUP WAS CREATED, BY WHOM
AND WHEN, BUT IT DOES NOT SAVE THE PROCESS THAT IT TOOK TO CREATE
THE LINE-UP. THE USER CAN ALSO SAVE THE LINEUP ITSELF.
48. Allow a witness to enter some response and/or comments to the photos
that's saved by the system. N
49. Allow the option of a witness eliminating photos from a lineup viewing
session. Y
50. Provide security so that a witness viewing a line-up cannot access the
rest of the system. Y
51. Supply the following canned outputs:
a. Booking report STANDARD
b. Transport form SEE BELOW
c. Front profile STANDARD
d. Front/front profile STANDARD
e. Subject profile STANDARD
f. Wanted poster STANDARD
g. Sex Offender form SEE BELOW
h. Sex Offender bulletin SEE BELOW
i. Sex Offender registration SEE BELOW
j. Employee ID cards STANDARD
CURRENTLY, CCS SHIPS WITH 7 STANDARD PRINT FORMATS. MINOR CHANGES
MAY BE MADE TO THESE FORMATS AT NO CHARGE. IF ADDITIONAL FORMATS
ARE REQUIRED, IWS WILL CREATE THEM FOR $500 EACH. IF IT IS JUST A
CHANGE TO ONE OF THE 7 STANDARD FORMATS THEN IT WILL COST $250
MAXIMUM. THIS PROPOSAL ALSO INCLUDES AN ADDITIONAL 4 PRINT FORMATS
AS OUTLINED IN EXHIBIT A.
52. Provide an audit trail of each instance of a printed Booking report. Y
53. Allow option to select photo "with" or "without" glasses for the
Booking report. N
CURRENTLY THIS IS NOT A FEATURE OF CCS, HOWEVER, IT IS A PLANNED
NO COST UPDATE.
54. Print lineups, giving the user the option of number of photos per page. N
CURRENTLY CCS CREATES LINE-UPS WITH 6 PHOTOS. IT IS PLANNED THAT
THE USER WILL BE ABLE TO CREATE USER SPECIFIED PHOTO NUMBER LINEUPS.
55. Print lineups, giving the user the option of what name and/or
description information to print with the photos, if any. Y
56. Allow user to easily create ad hoc reports on demand, selecting
specific data elements, and displaying and summarizing them as desired. Y
57. Allow user to view report via print preview capability prior to
printing canned or ad-hoc reports. Y
ImageWare Software, Inc. 14 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
58. Ability to request print from one location and print in another. Y
59. Print to industry standard black a white and color printers on
industry standard copier paper. Y
60. Provide the ability to easily download text and image data from the
Mug Shot system to Microsoft Office software. N
CCS CURRENTLY EXPORTS STANDARD JPG PHOTOS. CCS HAS THE CAPABILITY OF
EXPORTING TEXT HOWEVER, IT IS NOT A STANDARD FEATURE.
61. Provide the ability to export a JPEG-formatted image for easy import
into an Internet web page. Y
62. Provide easy review and deletion of prior, old, similar-looking
booking photos for a criminal, assuming the user has appropriate
security. Y
63. Allow the results of any search query to be turned into a purge
process, assuming the user has appropriate security. Y
64. Provide an audit trail that can be viewed or printed of who created
and last modified every record, along with date & time stamps. Y
65. Provide an audit trail that can be viewed or printed of who created
and last modified every lineup, along with date & time stamps. Y
66. Provide a mechanism such as data base logging that will allow full
recovery of user data between the time of system failure and the last
system backup. Y
67. Permit booking from the local workstation during a network/server
failure, then update the server later when normal service resumes. Y
68. Photo images may be transmitted by dial-up modem or wide area network. Y
69. Photo images may be attached to an e-mail message. (Novell
Groupwise 5.2) Y
70. Photo images may be faxed directly from the workstation.
(Cheyenne FAXserve 5.0) Y
71. Provide an on-line help facility easily accessible from within the
client software V-/ that allows the user to get information about
the screen or features currently in use. Y
72. Provide at least one copy of the following System Documentation:
a. An overview of the system.
b. A description of the controls and security designed into the
system.
c. A description of the hardware and software requirements for
processing.
SEE EXECUTIVE SUMMARY
73. Provide two copies of the following User Documentation:
a. An overview of the system.
</TABLE>
ImageWare Software, Inc. 15 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
SEE EXECUTIVE SUMMARY
b. A description of the controls and security designed into the
system.
SEE EXECUTIVE SUMMARY
C. Samples of all screens.
INCLUDED WITH PROPOSAL
d. Samples of all reports.
THE COUNTY HAS IN POSSESION A SAMPLE OF ALL CCS REPORTS
e. Instructions for logging on and off.
ALL IWS SOFTWARE IS PASSWORD PROTECTED. SIMPLY ENTER USER ID AND PASSWORD
AND THE USER WILL HAVE AUTHORIZATION RIGHTS BASED ON WHAT THE SYSTEM
ADMINISTRATOR HAS ASSIGNED.
f. Instructions for data entry.
MOST OF THE ORIGINAL DATA WILL BE TRANSFERRED FROM THE RMS. ADDITIONAL DATA
IS SIMPLY TYPED IN. DROP DOWN MENUS AND TABS ARE USED TO MENUEVER AROUND THE
SYSTEM.
g. A list of error messages and solutions.
IT IS NOT POSSIBLE TO PROVIDE A LIST OF ERROR MESSAGES, HOWEVER THEY ARE A
FEATURE OF CCS.
h. Recovery procedures if an on-line session is interrupted.
74. Convert the estimated 60,000 name records and 165,000 images in
the current database. PLEASE ITEMIZE THIS COST SEPARATELY ON THE QUOTE.
SEE EXHIBIT A
75. Provide an interface to the County's JMS/RMS. PLEASE ITEMIZE THESE COSTS
SEPARATELY ON THE QUOTE.
a. Provide a link to the County's JMS system to eliminate duplicate entry of
an ininate's name, date of birth, physical characteristics, etc. into both
the JMS and Mug Shot system. A booking officer would enter the information
into one of the systems and it would be automatically loaded into the other.
The County has no preference as to whether the JMS feeds the Mug Shot
system, or vice versa.
SEE EXECUTIVE SUMMARY AND EXHIBIT A
b. Provide a link to the County's RMS system to allow a photo image to be
retrieved and displayed from within the RMS.
SEE EXECUTIVE SUMMARY AND EXHIBIT A
ImageWareSoftware, Inc 16 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
c. Provide a link to the County's JMS system that would update the "mug taken"
indicator and "mug taken" date in the JMS.
SEE EXECUTIVE SUMMARY AND EXHIBIT A
d. Allow local police agencies sharing the County's RMS system to also benefit
from the increased functionality due to the interface with the Mug Shot
system.
LOCAL AGENCIES WILL BE ABLE TO TAKE FULL ADVANTAGE OF ALL INTERFACES. IN
ADDITION, THEY CAN SIMPLY PURCHASE CCS INVESTIGATIVE SOFTWARE IN ORDER TO
COMPLETELY SEARCH ALL RECORDS.
76. Allow the Mug Shot system to be accessible from remote sites via the
County's existing T1WAN, with system response at a level acceptable in
common business applications. Please include a comment discussing the
vendor's experience running from remote sites over T1 and what level of
performance can be expected.
ANYONE ON THE NETWORK MAY ACCESS CCS IMAGES AND DATA. CCS INVESTIGATIVE
SOFTWARE RUNS ON STANDARD PC PLATFORMS. CCS SOFTWARE MAY BE PURCHASED AT ANY
TIME AS OUTLINED IN EXHIBIT A.
77. Include the following minimum system configuration:
a. A file server, OS & DBMS
OUR SOLUTION INCLUDES AN IBM NETFINITY SERVER RUNNING WINDOWS NT 4.0
AND EITHER SQL SERVER OR ORACLE DATABASE MANAGEMENT SOFTWARE.
b. A camera with auto focus, and instant retake capabilities and any
required camera mount and lighting
THE CAMERA SUB-SYSTEM MEETS ALL OF THESE REQUIREMENTS AS WELL AS ANSI/NIST
STANDARDS.
c. Licensing for one workstation with image capture and scanning capabilities
THIS REQUIREMENT WILL BE MET. SEE EXHIBIT A
d. Licensing for two workstations with image viewing and reporting
capabilities. One of the workstations will be located at the Silverdale
Precinct Office, currently connected to the County's WAN via a T1 link.
THIS REQUIREMENT WILL BE MET. SEE EXHIBIT A
78. Include the following system configuration OPTIONS: PLEASE ITEMIZE THESE
COSTS SEPARATELY ON THE QUOTE:
a. Licensing for one additional workstation with image capture
capabilities in the Adult Correctional Facility.
b. Licensing for one additional workstation with image capture
capabilities in the Juvenile Detention Facility, currently connected
to the County's WAN via a T I link.
C. Licensing for 1-19 additional workstations with image viewing and
reporting capabilities. One of the workstations would be located at
the Silverdale Precinct Office and one at the Kingston Substation,
both currently connected to the County's WAN via a T I link.
ImageWare Software, Inc 17 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
d. Licensing for 1-6 additional workstations with image capture
capabilities for local city and tribal police agencies at various
remote locations throughout the county, all assuming a connection to
the County WAN via a T I link.
e. In lieu of the local agencies having capture capability, include
licensing for 1-6 additional workstations with image viewing and
reporting capabilities only for the local police agencies.
ALL PRICING IS INCLUDED IN EXHIBIT A
79. If a non-proprietary file server is proposed, include the following:
a. COMPAQ hardware
b. RAID 5 drive array
c. Redundant power supplies
d. UPS
e. Redundant NICs
IWS TYPICALLY SPECIFIES IBM HARDWARE AS IT IS WHAT WE DEVELOP ON, TEST ON
AND TRUST. DIFFERENT MANUFACTURERS MAY BE UTILIZED PROVIDED THEY MEET OUR
REQUIREMENTS.
80. If a Local Area Network is proposed, incorporate an Ethernet 10/100BASE-T
topology.
THIS REQUIREMENT WILL BE MET.
81. If the Novell Netware operating system is proposed, it must run
Version 4.11 or above.
N/A
82. If the Windows-NT Netware operating system is proposed, it must run
Version 4.0 or above.
THIS REQUIREMENT WILL BE MET.
83. Include enough disc space to retain the estimated 165,000 images and 60,000
name records currently in the database, plus an equal number of images and
name records anticipated in the next five years.
THIS REQUIREMENT WILL BE MET.
84. The Image equipment must be according to the Cal-Photo and JPEG
Standards/Joint Photographic Experts Group, for compression ratio,
algorithms and image quality.
THIS REQUIREMENT WILL BE MET.
85. Provide a mechanism that will backup the entire system while users are fully
functional on the system.
THIS REQUIREMENT WILL BE MET.
86. Include the recommended technical specifications for the following industry
standard equipment compatible with the system:
a. Image capture and scanning workstation
b. Image viewing and reporting workstation
c. Color printer for lineups with standard paper
d. Black & white printer for reports
ImageWare Software, Inc 18 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
e. Photo quality printer with finishing
f. Scanner
g. Digital camera
RECOMMENDED HARDWARE SPECIFICATIONS CAN BE FOUND WITHIN THE COST PROPOSAL
(EXHIBIT A) ANY PRINTER THAT HAS AN NT PRINT DRIVER MAY BE UTILIZED. THE
QUALITY OF PRINTER IS DEPENDENT ON THE COUNTY'S NEEDS. IMAGEWARE SELLS A
WIDE RANGE OF PRINTERS FROM INKJET TO DYE-SUB. ANY PERIPHERAL THAT IS TWAIN
COMPLIANT MAY BE UTILIZED. THE QUALITY OF THE PRINTERS AND SCANNERS SHOULD
BE DISCUSSED FURTHER.
ImageWare Software, Inc 19 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID R-EQUEST 04/01/99
Kitsap County Digital Mug System
3. EXPERIENCE & REFERENCES
ImageWare Software, Inc. has proven its ability to successfully complete
projects of the size and magnitude as the Kitsap County system, with the
state-wide implementation in the state of Arizona. ImageWare is committed to the
law enforcement industry, and to providing tools for the quick resolution of
crime. This is evident by the development of the C.R.I.M.E.S.-Registered
Trademark- suite of modules. C.R.I.M.E.S. is designed to be a tool kit of
software for law enforcement to use in the quick, effective, and safe resolution
of crime cases.
C.R.I.M.E.S. SUITE OF LAW ENFORCEMENT PRODUCTS
C.R.I.M.E.S. is a modular family of affordable, easy-to-use software
applications that aid law enforcement with the criminal investigative process.
Currently there are five Windows-TM- based C.R.I.M.E.S. modules; Suspect ID,
Crime Lab, Vehicle ID, Face ID and the Crime Capture System. Over the next two
years, ImageWare plans to add additional modules to the C.R.I.M.E.S. software
family. Included will be videotape enhancement, face aging, crime scene
diagramming, forgery analysis and evidence storage. The multiple module system
is fully integrated so information entered into one module is reflected in all
others, thus eliminating the time and expense required to interface programs
designed by different software companies.
SUSPECT ID-Registered Trademark-
Suspect ID is the composite module of the C.R.I.M.E.S. software family.
Using an online cognitive interview process, officers, witnesses and victims
can accurately create full color, photo-realistic suspect composites within
minutes. The digital composites are constructed from catalogs of facial
features. The catalogs are comprised of actual photographs, not hand drawn
sketches, so composites from Suspect ID look like people, not like pencil
sketches.
The Suspect ID module was designed specifically for use by law
enforcement agencies. Even officers with little or no computer knowledge or
artistic talent can complete a suspect composite simply by pointing and clicking
with a mouse. Suspect ID is a standard PC-based software application that can be
installed on a laptop computer and taken into the field, allowing officers to
conduct interviews before the witnesses' and victims' memories fade. For rapid
identification, officers can distribute completed composites within minutes via
radio, fax or e-mail.
CRIME LAB-Registered Trademark-
The second module of the C.R.I.M.E.S. family, Crime Lab, is a
sophisticated image enhancement and editing program used to fulfill a host of
investigative imaging needs such as updating old photos, creating
non-prejudicial line-ups, removing distracting backgrounds and enhancing
surveillance videos.
ImageWare Software, Inc 20 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
VEHICLE ID-TM-
Vehicle ID is a revolutionary photo-based software program that
helps officers quickly identify and disseminate vehicle information for the
purpose of locating a stolen car or a vehicle involved in a crime. Vehicle
ID's comprehensive database of over 1,000 vehicles can be searched by
features, description, or VIN (Vehicle Identification Number). To ensure a
more accurate identification, vehicles matching the query description can be
viewed from front, rear, side or three quarter angles. The program also
includes a custom paint shop for depicting the exact color of the vehicle. A
color copy of the suspect vehicle can then be produced and immediately
broadcast, printed or faxed to officers in the field to quickly apprehend
suspected criminals.
Information from NICB's (National Insurance Crime Bureau) VINassist-TM-
program has been incorporated into Vehicle ID, enabling officers to obtain
images of vehicles based on VIN translation codes. This feature helps officers
identify stolen vehicles in cases of switched VINs.
FACE ID-TM-
Face ID is a state-of-the-art facial recognition and retrieval program
that helps officers positively identify both unknown suspects and criminals with
multiple aliases. Suspect images that have been captured on a surveillance
video, suspect composite or photograph can be searched against any digital
database of faces. This powerful investigative tool can also be used at the time
of booking to immediately identify criminals with multiple aliases. In addition,
the program's face averaging capability allows a witness to search for a suspect
by "averaging" those photos that have features similar to those of the actual
suspect. Rather than having a witness look through a database one photo at a
time, the detective can utilize the face averaging capability to dramatically
speed up the identification process.
CRIME CAPTURE SYSTEM-TM-
Crime Capture System is a flexible, easy-to-use, and affordable digital
imaging solution for automated capture, storage and retrieval of booking images
and related information. The Crime Capture System utilizes off-the-shelf
hardware that complies with open industry standards and easily integrates with
an agency's records or AFIS system (Automated Fingerprint Identification
System). Utilizing client/server architecture, the Crime Capture System can
operate on an array of systems ranging from a stand-alone PC to a wide area
network.
ImageWare Software, Inc 21 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
IWS has installed investigative software in more than 650 departments
throughout the country whose needs are similar, if not exact to those of
Kitsap County. All of the following receive 24 hour customer support with
four hour on-site response time.
ARIZONA DEPARTMENT OF PUBLIC SAFETY
DESCRIPTION OF INSTALLED SYSTEM AND ITS FEATURES:
Central Server is IBM Netfinity server, dual host cluster, with automatic
fail-over in case of one system failure. Shared disk array with RAID level 5
implemented. 15 county intake facilities, with both capture and investigative
Crime Capture System workstations. 2 additional sites at county court
facilities. Features include an interface with the Identix live-scan device,
taking all demographic data, creating the record and populating the data
fields, making the image capture portion the only step required by the
operator. All information and images are immediately available for all other
investigative workstations on the network. Arizona DPS has also recently
issued a purchase order for the addition of Face ID-TM- to be added to the
central server. Each county can then purchase the client software and conduct
facial recognition searches using images or composites produced by
Suspect ID-TM-. Crime Lab-TM-was also included in each investigative
workstation.
FACT SHEET
The State of Arizona in an effort to consolidate images and booking information,
has contracted with ImageWare Software, Inc. to install a statewide digital
mugshot repository called Mug Photo Interface (MPI). In those locations that are
part of the system, the booking process begins at the Identix livescan station
where an operator captures the suspect's fingerprints and enters required
demographic and biographical information. Once the information is entered into
the livescan system, the data automatically transfers to the MPI system via a
common linking number. At the MPI capture station, additional mandatory
information is recorded, and digital images of the suspect are taken. Upon
completion of a record, the information is immediately transmitted via the
AZAFIS network to a central repository housed at the Department of Public
Safety. At this point, the data is readily available for searching purposes by
any agency in the state which has access to the database.
An ImageWare supplied investigative station is used to perform several
functions including quick and advanced searches for querying the database,
mugbook searches and views for witness identification of a suspect, line-ups,
and in the near future, facial recognition which is used to identify unknown
suspects and criminals.
ImageWare Software, Inc 22 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
ARIZONA MPI TECHNICAL BREAK DOWN
Initial Number of Capture Stations: 17
Initial Number of Investigative Stations: 17
Approximate Number of Bookings Per Year: 350,000
HARDWARE
Central Site: 2 IBM Netfinity Servers running in a clustered environment and
sharing a RAID level 5 array of 82 GB for database storage. Each server has 4
Pentium Pro Processors, 1 GB of RAM memory and 13 GB of internal system disk
space. The system drives are mirrored. If the active server fails to reset a
heartbeat, the failover takes place automatically, and the drive array fails
over to the control of the now active server. There is dial in capability for
diagnostic purposes. The operating system is Windows NT Server 4.0 Enterprise
Edition with Microsoft Cluster Server.
Capture & Investigative Stations: Each Investigative Station is an IBM 300XL
PC with 64MB RAM and 6.1 GB of hard disk storage. The capture camera is a
Pulnix TMC-73M with a Computar zoom lens. The camera and lens are mounted on
a Hitachi pan and tilt device. The capture card is an Integral Technology
MV-Pro. The camera is mounted on it's side to accommodate the NIST Best
Practice Recommendations and proprietary software does a rotation of the
video live feed before it is displayed by the graphics card. Printing and
scanning take place on an Epson Stylus 800 printer and an Epson 636
Expressions scanner (SCSI connection). The operating system is Windows NT
Workstation 4.0. Each capture and investigative station is connected to the
central servers via a wide area network utilizing Ethernet and TCP/IP
protocol. Each station runs client software that connects to the central
server's database.
ImageWare Software, Inc 23 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
FOR IMMEDIATE RELEASE
ARIZONA DEPARTMENT OF PUBLIC SAFETY AWARDS STATEWIDE MUG PHOTO INTERFACE
CONTRACT TO IMAGEWARE SOFTWARE, INC.
IMAGEWARE'S CRIME CAPTURE SYSTEM-TM- TO HELP ARIZONA LAW ENFORCEMENT
AGENCIES APPREHEND CRIMINALS.
San Diego, California - January 15, 1998 - After an extensive
evaluation process, the State of Arizona announced Wednesday that they had
awarded the Arizona Statewide Digital Mug Photo Interface Contract to
ImageWare Software, Inc. The contract is expected to exceed one million
dollars and is the first contract of its kind to be awarded for a statewide
mugshot system. "We are very pleased to provide Arizona law enforcement with
a complete solution for their mug photo needs," says Jim Miller, President
and CEO of ImageWare Software, Inc.. "We feel the Crime Capture System will
provide a quantum leap forward for the State."
Under the terms of the contract, the State of Arizona will utilize
ImageWare's Crime Capture System (CCS), a state-of-the-art digital booking,
identification and retrieval program. The main CCS database will be housed at
the Arizona Department of Public Safety. Seventeen sites will be capable of
capturing mugshots, SMT (scars, marks, and tattoos) photos, and descriptive
data for each suspect they arrest. Each remote site will also receive an
investigative workstation capable of searching and viewing the mugshot
database and creating photo line-ups. Once information is entered into the
remote database, the central repository is immediately updated allowing all
agencies access to the most recent information. Officers and Detectives will
no longer have to spend hundreds of hours searching through file cabinets of
photographs to identify a suspect or generate a photo line-up, instead they
will use CCS's central repository and systematically search the digital
database of images for similarities between suspects, thus speeding up case
processing. The new CCS system will also interface directly with the existing
Arizona Automated Fingerprint Identification System (AZAFIS) network.
The State of Arizona and ImageWare have agreed to an aggressive
implementation schedule which will have the system fully operational by June
1998. Once the first phase is complete, there are plans to move forward with
the implementation of additional C.R.I.M.E.S.-TM- modules including: Suspect
ID-Registered Trademark- (a composite program), Crime Lab-Registered
Trademark- (an image enhancement and edit program), Vehicle ID-TM- (a vehicle
identification program), and what Ben Armstrong, the Lead Business Analyst
with the Maricopa County Sheriff's Office considers, "one of the most
promising law enforcement tools," Face ID-TM- (a facial recognition program).
All of these modules combined will create a fully integrated law enforcement
solution for the State of Arizona.
San Diego-based ImageWare Software, Inc. is a leader and innovator
in PC-based digital imaging, with its primary focus on law enforcement
software. Through its growing family of C.R.I.M.E.S. software modules,
ImageWare is effectively assisting in the resolution of crime worldwide.
Currently, the five C.R.I.M.E.S. modules are being used by more than 500 law
enforcement agencies worldwide. ImageWare Software, Inc. is privately held.
ImageWare Software, Inc 24 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
THE ARIZONA REPUBLIC
POLICE SING PRAISES OF NEW STATEWIDE MUG SHOT SYSTEM
Published on Saturday, September 12, 1998
Byline: By Judi Villa, The Arizona Republic
In seconds, a suspect's booking mug can be seen by law enforcement agencies
throughout the state. A few computer keystrokes, and a detective can have more
pictures than he'll ever need for a photographic lineup. And if there is no
suspect, that same detective can type in a physical description and get a list
of potential bad guys in no time.
Welcome to the Mug Photo Interface, a subsystem of the Arizona Automated
Fingerprint Identification System. MPI uses electronic imaging to capture mug
shot photos and transmit them immediately to a statewide image database operated
by the state Department of Public Safety. "It is going to revolutionize (police
work) just like fingerprints did," said Clyde Tess, a crime lab supervisor with
the Maricopa County Sheriff's Office. "It'll solve cases faster. It'll help in
identifying suspects faster. "If a suspect is entered into the database in
Phoenix then goes down to Tucson and commits a crime, the victim can identify
the suspect the same day. Before an agency would have to send a photo or fax it.
Faxes aren't always that good, and the mail takes a day or two.
This is instant."
The MPI system went online Thursday in 10 counties. The first booking mug was
entered by the Santa Cruz County Sheriff's Office in Nogales. "It's pretty
nice," said Ramon Villela, a detention officer in Nogales. "It's going to make
our jobs easier and faster, and the detectives are going to be able to do
lineups faster."
Arizona's program, funded by a grant from the Arizona Criminal Justice
Enhancement Fund, will be one of the most progressive in the country,
officials say. Although some cities, including San Diego and Boston, have
limited imaging databases, only Arkansas has a statewide system. And that one
collects information from only six sites. Seven more sites, including police
departments in Mesa, Tempe, Phoenix, Scottsdale and Glendale, will be added
to MPI by next summer. And by the end of this year, five sheriff's
departments that already have their own mug photo systems will be linked to
the statewide system. A few agencies, like the Chandler Police Department,
have purchased their own equipment to hook into the system.
"Here's a great thing," said Mark Hatcher, an identification supervisor for
the Mesa Police Department and chairman of the MPI Task Force. The task
force, a grass-roots effort with members from five police agencies in Arizona
has been working for two years to implement the technology. "This opens up
communication from Yuma County to Navajo County," Hatcher said.
"Geographically, they're at different ends of the state, but they can do a
search just like they were here at DPS."
ImageWare Software, Inc 25 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
The system standardizes the way mug shots are taken and stored, sets up a "major
clearinghouse" for all photos and allows investigators anywhere in the state to
search for, retrieve and print out mugs and suspect information from virtually
anywhere in the state. It also can be used to create photo lineups and books of
mug shots for victims to look through. "Say a suspect does a robbery with a
mask, and he's got a tattoo on his arm," Villela said. "Detectives can take that
picture of that tattoo and scan it into the system, and it'll give you everybody
that has that tattoo." The system also is capable of tracking gang affiliations,
weapons and registered sex offenders.
ImageWare Software, Inc 26 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
LOS ANGELES COUNTY, LAKEWOOD
ImageWare Software has great experience in the area of composite creation and
the identification of suspects using those composites. The most recent and
important news involves the facial recognition software, Face ID. This software
was created using algorithms developed from MIT research, which ImageWare has
the exclusive right to offer to the law enforcement industry. The software
describes a portion of the face of an individual mathematically, from the
eyebrows to the lips. This represents the majority of facial features used to
differentiate individuals and discounts such things as hair length and style,
eyeglasses, hats, and other adornments.
Face ID is presently installed at the Lakewood substation of the Los Angeles
Sheriff's Department, and was recently used to capture a carjacking suspect. The
victim gave a very accurate description to the Sheriff's Department, and a
composite was created using ImageWare's Suspect ID. This composite was used to
then search their mugshot database using Face ID. The returned search results
contained a suspect that the victim identified from a lineup. This search took
approximately 90 seconds to perform, and caused the identification and
apprehension of the suspect, and subsequently the District Attorney's office has
filed charges against the suspect. The press release of this incident follows,
along with a view of the composite and actual photo of the suspect.
FOR IMMEDIATE RELEASE
LOS ANGELES SHERIFF'S DEPARTMENT IDENTIFIES SUSPECT
WITH NEW HIGH-TECH CRIME FIGHTING SOFTWARE
DETECTIVES UTILIZE FACE ID-TM- FACIAL RECOGNITION SOFTWARE
TO ARREST CAR-JACKING AND BATTERY SUSPECT.
San Diego, California - November 3, 1997 - Just three days after installation
of their newest crime fighting weapon, detectives with the Los Angeles County
Sheriff's Department arrested a car jacking and battery suspect "that would
never had been identified without Face ID-TM- facial recognition software",
according to Sergeant Bill Conley of the Los Angeles Sheriff's Office. With
no leads, frustrated detectives had given up on the case weeks prior and
considered it dead until the installation of Face ID. Using a composite of
the suspect, detectives employed the facial recognition program to search
their digital mugshot database for possible matches. Within seconds the
automated search results displayed photos in rank order that were similar to
those of the composite. Detectives investigated the matches, created a
photo-line-up and two witnesses positively identified Eduardo Ochoa as the
suspect. Ochoa was arrested on October 30, 1997 and is being held in lieu of
$125,000 bail. Sergeant Conley was amazed and commented, "Face ID is one of
the most innovative breakthroughs in law enforcement technology."
ImageWare Software, Inc 27 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
Face ID, one of the modules of the C.R.I.M.E.S.-Registered Trademark- suite of
integrated law enforcement programs developed by ImageWare Software, Inc., is a
state-of-the-art facial recognition and retrieval program. Now, investigators no
longer have to spend hundreds of hours trying to identify a suspect. Detectives
can take a suspect composite created in ImageWare's Suspect ID-TM- program,
and seamlessly export it to Face ID, which in turn will systematically search
any digital database of booking images to identify possible suspects. Similarly,
a suspect's image caught on a bank or convenience store surveillance video can
be run against a digital photo database for possible identification. With Face
ID, officers will be able to utilize this facial recognition technology at the
time of booking to immediately identify a criminal with multiple identities or
outstanding warrants.
San Diego-based ImageWare Software, Inc. is a leader and innovator in PC-based
digital imaging, with its primary focus on public sector and law enforcement
software. Through its growing family of modules, ImageWare is effectively
creating a fully integrated solution to assist in the resolution of crime
worldwide. Currently, the C.R.I.M.E.S. suite consists of five modules: Suspect
ID (facial composite module), Crime Lab-TM- (an image enhancement and edit
program), Vehicle ID-TM- (vehicle identification program), Face ID (facial
recognition application) and Crime Capture System (digital booking module) which
are being used by more than 500 law enforcement agencies worldwide. ImageWare
Software, Inc. is a privately held company.
ImageWare Software, Inc 28 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
LOS ANGELES SHERIFF'S DEPARTMENT IDENTIFIES SUSPECT
WITH NEW HIGH-TECH CRIME FIGHTING SOFTWARE
San Diego, California - November 3, 1997 - Just three days after installation
of ImageWare's Face ID-TM-, the program proved itself to be the most
effective high-tech crime fighting software available. Using a composite of a
suspect, detectives employed Face ID to conduct an automated comparison search
and produced a number of photos which closely resembled the suspect in a car
jacking and battery case. Both the victim and witness positively identified
the suspect who was ranked highest in the comparison search.
[GRAPHIC]
"The suspect would never had been
identified without Face ID-TM- facial
recognition software".
-SERGEANT BILL CONLEY-
LOS ANGELES COUNTY SHERIFF'S
DEPARTMENT
ImageWare Software, Inc 29 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
NEW YORK CITY POLICE DEPARTMENT
DESCRIPTION OF INSTALLED SYSTEM AND ITS FEATURES:
With over 400,000 bookings each year, the New York City Police Department is
the largest law enforcement agency in the world. The contract for booking
systems for the entire NYPD network clearly establishes XImage as the leading
company for mugshots. XImage was chosen for the high quality of the system,
the adaptability of the software with other technologies and its ability to
be scaled to the size of the project.
The New York City Police Department's booking system, spans 76 precincts in 5
boroughs, including 100 capture stations and redundant central servers. XImage
has a large customer support staff with 24 hours a day, 7 days a week
availability. The operating system is UNIX.
XImage worked as a subcontractor to the worldwide systems integrator, SAIC,
Science Applications International Corporation of McLean, VA. SAIC is an
established provider of computer and information solutions to governmental
agencies worldwide.
HENEPIN COUNTY SHERIFF'S OFFICE (MINNEAPOLIS)
DESCRIPTION OF INSTALLED SYSTEM AND ITS FEATURES:
This system is a UNIX installation with a single ImageBank server, but
servicing input and searching from 6 other agencies. There is also a Mail
Server within the system. There are a total of 18 workstation, 3 of which are
capture stations from within the Henepin County Sheriff's Office. The database
size is approximately 600,000 records at present. ImageWare has recently
received a purchase order from Henepin County to install Face ID-TM- on the
network. This will allow for the facial recognition of subjects, based on a
composite or image.
ImageWare Software, Inc 30 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
IMAGEWARE EXPERIENCE & SUCCESS STORIES
ImageWare Software, Inc. has over 60 successful installations using the
ForceField technology. There are currently
- over 3 million arrestees that have been booked using ImageWare
systems throughout North America
- over 4 million images stored on ImageWare systems worldwide
- over 150,000 lineups that have been created on ImageWare systems
- over 100,000 people booked in the first 4 months of operation
using the New York City PD ImageWare system
- over 1 million images stored in the state of Florida on ImageWare
systems
- over 800,000 images stored in the state of Washington on ImageWare
systems &
- over 434,000 bookings stored on the Orange County, Florida
ImageWare system.
OTHER NOTABLE BOOKING INSTALLATIONS
- Las Vegas Metro PD (Partnered with PRC/Litton and NEC)
- Indianapolis PD
- King County (Seattle)
- Multnomah County (Portland)
- Sonoma County
- Orange County
- Clackamas County
- Marion County
- Yolo County
- Tacoma PD
ImageWare Software, Inc 31 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
IMAGEWARE EXECUTIVES
S. JAMES MILLER, JR., CHAIRMAN & CEO
Mr. Miller came to ImageWare in 1990 after 11 years at Oak
Industries, Inc. Most recently a Senior Vice President for the publicly
traded company, Mr. Miller also served as Chief Legal Officer, Chief
Administrative Officer and President of the company's Far East manufacturing
subsidiaries. At Oak Industries, Mr. Miller's responsibilities included
business acquisitions, divestitures and financing. He also headed the
negotiation of technology licensing arrangements. Mr. Miller holds a J.D. in
Law (WITH HONORS) from the University of San Diego School of Law, and a B.A.
in History and Economics (SUMMA CUM LAUDE) from the University of California
at San Diego.
WAYNE G. WETHERELL, VICE PRESIDENT OF FINANCE & CFO
Prior to becoming ImageWare's Vice President of Finance and CFO, Mr.
Wetherell served in a similar capacity at Bilstein Corporation of America (a
subsidiary of the Krupp Group) for nearly five years. Before joining
Bilstein, he spent 10 years with Oak Industries, Inc., where he served in
various capacities, including Director of Finance and Director of Financial
Planning and Analysis. His responsibilities included management reporting,
financial and strategic planning, and business development. Mr. Wetherell
holds a M.S. in Finance and a B.S. in Management from San Diego State
University.
PAUL J. DEVERMANN, VICE PRESIDENT OF SALES & BUSINESS DEVELOPMENT
Prior to joining ImageWare in 1996, Mr. Devermann was the Managing
Director and Founding Partner of InTra-International Trade & Transactions, an
international consulting and trading company specializing in facilitating
business transactions between the U.S. and Japan. Prior to that, Mr.
Devermann held the position of Senior Vice President of the San Diego
Economic Development Corporation where he was responsible for marketing and
development from 1985 to 1990. Mr. Devermann spent the previous ten years
with Oak Communications in various capacities of sales, sales management,
marketing and business development positions. He holds a B.S. in Marketing
from Northern Illinois University and a M.B.A. from the University of Puget
Sound.
ImageWare Software, Inc 32 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
KEY PROJECT STAFF
Project Coordinator: Erik Carlgren
Telephone Number: (619) 673-8600
FAX Number: (619) 673-1770
<TABLE>
<CAPTION>
Name Years With Project Role
Company
- -----------------------------------------------------------------------------
<S> <C> <C>
John Canepa 6 Software Developer
Renee Gutierrez 4 Documentation & Testing
Tracy Toettcher 6 Training Manager
Bill Ibbetson 6 Director of R&D
</TABLE>
Other staff will be identified after contract award.
ImageWare Software, Inc 33 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
WILLIAM J. IBBETSON
3520 MISSION MESA WAY
SAN DIEGO, CA 92120
(619) 582-0830
==============================================================================
EMPLOYMENT IMAGEWARE SOFTWARE, INC., SAN DIEGO, CA
EXPERIENCE MARCH 1992 TO PRESENT
CHIEF TECHNICAL OFFICER
- Responsible for all technical aspects of the company.
- Direct technical solutions and industry positioning
of products.
MANAGER, RESEARCH AND DEVELOPMENT
- Manage software development team.
- Design software applications and utilities.
- Conduct new product feasibility studies.
- Analyze product/project costs and schedules.
PHOTO IMAGING SPECIALIST
- Develop patented imaging technology.
- Design digital image algorithms.
- Integrate imaging technologies into software
applications.
INDEPENDENT CONSULTANT, SAN DIEGO, CA
JUNE 1987 TO PRESENT
ADMIT 1 TECHNOLOGIES
- Designed and developed graphic based screensaver.
- Created animation and imaging for screensaver.
RESOURCE SUPPLY, INC.
- Designed accounts payable/receivable database
application.
- Created an Inventory Control System.
PUBLICATIONS - WROX PRESS - TECHNICAL EDITOR
Beginner's Guide to Visual C + +, January 1996
- VISUAL BASIC PROGRAMMER'S JOURNAL - CO-AUTHOR
Animation Techniques in VB, February 1996
ImageWare Software, Inc 34 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
<TABLE>
<S> <C>
PATENTS - METHOD AND APPARATUS FOR THE ELECTRONIC TRANSMISSION
OF AN IMAGE FROM A PHOTO KIOSK - INVENTOR
Patent Pending
- IMAGEWARE'S PATENT PORTFOLIO - TECHNICAL LIAISON
U.S. Patent No. 5,345,313 - Image editing system
U.S. Patent No. 5,469,536 - Color masking system
U.S. Patent No. 5,577,179 - Object layering
U.S. Patent No. 5,343,386 - Electronically produced
postcards
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SPECIALIZED - C/C + + PROGRAMMING
SKILLS - MICROSOFT FOUNDATION CLASSES (MFC)
- VISUAL BASIC PROGRAMMING
- RDBMS DESIGN, INTEGRATION AND MANAGEMENT
- DIGITAL PHOTO IMAGING MANIPULATION/ENHANCEMENT
- NOVELL/NT SERVER CONFIGURATION, CONNECTIVITY AND
ADMINISTRATION
- INTERNET/INTRANET APPLICATION DEVELOPMENT
EDUCATION COLEMAN COLLEGE COMPUTER ELECTRONICS TECHNOLOGY
GRADUATE 1992 1990-1992
HONORS - TOP 5% OF CLASS COMPUTER HARDWARE SPECIALIST
DEAN'S LIST - 3.947 GPA
ADDITIONAL TRAINING - NETSCAPE DEVELOPERS CONFERENCE
- MICROSOFT MFC DEVELOPERS CONFERENCE
- MICROSOFT INTERACTIVE MULTIMEDIA CONFERENCE
</TABLE>
ImageWare Software, Inc 35 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
JOHN J. CANEPA
SENIOR SOFTWARE ENGINEER
SUMMARY OF EXPERIENCE
Five years experience in the imaging software industry. Senior developer for
windows based law enforcement applications. Designed user interface, database
search tools and data acquisition screens for digital booking and investigative
applications. Worked directly with the State of Arizona in design, development
and acceptance of the AZAFIS Mug Photo System.
EMPLOYMENT HISTORY
FEBRUARY 1993 TO PRESENT. SOFTWARE ENGINEER, IMAGEWARE SOFTWARE, INC.
Hired for quality assurance and software support. Moved into programming to
modify existing code for product updates. Experience using VB, C++, MFC,
ODBC, and SQL on Windows 3.1, Windows 95 and Windows NT. Developed data
acquisition applications for in house utilities. Designed algorithm to rotate
2D raster objects in 3D using OpenGL. Senior software engineer for the
development of the Crime Capture System (CCS). Experienced in developing user
interface, data entry and database query applications using ODBC and MFC.
Developed multithreaded Windows 95/NT law enforcement investigative
application for searching UNIX booking database.
OCTOBER 1991 TO NOVEMBER 1992. MARKETING MANAGER, DESIGN DRAFTING AND
ENGINEERING, INC.
Designed and maintained customer contact management software and database.
Managed direct marketing for the sales of CAD/CAM software.
EDUCATION
B.A. Applied Mathematics, University of California, San Diego, 1993
ImageWare Software, Inc 36 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
RENEE GUTIERREZ
TECHNICAL DOCUMENTATION DEVELOPER
SUMMARY OF EXPERIENCE
Ms. Gutierrez has 8 years of experience in the computer software industry.
She has 7 years of documentation and user interface design experience with
extensive recent experience in the usability of law enforcement software.
EMPLOYMENT HISTORY
MAY 1995 TO PRESENT. IMAGEWARE SOFTWARE, INC.
- - Create software user manuals, including research, writing, and design. Test
software for usability and develop hypertext On-line Help. Coordinate with
clients and R&D and Marketing departments to design print reports, user
interface and icons for all law enforcement applications.
- - Responsible for all Webmaster duties, including design and creation of HTML
pages, graphics, photo-imaging, and Web conferencing maintenance.
NOVEMBER 1994 TO PRESENT. INDEPENDENT CONTRACTOR
- - CASIO, INC. - Created software user manual and On-Line Help file for Windows
interface to the Casio B.O.S.S.
- - ABACUS DATA SYSTEMS - Created software user manuals for Windows based
legal/attorney software.
- - WINDOWS LINK, INC. - Created software user manual and On-Line Help file
for Windows interface to Royal and Sharp handheld organizers.
- - PERSONAL RESOURCE SYSTEMS - Created software user manual and On-Line Help
file for Windows Time Management software.
- - EAGLE INTERNATIONAL - Created software user manual and On-Line Help file
for Windows PIM.
- - KINGSLEY MACHINE COMPANY - Created software user manual and On-Line Help
file for Windows desktop publishing program. In addition created manual for
foil stamping hardware.
NOVEMBER 1994 TO MAY 1995. STELLCOM TECHNOLOGIES
Independent Contractor. Worked as a contract Technical Writer and Quality
Assurance Engineer.
- - EDITPRO CORPORATION - Created software user manual and On-Line Help
file for Windows program editor.
- - INTUIT - Performed Quality Assurance testing on in-house Windows referral
program. Wrote training documentation and trained staff in use of the
Partners-TM- program.
- - HORIZONS TECHNOLOGY, INC. - Created documentation for CD Rom Maps software
and LAN auditing software.
ImageWare Software, Inc 37 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
JULY 1993 TO OCTOBER 1994. POLARIS SOFTWARE, INC.
- - Manager, Information Development. Created software user manuals, including
research, writing, and design. Tested software for usability and developed
hypertext On-line Help. Coordinated with Usability, Development, and
Marketing departments on design and implementation.
MARCH 1991 TO JULY 1993. MIDRANGE COMPUTING
- - Assistant Director Software Division. Coordinated all software sales,
technical support, and marketing. Senior technical writer of software
manuals. Administered technical support through diagnostics and
troubleshooting. Trained and supervised technical support and sales staffs.
- - Assistant Manager, Business to Business Sales. Trained and supervised staff
in sales of technical manuals, software, and trade journal. Coordinated
trade shows and training seminars.
EDUCATION
B.A., English, University of Arizona, Tucson, AZ, 1985
ImageWare Software, Inc 38 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
OTHER C.R.I.M.E.S. REFERENCES
<TABLE>
<S> <C> <C>
AZ DPS Cyndy Pellien 602-223-2401
Los Angeles SO Sgt. Bill Conley 562-866-9061
Corona PD CA Danny Verdugo 909-279-3642
Raynham PD MA Lou Pacheco 508-824-2727
Independence PD KS Harry Smith 316-332-1700
Little Rock PD AR Chuck Ray 501-371-4660
Long Island Railroad Police Kevin Farrell 718-558-3346
Naval Investigative Service Brandon Armstrong 619-556-1386
E. Providence PD RI Capt Broadmeadow 401-435-7626
San Diego PD CA David Cavanaugh 619-531-2623
San Diego SO CA Mark Kelly 619-258-3100
Monroe SO NY Jim Beikirch 716-428-5432
Placentia PD CA Matt Reynolds 714-993-8164
Austin PD TX Cheryl Bowne 512-480-5145
Visalia PD CA Det Sharon Brown 209-738-3235
Wilson County SO TN Lt Bob White 615-444-1459
San Bernardino SO CA Dep Karen Rice 909-387-8812
Los Angeles PD CA Det Tom Barnhart 818-756-8553
Bullhead City PD AZ Capt Rodney Head 520-763-9200
Arlington PD TX Det Pat Smith 817-459-5710
New York City Police Department Lt. Brian Griffin 212-374-5020
Clackamas County Sheriff's Office Joanne LeBreun 503-650-3155
Stanislaus County Sheriff's Office Gordon Brusso 209-525-7279
Santa Ana Police Department Lt. George Saadeh 714-245-8410
Henepin County Sheriff's Dept Sheryl Loose 612-348-9648
</TABLE>
ImageWare Software, Inc 39 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitsap County Digital Mug System
4.0 WORKPLAN
- ----------------------------------------------------------------------------
PROJECT ORGANIZATION & STAFFING
A Project Manager will be named by ImageWare Software, Inc., to oversee and
manage the planning, monitoring, reporting, and acceptance of the system
outlined in the proposal if ImageWare is the successful vendor. This person's
resume will be supplied during contract negotiations. It is expected that the
KITSAP COUNTY SHERIFF'S OFFICE will also name a Project Coordinator who will
work with the IWS Project Manager, who will be responsible for all tasks
outlined as COUNTY responsibility on the task list.
APPROACH TO PROJECT
ImageWare has a well-defined, disciplined approach to program management which
includes:
- Attention to customer satisfaction
- Regular communications with customer via weekly status meetings,
monthly project status reports, and quarterly reviews
- Regularly scheduled status meetings with the project staff
ImageWare will avoid and mitigate risks by reviewing, prioritizing, and
monitoring key project risks throughout the project life cycle. Identified
project risks will be recorded and tracked to resolution. Identification of
risks and potential mitigation plans will be reviewed with the project staff
monthly, documented in the project reports, and presented to the KITSAP COUNTY
SHERIFF'S OFFICE's Project Coordinator during the project reviews. By
identifying risks early before they have impacted the project, the actual impact
to the project can be decreased, if not totally eliminated. An inescapable fact
of project management is that there are always risks. The key to ensuring a
successful project is to manage them. This means the following must be done
early, before the risk actually impacts the project:
- Identify risks (technical, schedule, and cost)
- Prioritize and quantify risks
- Assign responsibility
- Mitigate (determine mitigation action, responsible person, due date)
- Track Progress
ImageWare Software, Inc 40 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitts County Digital Mug System
<TABLE>
<CAPTION>
CUSTOMIZATION DEFINITION CUSTOMIZATION IMPLEMENTATION
<S><C>
PHASE 1: TASKS PHASE 2: TASKS
- - Database field definitions - Implement customized database
- - Define field validation rules - Implement field validation rules
- - Define code tables - Implement customized screens
- - Define print formats, Audit Trail - Implement Audit Trail reports
- - Define Mandatory Fields - Develop installation plan
- Develop acceptance test document
- - Site Surveys - Develop training material
- - Procure Components - Develop user manuals
PHASE 1: MILESTONES PHASE 2: MILESTONES
- - Specifications Review - Ready-To-Ship Review
- - Purchase Order Issued - Installation Schedule Review
PHASE 1: DELIVERABLES PHASE 2: DELIVERABLES
- - Specifications Document - Acceptance Test Plan
- - Installation Schedule (preliminary) - Installation Schedule
- - Purchase Order
DEPLOYMENT
MAINTENANCE SUPPORT
PHASE 3: TASKS
- - Integration PHASE 4: TASKS
- - Installation - HW & SW Maintenance
- - Training - Enhancements & upgrades (Option)
- - System Acceptance
PHASE 4: MILESTONES
PHASE 3: MILESTONES - Maint. Plan Review
- - Site Reviews
- - Final System Acceptance PHASE 4: DELIVERABLES
- Help Desk Incidence Statistics
PHASE 3: DELIVERABLES - Maint. Plan
- - Site hardware
- - Site software
- - Training Material
- - User Manual
- - System Administration Manual
</TABLE>
ImageWare Software, Inc. 41 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL EXHIBIT A CONFIDENTIAL
KITSAP COUNTY Proposal for CCS
Mug Photo System
<TABLE>
<CAPTION>
DESCRIPTION QTY UNIT EXT TOTAL
<S> <C> <C> <C> <C>
NETFINITY 3000 SERVER (RAID)
IBM Netfinity 3000 Pentium II 45OMHz/512KB L2,64MB ECC,OPEN,32X,PC 1 $2,423.25 $2,423.25
(Std) 10/100 PCI Ethernet
(Std) 450/100 MHz Pentium II Processor with 512KB ECC L2 Cache
(Std) 5.25 to 3.5 DASD Bay Conversion Kit
(Std) 64MB 100MHz ECC SDRAM DIMM
(Std) CD-ROM Drive Internal 32X Max (Variable Speed)
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Keyboard (Stealth Grey)
(Std) Integrated IDE Controller
(Std) Mouse Stealth Grey
(Std) SCSI Wide (16bit) 4-Drop Internal Cable 68 Pin Connectors
(Std) SVGA Graphics Card (AGP)
(Std) PCI Fast/Wide Ultra SCSI Adapter
64MB 100MHz ECC SDRAM (Non-Registered) DIMM 1 $205.20 $205.20
128MB 100MHz ECC SDRAM (Non-Registered) DIMM 1 $399.60 $399.60
IBM 12/24GB DDS/3 4-mm Internal Tape Drive (Black Bezel) 1 $1,348.65 $1,348.65
IBM 9.1GB 720ORPM Wide Ultra SCSI Hard Drive 3 $808.65 $2,425.95
IBM Netfinity ServerRAID-3L Ultra2 SCSI Adapter 1 $945.00 $945.00
Smart-UPS 1000-10 Min Runtime 1 $606.15 $606.15
ISA 56K/33.6KBPS Plug and Play Data/Fax Modem 1 $141.75 $141.75
G74 - 17(15.9) in. Color Monitor, 69 KHz, Pearl White 1 $452.25 $452.25
SUBTOTAL $8,947.80
CAPTURE HARDWARE
PC 300PL Pentium II 350MHz MMX/512KB,64MB,6.4GB,S3Trio,4MB,32X,1 2 $1,869.75 $3,739.50
(Std) IBM 6.4GB EIDE Hard Drive
(Std) 10/100 PCI Ethernet WOL
(Std) 16-bit ISA Crystal Audio Integrated
(Std) 350/10OMHz MMX Pentium II Processor with 512KB Pipeline B
(Std) 4MB Integrated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internal 32X Max (Variable Speed)
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
G74 - 17(15.9) in. Color Monitor, 69 KHz, Pearl White 2 $452.25 $904.50
SUBTOTAL $4,644.00
CAMERA SUB-SYSTEMS
Hitachi KP-D50 Camera, NIST standards (single chip) 2 $1,471.50 $2,943.00
Computar Lens 2 $1,147.50 $2.295.00
3 point Lighting system 2 $1,343.25 $2,686.50
Pan and Tilt Camera mount 2 $1,620.00 $3,240.00
Reflective Pedestal 2 $924.75 $1,849.50
Cable bundle 2 $202.50 $405.00
NIST compliance capture software 2 $1,500.00 $3,000.00
Capture Card MVPro 2 $904.50 $1,809.00
Power Supply (Single Chip) 2 $67.50 $135.00
SUBTOTAL $18,363.00
SOFTWARE
CCS Investigative Display Software (Full) 2 $6,750.00 $13,500.00
CCS Capture Station software 2 $10,000.00 $20,000.00
Suspect ID 1 $5,000.00 nc
Crime Lab 1 $600.00 nc
Vehicle ID 1 $1,500.00 nc
SUBTOTAL $33,500.00
</TABLE>
ImageWare Software. Inc.
10883 Thornmint Road 619-673-8600
San Diego, CA 92127 Page 1 FAX 619-673-1770
<PAGE>
CONFIDENTIAL EXHIBIT A 4/1/99
KITSAP COUNTY Proposal for CCS
Mug Photo System
<TABLE>
<S> <C> <C> <C> <C>
* CUSTOM SOFTWARE/INTEGRATION
Systems integration (File Transfer w/ Intergraph (RMS) to avoid duplicate entr 1 $5,000.00 $5,000.00
Systems Integration (Custom API for Image Retrieval through Intergraph RMS 1 $10,000.00 $10,000,00
Systems Integration (Interface to update JMS) 1 $5,000.00 $5,000.00
SUBTOTAL $20,000.00
TOTAL HARDWARE / SOFTWARE $85,454.80
SERVICES
Additional Custom Print Formats 4 $500.00 $2,000.00
Project Management 3 $900.00 $2,700.00
Conversion of Records from Alternative Booking system 60000 $0.20 $12,000.00
SUBTOTAL $16,700.00
**LICENSES
5-User Windows NT Server License # 606670 1 $687.23 $687.23
SUBTOTAL $687.23
Shipping/Handling/Installation $10.254.58 $10,254.58
Training 2 $750.00 $1,500.00 $1,500.00
TOTAL $114,596.61
AGENCY DISCOUNT $3,739.59
PROJECT TOTAL $110,857.02
*This pricing is based on previous inter-connects with different vendors.
It is not 100% secure and may change.
**Oracle or Microsoft SQL Server Licensing have not yet been included
MAINTENANCE
Maintenance and Support (Year 1) $11,109.12
Maintenance and Support (Year 2) $15,381.86
Maintenance and Support (Year 3) $15,381.86
Maintenance and Support (Year 4) $15,381.86
Maintenance and Support (Year 5) $15,381.86
ADDITIONAL SOFTWARE OPTIONS
CCS Investigative Display Software (1-5 copies) $6,750.00
CCS Investigative Display Software (6-10 copies) $6,000.00
CCS Investigative Display Software (11-20 copies) $5,000.00
CCS Investigative Display Software (21-40 copies) $4,800.00
CCS Capture Station Software (1-3 copies) $10,000.00
CCS Capture Station Software (4-7 copies) $8,900.00
ADDITIONAL HARDWARE OPTIONS
HP Laserjet B&W, 4000TN, 17PPM, 120ODPI 1 $2,284.50
Atlantek ID Card Printer 1 $6,800.00
Tektronix 740+ Color Laser (High Quality) 1 $3,500.00
Lexmark Optra SC Color Laser Printer 1 $3,141.00
HP 200OCxi 600 DPI Multi Format (Ink Jet) 1 $840.00
Mavica FD-71 (Sony Digital Camera) 1 $864.00
Epson 636 Executive Scanner w/SCSI card 1 $846.45
</TABLE>
ImageWare Software, Inc.
10883 Thornmint Road 619-673-8600
San Diego, CA 92127 Page 2 FAX 619-673-1770
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitts County Digital Mug System
EXHIBIT B MAINTENANCE & WARRANTIES
- -------------------------------------------------------------------------------
PRODUCT AND CUSTOMER SUPPORT
IWS will provide KITSAP COUNTY SO with diagnostic software and manuals necessary
to operate and maintain the System, including schematics, diagnostic and
maintenance manuals as provided by the manufacturer. During the warranty period
IWS will support the System without any cost to the County. There are costs
associated with maintaining Customer Support during this warranty period. IWS
agrees to offer Customer Support for an additional fee specified in Cost
Proposal (EXHIBIT A), or at a cost per incident according to the Time and
Materials Schedule. For the purpose of this Agreement Customer Support is
defined as all informational calls related to operation of the System and calls
based upon user error. After the warranty period, IWS agrees to offer
maintenance, customer and product support for the System for at least five years
after installation subject to KITSAP COUNTY SO entering into an IWS Maintenance
Agreement during that five years. IWS will provide a copy of its current
Maintenance Agreement to KITSAP COUNTY SO. Any such Maintenance Agreement is
optional to KITSAP COUNTY SO and KITSAP COUNTY SO will be required to pay an
additional fee. IWS reserves the right to modify the terms and fees of its
standard Maintenance Agreement at any time.
HARDWARE WARRANTIES
All hardware that IWS supplies carries a full 1 Year warranty. IWS supports only
the hardware that it installs. Support for other systems not purchased through
ImageWare can be negotiated.
HARDWARE MAINTENANCE
Maintenance for the system hardware will be 7 days per week, 24 hours per day,
with all agencies having just one toll-free number to call for service. Initial
calls will be received by the IWS Help Desk. If no one is available, a call back
will be made within 1 hour. Within an agreed upon period of time, a hardware
technician will be on-site to troubleshoot and correct the problem.
If any installation within any agency will require access to restricted areas by
IWS employees, it is expected that information will be given to ImageWare during
contract negotiations. ImageWare will make any and all information available to
the AGENCY for each employee who must have access to the restricted areas.
The equipment and hardware supplied as part of this proposal will be fully
guaranteed for a minimum period of 12 months. All prices quoted as part of this
proposal are guaranteed for a period of 12 months
Imageware Software, Inc. 42 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitts County Digital Mug System
The central server comes complete with dial-in modem, and the IBM Netfinity
Manager software and clients installed on each supplied workstation. This will
enable the customer service rep to access, and actually 'take over' workstations
when necessary to diagnose and repair any problems.
Software support first level is via toll free number to phone support. This
customer service rep has the ability to escalate the problem up to level 2
support, which is an R&D engineer. It that person requires an on-site rep, one
will be dispatched. We also include IBM hardware support with each IBM system.
Sometimes, the ImageWare programmer just needs a set of hands and eyes on-site,
and an IBM technician will be dispatched. Dial-in access is available to both
levels 1 and 2, and using Netfinity Manager, many problems can be diagnosed and
resolved by 'taking over' the workstation that is having problems, seeing the
error happen, and resolving the situation immediately via remote connection.
SOFTWARE WARRANTIES
All software has a 90 day warranty starting on the day of system acceptance.
SOURCE CODE
The latest versions of all CRIMES modules, including CCS will be put into an
escrow account. The specifics of this escrow agreement will be outlined at
contract signing.
SOFTWARE ON-GOING MAINTENANCE AND SUPPORT
Maintenance for the system software will be 7 days per week, 24 hours per day,
with all agencies having just one toll-free number to call for service.
ImageWare will meet the response times as outlined by the County. Initial calls
will be received by the IWS Help Desk. If no one is available, a call back will
be made within 1 hour. Within an agreed upon period of time, a technician is
on-site to troubleshoot and correct the problem.
If any installation within any agency will require access to restricted areas by
IWS employees, it is expected that information will be given to ImageWare
during contract negotiations. ImageWare will make any and all information
available to Kitts County for each employee who must have access to the
restricted areas.
Software support first level is via toll free number to phone support. This
customer service rep has the ability to escalate the problem up to level 2
support, which is an R&D engineer.
It that person requires an on-site rep, one will be dispatched. We also include
IBM hardware support with each IBM system. Sometimes, the ImageWare programmer
just needs a set of hands and eyes on-site, and an IBM technician will be
dispatched. Dial-in access is available to both levels 1 and 2, and using
Netfinity Manager, many problems can be diagnosed and resolved
Imageware Software, Inc. 43 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitts County Digital Mug System
by 'taking over' the workstation that is having problems, seeing the error
happen, and resolving the situation immediately via remote connection.
ImageWare Software, Inc. 44 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitts County Digital Mug System
EXHIBIT C - TRAINING
- -------------------------------------------------------------------------------
Training is purchased in increments. One increment is defined as one day of
on-site training with a maximum class size of 15. On-site training outlines may
vary. Example: Training system administrators on server functions is different
than training users on investigative software. A defined number of training
increments for this proposal can be found in the Cost Proposal (Exhibit A).
Follow-up training is available, either on-site or at the IWS facilities.
Training time is kept to a minimum with the Crime Capture System, as it is so
easy to use
Training will be accomplished at each agency location, using their system
equipment. All handout materials and reference materials will be furnished.
After the training session, users have lab time for hands-on familiarization. It
is recommended that at least one training session be video taped and duplicated
for each agency for on-going training purposes.
The length of each class is outlined below:
CRIME CAPTURE SYSTEM TRAINING OUTLINE
OBJECTIVE: By the end of the training session, students will know how to book a
suspect, search a database, use the mug book function and create photo line-ups.
CLASS SIZE: Maximum 15 students
TRAINING OUTLINE:
I. STARTING THE PROGRAM 5 MINUTES
II. NEW BOOKINGS 90 MINUTES
a. Adding a New Booking
b. Searching for Matches
1. Linking Records
2. Unlinking Records
c. Viewing Records
d. Viewing Multiple Bookings
e. Editing and Deleting Records
f. Printing Individual Records
III. SEARCHING 45 MINUTES
a. Quick Search
b. Advanced Search
c. Saving a Search
ImageWare Software, Inc. 45 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitts County Digital Mug System
d. Running and Existing Search
e. Deleting and Existing Search
f. Printing Search Results
IV. MUG BOOK 30 MINUTES
a. Searching for Mugshot
b. Saving a Mug Book
c. Viewing an Existing Mug Book
d. Deleting a Mug Book
V. PHOTO LINE-UP 40 MINUTES
a. Creating a Photo Line-up
b. Saving a Photo Line-up
c. Viewing an Existing Photo Line-up
d. Deleting an Existing Photo Line-up
e. Printing a Photo Line-up
ImageWare Software, Inc. 46 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
CONFIDENTIAL BID REQUEST 04/01/99
Kitts County Digital Mug System
EXHIBIT D - SITE PLAN
- -------------------------------------------------------------------------------
Typical Capture Station Installation
[DIAGRAM]
[LEGEND]
ImageWare Software, Inc. 47 Phone 619-673-8600
10883 Thornmint Rd. Fax 619-673-1770
San Diego, CA 92127
<PAGE>
MAINTENANCE AGREEMENT
BETWEEN
XIMAGE
AND
SAGEM S.A., DEPARTEMENT MORPHO SYSTEMES
Page 1
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1. Definitions...................................................................3
2. Term of Agreement.............................................................4
3. Software Maintenance Services.................................................4
4. Performance of Services.......................................................4
5. Customer Obligations and Warranties...........................................5
6. Charges.......................................................................5
7. Non disclosure................................................................5
8. Response by XIMAGE............................................................6
9. Intervention on site..........................................................6
10. Return and Repair.............................................................7
11. Injunctive Relief/Termination.................................................7
12. Indemnification...............................................................7
13. Termination...................................................................7
14. Disclaimer of Warranty........................................................8
15. Limitations of Liability......................................................8
16. Arbitration...................................................................9
17. Force Majeure.................................................................9
18. Successors and Assigns........................................................9
19. Amendments....................................................................9
20. Entire Agreement and Waiver...................................................10
</TABLE>
Page 2
<PAGE>
This Agreement is entered into this 31 January, 1994 by and between SAGEM
S.A., Departement MORPHO Systemes whose address is 33, route de la Bonne Dame,
77300 FONTAINEBLEAU, FRANCE (hereinafter referred to as MORPHO) and XIMAGE
corporation whose address is 1050 North Fifth Street, SAN JOSE, California
95112 (hereinafter referred to as XIMAGE) for the Customer Support and
Software Maintenance.
WITNESSETH
WHEREAS, XIMAGE and MORPHO have signed the "ForceField PSS Agreement" for the
purchase of services and the use of Software referred to hereafter as the
ForceField PSS System.
WHEREAS, XIMAGE has granted to MORPHO a perpetual and non-exclusive license,
transferable only to the Kuwait Government and solely for use with the PSS to
be installed and used as a portrait storage system in connection with the
AFIS sold to the Kuwait Government in Kuwait.
1. DEFINITIONS
The terms defined in this Section shall have the meaning as follows:
FIRST LEVEL OF MAINTENANCE means MORPHO will require the Kuwait Government to
contact MORPHO maintenance personnel for all problems associated with the
installed Force Field PSS System. MORPHO will respond with fixes and/or
workarounds to keep the system operational. MORPHO personnel may document any
software problems and refer them to XIMAGE for additional fixes or patches.
SECOND LEVEL OF MAINTENANCE means if Morpho's personnel can not start or keep
the system operational because of software problems, XIMAGE should be
contacted to provide all documented and replicated software Errors. XIMAGE
will make best efforts to support Morpho by any means available. Such an
undertaking is made in the knowledge that a telecommunications line between
the site and XIMAGE may not be in existance.
PROGRAM means ForceField PSS software developed by XIMAGE including the
Sybase and Focus software and includes all software provided under the
Maintenance Agreement.
PROGRAM SPECIFICATIONS means the specifications published by XIMAGE for a
particular version of the Program (if no such specification is available,
then the relevant documentation for a particular version of the Program).
EFFECTIVE DATE shall mean the Date of Installation of the PSS in Kuwait, i.e.
December 10, 1993.
ERROR means any material failure to operate in accordance with the program
specifications delivered from the specifications appended to the base
agreement. Error includes malfunctions and defects.
Page 3
<PAGE>
2. TERM OF AGREEMENT
XIMAGE's obligations hereunder shall become effective upon the
"Effective Date" and, unless sooner terminated as provided herein, shall
remain in full force and effect for at least one year thereafter. This
Agreement shall automatically renew for consecutive one (1) year terms
at XIMAGE's then prevailing rates at the end of each one (1) year term
unless either party gives at least sixty (60) days prior written notice
of the non-renewal of this Agreement.
3. SOFTWARE MAINTENANCE SERVICES
XIMAGE will provide to MORPHO during the term hereof "Software
Maintenance Services" which shall include remedial maintenance service
(i.e, error fixing and/or work arounds) for any significant error,
malfunction or defect (collectively in "Error") in the Software so that
the Software will operate in accordance with the specifications set
forth in the related documentation. Correction of Errors is subject to
MORPHO's prompt notification to XIMAGE of the nature and description of
the Error provided that the Error is not caused by the abuse, misuse or
neglect of the products by MORPHO. In addition, XIMAGE will provide the
following as additional Customer Support Services:
(a) telephone support as reasonably requested by MORPHO at the rate of
$100 per hour for all hours in excess of 40 hours in any one-year
term;
(b) on-site visits to MORPHO's sites as determined to be necessary by
Morpho for Error correction, unless error correction is normally
performed via Dial up from the XImage facility in San Jose;
(c) give title to all modifications and improvements to the PSS
Software which XIMAGE generally makes available to its other
customers (at no additional Charge) under standard software
maintenance agreements relating to the Software.
If MORPHO requests XIMAGE to perform any other services, the related terms
and conditions shall be based on further separate agreement between the
parties. This Agreement and the rights and duties contained herein are not be
deemed to cover maintenance services with respect to hardware. Such may be
decided in accordance with paragraph 9.
4. PERFORMANCE OF SERVICES
When XIMAGE provides Software Maintenance Services which require the use
of the hardware portion of equipment which utilizes the Software (the
"Equipment"), MORPHO shall make such Equipment available to XIMAGE at and
for reasonable times, and in no event will MORPHO charge XIMAGE for such
use of such Equipment. All Software Maintenance Services covered by the
Maintenance Charges will be performed during the regular business hours
of XIMAGE (Monday-Friday, exclusive holidays). If Software Maintenance
Services are performed outside regular business hours, MORPHO will pay
the additional charges, if any, as at XIMAGES then current charges.
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<PAGE>
5. CUSTOMER OBLIGATIONS AND WARRANTIES
The obligations of XIMAGE to provide Software Maintenance Services are
subject to MORPHO using the Equipment in accordance with their
respective operating manuals and recommended procedures, and causing
proper and recommended Equipment Maintenance Services to be performed,
including selecting a site which complies with the environmental
requirements suggested by the manufacturer of the Equipment or XIMAGE
and utilizing appropriate back-up procedures with respect to the
Software and data.
6. CHARGES
The total annual maintenance charge amounts to US $24502 for the first
year of maintenance. MORPHO shall pay all charges under this Agreement,
including the total Annual Maintenance Charge, within thirty (30) days
after receipt of a valid invoice from XIMAGE. Thereafter, the then
applicable Annual Maintenance Charge shall be invoiced to, and paid by
MORPHO prior to the beginning of the next annual maintenance period. All
other charges under this Agreement shall be invoiced by XIMAGE and shall
be due and payable within thirty (30) days after receipt of the invoice.
The Annual Maintenance Charge includes all federal, state, county,
local, or other taxes arising in the United States or its states (or
other internal jurisdictions), but does not include all taxes arising
under any law other than that of the United States. MORPHO shall be
responsible for all taxes arising under the law of any jurisdiction
except the United States and its states (and other internal
jurisdisctions).
7. NON DISCLOSURE
Each party agrees to maintain in confidence what it knows or has reason
to know is regarded as confidential by the other party ("Confidential
Information"). The Confidential Information will include, but will not
be limited to, trade secrets, the structure, sequence and organization
of the program, marketing plans, blueprints, techniques, processes,
procedures and formulae. Each party will use the Confidential Information
solely to accomplish the purposes of the Agreement. Each party will not
disclose the Confidential Information to any person except its employees
or consultants to whom it is necessary to disclose the Confidential
Information for such purposes. Each party agrees that the Confidential
Information will be disclosed or made available only to those of its
employees or consultants who have agreed to receive it under termes at
least as restrictive as those specified in this Agreement. Each party will
use reasonable measures to maintain the confidentiality of the Confidential
Information, but not less than the measures it uses for its confidential
information or similar type. Each party will immediately give notice to the
Disclosing Party of any unauthorized use or disclosure of the Confidential
Information. The Recipient agrees to assist the disclosing party in
remedying any such unauthorized use or disclosure of the Confidential
Information. This obligation will not apply to the extent that the
Recipient can demonstrate:
(a) the disclosed information at the time of disclosure is part of the
public domain;
Page 5
<PAGE>
(b) the disclosed information became part of the public domain, by
publication or otherwise, except by breach of the provisions of this
Agreement;
(c) the disclosed information can be established by written evidence to
have been in the possession of the Recipient at the time of
disclosure;
(d) the disclosed information is received from a third party without
similar restrictions and without breach of this Agreement; or
(e) the disclosed information is required to be disclosed by a
government agency to further the objectives of this agreement, such
as to obtain permission to distribute the Program of by a proper
court of competent jurisdiction; provided, however, that the
Recipient wil use its best efforts to minimize the disclosure of
such information and will consult with and assist the Disclosing
Party in obtaining a protective order prior to such disclosure.
8. RESPONSE BY XIMAGE.
XIMAGE will maintain a 24 hour a day reporting facility to accept calls
from MORPHO. XIMAGE agrees to respond to any telephone call made, within
30 minutes.
9. INTERVENTION ON SITE.
In the event that MORPHO require the attendance of an XIMAGE engineer on
site, XIMAGE shall upon such a demand (either written or verbal) make
their best efforts to dispatch the engineer as expeditiously as
possible. XIMAGE undertake to have an engineer on site in Kuwait within
72 hours from the time the request was made, exclusive of the time
required to arrange for travel and obtain the required documents, and
the actual travel time itself.
In such cases where on site intervention is required MORPHO shall pay
for all travel expenses (Business Class), hotel accomodation and
reasonable subsistence. XIMAGE shall charge for the time of the engineer
only when he/she is on site or in exceptional circumstances when away
from the site but directly involved in work connected with the PSS.
XIMAGE will not charge for travel time.
All interventions on site are subject to a minimum total charge of
$2,000. Hourly rate for intervention is $125.00 (one hundred and twenty
five Dollars).
Following any intervention on site XIMAGE shall provide a full written
technical report to MORPHO.
XImage is not required to send an engineer to the Kuwait site if either
active or potentially pending hostilities exist in the region, and a
reasonable person might fear the possibility of bodily harm.
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<PAGE>
10. RETURN AND REPAIR
MORPHO may, at its option, return equipment to XIMAGE for repair. XIMAGE
will make its best efforts to liaise with the supplier of the equipment
and to expeditiously repair and return the equipment. XIMAGE reserves the
right to charge an administration fee of $100 per shipment in such cases.
11. INJUNCTIVE RELIEF/TERMINATION
MORPHO acknowledges and agrees that any violation of the provisions of
Section 7 herein by MORPHO will result in irreparable harm to XIMAGE and
that money damages would provide inadequate remedy. Accordingly, in
addition to any other rights and remedies available to XIMAGE hereunder
or at law, XIMAGE shall be entitled to injunctive or other equitable
relief to restrain any such violation and to such other and further
relief as a court may deem proper under the circumstances. In addition
to any other rights of XIMAGE hereunder, the rights granted MORPHO to
use the Software by license or otherwise may be terminated by XIMAGE for
any material breach of Section 7 upon written notice given to MORPHO and
MORPHO shall return to XIMAGE all of the Software.
12. INDEMNIFICATION
MORPHO hereby indemnifies and holds XIMAGE harmless from any and all
claims, suits, actions and procedures brought or filed by third parties
and from all damages, penalties, losses, costs and expenses (including
without limitation, attorney's fees) arising out of, or related to, any
act or omission of MORPHO and its employees or agents in connection with
MORPHO's obligation herein.
XIMAGE hereby indemnifies and agrees to hold MORPHO harmless from any
claim of any third party that any of the Software infringes any United
States patent, copyright, trademark or other property right held by a
third party provided that XIMAGE is notified promptly by MORPHO of any
such claim (including any threatened claim) and XIMAGE shall have had
sole control of the defense with respect to same (including the
settlement of such claim). The foregoing indemnification by XIMAGE shall
not apply with respect to any claim based, in whole or part, on any
modification of the Software made by any person other than XIMAGE.
13. TERMINATION
Without prejudice to any other of its rights or remedies, either party
may elect to terminate the rights and obligations contained in this
Agreement:
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<PAGE>
(a) Upon sixty (60) days' written notice if the other party has failed
to perform any material obligation required to be performed by it
pursuant to this Agreement and such failure has not been cured
within such a sixty (60) day period, or
(b) Upon sixty (60) days' written notice if the other party has failed
to make timely payment of any amounts required to be paid hereunder,
or
(c) Immediately, (i) if a petition in bankruptcy has been filed by or
against the other party, (ii) if the other party has made an
assignment for the benefit of creditors, (iii) if a receiver has
been appointed or applied for by the other party, or (iv) if the
other party has admitted in writing its inability to pay its debts
as they become due and payable.
14. DISCLAIMER OF WARRANTY
XIMAGE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED
(INCLUDING WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE) WITH RESPECT TO THE SERVICES, SOFTWARE OR DOCUMENTS PROVIDED
(OR TO BE PROVIDED) HEREUNDER.
15. LIMITATIONS OF LIABILITY
MORPHO agrees that XIMAGE's total liability to MORPHO for any damages
suffered in connection with, or arising out of, this Agreement or
MORPHO's use of any documentation, product or service provided (or to be
provided) hereunder, regardless of whether any such liability is based
upon contract, tort or other basis, shall be limited to an amount not to
exceed the basic Monthly Maintenance Charges, for a sixty (60) day term
under this Agreement.
IN NO EVENT SHALL, XIMAGE BE LIABLE TO MORPHO FOR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING WITHOUT
LIMITATION, DAMAGES ARISING FROM LOSS OF BUSINESS, DATA, PROFITS OR
GOODWILL) INCURRED OR SUFFERED BY MORPHO IN CONNECTION WITH, OR ARISING
OUT OF, THIS AGREEMENT OR MORPHO'S USE OF ANY DOCUMENTATION OR SOFTWARE
OR SERVICES PROVIDED, OR TO BE PROVIDED, HEREUNDER, EVEN IF XIMAGE HAS
BEEN APPRISED OF THE LIKELIHOOD OF THE SAME. NO ACTION, REGARDLESS OF
FORM, RELATED TO TRANSACTIONS OCCURRING UNDER, OR CONTEMPLATED BY, THIS
AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER
THE CAUSE OF ACTION HAS ACCRUED.
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<PAGE>
16. ARBITRATION.
Except as provided in Section 8 herein, in the event of any dispute or
controversy between the parties hereto arising out of or relating to
this Agreement or any transaction contemplated hereunder, such dispute
or controversy shall be submitted to arbitration under the Commercial
Rules of Arbitration of the American Arbitration Association sited in
Washington State, USA for decision in any such matter in accordance with
the then applicable rules of the American Arbitration Association or any
successor organization. The determination of the arbitrators shall not
be subject to judicial review, provided however, that any award or
determination rendered by the arbitrators may be enforced any court of
jurisdiction.
17. FORCE MAJEURE.
XIMAGE shall not be liable for any failure or delay in performing its
obligation hereunder due to any cause beyond its reasonable control,
including without limitation, fire, accident, acts of public enemy, war,
rebellion, labor dispute or unrest, insurrection, sabotage,
transportation delays (other than administrative oversights), shortage
of raw material, energy or machinery, acts of God, government or the
judiciary.
18. SUCCESSORS AND ASSIGNS
The interests of MORPHO in this Agreement are personal and shall not be
assigned, transferred, shared or divided in any manner by MORPHO without a
prior written consent of XIMAGE. Subject to the foregoing, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto
and their heirs, representatives, successors and permitted assignees.
19. AMENDMENTS
No supplement, modification or amendment of any term, provision or
condition of this Agreement shall be binding or enforceable unless
executed in writing by the parties hereto.
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<PAGE>
20. ENTIRE AGREEMENT AND WAIVER
This Agreement contains the entire agreement between the parties hereto
and supersedes all prior contemporaneous agreements, arrangements,
negotiation and understandings between the parties hereto, relating to the
subject matter hereof except any prior or contemporaneous Software licenses
between the parties. There are no other understandings, statements, promises
or inducements, oral or otherwise, contrary to the terms of this Agreement.
No representations, warranties, covenants or conditions, express or implied,
whether by statute or otherwise, other than as set forth herein have been
made by any party hereto. No waiver of any term, provision, or condition of
this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or shall constitute, a waiver of any other
provision hereof, whether or not similar, nor shall such waiver constitute a
continuing waiver, and no waiver shall be binding unless executed in writing
by the party making the waiver.
[Illegible], 31 January, 1994
- -----------------------------
/s/ [Illegible] /s/ [Illegible]
- -------------------- ------------------
XIMAGE SAGEM
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<PAGE>
FIRST AMENDMENT -- PURCHASE AND
LICENSE AGREEMENT
BETWEEN
THE LAW ENFORCEMENT
SUPPORT AGENCY
AND
IMAGEWARE SOFTWARE
INCORPORATED
April 23, 1999
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 3
FIRST AMENDMENT - PURCHASE AND LICENSE
AGREEMENT
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ITEM PAGE
<S> <C>
FIRST AMENDMENT 05
PURCHASE AND SALE OF SYSTEM UPGRADE 05
OPERATE WITH RELIABILITY 06
IMPORT/EXPORT DATA 07
INTERFACE 07
TRANSACTION/AUDIT LOGS 07
PAYMENT 07
MAINTENANCE PAYMENTS 07
DAMAGE AWARD FOR DELAY 08
SOFTWARE 08
CONVERSION OF DATA AND IMAGES 08
COMPLETION 08
SYSTEM ACCEPTANCE TEST (SAT) 08
TRAINING 09
OPERATOR MANUALS 09
MAKE WHOLE CLAUSE 09
MAINTENANCE - EXISTING SYSTEM 09
ESCROW 09
TITLE 10
LICENSE OF SOFTWARE 10
SELLER STAFF 10
A. Investigation 10
B. Hold Harmless 10
PATENT AND COPYRIGHT INDEMNIFICATION 11
INSURANCE 11
MISCELLANEOUS PROVISION 14
A. Waiver 14
B. Entire Agreement 14
C. Laws and Regulations 14
D. Arbitration 14
E. Assignment 15
F. Notice of Parties 15
G. Force Majeure 15
H. Choice of Law 16
I. Seller limitation for damages 16
EXHIBITS. 16
PROPRIETARY INFORMATION 16
A. Definition 16
B. Disclosure 16
C. Access Limitation 16
D. Additional Safeguards 17
E. Third party maintenance 17
F. Ownership 17
G. RCW 42.17 17
SELLER AUDIT OF EXISTING EQUIPMENT 17
</TABLE>
<PAGE>
First Amendment - Purchase and License Agreement
LESA -ImageWare CCS Contract page 4
<TABLE>
<S> <C>
SIGNATURE PAGE 18
APPROVED AS TO FORM:....................................................18
UPGRADE EQUIPMENT AND SOFTWARE .......................................19
HARDWARE..............................................................20
NETFINITY 5500 350/400/450 MHz.......................................20
IBM PC 300PL 6862 (4X4) 2............................................20
SYSTEM SOFTWARE ......................................................23
SYSTEM ACCEPTANCE TESTING.............................................25
ESCROW AGREEMENT......................................................28
AGREEMENT FOR MAINTENANCE OF HARDWARE AND SOFTWARE....................38
INSTALLATION SCHEDULE.................................................48
Exhibit F (Price Sheet) 50
</TABLE>
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 5
FIRST AMENDMENT -- PURCHASE AND LICENSE
AGREEMENT BETWEEN IMAGEWARE SOFTWARE INC. AND
THE LAW ENFORCEMENT SUPPORT AGENCY (LESA)
WHEREAS, an Agreement (the "Agreement") for the purchase and sale of hardware
and license of software was entered into on September 26, 1991, by and
between Ximage Incorporated, a California based company ("Seller") and,
jointly and severally, the County of Pierce and the City of Tacoma, in the
State of Washington (Collectively "Buyer") for the purchase and sale of a
computerized mug photo identification system (MUGIS); and
WHEREAS, by Interlocal agreement between Pierce County and the City of Tacoma
Buyers assigned their rights and obligations under the Agreement to the Law
Enforcement Support Agency (LESA), which will be referred to as "Buyer" for
the remainder of this Agreement; and
WHEREAS, through the purchase of the Ximage Corporation in July 1998, by
ImageWare Software Incorporated and through this purchased received all
rights, privileges, software and hardware designs, and contractual
obligations of the Ximage Corporation shall be referred to as "Seller" for
the remainder of this Agreement: and
WHEREAS, the Buyer and Seller mutually desire to modify, upgrade, and
otherwise improve the system by adding and upgrading system equipment, and
adding new software and system functionality, all according to the
provisions of this Agreement at additional cost to the Buyer: and
WHEREAS, Buyer has determined that it is in its best interest to accept the
hardware and software modifications to the system contemplated hereby to
further amend the Agreement.
NOW THEREFORE, the parties hereby agree to amend the Agreement as follows:
1. PURCHASE AND SALE OF SYSTEM UPGRADE. Buyer agrees to buy and Seller agrees
to sell an Upgrade to Buyer's existing MUGIS system as follows:
a. Buyer will receive the hardware, Crimes Capture System (CCS) software,
investigative software for fifty stations, sub releases, and licenses
to use the software as set for in paragraph 19, as well as updates
maintenance and hardware and software support services for 60 months
in exchange for the payments as set forth in paragraph 6, and monthly
maintenance fees as set forth in paragraph 7 and EXHIBIT D.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 6
b. The upgrade will include installation of IBM or equivalent based
equipment listed in EXHIBIT A.I, which shall become the property of
the Buyer upon acceptance of this Upgrade. Any existing equipment,
which will remain as part of the installation, and will not be
replaced, will be noted on EXHIBIT A.I. All other items to be replaced
as part of the hardware upgrade will be removed by the Seller except
as noted in EXHIBIT A.1.
c. Seller will install the CCS software upgrade to Buyer's existing
system, preserving all functionality of the existing system including
customization for Buyer's use, to include but not limited to Print
Formats, CHRI and JMS interfaces, System connectivity, etc., and
adding functionality as set forth in EXHIBIT A.II.
2. OPERATE WITH HIGH RELIABILITY. The system must be capable of continued
operation in degraded modes and be backed -up by practical means which is
either manual or system generated. Communications links must be reliable.
The L.E.S.A. technical staff and County and City personnel must be able to
maintain and support the system with the current staff and resources.
a. The network will connect the equipment stated in Exhibit A.I and the
existing equipment. The System must be capable of other add-ons
outside of the County-City building without degradation. It shall be
configured so that no single component failure of maintenance outage
or cable disconnection shall functionally disable the system.
Although it is understood that a failure of the server will prevent
data-base searches, the CCS Capture stations must have the ability to
capture and store booking records consisting of images with basic key
information at the capture station. Upon restoration of the service to
the server, the system must provide for automatic transfer of the
stored images and associated data. Each capture station must be able
to hold up to 1400 IMAGES.
b. The system shall be capable of meeting all response times and other
performance criteria in this Agreement [Exhibit B] during simultaneous
operations of all stations, both within and outside the County-City
building, up to a total of 60 concurrent users subject to the speed
limitations of digital lines and network provided by Buyer. The
database shall have the capacity to store 1 million images.
c. Downtime. The system downtime shall not exceed ten (15) hours during
any month, despite continuous heavy use 24 hours each day. The maximum
downtime for non-critical is 48 hours and the maximum downtime for
critical equipment is 12 hours. Downtime will be computed from the
time the customer places a call for service to the time that system is
once again fully operation. Critical components, Downtime, and the
Remedy for excessive downtime (15.1 hours or more in one month) are
defined in the Maintenance Agreement EXHIBIT D.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 7
3. IMPORT/EXPORT OF DATA AND PHOTOGRAPHS. The System shall allow for the
Import and Export of photographic images and associated data that conform
to the ANSI/NIST 1996 Standards.
4. INTERFACES. The System will have and the Seller will provide the capability
to interface with any other computer systems that the Buyer needs to
interact with for the purpose of exchanging data and or images. This will
include, but not limited to, the Criminal History Records Inquiry (CHRI)
computer system, Jail Information Management System (JMS), MORPHO AFIS, and
Live Scan devices. The Crime Capture System will provide a direct interface
with the JMS computer to receive demographic and other data elements, and
provide for the transfer of images to the JMS computer. The cost of this
system will be the responsibility of either EPIC Solutions (JMS Vendor) or
the Pierce County Sheriffs Correction and Detention Center. How this is to
be accomplished and in what format will be the responsibility of Seller.
5. TRANSACTION/AUDIT LOGS. The System shall automatically record every
significant system transaction and event in a log file or other format so
that it may be archived for permanent storage. It will be retained on-line
for a minimum of 60 days. The transactions to be recorded shall include but
not limited to the operator's identity, the time the operator logged on and
off, the station the operator was logged into, what records he added, what
record number was printed, what record number he deleted, each photo-lineup
created and by whom and when, what records were updated, and who updated
each record and the day it was updated. The system shall have the
capability to move transactions/audit logs to permanent storage media.
6. PAYMENT. Buyer agrees to pay for the purchase, license, installation, and
training herein described by paying the Seller the amount of ONE HUNDRED
TWENTY-NINE THOUSAND FIFTY-EIGHT DOLLARS AND SEVENTY-TWO CENTS
($129,058.72) EXCLUDING ALL ASSOCIATED WASHINGTON STATE SALES TAX. This
sum includes all hardware and software costs ($115,231.00), and all
shipping, training, and installation fees ($13,827.72). The payment will
be in three parts. Thirty-three percent (33%) will be at the time of
delivery of the project implementation plan, thirty-three percent (33%)
will be at the time of system acceptance and the final thirty-three
percent (33%) will be after the system has had 30 days of performance at
or above 96% up-time.
7. MAINTENANCE PAYMENTS. Seller agrees that the system hardware maintenance
and software support fees will begin on January 1, 2001. Buyer agrees to
pay quarterly maintenance payments beginning on January 1, 2001, by
February 15, 2001, and quarterly thereafter for the life of the maintenance
agreement. Payments will be made by the 15th day of February, May, August,
November of the respective maintenance period. A maintenance period will be
defined as three calendar months. The amount of maintenance payments will
be defined in EXHIBIT D.3.3
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 8
8. DAMAGE AWARD FOR DELAYED INSTALLATION. The CCS upgrade is an integral part
of the Pierce County Sheriff's Department Bureau of Corrections and
Detention's Jail Management System (JMS) and must be installed and data
converted prior to the completion and installation of that system.
Notwithstanding any other provision of this First Amendment, the maximum
time within which the Seller may obtain Acceptance of the upgraded system,
without incurring liquidated damages for delay is July 30, 1999. Failure to
meet this deadline, the Seller will pay Pierce County the amount of $2,000
for each day of delay. If the Buyer causes the delay, Seller will not be
responsible for any damages due to delay.
9. SOFTWARE. The additional software functionality of which CCS is capable as
set forth in EXHIBIT A.II, and the additional customized software
functionality to be provided to Buyer as set forth in EXHIBIT A.II. Seller
agrees that no existing functionality of Buyer's system, as defined in
Exhibit B, shall be lost as a result of the Upgrade. The software shall and
all converted records will meet all ANSI/NIST 1996 standards, and all
images will meet the ANIS/NIST 1996 JPEG standards.
Any upgrades of the system, or any software created or provided by Seller,
outside of the scope of this agreement shall be offered to the Buyer upon
the most favorable terms and conditions offered by Seller to any other
customer. Seller will provide the capability to do tape backups to the
LESA backup system. LESA will provide the setup and Legato licensing for
the Crime Capture System.
10. CONVERSION OF DATA AND IMAGES. The Seller will convert all existing data
and images found on the Buyer's ForceField MUGIS computer into the
appropriate ANSI/NIST format. The conversion will be complete by Seller at
no additional cost to Buyer.
11. COMPLETION. The Seller shall complete the Upgrade WITHIN 11 CALENDAR DAYS
from the date on which it commences installation of the Upgrade. The
Upgrade cannot cause more than eight (8) continuous hours of system down
time during any twenty-four (24) hour period while the Upgrade is being
installed. Downtime for this section only, will be defined as anytime that
either the PCSD Corrections Bureau or Remann Hall Juvenile Detention Center
are unable to capture booking photos in either the automated or stand
alone-mode.
12. SYSTEM ACCEPTANCE TEST (SAT). After completion of installation and prior to
Acceptance, Seller will perform a systems acceptance test (SAT) upon the
Upgraded system as set forth in EXHIBIT B. This test will be considered
satisfied upon the satisfactory completion of those items under Exhibit B
that are under the control of the Seller. Any function, in Exhibit B, which
cannot be demonstrated due to a failure of the EPIC Solution's half of the
JMS interface will not be considered a failure of the SAT. The system will
be conditionally accepted and payment will be made per Paragraph 6 (SAT
Acceptance) of this Amendment. When the interface is completed or fixed the
portion of the SAT that could not be run will be completed. If the
uncompleted portions of the SAT fail, the final payment will be held until
the Seller satisfactorily demonstrates
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 9
the remaining functionality, and the remaining conditions for final payment
per Paragraph 6 have been met.
13. TRAINING. Prior to commencement of the SAT, Seller will provide workstation
training of Buyer's designated personnel and such additional system
operation training of Buyer's designated personnel as may be reasonably
necessary to permit Buyer to operate the system as modified by the Upgrade.
Acceptance shall not be delayed by Buyer's failure to provide personnel
for training before Acceptance at reasonable times scheduled by Seller.
14. OPERATOR AND SYSTEM MANUALS. Five (5) days prior to commencement of the SAT
for the Upgrade, Seller shall deliver to Buyer sufficient Operator Manuals,
System Administrator Manuals, and Server Operation Manuals for each
corresponding site. In addition documentation should be provided for the
user level of the Investigative Tool. Seller will provide an "as-built"
document upon completion of the upgrade that will document all
configurations and installation settings required by Seller for maintenance
and warranty purposes.
15. MAKE WHOLE. In the event that the installed Upgrade cannot function as
required for the SAT the Seller will have three (3) calendar days to
complete any necessary repair and perform the SAT. If after two additional
three (3) calendar day periods the SAT still cannot be satisfactorily
completed, the Buyer may either:
a. Require the Seller to reinstall the old ForceField system to its
original running condition prior to the Upgrade. OR,
b. Grant the Seller additional time to complete the necessary changes to
pass the SAT. If after this extension the Seller cannot satisfactorily
complete the SAT, Buyer reserves the right to exercise option 15.a of
this agreement.
16. MAINTENANCE OF EXISTING SYSTEM. During the period of time between
acceptance of the First Amendment of the Agreement and the installation,
and completion of the SAT Seller shall provide maintenance services on the
ForceField system pursuant to the existing agreement, but at no cost to
Buyer.
17. ESCROW.
a. DEPOSIT. Throughout the term of the perpetual, non-exclusive license
agreement, Seller agrees to keep and maintain current one copy of the
system source code for the version of all CCS software used by Buyer
under this agreement with a mutually acceptable Escrow Agent (the
"Escrow Agent"). The Escrow Agent shall be paid by Seller and Shall be
authorized to release the source code to Buyer in accordance with the
terms of the Escrow Agreement attached hereto as EXHIBIT C and
incorporated herein by reference.
b. DOCUMENTATION. Seller shall also place in said Escrow one copy of the
appropriate maintenance manuals and such additional documentation as
is required for the proper maintenance of all Hardware and Software
components of
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 10
the System, regardless of manufacturer. Such documentation shall
consist of logic diagrams, wiring diagrams, installation instructions,
theory of operation manuals, and maintenance manuals, and shall
include the same information as that which Seller supplies to its
maintenance personnel of the maintenance of the System.
c. RELEASE. In accordance with terms of the Escrow Agreement, Buyer shall
be entitled to release of the materials placed in escrow in the event
Seller ceases to conduct business in the normal course, becomes
insolvent, makes a general assignment for the benefit of creditors,
suffers or permits the appointment of a receiver for its business
assets; or avails itself or, becomes subject to any proceedings under
the Federal Bankruptcy Code or any other statute of any state relating
to insolvency or the protection of rights of creditors.
18. TITLE. Seller warrants that title to the Hardware sold to Buyer under this
Agreement will pass to Buyer upon Acceptance, free of any and all
encumbrances. In the event that any such Hardware becomes subject to any
claims for liens or other encumbrance, Seller shall promptly, and in any
event within thirty (30) days, cause such lien or encumbrance to be
discharged and released of record, without cost to Buyer, and shall
indemnify Buyer against all costs and expenses (including attorney's fees)
incurred in discharging and releasing such claim of lien or encumbrance. If
any such claim or encumbrance is not so discharged and released, Buyer may
pay or secure the release or discharge thereof at the expense of Seller
after first giving Seller five (5) days' advance notice of its intention to
do so.
19. LICENSE OF SOFTWARE. Seller hereby grants to Buyer, subject to the terms
and conditions of this Agreement, a nontransferable, nonexclusive, and
perpetual license to use the Software provide under this Agreement. This
license is for use of the Software only with the Hardware described in this
Agreement. Notwithstanding any other provision of this Agreement, including
Exhibits, this license shall survive any termination of the Agreement.
20. Technical Personnel Supplied by Seller.
a. INVESTIGATION. Due to the sensitive nature of some of Buyer's file
information, all Seller's personnel who will have access to Buyer's
file information may be fingerprinted and Buyer may conduct a
background investigation. Any of Seller's personnel may be denied
access to Buyer's Site and information for security reasons.
b. HOLD HARMLESS. Seller agrees to hold harmless Buyer and its agents and
assigns from all third party claims, demands, damages, actions or
causes of action resulting from allegedly unauthorized dissemination
to third parties by any of Seller's personnel of Buyer's data made
available to Seller under this Agreement, or of any other information
identified in writing by Buyer to Seller as information that is
confidential to Buyer.
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21. PATENT AND COPYRIGHT INDEMNIFICATION.
a. GENERALLY. Seller shall at Seller's expense defend, indemnify and hold
harmless Buyer against any action brought against Buyer to the extent
that such action is based upon a claim that the System or any part
provided by Seller infringes and United States or foreign patent or
copyright ("Infringement Action"); provided, however, that (i)
Seller's obligations under this paragraph 17 shall be conditioned upon
Buyer promptly notifying Seller in writing of the Infringement Action
(and all prior claims relating thereto), and (ii) Seller shall have
the sole control of the defense and all negotiations for compromise of
any Infringement Action.
b. REMEDIES In the event the System becomes, or in Seller's opinion is
likely to become, the subject of a claim of infringement of a United
States or foreign patent or copyright, Seller may, at Seller's option,
either (i) secure for Buyer the right to continue the use of the
System, or (ii) replace or modify the System to make it noninfringing
(provided that the modified or replacement System continues to meet
the same performance standards as the infringing System. In the event
that neither (i) nor (ii) is reasonably available to Seller, Seller
shall so notify Buyer and Buyer shall become entitled to terminate
this Agreement, and the recovery of damages as stated in paragraph
21.c.
c. DAMAGES. The amount of damages awarded under this section 21 will be
limited to (i) the restoration of the ForceField system to its
operation condition prior to the Upgrade at Seller's cost, and (ii)
the return to Buyer all costs associated with this Upgrade and
infringement action to include purchase price and maintenance fees.
d. LIMITATIONS. Seller shall have no liability or obligations in any
Infringement Action based upon the Buyer (i) combining or utilizing
the System or parts thereof with equipment, devices or software not
connected or provided by Seller; (ii) using other than the most recent
release of the licensed software provided by Seller, in the event that
the Infringement Action could have been avoided by use of such
release; or modifying the System, without the expressed written
authorization of the Seller.
22. INSURANCE.
a. GENERALLY. Throughout the effective period of this Agreement, Seller
shall purchase and maintain insurance from a carrier or carriers
satisfactory to the Buyer covering injuries to persons or property of
Buyer or third parties as a result of errors, omissions, or operations
by Seller arising out of this Agreement. Seller shall provide Buyer
with a certificate of insurance within ninety (90) days of Seller's
acceptance of this Agreement, as represented by Seller's signature,
but not less than 7 working days prior to commencement of
installation. Seller shall
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provide thirty (30) days prior written notice to Buyer of any
cancellation, nonrenewal, or material change in the insurance
coverage.
b. WORKERS' COMPENSATION INSURANCE. Seller shall comply with the
Workmen's Compensation Act of the State of Washington and the United
States Longshoremen's and Harborworkers' Compensation Act during the
term of this Agreement, and in case any of the work to be performed by
Seller hereunder is subcontracted, Seller shall require any and all
subcontractors to comply with said acts.
The Seller specifically assumes potential liability for actions
brought by the Seller's own employees against the Buyer and, solely
for the purpose of this indemnification and defense, the Seller
specifically waives any immunity under the state industrial insurance
law, Title 51 RCW. The seller recognizes that this waiver was the
subject of mutual negotiation.
c. LIABILITY INSURANCE. Contractor shall procure and maintain
Comprehensive Public Liability and Property Damage Liability Insurance
which includes but is not limited to operations of Seller, with limits
of not less than:
i. Workers' Compensation and Employers Liability insurance in
accordance with the laws of the State of Washington with
liability limits of One Million Dollars ($1,000,000.00) per
person per accident.
ii. Comprehensive General Public Liability and Broad Form
Comprehensive General Liability or Commercial General Liability
including bodily injury, personal injury, and property damage in
the amount of a combined single limit of One Million Dollars
($1,000,000.00) each occurrence, and Two Million Dollars
($2,000,000.00) in aggregate limit.
iii. Comprehensive Auto Liability including +bodily injury, personal
injury and property damage in the amount of One Million Dollars
($1,000,000.00) each occurrence and Two Million Dollars
($2,000,000.00) in aggregate limit. Coverage must include all
automobile utilized by ImageWare performing the work hereunder.
iv. The following statement shall appear in each certificate of
insurance provided the Buyer by Seller hereunder: "It is agreed
that in the event of any material change in or cancellation of
this policy, thirty (30) calendar days prior written notice will
be given Buyer."
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The following coverage shall be included in both Primary and excess Liability
contracts:
1. Broad Form Property Damage Coverage
2. Blanket Broad Form Contractual
3. Stop-Gap Employer's Contingent Liability
4. Contractor's Protective
5. Personal Injury Liability (Libel, Slander, Defamation, etc.)
6. Products and Completed Operations
7. Non-Owned and Hired Car Coverage
Seller's insurance policy shall also contain a "cross liability" endorsement and
substantially as follows:
The inclusion of more than one Insured under this policy shall not affect
the rights of any Insured as respects any claim, suit or judgment made or
brought by or for any other insured or by or for any employee of any other
Insured. This policy shall protect each Insured in the same manner as
though a separate policy had been issued to each, except that nothing
herein shall operate to increase the Seller's liability beyond the amount
or amounts for which the Seller would have been liable had only one insured
been named.
Buyer shall be named as an additional insured as respects this contract, and
such insurance as is carried by Seller shall be primary (over and insurance
carried by Buyer).
d. PRIMARY INSURANCE. All insurance under this Agreement shall provide
that such policies are primary insurance to any other insurance
available to the parties hereto with respect to any claims arising out
of this Agreement or as to performance thereof, and that such
insurance applies separately to each insured against whom claim is
made or suit is brought.
e. INSURANCE NOTICES. All insurance under this Agreement shall provide
that any notice regarding said insurance shall be made in writing and
mailed to the following addresses:
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LESA - ImageWare CCS Contract page 14
To Buyer:
Law Enforcement Support Agency
C/o City of Tacoma Risk Management
747 St. Helens Municipal Building
Tacoma, Washington 98402
To Seller:
Mr. James Miller
President and CEO
ImageWare Software Inc.
10883 Thornmint Road
San Diego, California 92127
Or to such other address as may be specified from time to time by the relevant
party.
1. MISCELLANEOUS PROVISIONS.
a. WAIVER. The failure by either party at any time to enforce any default
or right reserved to it, or to require performance of any of the
terms, covenants, or provisions hereof by the other party at the time
designated shall not be construed as a waiver of any such default or
right to which the other party is entitled, nor shall it in any way
affect the right of the party to enforce such provisions, covenants,
or rights thereafter.
b. ENTIRE AGREEMENT. This First Amendment to the Agreement constitutes
the entire agreement of the parties hereto with respect to the subject
matter hereof and no waiver or amendment of any provision of this
Agreement shall be valid unless made in writing and executed by all of
the parties hereto. Upon Buyer's Acceptance under the First Amendment,
the provisions of the Agreement, as previously amended, shall no
longer be effective, except to the extent expressly provided in this
First Amendment.
c. LAWS AND REGULATIONS - SEVERABILITY. The articles and services covered
by this Agreement shall comply with applicable Federal, State, and
local laws, ordinances, and any other legal requirements which are in
effect on the date of the Amendment. In the event that any of the
terms, conditions, or provisions of this Agreement shall be held
illegal, unenforceable, or invalid, then notwithstanding, this
Agreement shall remain in full force and effect and the legality,
validity and enforceability of the remaining terms, conditions, and
provisions shall not be affected thereby.
d. ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement, the breach thereof, or the interpretation thereof,
shall be referred in the
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LESA - ImageWare CCS Contract page 15
first instance to the chief executive of Seller and to the senior
representative of the Buyer for amicable resolution, failing which
such controversy or claim shall be settled by binding arbitration in
accordance with the Rules of the American Arbitration Association. Any
judgment upon the award rendered in such arbitration shall be final
and may be entered in any court having jurisdiction thereof.
e. ASSIGNMENT. This Agreement may not be assigned by either party without
the express written consent of the other, which consent shall not be
unreasonably withheld, provided, however, that Buyer may, without
Seller's consent, assign all of its rights to any similar joint
agency, subject only to (i) Buyer giving notice of such assignment
to Seller and (ii) such other agency assuming all of Buyer's
obligations and obtaining receipt of any and all funding
authorizations that may be required in that connection.
f. NOTICE OF PARTIES. All notices and demands of any kind which either
party hereto may be required or desire to serve upon the other party
under the terms of this Agreement shall be served upon such other
party by personal service, or by leaving such notice or demand at the
address set forth below or by forwarding a copy thereof by first class
mail, postage prepaid, or by telex or telecopier, address as follows:
To Buyer:
Law Enforcement Support Agency
Attn: Robert Van Geison, Director
930 Tacoma Ave. So. Room 239
Tacoma, Washington 98402
To Seller:
James Miller
President & CEO
ImageWare Software Inc.
10883 Thornmint Road
San Diego, California 92127
Or to such other address as may be specified from time to time by
the relevant party. Service shall be deemed complete when the
party to whom addressed receives the notice or demand.
g. FORCE MAJEURE. Seller and Buyer shall not be responsible for any loss,
delay, or breach in delivery of performance of any obligation
hereunder caused by third parties; change in governmental regulations,
controls, directions or orders; outbreak of a state of emergency, Acts
of God or the public enemy, war,
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hostilities, civil commotion, riots, freight or trade embargoes,
epidemics, perils of the sea, or other natural casualties, fires,
strikes, walkouts, communication line failures, or other similar cause
or causes beyond the control of either party.
h. CHOICE OF LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of and in the courts of the State of
Washington. Any actions shall be brought in the Superior Court of the
State of Washington located in the City of Tacoma, County of Pierce.
i. NOT LIABLE FOR INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES Either
party shall in no event be liable for any incidental, special, or
consequential damages of any nature whatsoever, including, without
limitation, damages arising from loss of use of the system, lost
data, wrongful arrest, damage to reputation or lost profits, even if
Seller has been advised of the possibility of such damages.
2. EXHIBITS. Seller shall comply with the provision of Exhibits attached
hereto.
3. PROPRIETARY INFORMATION.
a. DEFINITION. For the purposes of this Section, the following items
shall, except to the extent that they become generally known to the
public through no fault of Buyer, be treated as "Proprietary
Information:"
i. The Software, including any upgrade thereof or other modification
thereto;
ii. Any technical information or data specifically marked as
proprietary information provided by Seller to Buyer with respect
to the System, including the documentation furnished pursuant to
this agreement;
iii. Any other information or data provided to Buyer by Seller, which
Seller designates and clearly marks as "proprietary,"
"confidential," or "restricted," or by some similar designation.
Materials, information or documentation provided to Buyer pursuant to
the Escrow Agreement required by paragraph 17 shall not be included
within this definition of proprietary information.
b. DISCLOSURE, DUPLICATION AND USE. Except as otherwise authorized in
writing by Seller, Buyer shall take all necessary precautions to
prevent:
i. Disclosure of an proprietary information (other than to
employees, agents or representatives);
ii. Duplication of any proprietary information; or
iii. Use of a proprietary information except in connection with use of
the System by Buyer for law enforcement purposes.
c. ACCESS LIMITATION. Seller reserves the right to protect itself against
disclosure of various components of the Software by encasing the same
in locked sub-systems
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LESA - ImageWare CCS Contract page 17
of the System. Buyer agrees not to allow third party access to such
locked sub-systems. Buyer further agrees that neither it nor it
employees, agents or representatives shall have access to the contents
of such locked sub-systems except to the extent that such access is
necessary for day-to-day operation of the System (as opposed to
maintenance).
d. ADDITIONAL SAFEGUARDS. Buyer agrees to comply with any additional
safeguards against improper disclosure, duplication or use of
proprietary information that Seller may reasonably promulgate from
time to time, provided that such safeguards do not unduly interfere
with Buyer's use of the System or appreciably increase Buyer's
operating costs with respect thereto.
e. THIRD PARTY MAINTENANCE. Since this is a turnkey system using off the
shelf components and Seller developed software, the Seller will be
responsible for all maintenance of the System. (If a component or
piece of software supplied by the Seller requires a third party to
complete the repair or maintenance, it will be the Seller's
responsibility to arrange for this third party repair or maintenance
at the Seller's cost).
In addition, in the event that the Seller shall decline to renew the
Maintenance Agreement described in EXHIBIT D; Buyer shall be entitled
to disclose proprietary information to such personnel.
f. OWNERSHIP. Except as otherwise provided in this Agreement or by
agreement between Buyer and Seller, all proprietary information shall
remain the exclusive property of Seller.
g. RCW 42.17. Nothing in this paragraph shall be construed as prohibiting
Buyer from making available, for public inspection and copying, any
public records required to be made available pursuant to chapter 42.17
RCW, providing, however, that Buyer Shall, in such even, give Seller
prior reasonable notice and an opportunity to challenge such
disclosure before the Courts, to the extent permitted under applicable
law.
26. Seller will audit existing/remaining hardware to ensure sufficient capacity
and compliance with the requirements of this agreement and the Crime
Capture System. It will be Buyers responsibility to take appropriate action
as required in the Seller's report to assure continued operation.
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First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 18
IN WITNESS WHEREOF the parties hereto have executed this First Amendment
to the Agreement this 11th day of May, 1999.
BUYER: Law Enforcement Support Agency
By: /s/ Robert Van Gieson
--------------------------------------------
Robert Van Gieson, Director
SELLER: ImageWare Software Inc.
By: /s/ James Miller
--------------------------------------------
James Miller, President & CEO
Approved as to form:
By: /s/ Cheryl Carlson
--------------------------------------------
Cheryl Carlson Asst. City Attorney
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First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 19
EXHIBIT A
UPGRADE EQUIPMENT AND SOFTWARE
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LESA - ImageWare CCS Contract page 20
EXHIBIT A.I
HARDWARE
A.I.1. The following hardware and sub-systems will be included in the System
purchase price. All replaced hardware will be removed except as noted in
Section A.I.19.
A.I.2 MEDIUM NETFINITY SERVER HARDWARE (SERVER & RAID replacements) Netfinity
5500 350/400/450 MHz
- - IBM Netfinity 5500 Pentium II I
- - 10/100 PCI Ethernet
- - 2-drop 16 bit SCSI internal Cable
- - 32X IDE CD-R"OM Drive
- - 500/100 MHz Pentium II processor with 512KB ECC L2 Cache
- - IBM 1.44MB 3.5 floppy
- - IBM 104 Key Board Grey
- - Integrated IDE Controller
- - Integrated PCI Ultra SCSI RAID Controller - dual channel
- - Mouse - Grey
- - Netfinity 400 W Hot-Swap Power Supply
- - Netfinity NetBay3
- - Processor Complex Card
- - S3 Trio64V2 Graphics - 1MB SGRAM
- - Systems Management Processor
- - ISA 56K33.6 Plug and Play Data/Fax modem
- - 18.2GB 1OK ultra SCSI SCA-2 Hot-Swap HDD
- - TrackPoint IV 104 Stealth Black Keyboard
- - IBM Netfinity 256MB SDRAM ECC RDIMM
- - 50OMHz Pentium III Processor with 512KB
- - Black Sleek Mouse
- - G74 - 17 (15.9) in Color Monitor, 69 KHz Stealth Grey
- - Smart-UPS 1400-17 Min Runtime
A.I.3 APTURE STATION (Puyallup)
IBM PC 300PL 6862 (4X4) 2
- - IBM 6.4GB EIDE Hard Drive
- - 10/100 PCI Ethernet WOL
- - 16 bit ISA Crystal Audio Integrated
- - 400/100MHz MMX Pentium II Processor with 512 Pipeline B
- - 4MB Integrated SCRAM Video Memory
- - 64MB 60ns NP SDRAM DIMM
- - CD-ROM Drive Internal 32X Max (Variable Speed)
- - IBM 1.44 MB floppy
- - IMB 104 key Rubber Dome Keyboard
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- - Integrated IDE Controller
- - S3 Trio 3D AGP Graphics Integrated
- - P72 - 17 (16) in UV-NH Color Monitor, 85KHz, Pearl White (1)
A.I.4 CAMERA SUB SYSTEMS (ALL)
All original Equipment remains except for:
- - Pan and Tilt Camera mount
- - Cable Bundle
A.I.5 INVESTIGATIVE STATION HARDWARE (2) (Replacement for PCSD 04 & 05)
IBM PC 300pl 6862 (4x4) 2
- - IMB 6.4GB EIDE Hard Drive
- - 10/100 PCI Ethernet WOL
- - 16-bit ISA Crystal Audio Integrated
- - 400/100MHz MMX Pentium II processor with 512KB Pipeline B
- - 4MB Integrated SCRAM Video Memory
- - 64 MB 60 ns NP SCRAM DIMM
- - CD-ROM Drive Internal 32X Max (Variable Speed)
- - IBM 1.44MB Floppy Drive
- - IBM 104 key Rubber Dome Keyboard
- - Integrated IDE Controller
- - S3 Trio 3D AGP Graphics Integrated
- - P72 - 17 (16) in. UV-NH Color Monitor, 85KHz, Pearl White
A.I.6 MONITORS: (6)
- - P72-17 (16) inch. UV-NH Color Monitor, 85KHZ, Pearl White (6).
To replace monitors at PCSD 02,03,06 TPD 02,03 and JUV 02.
A.I.7 PRINTERS COLOR AND BLACK/WHITE
- - 6 - MITSUBISHI CP 700 COLOR PRINTERS
- - 9 - HP LaserJet B/W 400OTN 17PPM, 120ODPI Printers
(This will replace all of the existing printers at all locations)
A.I.8 SCANNERS (2) TPD/PCSD FORENSICS
- - 2- Epson 800 Executive Scanner with SCSI card
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First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 22
A.I.9 REPLACED HARWARE:
The Seller, with exception of the following items, will remove all the old
hardware upgraded through this Amendment.
- - HV-C10 cameras replaced with Scanners. (2)
- - All printers except the Kodak SV6600 series.
- - Server and RAID storage hardware
ALL OTHER EXISTING HARDWARE WILL BE USED AS PART OF THE COMPLETE SYSTEM.
IF THERE ARE ANY DISCREPANCIES BETWEEN THE HARDWARE LIST ABOVE AND THE
ATTACHED FAXED COPY OF HARDWARE AND SOFTWARE, THE ATTACHED FAXED COPY FROM
THE SELLER WILL BE CONSIDERED TO BE CORRECT.
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EXHIBIT A.II
SYSTEM SOFTWARE
A.II.1 The Crime Capture System is an NT based system with a Microsoft SQL
Database. Client sites will operate in a Windows 95, 98, or NT
environment.
All necessary software will be supplied and installed by the Seller.
The software will provide the capability to meet the minimum
requirements of the System Acceptance Test (SAT) as defined in EXHIBIT
B. The installed software will at a minimum perform all of the
functions associated with the current ForceField software, as defined
in Exhibit B, in addition to those features and functions packaged
with this software version as enhancements over the older ForceField
software.
A.II.2 Seller certifies all Crime Capture System software uses four digit
years and is "Y2K" compliant according to ANSI and generally accepted
Year 2000 compliance requirements.
A.II.3 Seller will provide NT configuration requirements 30 days prior to the
installation to allow sufficient time to prepare the multi-agency
environment for this system. This plan should include all specific
networking settings needed to allow the CCS to function through
multiple firewalls and across unshared NT domains.
CCS INVESTIGATIVE DISPLAY SOFTWARE (FULL) LICENSE (4)
3 - TO PIERCE COUNTY SHERIFF'S DEPT.
1 - TO TACOMA PD
CCS CAPTURE STATION SOFTWARE LICENSE (5)
2 - TO PIERCE COUNTY SHERIFF'S DEPT.
1 - TO TACOMA PD
1 - TO PUYALLUP PD
1 - REMANN HALL
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LESA - ImageWare CCS Contract page 24
INVESTIGATIVE/MUGBOOK SOFTWARE LICENSE (50)
10 - TO PIERCE COUNTY SHERIFF'S DEPT.
40 - TO TACOMA PD
IF THERE ARE ANY DISCREPANCIES BETWEEN THE SOFTWARE LIST ABOVE AND THE ATTACHED
FAXED COPY OF HARDWARE AND SOFTWARE, THE ATTACHED FAXED COPY FROM THE SELLER
WILL BE CONSIDERED TO BE CORRECT.
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EXHIBIT B
SYSTEM ACCEPTANCE TESTING
(SAT)
B.1 SYSTEM ACCEPTANCE TESTING (SAT)
The SAT will take place after the installation of all hardware and
software and the Seller has certified the System installation
completed and ready for testing. Selected employees from Remann Hall,
Puyallup Police Department, Tacoma Police Department, and Pierce
County Sheriff's Department will conduct the SAT. The SAT team will
utilize all capture and display stations to capture live images and to
make sufficient inquires of the system to measure its conformance and
compatibility with the following:
B.1.2 The booking transaction will result in a transfer of data and
between JMS and CHRI computers and the CCS computer System. The
transaction will be initiated by the booking officer entering the
booking number into the appropriate field on the display. The CCS
computer will access the appropriate prearranged file(s) of the JMS or
CHRI computers via the System interface, retrieve, and permanently
store the information on the CCS server. The transfer time should be
10 seconds or less, assuming a reasonable response from the JMS/CHRI
systems. The CCS must also allow for the manually enter of and or
updating of all fields listed below.
1. NAME
2. BOOKING NUMBER
3. RACE
4. SEX
5. HEIGHT
6. WEIGHT
7. EYE COLOR
8. HAIR COLOR
9. CHARGES
10. TPD NUMBERS
11. PCSD NUMBERS
12. FBI NUMBER
13. WASH. STATE NUMBER
14. SCARS, MARKS, TATTOOS, ETC.
15. GANG MEMBERSHIP
16. FACIAL HAIR
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B.1.3 Each capture station must capture, display, and print images in color
and black and white. Format and size must be to Buyer's current
specifications and designs.
B.1.4 Any black and white or color print must be printed within two (2)
minutes.
B.1.5 Each capture station or investigative station must be able to display
a minimum of 25 color full-face images at one time.
B.1.6 Each capture station or investigative station must be able to display
images without the demographic information displayed.
B.1.7 Each capture station or investigative station must be able to
access the database using name, booking number, or CHRI number and
display the proper image and data within 15 seconds or less.
B.1.8 Each capture station or investigative station must be able to generate
and display photo line-ups. The line-ups musts be able to be recalled
by suspect name, or line-up identification number. The identification
number must appear on every copy of the lineup that is generated and
printed.
B.1.9 Each scanner must be able to scan photographs, slides, books,
negatives into the permanent database from which they can be displayed
and printed from any capture or investigative station, or from any PC
using the investigate tool. THIS CAN BE ACCOMPLISHED PROVIDED THE
BUYER PURCHASES AN EPSON EXECUTIVE SCANNER TRANSPARENCY UNIT FOR EACH
SCANNER.
B.1.10 The system must generate all color identification cards currently in
the ForceField system. It must also be able to print all black and
white formats currently used in the ForceField system. As each
agencies identification cards are unique and specifically designed for
that agency, access to these identification cards must be limited to
the agency that is identified on each card format.
B.1.11 The System's training mode must be accessible from any capture or
investigative station and must not effect on-line data nor interfere
with other stations on the system.
B.1.12 The System must be able to seal, expunge, or delete any recorded image
and associated data.
B.1.13 The System must automatically log it self off after 10 minutes of no
operator use.
B.1.14 An audit trail must be produced at the conclusion of the SAT. The
audit must include all information contained in paragraph 5 of the
Agreement.
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B.1.15 The System must allow for the interface to other Law Enforcement
agencies that purchase the Crimes Capture System or the ForceField
computerized mug photo identification systems. Where as this may not
be able to demonstrate at the SAT this is a needed function that must
be available. SELLER THROUGH THEIR SIGNATURE ON THIS CONTRACT AGREES
THAT CCS CAN COMMUNICATE WITH CCS SYSTEMS, BUT CANNOT COMMUNICATE CCS
TO ForceField.
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EXHIBIT C
ESCROW AGREEMENT
SOFTWARE ESCROW AGREEMENT
MULTI USER PLAN
This Agreement is effective________________, 19___ among Lincoln-Parry
SoftEscrow, Inc., (hereinafter known as "Trustee"), a company with
principal offices located at 400 Inverness Drive, Suite 200,
Englewood, CO 80112, ImageWare Software Incorporated, (hereinafter
known as "Licensor"), a Corporation, with principal offices located at
10883 Thornmint, San Diego, CA 92127 and any additional party,
(hereinafter known as "Licensee"), signing the Acceptance Form
attached to this Agreement, reference herein as "Attachment 1" and
incorporated herein by this reference.
WHEREAS the Licensor carries on the business of licensing computer software
and is desirous of making available severally to certain of its
customers, each herein called the Licensee the benefits contemplated
by this agreement, and;
WHEREAS the Licensor has granted or shall grant to the Licensee the right to
use certain computer programs in object form and has agreed or shall
agree to support the programs but wishes to maintain their
confidentiality as trade secrets, and;
WHEREAS the Licensee is desirous of being assured that the source code,
documentation and related materials for such programs will be made
available to it for the purposes of self-support if certain events
named herein occur;
THEREFORE the parties agree as follows:
1. ESCROW MATERIALS
Depositor shall deliver to the Trustee a sealed package containing
magnetic tapes, disks, disk packs, or other forms of media, in machine
readable form, and the written documentation prepared in connection
therewith, and any subsequent updates or changes thereto (the "Deposit
Materials") for the computer software products (the "System(s)"), all
as identified from time to time on Exhibit A hereto. Deposit Materials
shall consist of the source code magnetically or optically stored, and
such supporting documentation and related materials as are necessary
for a reasonably competent programmer to routinely maintain and modify
such code.
2. BENEFICIARIES
All Licensees of the System shall separately become a beneficiary
hereunder upon the signing by the Licensee and Licensor of the
Acceptance Form attached to this Agreement. Amendments introduced in
the Acceptance Form by the agreement of Licensor and Licensee will
supersede any provisions of this Software Escrow Agreement for the
parties signing said Acceptance Form, providing that said amendments
do not modify the rights of the Trustee.
3. DELIVERY AND CERTIFICATION
The following procedure shall be adopted for the presentation and
certification of the Deposit Materials into escrow.
(a) Within 10 days after the signing of this agreement by both
parties, the Trustee shall supply to the Licensor an appropriate sized
container which is capable of being sealed and in which the Deposit
Materials shall be stored.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 29
(b) The Licensor shall thereupon deposit the Deposit Materials into
the said container, identifying it by name and release number, and
shall certify as to the authenticity of the contents in the sealed
container on the form supplied by the Trustee.
(c) The Licensor shall seal the container and shall deliver it to the
Trustee to hold in accordance with the terms of this agreement.
(d) The Licensor will deposit new releases into escrow, and the
Trustee shall retain the latest such deposits and shall return earlier
deposits to the Licensor.
(e) The Trustee shall hold the container in its sealed state and shall
not open, cause or permit it to be opened under any circumstances
whatsoever except as may be permitted under this agreement or
amendments thereto.
4. EVENTS CAUSING RELEASE
The Deposit Materials shall be held in escrow by the Trustee until the
earliest of the following events:
(a) A cessation of the use of the System by the Licensee and the
termination or expiration of its program license agreement with the
Licensor, or the termination or expiration caused or permitted by the
Licensee of the System maintenance and support services portion of the
said program license agreement.
(b) A termination of this agreement by consent of the Licensor and
Licensee, or the Licensee alone.
(c) The occurrence of any of the following events, and provided in all
events that the Licensor has not made suitable alternate arrangements
for the continued supplying of maintenance of the System:
(1) A petition in bankruptcy, or an assignment for the benefit of
creditors of the Licensor is filed by the Licensor, or a third party
against the Licensor and is not dismissed within 30 days of its
filing;
(2) A cessation of normal business operations by the Licensor during
the term of this agreement;
(3) A failure or refusal by the Licensor to provide the System
maintenance and support services required of it under its program
license agreement with the Licensee, which failure has been preceded
by a notice in writing to the Licensor that its continued default
would cause the Licensee to invoke its rights under this agreement
fifteen (15) days after the date of the said notice;
5. RETURN TO LICENSOR
The Trustee shall deliver the Deposit Materials back to the Licensor
if any of the events named in paragraph 4(a) or 4(b) occurs before any
of the events named in paragraph 4(c), provided that a Termination
Notice in the form set out in Schedule A and signed by the Licensor
and the Licensee has been delivered to the Trustee along with the
balance of any fees and charges that are due, and further provided
that no other Licensee is a beneficiary under this agreement at the
time.
6. DELIVERY TO LICENSEE
The Trustee shall deliver a copy of the Deposit Materials to the
Licensee if any of the events named in paragraph 4(c) occur before any
of the events named in paragraphs 4(a) or 4(b), provided that the
procedure set out below has been followed and the conditions met.
(a) The Licensee has delivered to the Trustee a written request for
the release of the Deposit Materials, accompanied by a sworn affidavit
in a form satisfactory to the Trustee from a senior officer of the
Licensee stating the particulars of the reasons for its request.
(b) A copy of the request and affidavit have been delivered by the
Trustee to the Licensor, and the Licensor has received at least the
notice period named in paragraph 4(c)(3).
(c) No dispute in writing has been received from the Licensor by the
Trustee within ten (10) days of the Licensor's receipt of the
Licensee's request and affidavit.
(d) The Licensee has signed a non disclosure covenant in the form set
out in Exhibit B and delivered it to the Trustee.
(e) All outstanding charges under this agreement have been paid to the
Trustee, and the Licensee has paid copying and delivering costs
incurred by the Trustee.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 30
7. DISPUTES AND ARBITRATION
If the Licensor enters a dispute as contemplated by paragraph 6(c) then the
procedure set out below shall be followed before the Deposit Materials
is delivered to the Licensee.
(a) The Licensor and Licensee shall within ten (10) days after the
entering of a dispute name an arbitrator to decide whether the
Licensee is entitled to receive the Deposit Materials. If they are
unable to agree upon the selection of an arbitrator then the Trustee
shall make the said selection.
(b) The arbitration shall otherwise be conducted in San Diego,
California in accordance with the Rules of the American Arbitration
Association and the Trustee shall immediately upon the expiry of any
appeal period carry out the decision of the arbitration.
8. VERIFICATION PROCEDURE
In order to verify the authenticity of the contents of any container deposited
by the Licensor and being held in escrow the Licensee may at any time
call for its inspection in the manner and subject to the conditions
below.
(a) The Licensee shall notify the Licensor and the Trustee in writing
of its demand to inspect the contents of a container, and such
notification shall be made at least 30 days in advance of the date
appointed for such inspection.
(b) The Trustee shall appoint the location for such inspection.
(c) The Trustee shall attend at the appointed time and place and shall
thereat produce the sealed container in question.
(d) The contents of the container shall be removed and inspected by
the Licensee and a determination made as to whether they are as
purported by the Licensor on its certificate.
(e) If the contents are determined to be as purported, they will be
resealed and returned to the Trustee to continue to hold in escrow.
The Licensee shall pay all costs associated with the inspection,
including machine time, operating personnel, travel, food, lodging and
a reasonable per diem fee for the attendance of all the parties
attending at the inspection.
(f) If the contents of the container are determined not to be as
purported, then Licensor shall pay all of the costs named in sub
paragraph (e) and shall also forthwith deliver to the Trustee a copy
of the authentic software as purported on the Licensor's
certification, and the Licensee may first verify that the same are
authentic.
9. DUTIES OF TRUSTEE
(a) The Trustee shall store the sealed containers in a safe and secure
location of its own choosing.
(b) The Licensor may direct the Trustee to store the sealed containers
in a location selected by the Licensor, in which event the Trustee
shall comply with such direction provided that access to the location
is under the Trustee's control and that any additional costs incurred
by the Trustee in using the site are paid by the Licensor.
(c) The Licensor represents that Deposit Materials do not require any
storage conditions other than office environment conditions.
(d) The Trustee shall exercise reasonable judgment in the handling of
the Deposit Materials in the event of a dispute and shall not be
liable to either party except for grossly or deliberately negligent
conduct.
10. FEES, CHARGES AND TERM
The Licensor shall pay to the Trustee the following fees and charges:
(a) An annual fee of $500.00 US payable upon execution by the Licensor
of this Agreement and on each anniversary date thereafter unless
earlier terminated by either party.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 31
(b) This agreement shall continue thereafter on a yearly basis unless
terminated by either party by giving the other at least ninety (90)
days written notice prior to any anniversary date, and provided that
all named beneficiaries have either ceased to hold a use license for
the System or have consented to the termination of this agreement by
signing the Termination Notice attached to this Agreement , reference
herein as "Attachment 2" and incorporated herein by this reference.
(c) A fee of $50.00 US per container per year or part year for each
container in excess of one being held by the Trustee at any given time
payable on the anniversary date of this agreement.
(d) A fee of $25.00 US per written notice delivered by the Trustee
under paragraph 6(b).
(e) A charge representing all expenses incurred by the Trustee for
media, copying, shipping, delivery, and special storage requested by
the Licensor payable on receipt of account.
f) The term of this agreement shall continue so long as any
beneficiary has rights under it.
11. DEFAULT IN PAYMENT
In the event of non-payment of any fees invoiced by the Trustee, the
Trustee shall give notice of non-payment of any fee due and payable
hereunder to the Licensor and, in such an event, the Licensor shall
have the right to pay the unpaid fee within ninety (90) days after
receipt of notice from the Trustee. If Licensor fails to pay in full
all fees due during such ninety (90) day period, the Trustee shall
give notice of non-payment of any fee due and payable hereunder to the
Licensee and, in such event, the Licensee shall have the right to pay
the unpaid fee within ten (10) days of receipt of such notice from the
Trustee. Upon payment of the unpaid fee by either the Licensor or
Licensee, as the case may be, this Agreement shall continue in full
force and effect until the end of the applicable term. Failure to pay
the unpaid fee by both Licensor and Licensee shall result in
termination of this Agreement. In such event the Trustee shall return
the Deposit Materials to the Licensor.
The remedies above do not exclude any other remedies that are
otherwise available to the Trustee.
12. INSPECTION
For the purpose of insuring that any sealed container delivered to and
held by the Trustee under this agreement remains in a sealed state,
either the Licensor or the Licensee may at any time demand to inspect
such container at the offices of the Trustee, and the Trustee shall
produce such container on a timely basis for inspection.
13. NOTICES
Any notice required to be given in writing under this agreement shall
be given by prepaid certified or registered post, return receipt
requested, to the respective addresses above first mentioned or to
such other addresses as the parties may from time to time direct.
14. TITLE
Title to the Deposit Materials shall remain in the Licensor either in
its own right or as agent for the owner. The Trustee shall have title
to the physical storage medium but not to the Deposit Materials
residing on it.
15. GOVERNING LAW
This agreement shall be governed in accordance with the laws of the
State of California without giving effect to its conflict of laws
provisions .
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 32
16. ENUREMENT
This agreement shall be binding upon and inure to the benefit of
parties and the beneficiaries named by the Licensor and the assignees
of each of them. This agreement may not be assigned by the Trustee
without the prior written consent of the Licensor.
17. ENTIRE AGREEMENT
This Agreement, which includes the Acceptance Form and the Exhibits
described herein, embodies the entire understanding among all of the
parties with respect to its subject matter and supersedes all previous
communications, representations or understandings, either oral or
written. The Trustee is not a party to the License Agreement between
Licensor and Licensee and has no knowledge of any of the terms or
provisions of any such License Agreement. Trustee's only obligations
to Licensor or Licensee are as set forth in this Agreement. No
amendment or modification of this Agreement shall be valid or binding
unless signed by all the parties hereto.
IN WITNESS WHEREOF the parties have by their representatives so
authorized executed this agreement to go into force on the date below
first mentioned.
---------------------------------- ------------------------------------
Lincoln-Parry SoftEscrow, Inc. ImageWare Software, Inc.
By: By:
------------------------------- ---------------------------------
Title: Title:
---------------------------- ------------------------------
Date: Date:
---------------------------- ------------------------------
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 33
EXHIBIT A - LIST OF ESCROW MATERIALS
Al. PRODUCT NAME: _Crime Capture System
Version #: Generic 2.1
Prepared/Confirmed by:____________________________________________________
Title:_________________________________________ Date:________________
Signature:______________________________
Type of deposit:
______ Initial Deposit
______ Update Deposit to replace current deposits
Items Deposited:
<TABLE>
<CAPTION>
- --------------- ----------------- -------------------------------------------------- ---------------- -----------------
Label Media Type Description of Material Operating Hardware
System Platform
- --------------- ----------------- -------------------------------------------------- ---------------- -----------------
<S> <C> <C> <C> <C>
SCD I CDROM Source Code and Documentation for Windows 95, PC
C.R.I.M.E.S Shell, Crime Capture System. 98,
GENERIC. NT
- --------------- ----------------- -------------------------------------------------- ---------------- -----------------
- --------------- ----------------- -------------------------------------------------- ---------------- -----------------
</TABLE>
A2. PRODUCT NAME: _Crime Capture System
Version #: Arizona 1.1
Prepared/Confirmed by:____________________________________________________
Title:_________________________________________ Date:________________
Signature:______________________________
Type of deposit:
______ Initial Deposit
______ Update Deposit to replace current deposits
<TABLE>
<CAPTION>
- --------------- ----------------- -------------------------------------------------- ---------------- -----------------
Label Media Type Description of Material Operating Hardware
System Platform
- --------------- ----------------- -------------------------------------------------- ---------------- -----------------
<S> <C> <C> <C> <C>
SCD 2 CDROM Source Code and Documentation for Windows 95, PC
C.R.I.M.E.S Shell, Crime Capture 98,
System. ARIZONA. NT
- --------------- ----------------- -------------------------------------------------- ---------------- -----------------
- --------------- ----------------- -------------------------------------------------- ---------------- -----------------
</TABLE>
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 34
A3. Product Name: Face ID
Version #: 1.1
Prepared/Confirmed by:____________________________________________________
Title:_________________________________________ Date:________________
Signature:______________________________
Type of deposit:
______ Initial Deposit
______ Update Deposit to replace current deposits
<TABLE>
<CAPTION>
- --------------- ----------------- --------------------------------------------------- ---------------- -----------------
Label Media Type Description of Material Operating Hardware
System Platform
- --------------- ----------------- --------------------------------------------------- ---------------- -----------------
<S> <C> <C> <C> <C>
SCD 3 CDROM Source Code and Documentation for Windows 95, PC
C.R.I.M.E.S Shell, Face ID. 98,
NT
- --------------- ----------------- --------------------------------------------------- ---------------- -----------------
- --------------- ----------------- --------------------------------------------------- ---------------- -----------------
</TABLE>
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 35
ATTACHMENT I- ACCEPTANCE FORM
Image Ware Software Inc. and Lincoln-Parry SoftEscrow Inc., hereby acknowledge
that __________ is a Beneficiary referred to in the Software Escrow
Agreement number , effective ___________, 19___ with Lincoln-Parry
SoftEscrow as the Trustee and ImageWare Software Incorporated as the
Licensor. Licensee hereby agrees to be bound by all provisions of such
Agreement.
The Licensee's rights under this Agreement shall relate to the Deposit Materials
in those container(s) held by the Trustee for which the Licensee has a
valid license agreement that is not in arrears or otherwise in
default, at such time as those rights are exercised.
Programs of the software licensed by the Licensee:
1. Crime Capture System. Generic. CD-ROM SCD 1.
2. Face ID. CD-ROM SCD 3.
3.
4.
Notices and communications to Licensee Company Name:_________________________
should be addressed to: Address:____
____
____
Designated Contact:___________________
Telephone:____________________________
Facsimile:___________________
In Witness Whereof, the Licensor and Licensee, have by their representatives so
authorized executed this agreement to go into force on the date first
below written.
____________________________ ______________________________
Licensee Licensor
____________________________
By:_______________________ By:__________________________
Name:_____________________ Name:________________________
Title:____________________ Title:_______________________
Date:_____________________ Date:________________________
Received by Lincoln-Parry, SoftEscrow, Inc.
By:________________________
Name:______________________
Title:_____________________
Date:______________________
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 36
EXHIBIT B - NON DISCLOSURE COVENANT
TO: ImageWare Software Inc. Date:
(Licensor)
WHEREAS the Licensor and the Licensee are parties to a Software
Escrow Agreement bearing No. and date
pursuant to which the Deposit Materials therein shall be released to
the Licensee by the Trustee, and;
WHEREAS a prior condition of such release is set out in paragraph 6(d)
of the said agreement, namely that the Licensee must first execute
this form of non disclosure covenant and deliver it to the Trustee;
THEREFORE the Licensee covenants as follows for the benefit of the
Licensor:
1. To hold the Deposit Materials in the strictest of confidence, recognizing
that it is a valuable trade secret of the Licensor and that its
improper disclosure will cause substantial and irreparable injury to
the Licensor.
2. To restrict the use of the Deposit Materials solely and exclusively for the
purpose of supporting and developing the Licensee's own installation
and for no other purpose whatsoever.
3. To restrict disclosure of the Deposit Materials or any part thereof to only
those of the Licensee's employees or agents who have a bona fide need
to know, and who have received written notice of the confidential
nature of the Deposit Materials and have agreed to abide by these
restrictions.
4. Not to make any copy (other than for back up), derivation, translation or
imitation of the Deposit Materials, or to use any of its algorithms,
designs or architecture in producing another program.
5. To fully observe and perform all other obligations which may bind the
Licensee under any other agreement which exist between it and the
Licensor.
---------------------------------
Licensee
<PAGE>
ATTACHMENT 2 - TERMINATION NOTICE
TO: Lincoln-Parry SoftEscrow, Inc. Date:
400 Inverness Drive South
Suite 200
Englewood, CO 80112
TAKE NOTICE THAT the Licensor and the Licensee being parties to a
Software Escrow Agreement bearing No.
and date do hereby terminate the said agreement as of
the date of this notice and direct you to deliver the Deposit
Materials thereunder held by you to the Licensor forthwith.
- ---------------------------------------
Licensor
- ---------------------------------------
Licensee
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 38
EXHIBIT D
AGREEMENT FOR MAINTENANCE OF HARDWARE AND
SOFTWARE.
D.1 TERM.
D.1.1 TERM DEFINITION: For the purposes of this section the remainder of
calendar year 1999 will be considered a complete maintenance year. All
subsequent maintenance years will begin on January 1, and end on
December 31, of that calendar year. (Example, the end of year two
will be considered to be December 31, 2000, year three December 31,
2001 and so forth.)
D.1.2 INITIAL TERM. The initial term of this Agreement shall commence on
the date of Acceptance as specified in the First Amendment to the
Purchase and License Agreement and shall extend for five (5) years
following ending on December 31, 2003.
D.1.3 RENEWAL TERMS. This Agreement shall be renewed thereafter,
automatically for successive one-year terms, but not more than ten
(10) such terms unless Buyer gives Seller ninety (90) days prior
written notice of its intention not to renew this Agreement, provided
however that Sell shall be entitled, beginning upon the commencement
of the first such renewal term (beginning January of the 6th calendar
year), to increase the charges payable by Buyer pursuant to paragraph
D.4.
D.2 MAINTENANCE SERVICE TO BE PROVIDED.
D.2.1 GENERAL. During the initial term of this Agreement, and any renewal
term thereof, Seller shall provide to Buyer maintenance service with
respect to the System consisting of (I) Preventive Maintenance as
described in paragraph D.2.2, (ii) Remedial Maintenance as described
in paragraph D.2.3, and (iii) Extra Services as described in paragraph
D.2.4, all in accordance with and subject to the terms and conditions
of this Agreement.
D.2.2 PREVENTIVE MAINTENANCE. Preventive Maintenance shall consist of all
maintenance service, other than Excluded Services as defined in
paragraph D.2.5, performed by Seller in accordance with a
predetermined schedule and independently of any System Failure, for
the purpose of maintaining the System in good working order.
Preventive Maintenance, which shall require quarterly, semi annual,
and annual maintenance work and shall be performed by locally-based
(Western Washington) Seller personnel on normal working days between
the hours of 8:00 a.m. and 4:30
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 39
p.m. or as otherwise arranged. Pursuant to the provisions of the
Seller's maintenance manual and in accordance with a schedule mutually
acceptable to Buyer and Seller, consistent with Buyer's operating
requirements and the specific needs of the System as determined by
Seller from time to time.
For the purpose of this agreement, Normal Business Hours shall be from
8:00 a.m. to 4:30 p.m. on working days, i.e. Monday - Friday except
holidays.
D.2.2.a. QUARTERLY MAINTENANCE shall include, but not limited to, Seller's
personnel performing a quality control check of the system to assure
Buyer that the system is performing at the prescribe standards for
System functionality.
D.2.2.b. SEMI ANNUAL MAINTENANCE shall include the Quarterly Maintenance in
addition, but not limited to, a general cleaning of the system.
D.2.2.c. ANNUAL MAINTENANCE shall include a thorough inspection, cleaning,
hardware alignment, and general system check to preserve image and
system performance quality.
D.2.3 REMEDIAL MAINTENANCE. Remedial Maintenance shall mean all maintenance,
other than Excluded Services, reasonably required as a result of, and
for the purpose of correcting, a System Failure. For purposes of this
Agreement, System Failure shall mean any malfunction in the System
that prevents or materially interferes with, the accomplishments of
any or all of the System intended functions, which are expressed in,
but not limited to those in, Exhibit A.II of the First Amendment to
the Purchase and License Agreement. Following any identification of
any System Failure by Buyer, and Buyer's completion of the diagnostic
checklist and procedures recommended by Seller in the User
Documentation Set, Buyer shall provide notification thereof to Seller.
In the event of any software failure, Seller shall thereafter make a
good faith effort to cause the appropriate software support person to
respond to the Buyer within 30 minutes of the notification with an
update as to cause and/or possible solutions. Software support shall
be available 24 hours per day 7 days each week including holidays
regardless of the severity of the software failure.
In the event of any hardware failure, Seller shall thereafter make a
good faith effort to cause an authorized representative of Seller to
arriver at the location where the System is installed no later than
four (4) hours following Seller's receipt of such notification. Seller
shall from time to time advise Buyer of the name(s) and location(s) of
locally-based seller personnel authorized to receive such
notifications and Seller shall ensure that such personnel are
available to Buyer at all times that the System is scheduled by Buyer
to be in operation. Hardware support shall be available 7 days per
week 24 hours per day for critical
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 40
items as defined in PARAGRAPH D.2.3.1, and during normal work days and
hours for non critical items as defined in PARAGRAPH D.2.3.2.
D.2.3.1 CRITICAL ITEMS: All Seller hardware associated with the Server, Seller
supplied interfaces, and Capture Stations that prohibit the Buyer from
performing their day to day duties associated with the capture and
storage of mug photo images or as defined as System Downtime under
paragraph D.6.1 shall be considered as CRITICAL ITEMS. The only
hardware exception to this paragraph will be the printers.
D.2.3.2 NON CRITICAL ITEMS: All Seller supplied hardware items not mentioned
in paragraph D.2.3.1 will be considered non critical items and shall
be repaired during the Seller's normal work hours. This will include
the printers associated with any capture station and display stations.
D.2.4. EXTRA SERVICES. Extra Services shall consist of any maintenance
services with respect to the System, other than Preventive Maintenance
and Remedial Maintenance, including without limitation, Excluded
Services. Seller shall be under no firm obligation to perform any
Extra Service but undertakes to make a good faith effort to render
such services to the extent that it is capable of doing so without
substantially interfering with its other obligations under this
Agreement or its obligations to other customers. If so requested by
Buyer, Seller shall provide a written estimate of extra charges likely
to be incurred or accrued as a result of the performance of such
services, to the extent such services can be reasonably ascertained in
advance.
D.2.5. EXCLUDED SERVICES. For the purpose of this Agreement, Excluded
Services shall be defined as; Any maintenance services necessary or
appropriate in order to correct any System Failure, or potential
failure, attributable in whole or in part to any of the following
factors or any combination thereof.
D.2.5.1 Failure by Buyer to provide or maintain a suitable installation
environment as the System Site in accordance with the operations
documentation furnished to Buyer pursuant to PARAGRAPH 14 of the First
Amendment to the Purchase and License Agreement and any other
reasonable requirements thereafter communicated in writing by Seller
to Buyer, including without limitation, any electrical power, air
conditioning, or humidity control failure or changes to the
environment of the System Site as defined in the documentation
pursuant to PARAGRAPH 14.
D.2.5.2 Use of supplies or materials not approved by the Seller, or by the
equipment manufacture.
D.2.5.3 Use or attempted use of the System for any purpose other than that for
which it was acquired. (This does not include the Personal Computers
(PCs) that have the
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 41
Investigate Software installed on them as they are intended to be
multi-use computer stations.)
D.2.5.4. Alterations to the System (other than alterations installed by the
Seller or authorized in writing by the Seller).
D.2.5.5. Connection of the System by mechanical or electrical means to any
other machine, equipment or device (other than those installed by the
Seller or authorized in writing by Seller) other than normal network
connections
D.2.5.6. Removal, transportation or relocation of the System by any person
other than the Seller, unless authorized by Seller in writing.
D.2.5.7 Neglect or misuse of the System by Buyer or any third party, except
persons for which the Seller is responsible under this Agreement.
D.2.5.8 Any other intentional or negligent damage to the System by the Buyer
or third party except for prospective customers of the Seller for
which Seller is responsible.
D.2.5.9 Any other failure by Buyer to comply with its obligations under this
agreement or the Purchase and License Agreement.
D.2.5.10 Any event of force majeure, as defined in paragraph 23.g, or any
other cause other than ordinary use, unless otherwise authorized in
writing by the Seller.
D.2.5.11 Any maintenance services to be performed on any software, hardware
or other item not furnished by Seller to Buyer or any other work
external to the System by anyone other than the Seller.
D.2.6 WARRANT. For and in consideration of Buyer's undertakings under this
Maintenance agreement, or any extension or renewal thereof, Seller
warrants that System Downtime, as defined in paragraph D.6.1, shall
not exceed 15 hours per calendar month.
D.2.7 NEW PARTS. Seller will provide maintenance parts at no cost to Buyer.
All such parts will be new or parts equivalent to new parts when used
in connection with the System. Parts removed from the System pursuant
to this Agreement shall become the property of the Seller. Parts
installed in the System pursuant to this Agreement shall become the
property of the Buyer.
D.2.8 REPLACEMENT OR REPAIR. In performing Preventive Maintenance and
Remedial Maintenance, Seller shall be entitled to exercise reasonable
discretion in determining whether to replace or repair any
malfunctioning item, provided, however, that any such replacement
shall be of equal or better quality and, in the event of a malfunction
of key circuit boards, to be specified by Seller, a
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 42
replacement board will be provided pending completion of repairs on
the defective board.
D.2.9 DIAGNOSTIC SOFFTWARE. In order to facilitate rapid analysis of System
Failure involving software, Seller will provide a trained staff, at
their company location, capable of handling all software failures in
an expedient manner. In addition they will have diagnostic software
for the purpose of identifying the cause of any System Failure,
temporarily patching around the problem if necessary or temporarily
disabling the use of that software module so that the System can be
returned to use for all other activities with only a minor degradation
in operation.
D.2.10 OFF-SITE MAINTENANCE: Any maintenance services required to be
performed under this Agreement which cannot, in the Seller's
reasonable judgment, be performed effectively at or near the System
Site shall be performed at such other location(s) as Seller may
determine, at no extra cost to Customer. However, a loaned part(s)
from the Seller's warehouse must be installed prior to the shipping of
the item(s) being removed for maintenance.
D.2.11 LOG ENTRIES: Buyer shall receive monthly or have access to all log
entries with regards to system failures, and any other malfunctions,
problems, or defects in the System, in accordance with a format to be
provided by Seller. Upon completion of each Preventive Maintenance
task, Remedial Maintenance task, or Extra Service, Seller shall
provide a written report to the Buyer of the problem, resolve, and any
equipment replaced. This shall be kept in a binder on site at each
capture station and display station location.
D.2.12 NOTIFICATION: Seller shall notify Buyer of all routine, scheduled,
unscheduled, and non-routine maintenance completed o the system. This
notification shall include the Buyer's reference number (if
maintenance was a result of a problem call), seller's reference
number, point of contact for the maintenance and a description of the
maintenance or correction. Notification will be provided to the person
reporting the problem and/or Buyer's maintenance contact.
D.2.13 BUYER'S MAINTENANCE CONTACT:
LESA HELPDESK
2415 So 35th Street
Tacoma, WA 98409
(253) 798-3911
E-mail [email protected]
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 43
D.3. MAINTENANCE PAYMENTS:
The maintenance payments referred to in PARAGRAPH 7 of the Agreement will be
paid as follows and on dates set forth in PARAGRAPH 7 of the Agreement.
D.3.1 There will be no maintenance payments from the acceptance date of the
CCS Mug Photo Identification System (MUGIS) to the end of 1999. This
will be considered the end of year one.
D.3.2 There will be no maintenance payments for the period of January 1,
2000 ending on December 31, 2000. This will be considered the end of
year two.
D.3.3 Beginning January 1, 2001, and ending December 31, 2002, the monthly
maintenance fee (paid quarterly as defined IN PARAGRAPH 7 of the
Agreement) will be Four thousand five hundred twenty-eight dollars and
seventy cents ($4,528.70). The monthly fee is combination of the
annual fee of Forty-three thousand four hundred seventy-five dollars
and fifty-one cents ($43,475.51) divided by twelve (12) months plus an
addition 25 percent supplement charge of Ten thousand eight hundred
sixty-eight dollars and eighty-eight cents ($10,868.88) divided by
twelve (12) months. The quarterly payment will be Thirteen thousand
five hundred eighty-six dollars and ten cents ($13,586.10). December
31, 2001 will be considered the end of year three (3) and December 31,
2002, will be considered the end of year four (4).
D.3.4 Beginning January 1, 2003, and ending December 31, 2003, the monthly
maintenance fee will be reduced to one-twelve (1/12th) of the original
annual maintenance fee of Forty-three thousand four hundred
seventh-five dollars and fifty-one cents ($43,475.5 1). This base sum
adjusted by the lesser of an amount equal to the most recent twelve
month percentage change in the Seattle Consumer Price Index or five
(5) percent. This will be paid quarterly as defined in paragraph 6 of
the Agreement. The period of January 1, 2003, ending on December 31,
2003, will be considered the end of the fifth year.
D.3.5 INDEXATION. Beginning at the commencement of the first annual renewal
term after the completion of the initial five (5) year term, and with
each annual renewal term thereafter, the base sum amount for the term
just expired, shall be adjusted by the lesser of an amount equal to
the most recent twelve month percentage change in the Seattle Consumer
Price Index or five (5) percent.
D.4 INVENTORY:
Seller agrees to maintain a complete inventory of spare parts at a
location in the Greater Western Washington area, including a set of
the key circuit boards referred to in PARAGRAPH D.2.8. Such inventory
may be used to support systems supplied by Seller to other customers.
Seller shall maintain at such location a supply of all test equipment
reasonably required for diagnosis of System Failures.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 44
D.5 CHARGES PAYABLE BY CUSTOMER:
D.5.1 GENERAL. In consideration for the maintenance service to be
rendered by Seller under this Agreement, Buyer agrees to pay
to Seller (i) the Basic Monthly Charge described in Section
D.3, and (ii) the Supplemental Charges described in
paragraph D.3.3.
D.5.2 ADDITIONAL CHARGES. In addition for any Extra Services
performed by Seller, Buyer shall pay Seller's list price for
any parts, service, or software, in order to perform
relevant Extra Services, less any discount offered to other
favored Buyer.
D.5.3. INVOICES. All amounts due by Buyer under this Agreement shall
be payable to Seller in United States currency within thirty
(30) days of presentment of Seller's invoice. Seller shall
normally submit invoices on a monthly basis. In the event
such amount is not timely paid, Seller shall be entitled to
suspend performance of service under this Agreement, in
whole or in part, and any such downtime occurring during
such period shall be disregarded. In the event that any
amount shall be overdue by more than ninety (90) days,
Seller shall be entitled to terminate this Agreement.
D.5.4. DUTIES, TAXES, AND FEES.
D.5.4.1 Seller shall bear the cost of all import and export
duties, any brokerage, and all other fees due on
any replacement parts for the System.
D.5.4.2 Seller shall not be responsible for collecting
sales tax on the original purchase or monthly
maintenance fees. Buyer will be responsible for
paying all appropriate State and local sales or use
taxes on the original purchase and monthly
maintenance fees if so levied by the State of
Washington, directly to the State.
D.6 REDUCTION IN CHARGES, LIQUIDATED DAMAGES:
D.6.1 15 hours of System Downtime per Calendar Month. In the event
that System Downtime exceeds 15 hours in any calendar month,
excluding the first two years of operation after acceptance,
as defined in PARAGRAPH D.3, the Basic Monthly Charge for
said month shall be reduced by ten (10) percent for each
additional seven (7) hours or fraction thereof of system
downtime up to one hundred percent. The first two years of
the
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 45
Agreement will be governed by PARAGRAPH D.6.2(ii). "System
Downtime" is defined as that period of time during which any
malfunction in the system which prevents, or materially
interferes with the accomplishment of any or all the System's
intended functions in accordance with software specification
or functions set forth in EXHIBIT A.II of the Agreement,
(except as noted in paragraph 11 of the Agreement) or of the
tasks of processing (data and image capture, storage,
searching, photo lineup) mug photo images from the time the
Seller has been properly notified of such failure and after
completion of the diagnostic checklist and procedures
recommended by Seller. System downtime shall not include the
time that the System is inoperable due to (i) Scheduled
Preventative Maintenance, (ii) equipment cables, wires,
programs or other items, not supplied by Seller, which are
not rendered inoperable by the System provided by the Seller,
(iii) any event described in PARAGRAPH 23.G (FORCE MAJEURE)
of the Agreement, (iv) Buyer's negligence or knowing misuse
of the of the System, equipment, cables, wires, programs, or
other items, or any other act or omission of Buyer or any
third party (other than a prospective customer of Seller for
which Seller is responsible under any other provisions of
this Agreement) or (v) any travel time, and system and
problem analysis time of up to one (1) hour for software
support or four (4) hours for hardware support beginning when
Seller has received notification of each separate and
unrelated problem as distinguished from a re-occurring
problem within a 24-hour period.
D.6.2 180 HOURS OF SYSTEM DOWNTIME IN 3 CALENDAR MONTHS. In the
event that the System Downtime, as defined in paragraph D.6.1
exceed 180 hours within a period of 3 consecutive calendar
months after Acceptance, the Buyer shall be entitle to (i)
suspend payment of the maintenance monies due to Seller, and
to (ii) payment of liquidated damages of $750 per day until
30 days of continuous availability at the contracted level of
occurs, less 30 days.
D.7 TERMINATION.
In the event that an arbitration award for either party's default
under the Maintenance Agreement shall remain unsatisfied, for more
than thirty (30) days after the award or any judgment thereon shall
become final, the other party shall be entitled to terminate this
Maintenance Agreement, and recover amounts due under the Maintenance
Agreement, provided that the party has given written notice thereof to
the other of its intent to do so not less than thirty (30) days prior
to the specified date upon which the termination shall become
effective.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 46
D.8 MISCELLANEOUS OBLIGATIONS OF BUYER:
Buyer shall comply with the following additional obligations:
D.8.1 PRUDENT OPERATION. Buyer shall operate the System in a sound
and prudent manner, in accordance with the operation manuals
prepared by Seller and any other rules reasonably promulgated
by Seller from time to time, provided, however, that such
rules do not unduly interfere with the Buyer's use of the
System or appreciably increase Buyer's operating costs with
respect hereto.
D.8.2 NOTIFICATION. Buyer shall promptly notify Seller of any
System Failures or any other malfunctions, problems or
defects in the system.
D.8.3 FREE ACCESS. Buyer shall allow Seller full and free
access to the System at all times necessary for the
performance of Preventive Maintenance and Remedial
Maintenance, and shall ensure that the System Site can be
connected at all times through the server to assist with the
diagnostic assessment of the System Site equipment and
software.
D.8.4 USE OF EQUIPMENT. Buyer shall allow Seller to use such
machines, communication facilities and other equipment, at no
charge to Seller, as are reasonably necessary in order to
perform the services hereunder, provided, however, that all
toll calls are the responsibility of Seller.
D.9 DOCUMENTATION, MODIFICATIONS, AND RELOCATION.
D.9.1 DOCUMENTATION. Throughout the duration of this Agreement,
Seller will provide the Buyer, at no cost to Buyer, any and
all updates to the documentation that Seller generally
provides to its Buyers with respect to the System, within
thirty (30) days of Buyer's request for same. Except as
otherwise provided in this Agreement, the foregoing
obligation does not extend to any improvements in Seller's
software or hardware that do not significantly alter the
general operation of the System.
D.9.2 MODIFICATIONS. Any modifications of the System, which are
requested by Buyer, may be treated as Extra Services. No
modifications to correct malfunctions improve proficiency,
met SAT requirements, or updates provided by the Seller will
be considered Extra Service.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 47
D.9.3 RELOCATION OF EQUIPMENT. Buyer shall give Seller fifteen (15)
days prior written notice of the relocation of the System
from its current site location. Upon request, Seller may
inspect the proposed new location of the System to generally
assess whether the environment is suitable. The relocation of
any Workstation shall be done by Seller's representative and
at Buyer's expense.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 48
EXHIBIT E
INSTALLATION SCHEDULE
FORCEFLELD UPGRADE INSTALLATION TIME LINE
ImageWare see the ForceField upgrade taking place in the following manner:
1. System Configuration Review
2. NT Configuration Plan
3. Existing Hardware Audit
4. Install LESA Capture Station
S. Back up of current server
6. Server Installation: No downtime
The server will be installed at the same time as the capture stations
are upgraded.
7. Test Interface to DTM
8. Upgrade each capture system. 1 day per station
After the upgrade, the capture station will be able to capture data in
standalone mode. Once the new server is on line, images and data will
be forwarded to the new server.
9. Server Configuration: 3 days
A data conversion will take place and the server will be down for
approximately 3 days. During this time the new capture stations will
continue in stand alone mode and data will be forwarded to new server
once it is on line. (Display stations will be down at this time.)
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 49
FORWARD DATA:
All data captured in stand-alone mode will be forwarded to the new NT server.
DISPLAY STATION UPGRADE: 2 hours per station
Display stations will be upgraded after the server is on line. (There is a
possibility we will upgrade display stations during the server data
conversion if time permits.) Once all display stations are upgraded,
they will go on-line.
ImageWarewill make every effort to minimize the time the system is not
operational, however, please be aware the agency will incur some
downtime. ImageWare is open to working with the agency to determine
three consecutive days which are the least busy.
<PAGE>
David Cotton - Pierce Tacoma Upgrade New.xls Page
EXHIBIT F PRICE SHEET
<TABLE>
<CAPTION>
DESCRIPTION QTY UNIT EXT
<S> <C> <C> <C>
IBM Netfinity 5500 Pentium III 500MHz/512KB L2, 128MB ECC(R), OPEN,32X,PCI/ISA 1 $6,834.00 $6,834.00
(Std) 10/100 PCI Ethernet
(Std) 2-Drop 16-bit SCSI Internal Cable
(Std) 32X Max IDE CD-ROM Drive
(Std) 500/100 MHz Pentium III Processor with 512KB ECC L2 Cache
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Keyboard (Stealth Grey)
(Std) IBM Netfinity 128MB SDRAM ECC RDIMM
(Std) Integrated IDE Controller
(Std) Integrated PCI Ultra SCSI RAID Controller - dual channel
(Std) Mouse Stealth Grey
(Std) Netfinity 400W Hot-Swap Power Supply
(Std) Netfinity NetBAY3
(Std) Processor Complex Card
(Std) S3 Trio64V2 Graphics - 1MB SGRAM
(Std) Systems Management Processor
IBM Netfinity 400W Hot-Swap Redundant Power Supply II 1 $720.00 $720.00
IBM Netfinity 256MB SDRAM ECC RDIMM 2 $1,140.00 $2,280.00
18 2GB 10K Wide Ultra SCSI SCA-2 Hot Swap HDD 5 $1,020.00 $5,100.00
IBM Netfinity 500MHz/512KB Upgrade with Pentium III Processor 1 $1,860.00 $1,860.00
ISA 56K/33 6KBPS Plug and Play Data/Fax Modem 1 $126.00 $126.00
G74 - 17(15.9)in. Color Monitor, 69 KHz, Stealth Grey 1 $423.60 $423.60
Smart-UPS 1400 17 Min Runame 1 $705.60 $705.60
SUBTOTAL
CAPTURE STATION HARDWARE
IBM PC 300 PL 6862 (4X4) 2
PC 300PL Pentium II 400MHz MMX/512KB, 64MB, 6.4GB, 4MB, 32X, 16bit Audio, Win98, PCVISA 5 $1,758.00 $8,790.00
(Std) IBM 6.4GB EIDE Hard Drive
(Std) 10/100 PCI Ethernet WOL
(Std) 16-bit ISA Crystal Audio Integrated
(Std) 400/100MHz MMX Pentium II Processor with 512KB Pipeline B
(Std) 4MB Integrated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internal 32X Max (Variable Speed)
(Std) IBM 1.44MB 3.5 inch Diskette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
P72 - 17(16)in. UV-NH Color Monitor, 85KHz, Pearl White 5 $561.60 $2,808.00
SUBTOTAL
CAMERA SUB-SYSTEMS
Hitachi HV-C20 Camera, NIST standards (3 chip) 5 $4,342.80 $21,714.00
Cosmicar/Pentax H15ZME Zoom Lens 5 $1,341.60 $6,708.00
3 point Lighting System 5 $1,194.00 $5,970.00
Pan and Tilt Camera mount 5 $1,440.00 $7,200.00
Reflective Pedestal 5 $822.00 $4,110.00
Cable bundle 5 $180.00 $900.00
NIST compliance Capture software 5 $1,500.00 $7,500.00
Capture Card MVPro 5 $804.00 $4,020.00
SUBTOTAL
INVESTIGATIVE STATION HARDWARE
IBM PC 300PL 6862 (4X4) 2
PC 300PL Pentium II 400MHz MMX/512KB, 64MB, 6.4GB, 4MB, 32X, 16bit Audio, Win98,PCVISA 4 $1,758.00 $7,032.00
(Std) IBM 6.4GB EIDE Hard Drive
(Std) 10/100 PCI Internet WOL
(Std) 16-bit ISA Crystal Audio Integrated
(Std) 400/100MHz MMX Pentium II Processor with 512 KB Pipeline B
(Std) 4MB Integrated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internal 32x Max (Variable Speed)
(Std) IBM 1.44MB 3.5-inch Cassette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
P72 - 17(16)in. UV-NH Color Monitor, 85KHz, Pearl White 4 $561.60 $2,246.40
SUBTOTAL
SOFTWARE
CCS Investigative Display Software (Full) 4 $6,750.00 $27,000.00
CCS Capture Station Software 5 $10,000.00 $50,000.00
Investigative Mugbook 50 $500.00 $25,000.00
SUBTOTAL
PRINTERS
Mitsubishi CP 700 6 $3,900.00 $23,400.00
HP Laserjet B&W, 400CTN, 17PPM, 1200DPI 9 $2,284.50 $20,560.50
SUBTOTAL
SCANNERS
Epson 636 Executive Scanner w/ SCSI card 2 $846.45 $1,692.90
SUBTOTAL
SUBTOTAL HARDWARE AND SOFTWARE
SERVICES and LICENSES
Project Management 2 $900.00 $1,800.00
Conversion of Record from ForceField 500,000 $0.20 $100,000.00
SUBTOTAL
SUBTOTAL PROJECT
FORCEFIELD UPGRADE DISCOUNT
SUBTOTAL AFTER DISCOUNT
Shipping/Handling/Installation/Training
TOTAL PROJECT
Maintenance Year 1
Quote does not include conversion of any documents.
<CAPTION>
Price
DESCRIPTION TOTAL DISCOUNT % after Discount
<S> <C> <C> <C>
$0.00
IBM Netfinity 5500 Pentium III 500MHz/512KB L2, 128MB ECC(R), OPEN,32X,PCI/ISA $6,834.00
(Std) 10/100 PCI Ethernet
(Std) 2-Drop 16-bit SCSI Internal Cable
(Std) 32X Max IDE CD-ROM Drive
(Std) 500/100 MHz Pentium III Processor wiht 512KB ECC L2 Cache
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Keyboard (Stealth Grey)
(Std) IBM Netfinity 128MB SDRAM ECC RDIMM
(Std) Integrated IDE Controller
(Std) Integrated PCI Ultra SCSI RAID Controller - dual channel
(Std) Mouse Stealth Grey
(Std) Netfinity 400W Hot-Swap Power Supply
(Std) Netfinity NetBAY3
(Std) Processor Complex Card
(Std) S3 Trio64 V2 Graphics - 1MB SGRAM
(Std) Systems Management Processor
IBM Netfinity 400W Hot-Swap Redundant Power Supply II $720.00
IBM Netfinity 256MB SDRAM ECC RDIMM $2,280.00
18 2GB 10K Wide Ultra SCSI SCA-2 Hot Swap HDD $5,100.00
IBM Netfinity 500MHz/512KB Upgrade with Pentium III Processor $1,860.00
ISA 56K/33 6KBPS Plug and Play Data/Fax Modem $126.00
G74 - 17(15.9)in. Color Monitor 69 KHz, Stealth Grey $423.60
Smart-UPS 1400 17 Min Runame $705.60
SUBTOTAL $18,049.20
CAPTURE STATION HARDWARE
IBM PC 300 PL 6862 (4X4) 2
PC 300PL Pentium II 400MHz MMX/512KB, 64MB, 6.4GB, 4MB, 32X, 16bit Audio, Win98, PCVISA 80% $1,758.00
(Std) IBM 6.4GB EIDE Hard Drive
(Std) 10/100 PCI Ethernet WOL
(Std) 16-bit ISA Crystal Audio Integrated
(Std) 400/100MHz MMX Pentium II Processor with 512KB Pipeline B
(Std) 4MB Integrated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internal 32X Max (Variable Speed)
(Std) IBM 1.44MB 3.5 inch Diskette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
P72 - 17(16)in. UV-NH Color Monitor, 85KHz, Pearl White $2,808.00
SUBTOTAL $11,598.00
CAMERA SUB-SYSTEMS
Hitachi HV-C20 Camera, NIST standards (3 chip) 100% $0.00
Cosmicar/Pentax H15ZME Zoom Lens 100% $0.00
3 point Lighting System 100% $0.00
Pan and Tilt Camera mount 100% $0.00
Reflective Pedestal 100% $0.00
Cable bundle $900.00
NIST compliance sapture software 100% $0.00
Capture Card MVPro 100% $0.00
SUBTOTAL $58,122.00
INVESTIGATIVE STATION HARDWARE
IBM PC 300PL 6862 (4X4) 2
PC 300PL Pentium II 400MHz MMX/512KB, 64MB, 6.4GB, 4MB, 32X, 16bit Audio, Win98,PCVISA 50% $3,516.00
(Std) IBM 6.4GB EIDE Hard Drive
(Std) 10/100 PCI Internet WOL
(Std) 16-bit ISA Crystal Audio Integrated
(Std) 400/100MHz MMX Pentium II Processor with 512 KB Pipeline B
(Std) 4MB Integrated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internet 32x Max (Variable Speed)
(Std) IBM 1.44MB 3.5 inch Cassette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
P72 - 17(16)in. UV-NH Color Monitor, 65KHz, Pearl White $2,246.40
SUBTOTAL $9,278.40
SOFTWARE
CCS Investigative Display Software (Full) 50% $13,500.00
CCS Capture Station Software 50% $25,000.00
Investigative Mugbook 100% $0.00
SUBTOTAL $102,000.00
PRINTERS
Mitsubishi CP 700 $23,400.00
HP Lasernet B&W 400CTN, 17PPM, 1200DPI $20,560.50
SUBTOTAL $43,960.50
SCANNERS
Epson 636 Executive Scanner w. SCSI card $1,692.90
SUBTOTAL $1,692.90
SUBTOTAL HARDWARE AND SOFTWARE $244,701.00 $113,431.00
SERVICES and LICENSES
Project Management $1,800.00
Conversion of Record from Forcefield 100% $0.00
SUBTOTAL $101,800.00
SUBTOTAL PROJECT $346,501.00 $115,231.00
FORCEFIELD UPGRADE DISCOUNT $231,270.00
SUBTOTAL AFTER DISCOUNT $115,231.00
Shipping Handling Installation Training $13,827.72
TOTAL PROJECT $129,058.72
Maintenance Year 1 $44,046.18
Quote does not include conversion of any documents.
</TABLE>
<PAGE>
FIRST AMENDMENT -- PURCHASE AND
LICENSE AGREEMENT
BETWEEN
THE LAW ENFORCEMENT
SUPPORT AGENCY
AND
IMAGEWARE SOFTWARE
INCORPORATED
April 23, 1999
<PAGE>
Exhibit 10.24
STATE PROCUREMENT OFFICE
CAPITAL CENTER, SUITE 103
15 SOUTH 15TH AVE
PHOENIX, AZ 85007-3223
IMAGEWARE SOFTWARE INCORPORATED
SUITE 120
15373 INNOVATION DR
SAN DIEGO, CA 92128 -
ATTENTION: JIM MILLER
CONTRACT DOCUMENT ENCLOSED
<PAGE>
- ------------------------------------------------------------------------------
OFFER AND ACCEPTANCE STATE PROCUREMENT OFFICE
----------------------------------------------
PAGE Capital Center, Suite 103
[SEAL] SOLICITATION NO.: AD980064 5
15 South 15th Ave
----------------------------------------
VENDOR: ImageWare OF Phoenix, AZ 85007-3223
51
- ------------------------------------------------------------------------------
OFFER
TO THE STATE OF ARIZONA:
The Undersigned hereby offers and agrees to furnish the material, service
or construction in compliance with all terms, conditions, specifications and
amendments in the Solicitation and any written exceptions in the offer.
Signature also certifies Small Business status.
Arizona Transaction (Sales) Privilege For classification of this offer,
Tax License No.: contact:
Name: Jim Miller
- --------------------------------------- -------------------------------
Federal Employer Identification No.:
33-0224167 Phone: (619) 673-8600
- --------------------------------------- -------------------------------
Fax: (619) 673-1770
-------------------------------
ImageWare Software Incorporated /s/ Jim Miller
- --------------------------------------- -------------------------------
Company Name Signature of Person Authorized
to Sign Offer
15373 Innovation Drive, Suite 120 Jim Miller
_______________________________________ _______________________________
Address Printed Name
San Diego, CA 92128 President and CEO
_______________________________________ _______________________________
City State Zip Title
CERTIFICATION
By signature in the Offer section above, the bidder certifies:
1. The submission of the offer did not involve collusion or other
anti-competitive practices.
2. The bidder shall not discriminate against any employee or applicant for
employment in violation of Federal Executive Order 1124 State Executive
Order 75.5 or A.R.S. Section 31-1461 Et. Seq.
3. The bidder has not given, offered to give, nor intends to give at any
time hereafter any economic opportunity, future employment, gift, loan,
gratuity, special discount, trip, favor, or service to a public servant
in connection with the submitted offer. Failure to provide a valid
signature affirming the stipulations required by this clause shall result
in rejection of the offer. Signing the offer with a false statement shall
void the offer, any resulting contract and may be subject to legal
remedies provided by law.
4. The bidder certifies that the above referenced organization __is/__is not
a small business with less than 100 employees or gross revenues of
$4 million or less.
- ------------------------------------------------------------------------------
ACCEPTANCE OF OFFER
The Offer is hereby accepted.
The Contractor is now bound to sell the materials or services listed by the
attached contract and based upon the solicitation, including terms,
conditions, specifications, amendments, etc., and the Contractor's Offer as
accepted by the State.
This contract shall henceforth be referred to as Contract No. AD980064-001
-----------------
Contractor has been cautioned not to commence any billable work or to provide
any material or service under this contract until Contractor receives purchase
order, contact release document or written notice to proceed.
State of Arizona
Awarded this 14th day of January 19
------ ---------
/s/ Robert Pierson
-------------------------------------------
Procurement Office
Robert Pierson, Administrator ISU
<PAGE>
- ------------------------------------------------------------------------------
LETTER OF AWARD STATE PROCUREMENT OFFICE
----------------------------------------------
PAGE Capital Center, Suite 103
[SEAL] SOLICITATION NO.: AD980064 3
15 South 15th Ave
----------------------------------------
VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
35
- ------------------------------------------------------------------------------
ImageWare Software Incorporated
Suite 120
15373 Innovation Dr
San Diego, CA 92128-
Dear Jim Miller:
Your response to the above referenced solicitation has been
reviewed and accepted.
The award of this contract is contingent on the receipt of a
certified Insurance Certificate showing coverages and
requirements as specified in Special Terms and Conditions,
Insurance, subparagraphs A1, A2, A3, B, C and D, within ten
(10) days after receipt of this letter.
You are cautioned not to commence any billable work or to
provide any material or service under this activity until you
receive a Purchase Order from any using agency. If you have
any questions please contact Wendy Summers at (602) 542-9139.
We look forward to a mutually beneficial contract.
<PAGE>
- ------------------------------------------------------------------------------
CONTRACT SUMMARY STATE PROCUREMENT OFFICE
----------------------------------------------
PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 4
15 South 15th Ave
----------------------------------------
VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
35
- ------------------------------------------------------------------------------
CONTRACT TITLE: AZAFIS Mug Photo Interface Subsystem
CONTRACT TYPE: Statewide Contract
CONTRACT PERIOD: January 15, 1998 THRU: January 31, 2000
CONTRACTOR NUMBER: 330224167 - 900
CONTRACTOR NAME: ImageWare Software Incorporated
CONTACT NAME: Jim Miller
ADDRESS: Suite 120
15373 Innovation Dr
San Diego, CA 92128
TELEPHONE: (619) 673-8600
FAX NUMBER: (619) 673-1770
CONTRACTING AGENCY: State Procurement Office
CONTACT NAME: Wendy Summers
TELEPHONE: (602) 542-9139
F.O.B. TERMS: FOB Delivered
DELIVERY: 120 Days ARO
PAYMENT TERMS: Net 30
<PAGE>
- ------------------------------------------------------------------------------
UNIFORM GENERAL TERMS AND CONDITIONS STATE PROCUREMENT OFFICE
----------------------------------------------
PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 5
15 South 15th Ave
----------------------------------------
VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
35
- ------------------------------------------------------------------------------
1. DEFINITION OF TERMS USED IN THESE UNIFORM GENERAL TERMS AND CONDITIONS.
As used in these terms and conditions, the following terms have the
following meaning:
A. "ATTACHMENTS" means all items required of the Offeror as part of the
offer.
B. "DAYS" means calendar days unless otherwise specified.
C. "DIRECTOR" means Director of the Department of Administration.
D. "EXHIBITS" means all items attached to the solicitation.
E. "GRATUITY" means a payment, loan, subscription, advance, deposit of
money, services, or anything or more than nominal value, present or
promised, unless consideration of substantially equal or greater value
is received.
F. "OFFER" means bid, proposal or quotation.
G. "OFFEROR" means a vendor who responds to any type of solicitation.
H. "PROCUREMENT OFFICER" means the person duly authorized to enter into
and administer contracts and make written determinations with respect
to the contract or his or her designee.
I. "SOLICITATION" means an invitation for bids (IFB), a request for
proposals (RFP), or a request for quotation (RFQ).
2. APPLICABLE OFFER.
A. ARIZONA LAW. The law of Arizona applies to this contract including,
where applicable, the Uniform Commercial Code as adopted by the State
of Arizona.
B. ARIZONA PROCUREMENT CODE. The Arizona Procurement Code, Arizona
Revised Statutes (A.R.S.) Title 41, Chapter 23, and its implementing
rules, Arizona Administrative Code (A.A.C.) Title 2, Chapter 7, are a
part of this contract as if fully set forth in it.
C. IMPLIED CONTRACT TERMS. Each provision of law and any terms
required by law to be in this contract are a part of this
contract as if fully stated in it.
D. CONTRACT ORDER OF PREFERENCE. In the event of a conflict in the
provisions of the contract, as accepted by the State, the following
shall prevail in the order set forth below:
i) Special Terms and Conditions;
ii) Uniform General Terms and Conditions;
iii) Specifications;
iv) Exhibits;
v) Documents referenced in the solicitation;
vi) Special Instructions to Offerors; and
vii) Uniform Instructions to Offerors.
3. AUTHORITY.
This contract is issued under the authority of the procurement officer
who signed this contract. Changes to this contract, including the addition
of work materials, the revision of payment terms, or the substitution of
work materials, directed by an unauthorized State employee or made
unilaterally by the contractor are violations of the contract and of
applicable law. Such changes, including unauthorized written contract
amendments, shall be void and without effect, and the contractor shall not
be entitled to any claim under this contract based on those changes.
4. CONTRACT INTERPRETATION AND AMENDMENT.
A. NO PAROLE EVIDENCE. This contract is intended by the parties as a
final and complete expression of their agreement. No course of
prior dealings between the parties and no usage of the trade shall
supplement or explain any terms used in this document.
B. NO WAIVER. Either party's failure to insist on strict performance
of any term or condition of the contract shall not be deemed waiver of
that term or condition even if the party accepting or acquiescing in
the nonconforming performance knows of the nature of the performance
and fails to object to it.
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UNIFORM GENERAL TERMS AND CONDITIONS STATE PROCUREMENT OFFICE
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PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 6
15 South 15th Ave
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VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
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C. WRITTEN CONTRACT AMENDMENTS. The contract shall be modified only
through a written contract amendment within the scope of the contract
signed by the procurement officer on behalf of the State.
D. NO RIGHT TO RELY ON VERBAL RESPONSES. Any inquiry that raises
material issues and results in changes to the solicitation shall be
answered solely through a written solicitation amendment. An offeror
may not rely on verbal responses to its inquiries.
5. RECORDS.
Under A.R.S. [?] 35-214 and 35-215, the contractor shall retain and shall
contractually require each subcontractor to retain all data and other
records ("records") relating to the acquisition and performance of the
contract for a period of five years after the completion of the contract.
All records shall be subject to inspection and audit by the State at
reasonable times. Upon request, the contractor shall produce a legible
copy of any or all such records.
6. SEVERABILITY.
The provisions of this contract are severable. Any term or condition
deemed illegal or invalid shall not affect any other term or condition of
the contract.
7. RELATIONSHIP OF PARTIES.
The contractor under this contract is an independent contractor. Neither
party to this contract shall be deemed to be the employee or agent of the
other party to the contract.
8. ASSIGNMENT AND DELEGATION.
The contractor shall not assign any right nor delegate any duty under
this contract without the prior written approval of the
procurement officer. The State shall not unreasonably withhold approval.
9. GENERAL INDEMNIFICATION.
The contractor shall defend, indemnify and hold harmless the State from
any claim, demand, suit, liability, judgment and expense (including
attorney's fees and other costs of litigation) arising out of or relating
to injury, disease, or death of persons or damage to or loss of property
resulting from or in connection with the negligent performance of this
contract, its agents, employees, and subcontractors or anyone for whom
the contractor may be responsible. The obligations, indemnities and
liabilities assumed by the contractor under this paragraph shall not
extend to any liability caused by the negligence of the State or its
employees. The contractor's liability shall not be limited to any
provisions or limits of insurance set forth in this contract. The State
shall reasonably notify the contractor of any claim for which it may be
liable under this paragraph. Pursuant to A.R.S. 41-621 and 35-154, this
term does not apply to Contracts between State budget units and political
subdivisions.
10. INDEMNIFICATION - PATENT AND COPYRIGHT.
The contractor shall defend, indemnify and hold harmless the State from
against any liability, including costs and expenses, for infringement of
any patent, trademark or copyright arising out of contract performance or
use by the State of materials furnished or work performed under this
contract. The State shall reasonably notify the contractor of any claim
for which it may be liable under this paragraph Pursuant to A.R.S. 41-621
and 35-154, this term does not apply to Contracts between State budget
units and political subdivisions.
11. SUBCONTRACTS.
The contractor shall not enter into any subcontract under this contract
without the advance written approval of the procurement officer. The
subcontract shall incorporate by reference the terms and conditions of
this contract. A list of all proposed subcontractors must be provided
with the offer.
12. COMPLIANCE WITH APPLICABLE LAWS.
The materials and services supplied under this contract shall comply with
all applicable federal, state and local laws, and the contrator shall
maintain all applicable licenses and permits.
13. PAYMENTS.
The contractor shall be paid as specified in the contract. The payment
must comply with the requirements of A.R.S. Title 35.
14. ADVERTISING AND PROMOTION OF CONTRACT.
The contractor shall not advertise or publish information for the
commercial benefit concerning this contract without the prior
written approval of the procurement officer.
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UNIFORM GENERAL TERMS AND CONDITIONS STATE PROCUREMENT OFFICE
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PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 7
15 South 15th Ave
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VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
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15. PROPERTY OF THE STATE.
Any materials, including reports, computer programs and other deliverables,
created under this contract are the sole property of the State. The
contractor is not entitled to a patent or copyright on those materials and
may not transfer the patent or copyright to anyone else. The contractor
shall not use or release these materials without the prior written consent
of the State.
The licensor who has obtained the rights to distribute the Licensed
Programs(s), owns and retains all title and ownership of any intellectual
property rights to and in the Licensed Program(s), including all
software, firmware, software master diskettes, copies of software, master
Media, documentation and related materials which are acquired, produced
or shipped by the licensor to State under this contract, and, all
modifications to the Licensed Program(s) acquired by the State under this
Contract. The licensor does not transfer any portion of such title or
ownership, or any of the associated goodwill to State, and this Contract
will not be construed to grant State any right or license, whether by
implication, estoppel or otherwise, except as expressly provided.
NOTWITHSTANDING ANY OF THE FOREGOING, STATE SHALL IN NO EVENT DECOMPILE,
REVERSE ENGINEER, REVERSE COMPILE, MODIFY, TRANSLATE, OR CREATE DERIVATIVE
WORKS FROM ANY OF THE LICENSED PROGRAM(S).
16. THIRD PARTY ANTITRUST VIOLATIONS.
The contractor assigns to the State any claim for overcharges resulting
from antitrust violations to the extent that those violations concern
materials or services supplied by third parties to the contractor toward
fulfillment of this contract.
17. RIGHT TO ASSURANCE
If the State in good faith has reason to believe that the contractor does
not intend to, or is unable to perform or continue performing the
contract, the procurement officer may demand in writing that the
contractor give a written assurance of intent or ability to perform. The
demand shall be sent to the contractor by certified mail, return receipt
required. Failure by the contractor to provide written assurance within
the number of days specified in the demand may, at the State's Option, be
the basis for terminating the contract under paragraph 22 of the Uniform
General Terms and Conditions.
18. CANCELLATION FOR CONFLICT OF INTEREST.
The State may cancel this contract without penalty or further obligation
if any person significantly involved in initiating, negotiating,
securing, drafting or creating the contract on behalf of the State is or
becomes at any time while the contract or an extension of the contract is
in effect an employee of or a consultant to any other party to this
contract with respect to the subject matter of the contract. The
cancellation shall be effective when the contractor receives written
notice of the cancellation unless the notice specifies a later time.
19. GRATUITIES.
The State may, by written notice to the contractor, immediately terminate
this contract if the State determines that employment or gratuity was
offered or made by the contractor or a representative of the contractor
to any officer or employee of the State for the purpose of influencing
the outcome of the procurement or securing the contract, an amendment to
the contract, or favorable treatment concerning the contract, including
the making of any determination or decision about contract performance.
The State, in addition to any other rights or remedies, shall be entitled
to recover exemplary damages in the amount of three times the value of
the gratuity offered by the contractor.
20. SUSPENSION OR DEBARMENT.
The State may, by written notice to the contractor, immediately terminate
this contract if the State determines that the contractor has been
disbarred, suspended or otherwise lawfully prohibited from participating
in any public procurement activity, including but not limited to,
being disapproved as a subcontractor of any public procurement unit or
other governmental body.
21. TERMINATION FOR CONVENIENCE.
The State reserves the right to terminate the contract in whole or in
part at anytime for the convenience of the State without penalty or
recourse. The procurement officer shall give written notice by certified
mail, return receipt requested, to the contractor of the termination at
least thirty (30) days before the effective date of the termination.
Upon receipt of the written notice, the contractor shall immediately
notify all subcontractors of the effective date of the termination. In
the event of termination under this paragraph shall documents, data and
reports prepared by the contractor under the contract shall become the
property of and be delivered to the State The contractor shall be
entitled to receive just and equitable compensation for work in progress,
work completed and material accepted before the effective date of the
termination.
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UNIFORM GENERAL TERMS AND CONDITIONS STATE PROCUREMENT OFFICE
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PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 8
15 South 15th Ave
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VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
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22. TERMINATION FOR DEFAULT.
A. In addition to the rights reserved under Paragraphs 17 through 21
of the Uniform General Terms and Conditions, the State reserves the
right to terminate the contract in whole or in part due to the
failure of the contractor to comply with any term or condition of the
contract, to acquire and maintain all required insurance policies,
bonds, licenses and permits, or to make satisfactory progress in
performing the contract. The procurement officer shall mail written
notice of the termination and reasons for it to the contractor by
certified mail, return receipt requested.
B. Upon termination under this paragraph, all documents, data and
reports prepared by the contractor under the contract shall become the
property of and be delivered to the State on demand.
C. The State may, upon termination of this contract, procure, on
terms and in the manner that it deems appropriate, materials or
services to replace those under this contract. The contractor shall
be liable to the State for any excess costs incurred by the State in
reprocuring the materials or services.
23. RIGHT OF OFFSET.
The State shall be entitled to offset against any sums due the contractor,
any expenses or costs incurred by the State or penalties assessed by the
State concerning the contractor's nonconforming performance or failure to
perform the contract, including expenses, costs and penalties described in
paragraph 17 through 22 of the Uniform General Terms and Conditions.
24. AVAILABILITY OF FUNDS FOR THE NEXT FISCAL YEAR.
Funds may not presently be available for performance under this contract
beyond the current fiscal year. No legal liability on the part of the
State for any payment may arise under this contract beyond the current
fiscal year until funds are made available for performance of this
contract. The State will make reasonable efforts to secure such funds.
25. CONTRACT CLAIMS.
All contract claims and controversies under this contract shall be
resolved according to A.R.S. Title 41, Chapter 23, Article 9, and A.A.C.
R2-7-901 through R2-7-937.
26. NON-EXCLUSIVE REMEDIES.
The rights and the remedies of the State under this contract are not
exclusive.
27. AUDIT.
Pursuant to ARS 35-214, at any time during the term of this contract and
five years thereafter, the contractor's or any subcontractor's books and
records shall be subject to audit by the State and, where applicable, the
Federal Government, to the extent that the books and records relate to the
performance of the contract or subcontract.
28. NON-DISCRIMINATION
The contractor shall comply with State Executive Order No. 75-5 which
mandates that all persons, regardless of race, color, religion, sex, age,
national origin or political affiliation, shall have equal access to
employment opportunities, and all other applicable federal and state laws,
rules and regulations, including the Americans with Disabilities Act. The
contractor shall take affirmative action to ensure that applicants for
employment, employees and persons to whom it provides services are not
discriminated against due to race, creed, color, religion, sex, national
origin or disability.
29. EFFECTIVE DATE.
The effective date of this contract shall be the date that the procurement
officer signs the offer and acceptance form or other official contract
form, unless another date is specifically stated in the contract.
30. FORCE MAJEURE.
A. Except for payment of sums due, neither party shall be liable to
the other nor deemed in default under this contract if and to the
extent that such party's performance of this contract is prevented by
reason of force majeure. The term FORCE MAJEURE means an occurrence
that is beyond the control of the party affected and occurs without
its fault or negligence. Without limiting the foregoing, force
majeure includes acts of God; acts of the public enemy; war; riots;
strikes; mobilization; labor disputes; city disorders; fire; flood;
lockouts; injections-intervention-acts; or failures or refusals to act
by government authority; and other similar occurrences beyond the
control of the party declaring force majeure which such party is
unable to prevent by exercising reasonable diligence. The force
majeure shall be deemed to commence when the party declaring force
majeure notifies the other party of the existence of the force-majeure
and shall be deemed to continue as long as the results or effects of
the force majeure prevent the party from resuming performance in
accordance with this agreement.
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UNIFORM GENERAL TERMS AND CONDITIONS STATE PROCUREMENT OFFICE
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PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 9
15 South 15th Ave
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VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
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Force Majeure shall not include the following occurrences:
i) Late delivery of equipment or materials caused by congestion at
a manufacturer's plant or elsewhere, or an oversold condition of
the market; or
ii) Late performance by a subcontractor unless the delay arises out
of a force majeure occurrence in accordance with this force majeure
term and condition. Any delay or failure in performance by either
party hereto shall not constitute default here under or give rise
to any claim for damages or loss of anticipated profits if, and to
the extent that such delay or failure is caused by force majeure.
iii) Inability of either the contractor or any subcontractor to
acquire or maintain any required insurance, bonds, licenses
or permits.
B. If either party is delayed at any time in the progress of the work
by force majeure, the delayed party shall notify the other party in
writing of such delay, as soon as is practicable and no later than the
following working day, of the commencement thereof and shall specify
the causes of such delay in such notice. Such notice shall be
delivered or mailed certified-return receipt and shall make a specific
reference to this article, thereby invoking its provisions. The delayed
party shall cause such delay to cease as soon as practicable and
shall notify the other party in writing when it has done so. The time
of completion shall be extended by contract modification for a period
of time equal to the time that results or effects of such delay prevent
the delayed party from performing in accordance with this contract.
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UNIFORM GENERAL TERMS AND CONDITIONS STATE PROCUREMENT OFFICE
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PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 10
15 South 15th Ave
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VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
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31. APPLICABLE TAXES.
A. APPLICABLE TAXES. The state will pay only the rate and/or amount
of taxes identified in the offer and in any resulting contract.
B. TAX INDEMNIFICATION. Contractor and all subcontractors shall pay
all federal, state and local taxes applicable to its operation and
any persons employed by the Contractor. Contractor shall, and require
all subcontractors to hold the State harmless from any responsibility
for taxes, penalties and interest, if applicable, contributions required
under federal, and/or state and local laws and regulations and any other
costs including transaction privilege taxes, unemployment compensation
insurance, Social Security and Worker's Compensation.
C. IRS W9 FORM. In order to receive payment under any resulting
contract, contractor must have a current I.R.S. W9 Form or file with
the State of Arizona, Department of Administration, General Accounting
Office.
32. RISK OF LOSS.
The contractor shall bear all loss of conforming material covered under
this contract until received by authorized personnel at the location
designated in the purchase order. Mere receipt does not constitute final
acceptance. The risk of loss for nonconforming materials shall remain with
the contractor regardless of receipt.
33. INSPECTION AND TESTING.
The contractor agrees to permit access to its facilities at reasonable
times for inspection of the materials covered under this contract the
contractor's facilities, and the contractor's processes for producing the
materials. The State shall also have the right to test at its own cost
the materials to be supplied under this contract. Neither inspection at
the contractor's facilities nor testing shall constitute final acceptance
of the materials.
34. NONCONFORMING TENDER.
Materials supplied under this contract shall fully comply with the
contract. The delivery of materials or a portion of the materials
in an installment that do not fully comply constitutes a breach of
contract. On delivery of nonconforming materials, the State may
terminate the contract for default under applicable termination clauses
in the contract, exercise any of its rights and remedies under the
Uniform Commercial Code, or pursue any other right or remedy available
to it.
35. WARRANTIES.
A. LIENS. The contractor warrants that the materials supplied under
this contract are free of liens.
B. QUALITY. Unless otherwise modified elsewhere in these terms and
conditions, the contractor warrants that, for one year after acceptance
by the State of the materials, they shall be:
i) of a quality to pass without objection in the trade under the
contract description;
ii) fit for the intended purposes for which the materials are
used;
iii) within the variations permitted by the contract and are of
even kind, quality, and quality within each unit and among
all units;
iv) adequately contained, packaged and marked as the contract may
require; and
v) conform to the written promises or affirmations of fact made
by the contractor.
C. FITNESS. The contractor warrants that any material supplied to the
State shall fully conform to all requirements of the solicitation and
all representations of the contractor, and shall be fit for all purposes
and uses required by the contract.
D. INSPECTION/TESTING. The warranties set forth in subparagraphs A
through C of this paragraph are not affected by inspection testing of
or payment for the materials by the State.
E. EXCLUSIONS. Except as otherwise set forth in this contract, there
are no express or implied warranties or merchant ability or fitness.
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SPECIAL TERMS AND CONDITIONS STATE PROCUREMENT OFFICE
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PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 11
15 South 15th Ave
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VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
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ELIGIBLE AGENCIES (STATEWIDE)
Any contract resulting from this solicitation shall be for the use of all State
of Arizona departments, agencies and boards. In addition, eligible universities,
political subdivisions and nonprofit educational or public health institutions
may participate at their discretion. In order to participate in any resultant
contract, a university, political subdivision, or nonprofit educational or
public health institution must have entered into a cooperative purchasing
agreement with the State Procurement Office as required by Arizona Revised
Statutes 41-2642.
CONTRACT TYPE (TERM)
Fixed price term indefinite quantity.
DELIVERY
For the initial installation of the seventeen (17) sites throughout the State,
delivery, installation and acceptance testing shall be completed by April 15,
1998.
Capture and/or investigative workstations ordered throughout the term of any
resultant contract shall be completely delivered and installed within thirty
(30) days after receipt of a Contract Release Order/Purchase Order Document.
SHIPPING F.O.B. DELIVERED
Prices shall be F.O.B. destination to the delivery location designated on any
purchase order issued against any resultant contract. Contractor shall retain
title and control of all goods until they are delivered and the contract of
coverage has been completed. All risk of transportation and all related charges
shall be the responsibility of the contractor. All claims for visible or
concealed damage shall be filed by the contractor. The state will notify the
contractor promptly of any damaged goods and shall assist the contractor in
arranging for inspection.
WARRANTY (12 MONTHS)
All equipment supplied under this specification shall be fully guaranteed by
the contractor for a minimum period of 12 months from the date of acceptance by
the state. Any defects of design, workmanship, or materials, that would result
in non-compliance with the contract specification, shall be fully corrected by
the contractor (including parts and labor) without cost to the state. The
written warranty shall be included with the delivered products to the using
entity.
TERM OF CONTRACT (2 YEAR)
The term of any resultant contract shall commence on the first day of the month
following the date of award and shall continue for a period of two (2) years
thereafter, unless terminated, canceled or extended as otherwise provided
herein.
CONTRACT EXTENSION
By mutual written contract amendment, any resultant contract may be extended for
supplemental periods of up to a maximum of thirty-six (36) months.
PRICING
Pricing (Delivered and Installed) All prices shall include delivery, complete
installation and warranty.
For optional and supplemental equipment to be purchased throughout the term of
any resultant contracts, offerors may provide a discount manufacturer's price
list. Offerors shall provide manufacturer's price lists with their offer.
Prices provided for the initial seventeen (17) MPIS sites shall be firm for one
(1) year and agencies purchasing similar configurations shall receive the same
pricing.
PAYMENT
The State will make complete payment of the installation of the initial
seventeen (17) sites within thirty (30) days after acceptance of the system, in
accordance with the Acceptance Testing procedures, by the State Department of
Public Safety.
Payment will be made within thirty (30) days of the successful installation of
any capture or investigative workstation purchased throughout the term of any
resultant contract by an eligible agency.
<PAGE>
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SPECIAL TERMS AND CONDITIONS STATE PROCUREMENT OFFICE
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PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 12
15 South 15th Ave
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VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
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MANUFACTURER'S REPRESENTATIVE
Dealers who submit an offer as a manufacturer's representative must
supplement the offer with a letter from each manufacturer involved certifying
that the vendor is a bona fide dealer for the specific equipment presented,
that the vendor is authorized to submit an offer on such equipment, and
guarantees that should the dealer fail to satisfactorily fulfill any
obligations established as a result of the anticipated contract awards. The
manufacturer, upon assignment by the state, will either assume and discharge
such obligations or provide for their competent assumption by one or more bona
fide dealers for the balance of the contract period.
MAINTENANCE (LOCAL)
In order to assure that any ensuing contracts will provide the necessary
maintenance support required for the equipment specified, each potential
contractor must have at least one (1) maintenance facility located within the
State of Arizona or have specific agreements in force with a third party to
provide maintenance. Each maintenance facility must be staffed by trained
technicians and have sufficient parts in inventory in order to provide
quality service on the equipment specified. The State Procurement Office may
inspect the maintenance facilities to determine adequacy.
CURRENT PRODUCTS
All equipment, materials, parts and other components incorporated in the work
or an item covered by this contract shall be new, in current and ongoing
production; shall have been formally announced for general marketing
purposes; shall be a model or type currently functioning in a user (pay
customer) environment and capable of meeting or exceeding all specifications
and requirements set forth in this solicitation.
INSURANCE
A. Without limiting any liabilities or any other obligation of the Contractor,
the Contractor shall purchase and maintain, in a company or companies lawfully
authorized to do business in the State of Arizona, and rated at least "A VII" in
the current A.M. Best's, the minimum insurance coverage below:
1. Commercial General Liability, with minimum limits of S1,000,000.00 per
occurrence, and an unimpaired products and completed operations aggregate limit
and general aggregate minimum limit of S2,000,000.00. Coverage shall be at least
as broad as the Insurance Service Office, Inc. Form CG25031185, issued on an
Occurrence basis, and endorsed to add the State of Arizona as an Additional
Insured with reference to this contract. The policy shall include coverage for:
Bodily Injury;
Broad Form Property Damage (including completed operations);
Personal Injury;
Blanket Contractual Liability;
Products and Completed Operations, and this coverage shall extend for one year
past acceptance, cancellation or termination of the service or work defined in
this contract;
Fire Legal Liability.
2. Business Automobile Liability, with minimum limits of $1,000,000.00 per
occurrence combined single limit, with Insurance Service Office, Inc.
Declarations to include Symbol One (Any Auto) applicable to claims arising from
bodily injury, death or property damage arising out of the ownership,
maintenance or use of any auto. The policy shall be endorsed to add the State of
Arizona as an Additional Insured with reference to this contract.
3. Worker's Compensation (Coverage A): Statutory Arizona benefits;
Employer's Liability (Coverage B): $500,000.00 each accident;
$500,000.00 each employee/disease;
$1,000,000.00 policy limit/disease.
Policy Shall Include endorsement for All State coverage for state of hire.
4. Professional Liability Insurance with minimum limits of $1,000,000.00 Each
Claim (or Each Wrongful Act) with a Retroactive Liability Date (if applicable to
Claims-Made coverage) the same as the effective date of this contract. The
policy shall cover professional misconduct
<PAGE>
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SPECIAL TERMS AND CONDITIONS STATE PROCUREMENT OFFICE
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PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 13
15 South 15th Ave
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VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
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or lack of ordinary skill for those positions defined in the Scope of Work or
Specifications of this contract and, at the discretion of the State of Arizona,
shall include one of the following types of Professional Liability policies:
Directors and Officers;
Errors and Omissions;
Medical Malpractice;
Druggists Professional;
Architects/Engineers Professional;
Lawyers Professional;
Teachers Professional;
Accountants Professional;
Social Workers Professional.
The State of Arizona shall be named as an Additional Insured as its interests
may appear.
The policy shall contain an Extended Claim Reporting Provision of not less than
one year following termination of the policy.
B. The State of Arizona reserves the right to request and receive certified
copies of all policies and endorsements within ten calendar day of contract
signature.
C. Certificates of Insurance acceptable to the State of Arizona shall be issued
and delivered prior to the commencement of the work defined in this contract,
and shall identify this contract and include certified copies of endorsements
naming the State of Arizona as Additional Insured for liability coverages. The
certificates, insurance policies and endorsements required by this paragraph
shall contain a provision that coverages afforded will not be canceled until at
least 50 days prior written notice has been given to the State of Arizona. All
coverages, conditions, limits and endorsements shall remain in full force and
effect as required in this contract.
D. Failure on the part of the Contractor to meet these requirements shall
constitute a material breach of contract, upon which the State of Arizona may
immediately terminate this agreement or, at its discretion, procure or renew
such insurance and pay any and all premiums in connection therewith, and all
monies so paid by the State of Arizona shall be repaid by the Contractor upon
demand, or the State of Arizona may offset the cost of the premiums against any
monies due to the contractor. Costs for coverages broader than those required or
for limits in excess of those required shall not be charged to the State of
Arizona. Contractor and its insurer(s) providing the required coverages shall
waive their rights of recovery against the State of Arizona, its Departments,
Employees and Officers, Agencies, Boards and Commissions.
LICENSES
Contractor shall maintain in current status all federal, state and local
licenses and permits required for the operation of the business conducted by the
contractor.
KEY PERSONNEL
It is essential that the contractor provide an adequate staff of experienced
personnel, capable of and devoted to the successful accomplishment of work to be
performed under this contract. The contractor must assign specific individuals
to the key positions. Once assigned to work under the contract, key personnel
shall not be removed or replaced without the prior written approval of the
issuing agency and a copy to the procurement office of record.
MILLENNIUM COMPLIANT SOFTWARE
As delivered, the software products specified herein will be "Millennium
Compliant". For the purpose of this solicitation and any resultant contract,
"Millennium Compliance" is the quality of a proposed software product to provide
all of the following functions:
1. Handle date information before, during and after January 1, 2000, including
but not limited to accepting date input, providing date output and performing
calculations on dates or portions of dates;
2. Function accurately and without interruption before, during and after January
1, 2000, without any change in operations associated with the advent of the new
century;
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SPECIAL TERMS AND CONDITIONS STATE PROCUREMENT OFFICE
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[SEAL] CONTRACT NO.: AD980064 - 001 14
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3. Respond to two-digit year date input in a way that resolves the ambiguity as
to century in a disclosed, defined and predetermined manner and;
4. Store and provide output of date information in ways that are unambiguous as
to century.
Responding vendors are required to provide a clear statement as to the product's
current millennium compliance. This statement should address the four above
points and be marked as "Millennium Compliance Affidavit".
NEW TECHNOLOGY
New products announced by the manufacturers on contract may be added to the
existing contract during the course of the contract. Pricing shall be equivalent
to the percent of list for each brand or class of equipment originally awarded.
ORDERING PROCESS
Upon award of a contract by the State Procurement Office, any designated agency
may procure the specific material and/or service awarded by the issuance of a
contract release order to the appropriate contractor. Each contract release
order must cite the correct Arizona Contract number. The award of a contract
shall be in accordance with the Arizona Procurement Code and all transactions
and procedures required by the code for public bidding have been complied with.
A contract release order for the awarded material and/or service that cites the
correct Arizona contract number is the only document required for the agency to
order and the contractor to deliver the material and/or service.
Any attempt to represent any material and/or service not specifically awarded
as being under contract with the State of Arizona is a violation of the
contract and the Arizona Procurement Code. Any such action is subject to the
legal and contractual remedies available to the state inclusive of, but not
limited to, contract cancellation, suspension and/or debarment of the
contractor.
PRICE INCREASE (AFTER ONE YEAR)
The State Procurement Office may review a fully documented request for a price
increase only after the contract has been in effect for one (1) year. A price
increase adjustment shall only be considered at the time of a contract extension
and shall be a factor in the extension review process. The State Procurement
Office shall determine whether the requested price increase or an alternate
option is in the best interest of the state.
The price increase adjustment, if approved, will be effective upon the effective
date of the contract extension.
SAFETY STANDARDS
All items supplied on this contract must comply with the current applicable
occupational safety and health standards of the State of Arizona Industrial
Commission, The National Electric Code, and The National Fire Protection
Association Standards.
SERIAL NUMBERS
The contract is for equipment on which the original manufacturers AE serial
number has not been altered in any way. Throughout the contract term, the state
reserves the right to reject any altered equipment.
NON-EXCLUSIVE CONTRACT
Any contract resulting form this solicitation shall be awarded with the
understanding and agreement that it is for the sole convenience of the State of
Arizona. The state reserves the right to obtain like goods or services from
another source when necessary. Off-contract purchase authorization (SPO form
150) may only be approved by the State Procurement Administrator. Approval shall
be at the exclusive discretion of the State Procurement Administrator and shall
be final. However, approval shall be granted only after a proper review and when
deemed to be appropriate. Off-contract procurement shall be consistent with the
Arizona Procurement Code.
CONFIDENTIALITY OF RECORDS
The contractor shall establish and maintain procedures and controls that are
acceptable to the state for the purpose of assuring that no information
contained in its records or obtained from the state or from others carrying
out its functions under the contract shall be used by or disclosed by it, its
agents, officers, or employees, except as required to efficiently perform
duties under the contract. Persons requesting such information shall be
referred to the state. Contractor also agrees that any information pertaining
to individual persons shall not be
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SPECIAL TERMS AND CONDITIONS STATE PROCUREMENT OFFICE
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divulged other than to employees or officers of the contractor as needed for the
performance of duties under the contract, unless otherwise agreed to in writing
by the state.
CONTRABAND Any person who takes into or out of, or attempts to take into or
out of a correctional facility or the grounds belonging to or adjacent to a
correctional facility, any item not specifically authorized by the
correctional facility shall be prosecuted under the provisions of the Arizona
Revised Statutes. All persons, including employees and visitors, entering
upon these confines are subject to routine searches of their person,
vehicles, property of packages.
DEFINITION - A.R.S. 13-2501
Contraband means any dangerous drug, narcotic drug, intoxication liquor of
any kind, deadly weapon, dangerous instrument, explosive or any other article
whose use or possession would endanger the safety, security, or preservation
of order in a correctional institution or any person therein. (Any other
article includes any substance which could cause abnormal behavior, i.e.
marijuana, non-prescription medication, etc.)
PROMOTING PRISON CONTRABAND - A.R.S. 13-2505
1. A person, not otherwise authorized by law, commits promoting prison
contraband:
A. By knowingly taking contraband into a correctional facility or the
grounds of such a facility; or
B. By knowingly conveying contraband to any person confined in a
correctional facility; or
C. By knowingly making, obtaining or possessing contraband while being
confined in a correctional facility.
2. Promoting prison contraband is a Class 5 felony.
CONTRACT DEFAULT
A. The state, by written notice of default to the contractor, may
terminate the whole or any part of this contract in any one of the following
circumstances:
1. If the contractor fails to make delivery of the supplies or to perform
the services within the time specified; or
2. If the contractor fails to perform any of the other provisions of this
contract; and fails to remedy the situations within a period of ten (10) days
after receipt of notice.
B. In the event the state terminates this contract in whole or part, the
state may procure supplies or services similar to those terminated and the
contractor shall be liable to the state for any excess costs for such similar
supplies or services.
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SCOPE OF WORK STATE PROCUREMENT OFFICE
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ARIZONA AUTOMATED FINGERPRINT IDENTIFICATION SYSTEM (AZAFIS)
MUG PHOTO INTERFACE SUBSYSTEM
1. INTRODUCTION AND OVERVIEW
The Arizona State Procurement Office is issuing this Request for
Proposal (RFP) to invite qualified offerors to submit proposals for
the purchase, delivery, installation, and maintenance of a Mug Photo
Interface Subsystem. This RFP sets forth the requirements for a Mug
Photo Interface Subsystem as defined by the State.
The AZAFIS Mug Photo Interface Subsystem shall be initially
comprised of a centralized statewide image database operated and
maintained and located at the Department of Public Safety, fifteen
mug photo interfaces at the primary booking facilities in each
county in Arizona. (See Exhibit A for additional Funded Sites) The
electronic Mug Photo Interface Subsystem will be interfaced to the
existing AZAFIS livescan equipment in each proposed site. The system
will utilize electronic image technology for mug photos. The primary
objective of the system is to provide electronic capture, transmittal
and retrieval of mug photo images via the AZAFIS frame relay network.
Additional images contained in the statewide database would include
scars, marks, and tattoo's, yearbook photos, and vehicle photos.
1.1 Conceptually there will be two types of electronic mug photo
devices:
1.1.1 Capture Site
An input/retrieval workstation that will be
interfaced to the AZAFIS livescan equipment in each
county jail to capture mug photos and scars, marks,
and tattoos of each arrestee when booked and
fingerprinted. A processing control number (PCN)
currently issued by the livescan equipment for each
arrest incident must also be applied to the mug
photos and other images taken at the time of booking.
Once the mug photo is captured, the image and
associated textual information will be electronically
sent to the centralized database at the Department of
Public Safety. This same device will also be used to
retrieve mug photos from the centralized database.
1.1.2. Investigative Site
An investigative workstation that will not have the
technical ability to capture mug photos but, will be
used at sites other than booking facilities to
retrieve standardized mug photo lineups and other
electronic images via the existing AZAFIS network.
This workstation will also have the capability to
input yearbook photos, family photos, etc. The
investigators must be able to define queries by
specifying a set of physical attributes. The system
must then prepare and present a list of potential
candidates. The selection of individuals for
inclusion in the list must be done on the basis of
the criteria specified in the query.
2. DEFINITIONS
BOOKING The process of fingerprinting, recording,
identifying and gathering descriptive
information related to an arrestee.
MUGSHOT/FACIAL IMAGE Color photos that are taken of an arrestee.
PCN Processing Control Number: A unique
internally assigned ten-character numeric
computer generated assigned to each arrest
and nonarrest fingerprint record that is
processed through AZAFIS. The first two
digits of the PCN designates the agency
which generated the record. The next two
digits of the PCN designate the specific
capture device. The last six digits of the
PCN are sequential processing numbers. PCNs
are used by AZAFIS to track transactions or
records within the system. Processing
Control Numbers for livescan are to
autogenerated by the livescan or image
scanner software.
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SCOPE OF WORK STATE PROCUREMENT OFFICE
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SID State Identification Number
OPPIS Optical Print and Photo Image Subsystem
NCIC National Crime Information Center
STATE The Arizona Department of Public Safety/AZAFIS
State System Administrator
ACCEPTANCE TEST The tests intended to determine that all the
delivered equipment and software comply with the
contract and to determine the reliability of the
system.
PRIME CONTRACTOR The offeror to whom an award is made and who is
soley responsible for all maintenence, repair,
training, installation and replacement of all
system hardware and software. Acts as sole
point of contact for the above actions.
SITE ACCEPTANCE Is a test run by the State to determine site
compliance and connectivity prior to becoming an
active party in the State System.
TWAIN A standard application protocol that allows
cross platform and multi-manufacturer
communication from the scanner to the software.
USER-DEFINED Operational parameters, the values of which are
initially determined by authorized personnel.
When the system is being installed and based on
experience with the system can be defined by
them. Examples: the interval in which a report
is printed the designated printer or printers on
which it is output, and the day and time at
which it printed.
USER-MAINTAINED Related operational parameters usually
maintained in lists, which authorized persons can
establish initially when the system is installed
and can add to or remove as necessitated by
experience with the system. For example: the
common types of scars, marks, tattoos or height,
weight and eye/hair color.
OPERATOR Individual whose access to the Mug Photo
Interface is determined by the system manager by
means of a password.
MPI TASK FORCE A task force that is charged with the
development, evaluation, acceptance and
implemention of the AZAFIS Mug Photo Interface
Subsystem.
AZAFIS Arizona Automated Fingerprint Identification
System
ODBC Open database compliant.
NIST National Institute of Standards and Technololgy.
CSL The Computer Systems Laboratory of NIST which is
now referred to as the Information Technology
Laboratory (ITL).
ITL Information Technology Laboratory.
ANSI American National Standards Institute, Inc.
TCP/IP Transmission Control Protocol/Internet Program.
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SCOPE OF WORK STATE PROCUREMENT OFFICE
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INDENTIX The subcontractor for the TP600 Systems.
TP600 A device that electronically captures and
transmits fingerprint impressions to the AZAFIS
system.
IISI The contractor for the AZAFIS Image Scanner
Subsystem.
GUI A graphical user interface.
PO A purchase order for procurement of AZAFIS Mug
Photo Interface Subsystem.
SMT The abbreviation for scars, marks and tatoo's.
ID Identification
OCR Optical character recognition.
RFP Request for Proposal.
URS User requirements specifications.
TRANSACTION The capture, input, and/or retrieval of a
subject's photograph and associated demographics
between a workstation and a central server or
records management system via a wide area network
(WAN) or local area. (LAN)
NAMSI North American Morpho Systems, Inc. The States
primary contractor for AZAFIS System and the
INDENTIX TP600 systems.
3. PURPOSE
This section describes the functional and technological base that the
State of Arizona Department of Public Safety has established for the
implementation of a large scale modern electronic imaging system, which
shall be called the AZAFIS Mug Photo Interface Subsystem. Further the
subsystem is intended to:
3.1 guide the implementation of technology to meet the immediate
imaging needs of the State of Arizona Department of Public Safety,
the fifteen counties in Arizona, and other cooperating government
agencies within the State of Arizona;
3.2 establish the technology upon which the State can proceed with
the implementation of its long term strategy relating to the
integration and management of images (OPPIS);
3.3 promote the technology necessary to permit the cost effective and
efficient exchange of image based records between the State and
other cooperating state criminal justice agencies;
3.4 establish a centralized database through which all images
captured will be stored and retrieved.
4. OBJECTIVES
The primary objective of the AZAFIS Mug Photo Interface Subsystem is to:
4.1 implement a state wide system to service;
a Central Site,
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SCOPE OF WORK STATE PROCUREMENT OFFICE
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Fifteen county booking stations and other law enforcement agencies
as they come on line, and
Criminal Justice Agencies and other cooperating State agencies.
4.2 provide for the installation of equipment to electronically
capture, transmit, and retrieve images and data from a central
site;
4.3 establish a system capable of providing photo images in a variety
of common computer file and printed hardcopy formats;
4.4 and ensure that the selected technology is capable of meeting the
long range strategic image management plans of the State.
5. MANDATORY REQUIREMENTS:
The offeror shall comply with the following mandatory requirements.
FAILURE IN ANY AREA, AS DETERMINED BY THE AZAFIS MUG PHOTO TASK FORCE
AND STATE PROCUREMENT, SHALL HAVE A NEGATIVE IMPACT ON THE EVALUATION
OF THE OFFEROR'S PROPOSAL.
5.1 Shall meet ANSI/NIST-CSL1-1993 and NIST-CSL 1-960401 and NIST
Best Practice Recommendations Version 2.0 dated September 11, 1997.
(Appendix A) The NIST Best Practice Recommendation shall prevail
if there are conflicts with NCIC 2000 Standards.
5.2 Shall comply with NCIC 2000 standards.
5.3 Shall be Open Data Base Compliant (ODBC)
5.4 Shall be TWAIN compliant.
5.5 Shall be PC based.
5.6 Shall be capable of indexing multiple images to a single control
number (PCN).
5.7 Shall operate within TCP/IP network protocol.
5.8 Shall interface with AZAFIS network via INDENTIX TP600 livescan
work station or the IISI Fingerprint Image Scanner Interface
Subsystem in order to duplicate the autogenerated PCNs to the Mug
Photo file. To minimize duplicated data entry functions,
individual agencies, at their own expense, may wish to negotiate
interfaces to the TP600, the MPI, jail management systems, or
record management systems.
5.9 The MPI shall provide the user with the capability to generate a
photo-line up of at least six images. The MPI shall retrieve and
display the images of all subjects with characteristics that
match, or substantially match, those of the line-up subject. The
user shall then be able to select or reject from the images
retrieved up to five that together with the subject's constitute
the line-up. The user shall be able to arrange the selected images
in any order, and print them on a single sheet, with the option of
a disclaimer, for viewing.
5.10 Proposed system SHALL NOT contain proprietary hardware, software,
or operating systems.
5.11 Shall allow for the connection of additional capture devices by
means of industry standard connectors. (i.e. Cameras, scanners,
film recorders)
5.12 Camera shall the equipped with a remote pan/tilt mount. It is
preferred that this mount is controlled via the key board, however
if a separate controller is necessary it shall be secured to the
system.
5.13 Shall be capable of performing searches using NCIC demographics
codes and additional search criteria as defined by the user.
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SCOPE OF WORK STATE PROCUREMENT OFFICE
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PAGE Capital Center, Suite 103
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5.14 Capture station shall be fully-functional without the use of a
mouse.
5.15 The system shall have store and forward capabilities in order to
remain functional during times of network unavailablility. Shall
automatically forward those files generated during times of
network unavailability.
5.16 The offeror shall supply and describe an appropriate server to
be located at the Arizona Department of Public Safety. The MPI
shall be capable of transmitting and receiving electronic images
from this central server and each installation site.
5.17 Software and on-site hardware maintenance support for the MPI
shall be provided by the offeror. All software changes shall be
tested and approved by the State. The offeror shall receive
authorization from the State prior to installing any new software.
5.18 The offeror shall provide an itemized description and cost
information for the design, development and implementation of the
necessary computer software and hardware required to provide
statewide access to mug photo's stored in the States central image
server at the Department of Public Safety.
5.19 The proposed network shall include bi-directional communication
between each MPI system at each installation site and the Central
Database at the Arizona Department of Public Safety.
5.20 MPI images shall be captured and stored in a format that will
allow for the transmission of images via modem to remote sites.
5.21 The MPI shall provide 98% availability of the basic functions
exclusive of functions performed by interfacing systems. In no
circumstance shall the system be required to be taken off-line
for routine maintenance or housekeeping activities.
5.22 To the greatest extent possible, single points of potential
failure shall be eliminated. Primary server shall be redundant
with automatic fail over capabilities.
5.23 The system shall provide a switch over capability of terminal
interfaces from the primary to the back up system that is
transparent to, and requires no intervention from the user. There
shall be no requirement for the user to activate any software or
manipulate any switches.
5.24 The MPI shall utilize a full graphic user interface (GUI) which
provides multiple, movable, and sizable windows.
5.25 The system shall be modular in design. It shall also be possible
to add, upgrade, or replace software modules in the system with
relative ease.
5.26 The system shall allow a user to select a portion of an image to
be enlarged for viewing. System shall allow this enlarged image to
be printed.
5.27 It shall be possible to print any display presented to a user on
a MPI workstation. The display printouts shall include all header
information, and shall be readable and usable.
5.28 The MPI shall allow ad hoc inquiries both about individuals who
have been entered into the system and about the statistical and
historical use of the data base.
5.29 The MPI must interface with existing mug photo systems as
identified in Exhibit B. Offerors shall describle in detail how
their proposed interfaces will affect transaction functionally on
the existing mug photo systems. For example, will the existing
systems be able to access photos residing in the State's central
database to construct their photo lineups? Offeror shall address
all known transactions, taking care to define any loss of present
functionality and/or changes in presentation (user look and feel)
If interfacing with any of the existing mug photo systems will
require cooperative agreements with
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SCOPE OF WORK STATE PROCUREMENT OFFICE
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PAGE Capital Center, Suite 103
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offerors marketing/supporting the existing mug photo systems,
offerors shall provide documents confirming that cooperative
agreements have or can be established.
5.30 The MPI shall have the capability to electronically send
information to and receive information from other cooperating
criminal justice agencies. Access to the information in both the
MPI and participating agencies data bases shall be limited, in all
cases, to users with security access codes acceptable to both the
Arizona Department of Public Safety and the cooperating agency.
5.31 The MPI shall generate outputs in the format determined by the
State. Inputs from each interfacing system shall be in the State
format. The prime contractor shall assist in any necessary
conversion between these systems.
5.32 The MPI shall be both menu and command driven. There shall be
standardized movement from screen to screen without having to
return to the main menu. System messages shall be standardized and
detailed field specific help functions shall be provided.
5.33 The MPI shall have a manual capture operation to provide
essential functions in the those instances in which part or all of
the systems fails. The manual capability shall be available to
sustain operations at whatever level it is needed (i.e., part of
a facility, an entire facility, several facilities, or the entire
network).
5.34 The MPI shall include a purging capability that can be identified
by the system manager in a table or structured response by data
element and compound logical and arithmetic relationships.
5.35 The system shall provide multiple, searchable, linked image and
data bases. These databases would be used for user specified
purposes (i.e. sex offenders, gangs, habitual offenders,
employees). The system shall provide for the entry of a photo type
i.e. arrests (PO1) juveniles (PO7). (Appendix B).
5.35.1 The system shall allow, at the states discretion, for the
partitioning of any of these data bases to protect against
unauthorized access. The system shall provide for the
addition of photo type databases at no additional cost to
the State.
5.36 The MPI shall provide an audit trail that is easily accessed by
any authorized user. This audit trail, at a minimum, shall identify
the user, all filles accessed, the order in which these files were
accessed, the time and date of each transaction, and the order in
which these files were printed. This function shall be sufficient
to withstand any legal challenge of the products from the MPI. The
successful offeror shall assist in legal challenges at a rate
mutually agreed to by the offeror and the State.
5.37 The MPI shall provide for image enhancement. This capability
shall at a minimum, allow for the standardization of background
color and subject head size. The system shall ensure that any file
that is modified is identified as a modified file. The proposed
system shall prevent any modification of an original image file.
The offeror shall provide documentation stating the method used
for ensuring the file integrity for review by the MPI and the
Attorney Generals Office.
5.38 The MPI shall provide each user agency a report format that will
indicate the number of photo's per booking, by operator, the total
number of photo's by hour, day and month, and the total current
data base size for their site. A summary report shall be provided
with the same data for all sites for the system administrator.
5.39 Local users comments and other free-form entries into the MPI shall
be searchable. Searches shall be designed so that the system
performance is not adversely affected. Free-form text space
allowed shall be no more than 1 line of text.
5.40 The MPI imaging system shall allow the operator to view, live
camera images and select or reject an unlimited number of these
views for inclusion in the file.
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SCOPE OF WORK STATE PROCUREMENT OFFICE
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5.41 The system shall automatically associate all images with a
specific file, and store the date and time at which it was
recorded.
5.42 The MPI shall allow common characteristics to be selected from a
user-maintained list, organized by body type and size facial
appearance and features. The user shall be able to describe
unusual characteristics in free form text entries. As with other
free-form text entries, mug photo descriptions shall be indexed so
that may be searched.
5.43 The User shall be able to retrieve and/or print any image in the
system. The retrieval can be accomplished by searching on the PCN
number and other numbers. (i.e. agency case number)
5.44 The User shall be able to retrieve and/or print any mug photo
that fits the descriptive characteristics selected from the user
maintained list and/or searched among free-form text entries.
5.45 The MPI shall provide the user with the capability to generate a
photo-lineup of up to six mug photos. The system shall retrieve
and display all mug photos that contain the distinguishing
characteristics that match or substantially match those of the
photo-lineup subject. The user shall then be able to select or
reject from the mug photos retrieved up to five that, together
with the subject's, constitute the photo-lineup. The user shall be
able to arrange the selected images in any order and print them to
a single sheet for viewing.
5.46 The User shall be able to print mug photos and or photo-lineups
on any printer connected to the MPI.
5.47 The MPI shall store color images of scars, marks, and tatoos
(SMT) for each arrestee. The MPI shall automatically associate all
images of an inmate's SMT with his or her files, store, the date
and time the images were recorded. The MPI shall differentiate
images of SMT from mug photo's.
5.48 The MPI shall classify images as scars, marks, or tatoos. It is
preferred that the system use a generic human body drawing to
establish the location of SMT. If this option is not availbale,
SMT location shall be selected from a user-maintained list
(e.g. right upper arm).
5.49 Common types and subtypes of SMT shall be selectable from a
user-maintained list. The user shall be able to describle unusual
types and subtypes in free-form text entries. Words on a tattoo
shall also be entered as free-form text.
5.50 For commonly seen and easily identified SMT judged not important
enough to photograph, the MPI shall accept descriptive free-form
text entries.
5.51 The user shall be able to retrieve and or print any images of SMT
associated with a booking or those of any other person whose SMT
have been entered into the system for investigative or
identification purposes.
5.52 The user shall be able to enter a description of an SMT, and
retrieve and/or print image that match the description. The user
shall be able to select search characteristics from the
user-maintained list of locations, types, and subtypes. For
unususal SMT, and for the words on tattoos, the user shall be able
to enter free-form text entries as search criteria.
5.53 The capacity to print images of SMT in black and white shall be
available on all MPI work stations. The ability to print these
images in color shall be made available at user designated
stations.
5.54 The MPI shall allow the user to obtain "Help" for each individual
field, while the cursor is in that field, for each entry and
inquiry screen. The "Help" function shall give the user a brief
explanation of the requirements for that particular field and
whether the field is mandatory. The MPI shall allow a user to ask
for help for each entry or inquiry module or screen, when the user
is in that module or screen. The "Help" function shall provide
essential information for the module or screens purpose and usage.
The mandatory fields shall be a different color, bold or
highlighted.
5.55 The MPI shall display the current status of a booking. The
display shall indicate current status and allow the user to
determine what actions are necessary to complete the booking
process.
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5.56 The MPI shall allow the user to access any screen from any other
screen, directly, at any time, with minimal use of sub-menuing
menuing.
5.57 The MPI shall include a transaction to down load selected data
elements to a file. The data available for down loading will
be determined by the user's security access as determined by the
system manager.
5.58 The MPI shall include quality assurance functions that, at a
minimum, will compare the currently taken image of an arrestee
against the data base and identify any similar or duplicate images.
This function shall be selectable at users discretion. This
function is required to identify outstanding warrants, aliases,
and inaccurate demographic information given at the time of
booking.
5.59 The MPI shall contain an audit function. Each activity performed
shall be stored with audit information relating to the specific
user performing the activity, and what data the activity relates
to. This audit information shall be made available to other user's
based on their security profile.
5.60 The MPI shall allow for on-line data backup and archival devices.
5.61 The MPI shall accept and correctly process hyphenated names in
any name component, first, middle and/or last.
5.62 The MPI shall use soundex coding in name searches to minimize the
impact names with similar and variant spellings and of misspelled
names (either on entry or in requesting a name search).
5.63 Security access to information maintained by the MPI will depend
primarily on using object-based security. A combination of an
assigned log-on and a password shall be required to sign on, and
shall be validated by the system before access is granted.
5.64 The system shall determine which information or objects a user
will have access to, by way of preassigned roles and privileges,
and what actions he or she may take with this information or
objects. The system shall label all transactions with the users'
log-on, time and date.
5.65 The MPI shall log off any signed-on user who does not make an
input into the system for a user-defined interval (e.g. five
minutes).
5.66 The MPI shall require that passwords be changed at user-defined
intervals (e.g. every 90 days).
5.67 The user/administrator shall be provided an application utility
to enable the maintenance of system security levels.
5.68 The MPI shall provide the capability to audit use of the system
by determining the transactions performed. Audits shall be limited
to a specific time period.
5.69 The MPI shall provide at a minimum two types of audit reports.
The system shall produce a summary report which lists only
actions taken by the user/users or the position being audited the
date and time at which each action was taken, and the ID of the
user taking the action. A detailed audit report, which lists the
action taken, the specific subjects and/or files against which
they were taken, all changes made by or information returned in
response to the actions, any explanations for the changes required
by the system, and the ID of the user taking the action. The users
ID shall be output only once for an audit of an individual user but
shall be presented with each action in an audit of workstation use
or of all MPI users.
5.70 The MPI shall accept audit requests made in the following manner,
by all users, by a specific user, by specified workstation.
5.71 The MPI shall restrict the request for a security audit to
personnel with appropriate security-access codes as determined by
the system manager.
<PAGE>
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SCOPE OF WORK STATE PROCUREMENT OFFICE
----------------------------------------------
PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 24
15 South 15th Ave
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VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
35
- ------------------------------------------------------------------------------
5.72 The MPI shall at a minimum, have a security capacity that meets
the US Government Department of Defense Standard Class C2 as
defined in the Department of Defense Trusted Computer System
Evaluation Criteria, December 1985.
5.73 The MPI must store each activity with audit information relating
to the specific user performing the activity, and what data the
activity relates to. Such audit information shall be made available
to other users based on their security profile.
5.74 The MPI must allow the user to retrieve and/or print images
associated with a past or present inmates record, other persons
photographs in the system for identification purposes (these
images will be retrieved by PCN or system number), those images
that fit descriptive characteristics selected from a
user-maintained list or searched from among free-form text
entries.
5.75 The investigative workstation shall be equipped with a color flat
bed scanner that, at a minimum, has 600 dpi optical single pass
resolution, 36 bit color, the ability to scan legal size paper
containing both images and text, and contains OCR software for
scanning pages of text. The scanner shall auto-generate and
assign an AZAFIS Processing Control Number (PCN) whenever an
image is processed for inclusion in the central database.
5.76 The MPI systems shall be composed of new equipment which has not
been previously used in any demonstration or exhibit.
5.77 The MPI shall allow for data storage expansion of at least three
(3) times the original storage capability. The State currently
generates 350,000 mug photos per year. Exhibit C (attached) shows
estimated capture transaction data for each initial site.
5.78 The MPI shall support an operating system, network operating
system and protocol suite which will allow the MPI to interface
with other computer systems currently in use within the AZAFIS
network.
5.79 The proposed AZAFIS Mug Photo Subsystem shall be configured
adequately to provide acceptable transaction response times during
the estimated seven (7) year life of the initial system. The
average elapse time for the capturing of mugphoto scars, marks and
tattoos, yearbook photos, vehicle photos to the time the
centralized database receives the transaction shall not exceed 5
seconds. The average elapse time for receiving a response form an
investigative query shall not exceed 15 seconds.
5.79.1 "Response time" for this procurement is defined as the
elapsed time between the transmission of a transaction
command or function key and the return of the cursor for
the next user entry, or, the display of the last character
or pixel of the first page of the transaction's normal
response to the video monitor.
5.79.2 Offerors shall provide average response times for each of
their system's transactions.
5.79.3 In situations where teleprocessing from remote locations
will appreciably slow response times, offerors are asked
to identify the line speed requirements necessary to
support their response time claims. Offerors shall also
provide both local and remote average response times for
all data intensive transactions. (any transactions that
due to its message size is subject to a doubling or more
of its local average response time)
5.79.4 Each offeror shall include an explanation of the method
they propose using to demonstrate the accuracy of their
response time claims.
6. OPTIONAL AND HIGHLY DESIRABLE PERIPHERALS.
(The use of make an model number are for illustrative purposes only and
refer to minimum requirement. It shall be understood that
equivalent items may be bid)
6.1 Play Inc. Snappy video frame grabber.
<PAGE>
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SCOPE OF WORK STATE PROCUREMENT OFFICE
----------------------------------------------
PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 25
15 South 15th Ave
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VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
35
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6.2 Epson expression flat bed scanner, 600 dpi optical resolution on
single pass, 36 bit color, 8 bit gray scale.
6.3 Panasonic PanaSync S21 Color Monitor.
6.4 Snap-on, nonglare, monitor cover.
6.5 Sony up 880 B&W video printer.
6.6 Facial Recognition Software.
6.7 Polariod ProPalette HR 6000 color film recorder.
6.8 Minolta Quickscan 35 film scanner.
6.9 Kodak Model 8650 Color Printer w/32 MB, raster and post script.
6.10 Kodak Model DCS 410 Digital Camera.
6.11 IBIS Latent Pro Forensic Image Enhancement Software.
6.12 ADOBE Photoshop V4.0
6.13 Recordable CD Rom.4x write/6x read
6.14 RAM Upgrades in 8, 16, and 32mb increments.
6.15 512K Cache upgrade.
6.16 Basic SCSI controller for Kodak and other external SCSI devices.
6.17 Kodak Digital Science DC120 Zoom Camera.
6.18 HP Laser Jet 5 printer with minimum of 12mb RAM.
6.19 Jail Management system-Identification cards.
6.20 EPSON Stylist Color 800 Ink Jet Printer.
6.21 The offeror will provide a listing of all associated supplies and
costs.
6.22 Hi-8mm color camcorder - such as a Canon ES2000.
6.23 Duplex ID card printer.
6.24 Windows Office Professional 97.
6.25 Fujix Photo-Video Imager FV-7.
6.26 S-VHS VCR.
6.27 Konica Q-mini digital camera.
<PAGE>
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SCOPE OF WORK STATE PROCUREMENT OFFICE
----------------------------------------------
PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 26
15 South 15th Ave
----------------------------------------
VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
35
- ------------------------------------------------------------------------------
7. TRAINING
7.1 The prime contractor shall be responsible for all training
throughout the life of the contract at costs specified in the
contract.
7.2 The prime contractor shall provide training to State and member
agency personnel that is sufficient in depth and scope to ensure
operators can efficiently utilize the system.
7.3 The prime contractor shall provide handout/reference material
which will be included in each training manual required for each
student at no additional cost. Training materials must remain
current with the system configuration and provided at no additional
cost.
7.4 The training shall begin at each site following the successful
installation of equipment.
7.5 A brief course description, including subject title, objectives,
course length time, minimum skill levels and knowledge
base of students and recommended number of students,
initial and ongoing training costs for each class shall be
provided by the prime contractor. Offeror will supply costs for
additional and on-going training.
7.6 The prime contractor shall provide to the State a course schedule
to identify starting and completion dates for training at each
site.
7.7 The prime contractor shall provide hands-on training at each
initial and subsequent installation site.
7.8 Training shall accommodate the 24 hours, 7 days a week
environment in which the system will be used.
8. DELIVERY AND INSTALLATION
8.1 The successful contractor shall provide for INSIDE DELIVERY and
installation at each site. The arrangements for all deliveries
shall be planned 30 days in advance of such event through
cooperative efforts of the AZAFIS Management Section, each
installation site, and the successful contractor.
8.2 Delivery shall be guaranteed by the Contractor within thirty (30)
days from the placing of an order.
9. MAINTENANCE
9.1 The prime contractor shall have a minimum of two (2) years prior
experience with installing training and maintaining electronic
imaging systems.
9.2 The prime contractor shall maintain an adequate inventory of
spare parts to ensure expedient repair of equipment within the time
frame identified in this proposal.
9.3 Operating and reference manuals shall be provided to each
workstation site at the time of purchase and shall be kept
up-to-date.
9.4 Diagnostic service will be performed via a contractor supplied
modem. Security policies and procedures shall be discussed with
AZAFIS Management Section. Diagnostic service shall be conducted
within one (1) hour of notification by a site. Modem link must be
secured against unauthorized access to the system. The successful
offeror must provide the State with detailed information on the
methods that will be utilized to assure the required level of
security.
9.5 The service area is any where within the borders of the State of
Arizona. Service time is seven (7) days per week, twenty-four (24)
hours per day.
<PAGE>
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SCOPE OF WORK STATE PROCUREMENT OFFICE
----------------------------------------------
PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 27
15 South 15th Ave
----------------------------------------
VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
35
- ------------------------------------------------------------------------------
9.6 An initial phone call response shall be received from the service
contractor within a half-hour after notification by the agency of a
service requirement.
9.7 On-Site Response Times
9.7.1 Capture Sites
The contractor during the warranty and maintenance
contract period will provide on-call maintenance services
with on-site response time not to exceed four (4) hours
from the time trouble is reported within a 50 mile radius
of the metropolitan area of Phoenix and or Tucson. On-site
response time shall be no longer than eight (8) hours from
the time trouble is reported for the balance of the State.
All equipment requiring physical repair or replacement shall
be completed within twenty four (24) hours from the time a
problem is reported.
9.7.2 Investigative Sites
The contractor during the warrantly and maintenance
contract period will provide on-call maintenance services
with on-site response time not to exceed twenty-four (24)
hours from the time trouble is reported for the entire
State. All equipment requiring physical repair or
replacement shall be complete within twenty four (24) hours
from the time a technician reports on-site.
9.8 Any capture site reported inoperable for more then twenty four
(24) hours shall be replaced by the contractor.
9.9 The prime contractor shall furnish a service report to the State
upon completion of each maintenance call and maintain a service
record for each piece of equipment serviced. The report at minimum
shall include the following:
9.9.1 Date and time notified.
9.9.2 Time of arrival.
9.9.3 Type and model number(s) of machine(s).
9.9.4 Time spent for repair.
9.9.5 Time repair completed.
9.9.6 Service completed.
9.9.7 Cause of malfunction.
9.9.8 List of parts replaced.
9.9.9 Action taken to prevent recurrence.
9.9.10 Signature of site representative.
9.9.11 Offeror technician responsible for the
repairs.
9.10 The prime contractor shall provide a preventive maintenance plan
to the State for review and approval.
9.11 The prime contractor shall provide the same maintenance costs for
all sites participating in the AZAFIS MPI Mug Photo Interface
Subsystem.
10. WARRANTY
10.1 All equipment, materials, parts, and other components supplied by
the prime contractor to the State and it's member agencies under
this specification shall be NEW, and of the LATEST MODEL.
10.2 The prime contractor shall be held solely responsible for all
warranty, repair, or replacement of system hardware and software.
10.3 The prime contractor shall be solely responsible for all
subcontractor hardware and software.
<PAGE>
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SCOPE OF WORK STATE PROCUREMENT OFFICE
----------------------------------------------
PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 28
15 South 15th Ave
----------------------------------------
VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
35
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10.4 All equipment and software supplied to the State and it's member
agencies under this specification shall be fully guaranteed by the
prime contractor for a minimum period of twelve (12) months from
the date of acceptance by the State.
10.5 The prime contractor shall describe the warrantly for each
system and/or components of each system.
10.6 Future acquisitions by the STATE or it's MEMBER AGENCIES under
this specification shall be fully guaranteed by the contractor for
a minimum of twelve (12) months from the date of site acceptance.
10.7 Any and all defects of design, workmanship, and/or materials,
that would result in noncompliance with the contract
specifications, shall be fully corrected by the contractor
(including parts and labor) without cost to the State and/or it's
member agencies.
10.8 The system shall be considered as functioning in a sub-standard
manner when, over a period of thirty consecutive working days,
there are two or more service interruptions or one interruption in
excess of six hours due to equipment failure.
10.9 Sub-standard performance over a ninety consecutive day period may
result in cancellation of the contract and/or equipment replacement
at the contractors expense, at the States discretion.
11. ACCEPTANCE TESTING
11.1 Mug Photo Interface Task Force members, other individual's as
selected by the AZAFIS Systems Administrator, and one contractor
representative will perform acceptance testing of the system.
11.2 All acceptance testing will be performed and based on accuracy,
speed, interfaces, performance representations and specifications
made by the offeror and all requirements as stated in the Request
for Proposal (RFP) for the initial 17 sites only. Additional
capture or investigative stations purchased under any resultant
contract will not be subject to this acceptance test.
11.3 The system acceptance period will be considered successful if
throughput/accuracy requirements are satisfied and if each device
is operational for ninety-eight percent (98%) of the scheduled
operating time during the acceptance period, excluding scheduled
downtime. Any other time the system is not operational shall be
considered downtime.
11.3.1 Scheduled downtime not to exceed 4 hours per calendar
month.
11.4 Prior to the acceptance period, the committee as stated in
Section 13.1, will evaluate the device's performance on a daily
basis.
11.5 The system acceptance period will begin when the equipment is
installed and the contractor certifies that the equipment is ready
for use.
11.6 All rerun time resulting from equipment failure and preventative
maintenance shall be INCLUDED IN DETERMINING TOTAL PERFORMANCE
HOURS. All reconfiguration and reload time shall be included in
determining TOTAL PERFORMANCE HOURS.
11.7 If file are destroyed as a result of a problem with contractor
equipment and must be rebuilt, the time required to rebuild the
files will be considered "downtime" for the system.
11.8 The system acceptance period and acceptance testing shall cover a
period of 30 consecutive calendar days immediately following
delivery and complete system installation.
11.9 All equipment shall operate in conformance with the published
specifications applicable to such items. Subsequent to the system
acceptable, items added by amendment to the contract shall operate
in conformance with published specifications at the time of the
amendment.
<PAGE>
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SCOPE OF WORK STATE PROCUREMENT OFFICE
----------------------------------------------
PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 29
15 South 15th Ave
----------------------------------------
VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
35
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11.10 No more than one hour will accrue to the performance hours during
any one designated clock hour.
11.11 Equipment shall not be deemed accepted by the State and no
charges will be payable or accrued by the State until the standard
of performance is met.
11.12 The AZAFIS Mug Photo Interface Subsystem must be in operation,
fully functional and available 98% of the time during the 30
consecutive calendar days of the system acceptance period.
11.13 If the contractor requests access to failed equipment and the
State refuses, then such maintenance will be deferred to a
mutually agreeable time and the intervening time will not count
against the system acceptance period.
11.14 If the successful completion of the system acceptance period is
not attained within 30 days of the installation date, the State
may terminate the agreement, or by mutual agreement of the State
and contractor, performance tests may continue. The States's
option to terminate the agreement shall remain in effect until
such time as a successful completion of the performance period is
attained.
12. COMMUNICATIONS
12.1 The state currently utilizes T-1 and 56 KB lines in all existing
AZAFIS Sites. The AZAFIS transmission protocol is TCP/IP and Frame
Relay. See Appendix C for current AZAFIS communications network
diagram.
12.2 The contractor shall be responsible for determining the
necessary hardware and software required to interface the MPI
system to AZAFIS network.
12.2.1 The offeror shall document how their system will not
degrade in any way the existing throughout, response
times and reliability of the current transmission of
latents and tenprint cards on the AZAFIS network.
13. PERSONNEL REQUIREMENTS
13.1 The contractor shall provide a Project Manager whose project
management responsibilities shall include:
13.1.1 Planning and monitoring project activities.
13.1.2 Working with the Department of Public Safety Project
Coordinator to resolve actual and/or potential problems.
13.1.3 Reporting on project status.
13.1.4 Providing analytical and technical expertise as required
by the project.
13.1.5 Obtaining and scheduling the use of required contractor
resources.
13.2 The Department of Public Safety shall provide a Project
Coordinator whose project coordination responsibilities shall
include:
13.2.1 Planning and monitoring project activities.
13.2.2 Working with the contractor Project Manager to resolve
actual and/or potential problems.
13.2.3 Obtaining and scheduling the use of required State
resources.
Coordination with the AZAFIS Operational Procedures Committee to
resolve policy and business issues impacting the project.
<PAGE>
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SCOPE OF WORK STATE PROCUREMENT OFFICE
----------------------------------------------
PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 30
15 South 15th Ave
----------------------------------------
VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
35
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14. SECURITY CHECK
14.1 The contractor is responsible for obtaining security clearance
from the Department of Public Safety for all employees,
subcontractors, or material person having access to restricted
areas. The State reserves the right to change restricted areas
as the work progresses or as police operations may dictate.
14.2 The contractor grants the right to the Department of Public
Safety to conduct background and fingerprint check of all
employees, subcontractors, and material person's entering
designated restricted areas. The background checks shall be
conducted prior to any employee, subcontractor, or material
person's entering a restricted area and will be based upon
information provided to the Department of Public Safety including
but not limited to name and date of birth. The information will
be provided only to the criminal justice agency representative at
least 24 hours in advance of the need for access. The State may in
its sole discretion refuse to allow an employee, subcontractor,
or material person's access to a restricted area for the following
reasons:
14.2.1 Conviction of a felony.
14.2.2 Conviction of a misdemeanor (not including traffic or
parking violations and petty offense).
14.2.3 A person is under current investigation or pending trial
involving criminal activity.
14.2.4 Any outstanding warrants (including traffic and parking
violations).
14.2.5 A person currently on parole or probation.
14.3 The contractor shall include the processing of this paragraph in
any subcontract entered into for performance of the work on this
project. There will be no additional payment for this procedure,
the cost will be included in the lump-sum/unit prices in the
proposal.
15. CUSTOM PROGRAMMING
15.1 The offeror shall provide a list of hourly rates for each class
of offeror employee required to deliver system analysis and
programming services commonly associated with the delivery of
customer specific system modifications and/or enhancements. Any
costs that exceed per diem shall also be identified. Rates
quoted shall remain available to the State for no less than the
term of the contract, subject to terms and conditions.
15.2 If custom programming is required as part of the offeror's
communications and interface proposal, these costs shall be stated
as a fixed amount.
15.3 This proposal is subject to amendment for future
modification/enhancements requested by the State.
<PAGE>
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SCOPE OF WORK STATE PROCUREMENT OFFICE
----------------------------------------------
PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 31
15 South 15th Ave
----------------------------------------
VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
35
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FOR THE GOODS AND/OR SERVICES SPECIFIED HEREIN, THE FOLLOWING APPLY:
- - Delivery is promised within 120 calendar days after receipt of an order.
(Refer to Special Terms and Conditions for delivery requirements.)
- - If payment is made within 30 calendar days after acceptance of goods and/or
services, the above quoted price, excluding sales tax, shall be discounted by
0%. (Refer to Uniform Instructions To Offerors for discount requirements.)
<TABLE>
<CAPTION>
LINE NO. COMMODITY DESCRIPTION U/M UNIT PRICE
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1 127215 - AZAFIS Mug Photo Interface System (MPIS) jb 576,883.10
Total purchase price for seventeen (17) initial sites throughout the
State of Arizona to include delivery, site-preparation, installation
and one (1) year on-site warranty.
Manufacturer: ImageWare Software Inc.
Model #: Crime Capture System
Catalog Discount: 0.0
- ----------------------------------------------------------------------------------------------------------------------------------
2 127216 - Maintenance, AZAFIS Mug Photo System Interface yr 69,225.97
to follow one (1) year on-site warranty.
Contract shall charge a single percentage of original system
purchase price to cover on-site follow-on maintenance a at 12%
Maintenance pricing shall not increase by more than 2% above
the previous year's maintenance rate.
Catalog Discount: 0.0
- ----------------------------------------------------------------------------------------------------------------------------------
3 127418 - AZAFIS MPI Subsystem, Central Database jb 202,811.15
To include all development, installation of hardware & software,
implementation, services and one (1) year warranty of a central
AZAFIS Mug Photo Interface Subsystem at the Department of
Public Safety as per the requirements of the Scope of Work.
Delivery Location: Metropolitan Phoenix
Catalog Discount: 0.0
- ----------------------------------------------------------------------------------------------------------------------------------
4 127419 - AZAFIS MPI Subsystem, Central Database, Maint. yr 0.00
to follow one (1) year warranty.
Contractor to provide a firm fixed price to maintain the central
site database following the one (1) year warranty at 12%.
Maintenance pricing shall not increase by more than 2% above
the previous year's maintenance rate for future years of support.
Delivery Location: Metropolitan Phoenix
Catalog Discount: 0.0
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
- ------------------------------------------------------------------------------
PRICE SHEET STATE PROCUREMENT OFFICE
----------------------------------------------
PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 32
15 South 15th Ave
----------------------------------------
VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
35
- ------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
ARIZONA STATE INITIAL MPI SITES
- ----------------------------------------------------------------------------------------------------------------------------------
FULL CAPTURE INVESTIGATOR
AGENCY LOCATION WORKSTATION WORKSTATION
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Apache County Sheriff's Office 370 S. Washington ST. - St. Johns, AZ $18,272.40 $15,661.90
- ----------------------------------------------------------------------------------------------------------------------------------
Cochise County Sheriff's Office 836 E. State Highway 80 - Bisbee, AZ $18,272.40 $15,661.90
- ----------------------------------------------------------------------------------------------------------------------------------
Coconino County Sheriff's Office 211 N. Agassiz St. - Flagstaff, AZ $18,272.40 $15,661.90
- ----------------------------------------------------------------------------------------------------------------------------------
Gila County Sheriff's Office 1100 South St. - Globe, AZ $18,272.40 $15,661.90
- ----------------------------------------------------------------------------------------------------------------------------------
Graham County Sheriff's Office 523 S. 10th Avenue - Safford, AZ $18,272.40 $15,661.90
- ----------------------------------------------------------------------------------------------------------------------------------
Greenlee County Sheriff's Office MP 162 S. Highway 191 - Clifton, AZ $18,272.40 $15,661.90
- ----------------------------------------------------------------------------------------------------------------------------------
LaPaz County Sheriff's Office 1109 W. Arizona Ave. - Parker, AZ $18,272.40 $15,661.90
- ----------------------------------------------------------------------------------------------------------------------------------
Maricopa County Sheriff's Office 102 W. Madison St. - Phoenix, AZ $18,272.40 $15,661.90
- ----------------------------------------------------------------------------------------------------------------------------------
Mohave County Sheriff's Office 415 Pine St. - Kingman, AZ $18,272.40 $15,661.90
- ----------------------------------------------------------------------------------------------------------------------------------
Navajo County Sheriff's Office South Highway 77 - Prescott, AZ $18,272.40 $15,661.90
- ----------------------------------------------------------------------------------------------------------------------------------
Pima County Sheriff's Department 1750 E. Benson Highway - Tucson, AZ $18,272.40 $15,661.90
- ----------------------------------------------------------------------------------------------------------------------------------
Pinal County Sheriff's Office 951 N. Pinal Pkwy. - Casa Grande, AZ $18,272.40 $15,661.90
- ----------------------------------------------------------------------------------------------------------------------------------
Santa Cruz County Sheriff's Office 1250 N. Hohokam Dr. - Nogales, AZ $18,272.40 $15,661.90
- ----------------------------------------------------------------------------------------------------------------------------------
Yavapai County Sheriff's Office 255 E. Gurley St. - Prescott, AZ $18,272.40 $15,661.90
- ----------------------------------------------------------------------------------------------------------------------------------
Yuma County Sheriff's Office 141 S. 3rd Avenue - Yuma, AZ $18,272.40 $15,661.90
- ----------------------------------------------------------------------------------------------------------------------------------
Maricopa County Juvenile Court 3125 W. Durango - Phoenix, AZ $18,272.40 $15,661.90
- ----------------------------------------------------------------------------------------------------------------------------------
Pima County Juvenile Court 2225 E. Ajo Way - Tucson, AZ $18,272.40 $15,661.90
- ----------------------------------------------------------------------------------------------------------------------------------
TOTAL FOR EACH CATEGORY: $310,630.80 $266,252.30
- ----------------------------------------------------------------------------------------------------------------------------------
GRAND TOTAL FOR STATEWIDE INSTALLATION $576,883.10
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
- ------------------------------------------------------------------------------
PRICE SHEET STATE PROCUREMENT OFFICE
----------------------------------------------
PAGE Capital Center, Suite 103
[SEAL] CONTRACT NO.: AD980064 - 001 33
15 South 15th Ave
----------------------------------------
VENDOR: ImageWare Software Incorporated OF Phoenix, AZ 85007-3223
35
- ------------------------------------------------------------------------------
CONFIGURATION BREAKDOWN
FULL CAPTURE WORKSTATION
<TABLE>
<CAPTION>
Quantity Description Hardware $
<S> <C> <C>
1 IBM PC 300XL (6588-42U) Capture Station 2,551.50
Pentium II, 266 mhz, PCI/ISA, 100/10 PCI Ethernet
WOL
32 MB RAM, 1.4 MB Floppy, 2.5 GB HD
1 32 MB Additional Memory Module 244.35
1 IBM 4.2 GB Deskstar 4 EIDE Hard Drive 326.70
1 24X CD ROM Drive 249.75
1 PCI Display Adapter 1,147.50
1 SVGA Monitor, 17" 737.10
1 Keyboard, 101 Key 0.00
1 Mouse 0.00
1 Camera, NIST Standards 4,050.00
1 3 point lighting system 1,343.25
1 Pan and Tilt Camera mount 1,620.00
1 Reflective Pedestal 924.75
1 Cable Bundle 202.50
TOTAL HARDWARE $13,397.40
SOFTWARE $4,400.00
DELIVERY/INSTALL $475.00
PER CAPTURE SITE $18,272.40
</TABLE>
INVESTIGATIVE WORKSTATION
<TABLE>
<CAPTION>
Quantity Description Hardware $
<S> <C> <C>
1 IBM PC 300XL (6588-42U) Investigave Station, Pentium 2,551.50
II, 266 mhz, PCI/ISA, 100/10 PCI Ethernet WOL, 32 MB
RAM, 1.44 MB Floppy, 2.5 GB HD
1 32 MB Additional Memory Modul 244.35
1 IBM 4.2 GB Deskstar 4 EIDE Hard Drive 326.70
1 24X CD ROM Drive 249.75
1 SVGA Monitor, 17" 737.10
1 Keyboard, 101 key 0.00
1 Mouse 0.00
1 Color Flatbed Scanner, 600 DPI, 36 Bit Color 675.00
1 Color Printer, Inkjet, 600 DPI, 1 PPM 675.00
1 Cable Bundle 202.50
TOTAL HARDWARE $5,661.90
SOFTWARE $9,525.00
DELIVERY/INSTALL $475.00
PER INVESTIGATIVE SITE $15,661.90
</TABLE>
<PAGE>
END OF CONTRACT AD980064 - 001 DOCUMENT
<PAGE>
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CONTRACT AMENDMENT STATE PROCUREMENT OFFICE
--------------------------------------------- CAPITAL CENTER BUILDING
PAGE 15 SOUTH 15TH AVENUE,
[SEAL] CONTRACT NO.: AD980064 - 001 1 SUITE 103
PHOENIX, ARIZONA 85007
----------------------------------------
AMENDMENT NO: ZZY2K OF WENDY SUMMERS
1
- ------------------------------------------------------------------------------
THIS IS A CONFIRMING AMENDMENT:
The contract is amended to incorporate the attached Declaration of Contract
Performance Through the Year 2000.
- ------------------------------------------------------------------------------
The above referenced contract is hereby executed
this Nineteenth (19th) Day of /s/ John O. Adler
---------------------------
JOHN O. ADLER, C.P.P.O.,
February, 1999, at Phoenix, Arizona PROCUREMENT OFFICER
ADMINISTRATOR, PROFESSIONAL
SERVICES
<PAGE>
ATTACHMENT A
DECLARATION OF CONTRACT PERFORMANCE
THROUGH YEAR 2000
THE CONTRACTOR, IMAGEWARE SOFTWARE INCORPORATED, HEREBY DECLARES THAT THE
PRODUCTS OR SERVICES REQUIRED UNDER CONTRACT NUMBER AD980064-001 BETWEEN THE
CONTRACTOR AND THE STATE OF ARIZONA WILL COMPLY IN ALL RESPECTS TO THE
PERFORMANCE AND DELIVERY REQUIREMENTS OF THE CONTRACT.
FURTHER, THE CONTRACTOR DECLARES THAT ITS AND ANY SUBCONTRACTORS PERFORMANCE
WILL NOT BE IMPAIRED BY YEAR 2000 RELATED DEFICIENCIES.
YES X NO DON'T KNOW
-------- ------- ------------
12-8-1998
--------------------
DATE
/s/ Mike Stein
---------------------------
SIGNATURE
Mike Stein Programmer
-----------------------------------------
NAME AND TITLE OF AUTHORIZED OFFICIAL
ROUTE TO: GECOLA WARD
<PAGE>
Exhibit 10.25 PURCHASE ORDER No.PR-66299
CITY OF SAN ANTONIO
CITY HALL CONFIDENTIAL
SAN ANTONIO, TEXAS
DATE: 9/2/99, BC/DC Page: 1 of 2
- -------------------------------------------------------------------------------
INSTRUCTIONS TO VENDOR:
1. Purchase Order Number - Vendor must show purchase order number on all
packages, shipping papers, invoices and correspondence. The City of San
Antonio will not be responsible for any goods delivered without a
purchase order number.
2. Shipping Instructions - F.O.B. destination unless specified otherwise.
3. Invoicing - Send original invoice to: City of San Antonio, General
Accounting, P.O. Box 839966, San Antonio, TX 78283-3966.
4. Payment - The City will pay for the requested goods and/or services as
promptly as possible, but in any event, no later than sixty (60) days
after 1) receipt of the goods or 2) the service is complete or 3) the
day the City receives the invoice for the goods, and/or services,
whichever is later.
5. If unable to fill at prices shown, advise before shipping.
6. Taxes - No Federal tax shall be included in prices billed. The City of
San Antonio is exempt from the State of Texas Limited Sales excise and
use tax. (Permit No. 1-74-6002070-5)
7. If you have any questions regarding this purchase order, call
210-207-7260.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
21053 Terms: NET 30
- -------------------------------------------------------------------------------
IMAGEWARE SOFTWARE, INC. Delivery Date:
- -------------------------------------------------------------------------------
10883 THORNMINT ROAD 90 DAYS
- -------------------------------------------------------------------------------
SAN DIEGO, CA 92127
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Phone: 619-673-5600
- -------------------------------------------------------------------------------
Mark for: PRODUCTION - INFORMATION SERVICES
- -------------------------------------------------------------------------------
Deliver to: 515 S. FRIO, SAN ANTONIO, TX 78207
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
QTY. REC. QTY. ORD. UNIT DESCRIPTION UNIT PRICE AMOUNT
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 EACH "VIDEO MUG SYSTEM" COMPLETE $520,649.7000 $520,649.70
- ----------------------------------------------------------------------------------------------
W/INSTALLATION & TRAINING
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
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TOTAL $520,649.70
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
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- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
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</TABLE>
FORMAL: DIGITAL BOOKING/MUGSHOT SYSTEM
OPENED: 7/6/99 PASSED: 8/26/99, BID #: 99-115, ORD. #: 90328 [ILLEGIBLE]
-----------
[ILLEGIBLE]
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------
REQ. NO. FUND PROJECT PROJECT NAME OBJECT DEPT-DIV-SEC ORGANIZATION NAME
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
981181 11 05-373 17-05-04 INFORMATION SERVICES
- ----------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
1 10 11 12 13 17 18 25 34 37 51 56 57 62 69 77
- -----------------------------------------------------------------------------------------------------------
I.D. LN TRANSCODE DOCUMENT NO. DISC. % VENDOR INDEX AMOUNT
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Dup. Cols 1-10 2 1 1 P R 66299 0.00 242479 $520,649.70
- -----------------------------------------------------------------------------------------------------------
From Above 2 1 1
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Header 2 1 1
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</TABLE>
Form 15 107A (REV. 10-98) PURCHASING COPY
<PAGE>
- -------------------------------------------------------------------------------
CITY OF SAN ANTONIO
PURCHASING DEPARTMENT
- -------------------------------------------------------------------------------
Issued By: RC/jdl Date Issued: JUNE 16, 1999
BID NO.: 99-115 Page 1 of 13
- -------------------------------------------------------------------------------
FORMAL INVITATION FOR BIDS
DIGITAL BOOKING/MUG-SHOT SYSTEM
- -------------------------------------------------------------------------------
Sealed bids in triplicate, subject to the Terms and Conditions of this
Invitation for Bids and other contract provisions, will be received at the
office of the City Clerk, City Hall until 2:00 p.m. Central Time JULY 6, 1999.
The City of San Antonio Purchasing Department is willing to assist any
bidder(s) in the interpretation of bid provisions or explanation of how bid
forms are to be completed. Assistance can be received by visiting the
Purchasing Office in the City Hall Annex, 131 W. Nueva, or by calling (210)
207-7260.
It is the policy of the City of San Antonio to involve qualified Small,
Minority, Woman-owned, and local business in construction, procurement,
professional services, and leases and concessions contracting. The City of
San Antonio has established the following minority business enterprise (MBE)
and woman business enterprise (WBE) utilization goals:
MBE Goal : 11.7% WBE Goal: 12.8%
This invitation includes these forms:
<TABLE>
<S> <C>
Bid Invitation Specifications and General Requirements
Terms and Conditions of Invitations for Bids Price Schedule
</TABLE>
The undersigned, by his/her signature, represents that he/she is authorized
to bind the bidder to fully comply with the terms and conditions of the
attached Bid Invitation, Specifications, and Special Provisions for the
amount(s) shown on the accompanying bid sheet(s). By signing below, you have
read the entire document and agreed to the terms therein.
Firm Name: IMAGEWARE SOFTWARE, INC. Telephone Number: 858-673-8600
------------------------- --------------------------
Address: 10883 THORNMINT RD. City, State, Zip Code: SAN DIEGO, CA 92127
--------------------------- ---------------------
/s/ Robert G. Bannan Signer's Name: ROBERT G. BANNAN
- ----------------------------------- -----------------------------
Signature of Person Authorized to (Please Print or Type)
Sign Bid
PLEASE COMPLETE THE FOLLOWING:
Prompt Payment Discount: ______%______days. (If no discount is offered, Net
30 will apply.)
Please check the following blanks which apply to your company:
Ownership of firm (51% or more):
Non-minority Hispanic African-American
- --- --- ---
Other Minority (specify)
- --- -------------------------------
Female Owned Handicapped Owned
- --- ---
Small Business (less than $1 million annual receipts or 100 employees)
- ---
Indicate Status: Partnership X Corporation Sole Proprietorship
--- --- ---
Other (specify)
--- -------------------------
FOR CITY USE ONLY AWARD
- -------------------------------------------------------------------------------
Items Accepted: Ordinance No: Date: Amount:
- -------------------------------------------------------------------------------
Approved: CITY OF SAN ANTONIO
----------------------------
<PAGE>
Page 2 of 13
<PAGE>
Page 3 of 13
(a) Bids shall be enclosed in sealed envelopes addressed to the City
Clerk, City of San Antonio. The name and address of bidder, the
date and hour of the bid opening and the title of the bid
solicitation shall be placed on the outside of the envelope.
(b) Bids must be submitted on the forms furnished. Facsimile bids must
be submitted in accordance with Par. 4(a) above. Bids, however, may
be modified provided such modifications are sealed and received by
the City Clerk prior to the time and date set for the bid opening.
However, the City of San Antonio shall not be responsible for lost
or misdirected bids or modifications.
(c) SAMPLES: Samples may be requested for evaluation and must be
provided within ten calendar days at no expense to the City of San
Antonio. Failure to provide samples will eliminate vendors from bid
consideration. Samples will be returned upon request, otherwise
samples will become property of the City of San Antonio, ten days
after award of the contract.
(d) By submittal of this bid, bidder certifies to the best of his/her
knowledge that all information is true and correct.
5. REJECTION OF BIDS
(a) The City may reject a bid if:
1. The bidder misstates or conceals any material fact in the
bid; or
2. The bid does not strictly conform to law or the requirements
of the bid;
3. The bid is conditional, except that the bidder may qualify
the bid for acceptance by the City on an "All or None" basis
or a "Low Item" basis. An "All or None" basis bid must
include all items upon which bids are invited.
(b) In the event that a bidder is or subsequently becomes delinquent in
the payment of his, her or its City taxes, including state and
local sales taxes, such fact shall constitute grounds for rejection
of the bid, or if awarded the bid, for cancellation of the
contract. However, the City reserves the right to deduct any
delinquent taxes from payments that the City may owe to the
delinquent bidder as a result of such contract.
(c) The City may, however, reject all bids whenever it is deemed in the
best interest of the City to do so, and may reject any part of a
bid unless the bid has been qualified as provided in 5(a) 3 above.
The City at its sole discretion may also waive any minor
informalities or irregularities in any bid, to include failure to
submit sufficient bid copies, failure to submit literature or
similar attachments, or business affiliation information.
6. WITHDRAWAL OF BIDS
Bids may not be withdrawn after the time set for the bid opening, unless
approved by the City Council.
7. LATE BIDS OR MODIFICATIONS
Bids and modifications received after the time set for the bid opening
will not be considered.
8. CLARIFICATION TO BID SPECIFICATIONS
(a) If any person contemplating submitting a bid for this contract is
in doubt as to the true meaning of the specifications, other bid
documents, or any part thereof, he/she may submit to the City
Director of Purchasing on or before seven calendar days prior to
scheduled opening, a request for clarification. All such requests
for information shall be made in writing and the person submitting
the request will be responsible for its prompt delivery. Any
interpretation of the bid, if made, will be made only by addendum
duly issued. A copy of such Addendum will be mailed or delivered
to each person receiving bids. The City will not be responsible
for any other explanation or interpretation of the proposed bid
made or given prior to the award of the contract. Any objections
to the specifications and requirements as set forth in this bid
must be filed in writing with the Director of Purchasing on or
before seven calendar days prior to the scheduled opening.
<PAGE>
Page 5 of 13
by a duly authorized officer thereof (checks to be drawn payable to
the City of San Antonio), or a Certificate of Deposit from such
bank or trust company assigned to the City of San Antonio, or an
irrevocable letter of credit from a state or national bank or trust
company.
(e) The performance deposit of the successful bidder(s) shall be
returned by the City upon completion of the contract and final
acceptance of all items in accordance with condition thereof.
(f) Failure of vendor to perform any of the services required by this
contract within ten days of receipt of written demand for
performance from City, or failure of vendor to correct or replace
defective goods or products within ten days from receipt of written
demand therefor, shall constitute a total breach of this contract
and shall cause this contract to terminate immediately upon the
expiration of the 10-day period. In the event of such termination,
the performance deposit shall be retained by the City of San
Antonio as liquidated damages, based upon mutual agreement and
understanding between vendor and City at the time this bid is
solicited, submitted and accepted, that the City of San Antonio is
a governmental agency engaged in public projects, and that the
measurement of damages, which might result from a breach of the
terms and specifications herein is difficult or impossible to
determine. However, the Director of Purchasing, with the
concurrence of the City Manager, may return all or part of the
performance deposit to the vendor if the Director determines, in
the Director's sole discretion, that the failure to perform the
conditions of this contract was the result of acts or events over
which the vendor had no control. The determination shall then be
final and binding on all parties.
12. ASSURANCE OF COMPLIANCE - EQUAL EMPLOYMENT OPPORTUNITY AND SMALL AND/OR
MINORITY BUSINESS ADVOCACY REQUIREMENTS
It is the policy of the City of San Antonio that Small and/or Minority
Business Enterprises shall have the maximum practicable opportunity to
participate in the performance of public contracts. Bidder agrees that
if this bid is accepted, he/she will not engage in employment practices
which have the effect of discriminating against employees or prospective
employees because of race, color, religion, national origin, sex, age,
handicap or political belief or affiliation. In addition, bidder agrees,
by submittal of this bid, that he/she will abide by all applicable terms
and provisions of this Nondiscrimination Clause and the Small and/or
Minority Business Advocacy Clause, these clauses available in the City's
Department of Economic and Employment Development and the City Clerk's
Office.
13. INDEPENDENT CONTRACTOR
It is expressly understood and agreed by both parties hereto that the
City is contracting with the successful bidder as an independent
contractor. The parties hereto understand and agree that the City shall
not be liable for any claims which may be asserted by any third party
occurring in connection with the services to be performed by the
successful bidder under this contract and that the successful bidder has
not authority to bind the City.
14. BID RESULT REQUEST
Any party who wishes to be provided documents relating to the bid
results shall make a request in writing. Pursuant to state law, the City
may assess a fee in order to recoup the cost related to providing the
requested information.
15. PATENTS/COPYRIGHTS
The successful bidder agrees to indemnify and hold the City harmless
from any claim involving patent infringement or copyrights on goods
supplied.
<PAGE>
Page 7 of 13
21. ASSIGNMENT
The successful bidder shall not sell, assign, transfer or convey this
contract in whole or in part, without the prior written consent of the
Purchasing Department.
22. MILLENNIUM CERTIFICATION
The Awarded Vendor warrants that each hardware, software, and/or
firmware product offered under the terms of this contract shall be able
to accurately process date data (including, but not limited to,
calculating, comparing, and sequencing) from, into, and between the
twentieth and twenty-first centuries, including leap year calculations,
when used in accordance with the product documentation provided by the
manufacturer, provided that all listed or unlisted products (e.g.
hardware, software, firmware) used in combination with such listed
product properly exchange date data with it. If the Contract requires
that specific listed products must perform as a system in accordance
with the foregoing warranty, then that warranty shall apply to those
listed products as a system. The duration of this warranty and the
remedies available to the City for breach of this warranty shall be as
defined in, and subject to, the terms and limitations of the
manufacturer's standard commercial warranty or warranties contained in
this contract, provided that notwithstanding any provision to the
contrary in such commercial warranty or warranties, the remedies
available to the City under this warranty shall include repair or
replacement of any listed product whose non-compliance is discovered and
made known to the Awarded Vendor in writing within ninety (90) days
after acceptance. Nothing in this warranty shall be construed to limit
any rights or remedies the City may otherwise have under this contract
with respect to defects other than Year 2000 performance.
Millennium certification requires that a product operate "accurately" in
the manner in which it was intended as it relates to date related
operations when given a valid date containing century, year, month, and
day. For purposes of this certification, the term "accurately" shall be
defined to include:
1) Calculations using date must execute using a four digit year;
2) Functionality on-line batch, including but not limited to entry,
inquiry, maintenance and updates, must support four digit year
processing;
3) Interfaces and reports must support four digit year processing;
4) Successful translation into year 2000 with the correct system date
(e.g., 1/1/2000) without human intervention;
5) Processing with a four (4) digit year after transition to any
beyond the year 2000 without human intervention;
6) Providing correct results in forward and backward date calculation
spanning century boundaries;
7) Leap year must be calculated correctly; and
8) Processing correct results in forward and backward date calculation
spanning century boundaries must be provided, including the
conversion of previous years currently stored as two digits.
Definitions:
1) Product - Includes, but is not limited to, any supplied or
supported hardware, software, firmware, and/or microcode.
2) Accurately - Refers to correct processing according the criteria
listed above.
3) Valid Date - A date that contains a two digit month, a two digit
day, and a four digit year.
4) Extraordinary Actions - Any actions outside the normal documented
processing steps identified in the product's reference manual.
<PAGE>
Page 9 of 13
Availability of a multitude of searchable user defined fields
Photo lineup and mug book capability
Ability to search using a minimum of 25 separate investigative fields
Ability to LINK common booking records of individuals
Full compatibility with investigative software solutions including a facial
recognition program and a vehicle recognition program.
The Facial Recognition Program shall include the following features and
functions:
Seamless integration with the booking system
Flexible search capabilities that result in rapid identification of
suspect(s)
Ability to exchange images with other local/state databases to expand
search
Ability to work in booking facility as well as in investigator's office
Ability to accept computer generated composite and search digital image
database for possible matches
Ability to accept scanned in still photo or freeze frame from surveillance
videotape and search digital image database for possible matches
Ability to search 100,000 image database within 30 seconds
The Vehicle Identification System shall include the following features and
functions:
Photo image database
Minimum database of 1,000 vehicles
Multiple search capability
Ability to change vehicles color
All programs must utilize and run on Windows NT 4.0 platform.
All equipment, software, hardware, and labor including installation shall be
warranted for six (6) months following acceptance by the City of San Antonio.
<PAGE>
Page 11 of 13
1 Ea. SCSI Internal Cable
1 Ea. 56.6K External Modem
D. SERVICES
1 Lot Specifications Gathering
1 Lot Database Customization
1 Lot Systems Integration/Setup
1 Lot NIST Import/Export Central Server
E. FACE ID
1 Ea. Face ID Server Software
2 Ea. Face ID Client Software
F. ADMINISTRATIVE SYSTEMS
3 Ea. IBM PC 300PL Pentium II 450MHz MMX, 6.4GB EIDE Hard Drive,
10/100 PCI Ethernet WOL, 16-bit ISA Crystal Audio Integrated,
450/100MHz Pentium II w/512KB L2 Cache, 4MB Integrated SGRAM
Video Memory, 64MB 60ns NP SDRAM DIMM, 32X Max (Variable
Speed) CD-ROM Drive, IBM 1.44MB 3.5 in. Diskette Drive, IBM
104-Key Rubber Dome Keyboard, Integrated IDE Controller, S3
Trio 3D AGP Graphics Integrated
3 Ea. 64MB 100MHz NP SDRAM DIMM
3 Ea. ISA 56K/33.6KBPS Plug and Play Modem
3 Ea. G74-17 in. Color Monitor, 69KHZ, Pearl White
3 Ea. Epson 800 Color InkJet Printer
3 Ea. NT Workstation
1 Ea. Nikon Cool Scan 2000 + Autoloader
G. SYSTEM SECURITY PRINTER
1 Ea. Okidata Microline 184 9-Pin Serial Printer
<PAGE>
Page 12 of 13
<PAGE>
Page 13 of 13
IMPORTANT MAILING INSTRUCTIONS:
MAIL TO: CITY CLERK
P.O. BOX 839966
SAN ANTONIO, TX 78283-3966
PHYSICAL ADDRESS: CITY CLERK
CITY HALL (COMMERCE ST. & FLORES ST.)
100 MILITARY PLAZA, 2ND FLOOR
SAN ANTONIO, TEXAS 78205
MARK ENVELOPE: "BID TO FURNISH DIGITAL BOOKING/MUG SHOT SYSTEM"
BIDS TO BE OPENED: 2:00 P.M., JULY 6, 1999
BID NO. 99-115
REMARKS:
<PAGE>
[LOGO]
CITY OF SAN ANTONIO, TEXAS
DIGITAL BOOKING/MUG-SHOT SYSTEM
RESPONSE TO IFB# 99-115
JULY 1, 1999
- -----------------------------------------------------------------------------
10883 Thornmint Road, San Diego, CA 92127 Phone 858-673-8600 Fax 858-673-1770
- -----------------------------------------------------------------------------
<PAGE>
IFB # 99-115
SYSTEM OVERVIEW
- -----------------------------------------------------------------------------
The C.R.I.M.E.S.-Registered Trademark- suite of software is modular in
design. It is possible to add, upgrade, or replace software modules in the
system with relative ease. Modules included in the C.R.I.M.E.S.-Registered
Trademark- suite of software are:
- - Suspect ID-Registered Trademark-, a photo-realistic composite program
- - Crime Lab-Registered Trademark-, a sophisticated image enhancement and
editing program
- - Vehicle ID-TM-, a photo-based program to help quickly identify
vehicles
- - Crime Capture System-TM-, a flexible easy-to-use digital booking
system
- - Face ID-TM-, a state-of-the-art facial recognition and retrieval
program
The host system for C.R.I.M.E.S. is designed around a true client-server
architecture. The central server houses the mugshot database as well as the
facial recognition database. Several capture and investigative client
workstations are installed throughout an agency's booking sites as needed.
The system's open architecture allows for expansion without massive overhauls
to the basic network.
The operating system for the central server will be Microsoft Windows NT
Server 4.0, and Windows NT Workstation for each capture and investigative
workstation. Demographic data and images are both stored in a SQL relational
database, such as Sybase or Microsoft SQL Server. ImageWare databases are
ODBC compliant.
The system components will connect to the agency's network directly, with
each agency responsible for providing LAN connections for the new equipment.
The protocol will be TCP/IP. All connections to either the network or
additional devices will be industry standard connections. Communication
between stations on the network will be determined and configured by the
network administrator. Communication between each capture and investigative
station and the central server will be bi-directional.
The system shall meet ANSI/NIST-CSL1-1993, NIST-CSL 1-960401, and
ANSI/NIST-ITL 1a-1997 standards, entitled "Data Format for the Interchange of
Fingerprint, Facial & SMT Information". All recommendations outlined in "NIST
Best Practice Recommendation for the Capture of Mugshots" version 2.0 dated
September 11, 1997 will be followed.
System security will make use of both operating system permissions as well as
database software security. This will allow access to certain functions and
data to be controlled by the system administrator. These privileges and
permissions will be given and controlled by user login. There will be an
administrative function available only to the system administrator, where
these permissions and privileges are maintained.
The system will ensure that all images are Read Only, through the operating
system permissions as well as the database security. Images must be exported
from the database and imported into other software to allow any editing of
the image. It cannot be saved
1
<PAGE>
[Page 2 Missing]
<PAGE>
IFB # 99-115
reject or accept it at that time. The system will accept an unlimited number
of photos per booking record.
Using the integration of Crime Capture System-TM- and Face
ID-TM-, the operator will be able to compare an arrestee's photo with
those previously stored in the mug photo database, find previous arrests for
this arrestee, and link all records found. In addition, the mug photo
database can be searched using the arrestee's demographic information, for
example, last name and date of birth, to find other records for this arrestee.
Each capture station will have the ability to store both images and
associated demographic data locally if the network connection is unavailable.
When the network is restored and the central server database is accessible,
those locally stored records will be transmitted to the central server.
All images taken for a particular booking will be associated with a specific
file, or record, and will store the date and time it was recorded. Other
booking records may be linked to this booking if this is a repeat offender.
The input of demographic, or descriptive data will be available from
user-maintained lists, organized in any order the customer chooses. The user
will also be able to input free form text comments, including unusual
characteristics. All of these descriptive data fields will be searchable.
INVESTIGATIVE WORKSTATION
- -----------------------------------------------------------------------------
Each investigative workstation will consist of an IBM PC 300PL Pentium II
processor, with 64 MB of random access memory and 6.4 GB of internal hard
disk storage. Each investigative workstation will be equipped with a CD ROM
drive, 1.44 floppy disk drive, 17" monitor and keyboard.
Searches may be accomplished using NCIC standard demographic codes, from user
maintained tables.
The software will create photo line-ups of six images. The Crime Capture
System-TM- will retrieve and display the images of all subjects with
characteristics that match, or substantially match, those of the line-up
subject. The user will be able to select or reject up to five images from the
images retrieved, which, together with the subject's, constitute the line-up.
The line-up will be random ordered, and may be saved for future retrieval.
These photo line-ups are also printable.
Each agency will be able to search the database and obtain information about
the total number of bookings by date, by officer ID, by charge code, etc. The
search function includes very flexible ad hoc inquiries, including many
boolean logic functions, including AND, OR, GREATER THAN, LESS THAN, EQUAL TO,
etc.
3
<PAGE>
06/16/99 Exhibit 10.26 1
VIDEO IMAGING SYSTEM (VIS) PURCHASE ORDER ATTACHMENT
IMAGEWARE/MILWAUKEE COUNTY PROJECT RESPONSIBILITY AGREEMENT
- --------------------------------------------------------------------------------
INSURANCE
1. ImageWare will provide Milwaukee County Procurement Division with
an updated Certificate of Insurance. (The certificate provided on
March 1, 1999 expires in July.)
USER DEFINED LISTS
2. Milwaukee County (the County) will provide ImageWare with user
defined lists in ASCII or space delimited text files on either floppy
disks or CD-ROM for initial loading.
NETWORK CONNECTIVITY
3. The County will provide equipment and adequate ports to connect to
the Network.
4. The County will be responsible for necessary network configurations
or modifications. ImageWare will inspect each site and provide a site
preparation document indicating required modifications.
ENVIRONMENT MODIFICATIONS
5. The County must pre-approve modifications to the physical
environment for capture stations located in the CJF and HOC (i.e.
lighting and pedestal installation, background preparation).
ImageWare will inspect each site and will provide a site preparation
document indicating required modifications. The County will modify
background walls and electrical wiring as specified in the site
preparation document. ImageWare will install lighting, pedestals,
and cameras.
PAYMENT TERMS
6. Payment terms will be as follows:
Hardware (Dual Processor Netfinity Server, Camera
Sub-Systems, Capture Hardware, Investigative Hardware),
Licenses (Sybase), Shipping, and Handling upon issuance of
Purchase Order (31%); Capture Station Software, Interfaces
(StarQuest, NIST/Indentix), Conversion, Services
(Specifications Gathering, Database Customization, Project
Management), Installation and Training upon installation, or
completion, and acceptance of each of these deliverables
(36%); and Investigative Display Software upon final system
acceptance (33%).
PAYMENT PROCEDURE
7. The payment procedure will be as follows:
a. ImageWare will submit original invoices to the County's
Fiscal Affairs Accounts Payable Department.
Milwaukee County Fiscal Affairs - A/P
901 N. 9th St.
Courthouse Room #301
Milwaukee, WI 53233-1425
<PAGE>
06/16/99 2
b. ImageWare will submit COPIES of original invoices to the
County's Information Management Services Division (IMSD)
Project Manager for approval.
Adrian Warnier
Milwaukee County IMSD West
802 N. 94th St.
Milwaukee, WI 53226
(414) 257-6434
c. The County Project Manager will forward payment authorization
to IMSD East (main office). IMSD East will authorize the
Accounts Payable Department to make payment. Any questions
regarding payments will be directed to IMSD East.
Elizabeth Thundercloud
Milwaukee County
IMSD/Schlitz Park, Suite #600
235 W. Galena St.
Milwaukee, WI 53212
(414) 289-6939
d. The Accounts Payable Department shall make payment within 30
days.
SECURITY CLEARANCE
8. ImageWare will submit the following information to the County for
security clearance of all employees or subcontractors who will
require access into the Criminal Justice Facility, House of
Correction, and Milwaukee Police Department:
a. Last name, First name, Middle initial
b. Title
c. Sex/Race
d. Date of Birth
e. Social Security Number
f. Driver's License Number and State
DELAY PENALTY
9. ImageWare will have the system installed by October 1st to allow 30
days for final system testing and final system acceptance. The system
acceptance testing period will be considered successful if all
requirements defined in the RFP response, the Purchase Order and
the Project Responsibility Agreement (this document) have been met.
The County will assess penalties at a rate of $100.00 per day for
each CALENDAR day ImageWare delays implementation beyond Nov. 1,
1999.
CONVERSION
10. The County will provide existing images, excluding thumbnails, in
individual .jpg files on either CD-ROM or hard disk. ImageWare will
split the .jpg images into separate front and side images.
ImageWare will create a batch application which will:
a. Extract booking numbers from the existing dBase III database.
<PAGE>
06/16/99 3
b. Query DB2 via StarSQL for required CJIS data related to the
booking numbers.
c. Download the booking numbers and related CJIS data to disk.
ImageWare will complete conversion by loading all images and data
into the new system database.
USER-DEFINABLE FLAGS
11. The County will provide user-definable flags that can be associated to
each booking. [These are record types that allow database segregation;
i.e. adult (default); juvenile; employee, etc.]
INVESTIGATIVE WORKSTATIONS
12. The County will upgrade Sheriff's Department Investigative Workstations
to Pentium II, 64 mg RAM, Win 95/98 with graphic capability of 256 colors
and 800X600 resolution.
TECHNICAL AND FUNCTIONAL CAPABILITIES
13. ImageWare agrees to meet all requirements specified in RFP #098002,
Amendment #1, and this document unless expressly noted in the RFP Response
or response to this document.
a. CJIS INTERFACE: ImageWare will develop the Option 2 direct-connect
interface using StarSQL, licensed by the County. ImageWare will
provide the County with a development plan including tasks and
timeframes.
b. IDENTIX INTERFACE: ImageWare and Identix will jointly develop the
Identix interface. ImageWare will develop a query mechanism to
transmit data and images to Identix in the format specified in the
Identix File Communications Protocol document. Identix will transmit
ANSI/NIST packages to the State. ImageWare will provide the County
with a development plan including tasks and timeframes.
c. IMAGE SERVER: The Image Server will be a rack server.
d. LINE-UPS: ImageWare will include functionality to display both front
and side images in a line-up.
e. LINE-UPS/MUG BOOK: ImageWare will include functionality to view one
image at a time, and save "mug book" look-ups.
e. CUSTOM PRINT FORMATS: The County will provide ImageWare with
specifications for the 6 custom print formats. ImageWare will
include in the wanted poster print format a customizable
free-form text field.
f. MAINTENANCE: ImageWare will begin maintenance after final system
acceptance. ImageWare will provide the County with a Maintenance
Agreement. This agreement will be renewable and will provide
coverage 24 hours a day, 7 days a week for the first year. The County
will have the option to reduce the amount of coverage in subsequent
years.
<PAGE>
06/16/99 4
g. TRAINING: ImageWare will provide 2 days of training. One day will
be for system administrators/maintenance staff. The other day will be
"Train-the-Trainers" for users. The County will schedule no more than
20 people per class.
h. HARDWARE: The County will purchase all hardware specified in the
System Quotation from ImageWare.
WORK/INSTALLATION PLAN
14. ImageWare will name and provide the resume of their Project Manager.
The County Project Coordinator will be:
Dawn Gehlhoff
802 N. 94th St.
Milwaukee, WI 53226
(414) 257-5548
ImageWare will provide an updated work/installation schedule.
- -------------------------------------------------------------------------------
This document was prepared as an attachment to the Video Imaging System
Purchase Order to further clarify the requirements, terms, conditions, and
project responsibilities of RFP #098002.
ImageWare Software, Inc.: Milwaukee County:
Name [ILLEGIBLE] Name /s/ Julious J. Hulbert
-------------------------- -------------------------------
Title CFO Title Julious J. Hulbert,
------------------------- ------------------------------
Date 6/29/1999 Date Purchasing Admin.
-------------------------- -------------------------------
June 28, 1999
Approved as to form and
Independent Controller status
by Corporation Counsel
[ILLEGIBLE]
-----------------------------
<PAGE>
MILWAUKEE COUNTY CENTRALIZED PURCHASE ORDER
<TABLE>
<CAPTION>
======================
CNTRIZD ORDER NO. PAGE
PC 116 NUMBER
74162
===================================================================================================================================
DOC QUANTITY UNIT COMMODITY CODE BIO AND LINE REQUISITION AND LINE ACCT UNIT COST
LINE MEAS. LINE
NO. -------------------------------------------------------------------------------------------------------
DESCRIPTION EXTENDED COST
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
YEAR 2000 COMPLIANCE
1. THE CONTRACTOR, VENDOR OR PROFESSIONAL REPRESENTS, WARRANTS AND COVENANTS THAT ANY SOFTWARE,
HARDWARE, PRODUCT, SERVICES ETC: OR ANY MECHANICAL EQUIPMENT, VEHICLES, AUTOMOBILES, OR ANY ITEM
CONTAINING EMBEDDED COMPUTER CHIPS IS DESIGNED TO BE USED PRIOR TO, DURING AND AFTER THE CALENDAR
YEAR 2000 A.D., AND THAT THE ABOVE MENTIONED ITEMS WILL OPERATE DURING EACH SUCH TIME PERIOD WITHOUT
ERROR RELATING TO, OR THE PRODUCT OF DATE DATA WHICH REPRESENTS OR REFERENCES DIFFERENT CENTURIES
OR MORE THAN ONE CENTURY.
2. THE FOREGOING REPRESENTATION, WARRANTIES AND COVENANTS ARE IN ADDITION TO, AND NOT IN
LIMITATION OF, OTHER WARRANTIES, REPRESENTATIONS AND COVENANTS OF THE CONTRACTOR, VENDOR OR
PROFESSIONAL SET FORTH IN THIS AGREEMENT.
3. THE CONTRACTOR, VENDOR OR PROFESSIONAL SHALL INDEMNIFY AND REIMBURSE THE COUNTY FOR DAMAGES
CAUSED BY THE YEAR 2000 NON-COMPLIANCE, INCLUDING ACTUAL DAMAGES AND CONSEQUENTIAL DAMAGES AND COST
OF REMEDYING THE PROBLEM.
- -----------------------------------------------------------------------------------------------------------------------------------
COPY 1: VENDOR /s/ JULIOUS J. HUBERT TOTAL AMOUNT
JULIOUS J. HUBERT ---------------------------------------
(PURCHASING ADMINISTRATOR)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
CNTRIZD PAGE
MILWAUKEE COUNTY CENTRALIZED PURCHASE ORDER ORDER NO. NUMBER
- ----------------------------------------------------------------------------------------------------------------- PC 116 01
DEPARTMENT OF ADMINISTRATION IT IS A DIRECT CONDITION OF THE TERMS OF FOR PAYMENT 74162
PROCUREMENT DIVISION THIS CONTRACT THAT IF THERE BE ANY TOXIC MAIL INVOICES IN DUPLICATE TO: -----------
12200 WEST WIRTH STREET SUBSTANCES, MATERIALS OR INFECTIOUS AGENTS,
MILWAUKEE, WISCONSIN THE VENDOR SHALL SUPPLY TWO COPIES OF DEPT. OF ADMINISTRATION
53222-2123 MATERIAL SAFETY DATA SHEETS IN ACCORDANCE FISCAL AFFAIRS-ACCOUNTS PAYABLE
WITH WISCONSIN STATUTES, CHAPTER 364 ROOM 301, COURTHOUSE CONFIDENTIAL
901 N. 9TH STREET
DO NOT MAIL INVOICES ONE DATA SHEET SHALL BE FURNISHED WITH THE MILWAUKEE, WI 53233
TO THIS ADDRESS MATERIAL SHIPMENT AND ONE COPY SENT TO MILWAUKEE
COUNTY PROCUREMENT DIVISION. NO MATERIAL WILL
BE ACCEPTED FOR DELIVERY WITHOUT THE REQUIRED
DATA SHEET.
- ------------------------------------------------------------------------------------------------------------------------------------
VENDOR 04963 SHIP-TO 171
NUMBER:
IMAGEWARE SOFTWARE MILW COUNTY DEPT. OF ADMIN. WE RESERVE THE RIGHT TO
10883 THORNMINT ROAD INFORMATION MANAGEMENT SRV DIV CANCEL THIS ORDER IF
SAN DIEGO CA 92127 SCHLITZ PART, SUITE 600 SHIPMENT IS NOT MADE AS
235 W GALENA STREET OUTLINED.
MILWAUKEE, WI 53212
BY ACCEPTING AND FILLING THIS
ORDER OR ANY PART THEREOF,
THE SELLER HEREBY AGREES TO
AND SHALL BE BOUND BY THE
TERMS AND CONDITIONS PRINTED
ON THE REVERSE SIDE OF THIS
ORDER.
- ---------------------------------------------------------------------- & Y2K Language attached.
ORDER DATE VENDOR TERMS F.O.B. DELIVERY DATE
- ----------------------------------------------------------------------
06/21/99 NET 30 DAYS DESTINATION 10/01/99
- ---------------------------------------------------------------------- ACCT
DOC QUANTITY UNIT COMMODITY CODE BID AND LINE REQUISITION AND LINE LINE UNIT COST
LINE MEAS. ----------------------------------------------------------------------------------------------------
NO. DESCRIPTION EXTENDED COST
- --------------------------------------------------------------------------------------------------------------------------------
001 1.000 LOT 20867 098002 01 23,550.400000
DUAL PROCESSOR NETFINITY SERVER (RAID V) NETFINITY 5500 23,550.40
350/400/450MHZ 1, PER RFP 098002.
NOTE: ALL LINE ITEMS PER ATTACHMENT TO PURCHASE ORDER.
002 1.000 LOT 20867 098002 01 34,196.250000
CAMERA SUBSYSTEMS - HITACHI HV-C20, NIST STANDARDS, 34,196.25
3-CHIP, 3/LOT, PER RFP 098002.
003 1.000 LOT 20867 098002 01 8,812.800000
CAPTURE HARDWARE - IBM PC 300PL 6862 (4X$) 2, 8,812.80
4/ LOT, WITH G74-17 MONITOR.
004 1.000 LOT 20867 098002 01 4,406.400000
INVESTIGATIVE HARDWARE - IBM PC 300 PL 6862 (4X4) 2 4,406.40
WITH MONITOR.
005 1.000 LOT 20867 098002 01 6,720.000000
PRINTERS - HP2000CXI, 8/LOT 6,720.00
(CONTINUED ON PAGE 02)
- --------------------------------------------------------------------------------------------------------------------------------
/s/ JULIOUS J. HUBERT
COPY 1: VENDOR BUYER: MICHAEL BURCZYK JULIOUS J. HUBERT TOTAL AMOUNT
414-223-8127 (PURCHASING ADMINISTRATOR) -----------------------------------------------
<PAGE>
MILWAUKEE COUNTY CENTRALIZED PURCHASE ORDER CNTRIZD
ORDER NO. PAGE
PC 116 NUMBER
74162 02
- ----------------------------------------------------------------------------------------------------------------------------------
ACCT
DOC QUANTITY UNIT COMODITY CODE BID AND LINE REQUISITION AND LINE LINE UNIT COST
LINE MEAS. -------------------------------------------------------------------------------------------------
NO. DESCRIPTION EXTENDED COST
- ----------------------------------------------------------------------------------------------------------------------------------
006 1.000 LOT 20867 098002 01 1,323.000000
LAMINATOR - 3/LOT 1,323.00
007 1.000 LOT 20867 098002 01 178.200000
FASTENER TOOL - 3/LOT 178.20
008 1.000 LOT 20867 098002 01 216.000000
DIE CUTTER - 3/LOT 216.00
009 1.000 LOT 20867 098002 01 3,269.750000
LICENSES - SYBASE 6.0, 25 USERS 3,269.75
010 1.000 LOT 20867 098002 01 7,322.510000
SHIPPING AND HANDLING - 7,322.51
011 1.000 LOT 20867 098002 01 24,000.000000
CCS CAPTURE STATION SOFTWARE - 3/LOT. 24,000.00
NO CHARGE FOR TWO SUSPECT ID AND TWO CRIME LAB.
012 1.000 LOT 20867 098002 01 44,000.000000
CUSTOM INTERFACES - SYSTEMS INTEGRATION STARQUEST 44,000.00
AND NIST WITH INDENTIX
013 300,000.000 EACH 20867 098002 01 0.080000
CONVERSION OF RECORDS FROM ALTERNATIVE BOOKING SYSTEM - 24,000.00
014 1.000 LOT 20867 098002 01 1,800.000000
SPECIFICATIONS GATHERING - 1,800.00
015 1.000 LOT 20867 098002 01 900.000000
DATABASE CUSTOMIZATION - 900.00
016 1.000 LOT 20867 098002 01 2,700.000000
PROJECT MANAGEMENT - 2,700.00
(CONTINUED ON PAGE 03)
- ----------------------------------------------------------------------------------------------------------------------------------
/s/ JULIOUS J. HULBERT
COPY 1: VENDOR BUYER: MICHAEL BURCZYK JULIOUS J. HULBERT TOTAL AMOUNT
414-223-8127 (PURCHASING ADMINISTRATOR) -----------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MILWAUKEE COUNTY CENTRALIZED PURCHASE ORDER CNTRIZD ORDER NO. PAGE
PC116 NUMBER
74162 03
- ------------------------------------------------------------------------------------------------------------------------------------
DOC QUANTITY UNIT COMMODITY CODE BID AND LINE REQUISITION AND LINE ACCT UNIT COST
LINE MEAS. LINE
NO. --------------------------------------------------------------------------------------------------------
DESCRIPTION EXTENDED COST
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
017 1.000 LOT 20867 098002 01 15,833.710000
INSTALLATION- 15,883.71
018 1.000 LOT 20867 098002 01 2,000.000000
TRAINING- 2,000.00
019 1.000 LOT 20867 098002 01 100,000.000000
CCS INVESTIGATIVE DISPLAY SOFTWARE, FULL, 25/LOT 100,000.00
020 1.000 LOT 20867 098002 01 44,532,550000
SUPPORT- 1ST YEAR, 24/7, W/8 HR ON-SITE RESPONSE TIME 44,532.55
REFERENCING RX 116-721.
************************************************************************************************************************************
********************************************** ACCOUNTING LINE(S) ****************************************************************
ACCT LN: 01 1850 120 1850 W1850E99 D601 D917 8557
ACCT LINE TOTAL: 349,811.57
****** END OF PURCHASE ORDER ******
VENDORS MUST COMPLY WITH ALL PROVISIONS OF COUNTY ORD 56.17
- ------------------------------------------------------------------------------------------------------------------------------------
/S/ JULIOUS J. HULBERT TOTAL AMOUNT 349,811.57
COPY 1: VENDOR BUYER: MICHAEL BURCZYK JULIOUS J. HULBERT ----------------------------------------------
414-223-8127 (PURCHASING ADMINISTRATOR)
</TABLE>
<PAGE>
TABLE OF CONTENTS
ASSUMPTIONS & RFP EXCEPTIONS...................................................3
TECHNICAL PROPOSAL..................................ERROR! BOOKMARK NOT DEFINED.
2.1 EXECUTIVE SUMMARY...............................Error! Bookmark not defined.
SYSTEM OVERVIEW..................................Error! Bookmark not defined.
CENTRAL SERVER................................ERROR! BOOKMARK NOT DEFINED.
CAPTURE STATIONS..............................ERROR! BOOKMARK NOT DEFINED.
INVESTIGATIVE WORKSTATION.....................ERROR! BOOKMARK NOT DEFINED.
HISTORY..........................................Error! Bookmark not defined.
2.2 TECHNICAL and FUNCTIONAL CAPABILITIES......................................3
1. GENERAL FEATURES.........................................................3
2. SYSTEM SECURITY..........................................................5
3. SYSTEM INTEGRATION.......................................................6
4. VIDEO IMAGE SERVER.......................................................7
5. ARCHIVING VIDEO IMAGES...................................................9
6. CAPTURING VIDEO IMAGES...................................................9
7. RETRIEVING AND VIEWING VIDEO IMAGES.....................................10
8. PRINTING VIDEO IMAGES...................................................12
9. VIDEO LINE-UPS AND WANTED POSTERS.......................................13
10. INMATE WRISTBANDS AND DOCUMENTS........................................14
11. CONVERSION OF EXISTING VIDEO IMAGES....................................15
12. INSTALLATION...........................................................16
13. MAINTENANCE AND SUPPORT................................................16
14. TRAINING...............................................................17
CRIME CAPTURE SYSTEM TRAINING OUTLINE...................................18
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
15. HARDWARE..............................................................19
2.3 EXPERIENCE & REFERENCES..................................................22
C.R.I.M.E.S. SUITE OF LAW ENFORCEMENT PRODUCTS............................22
SUSPECT ID-R-..........................................................22
CRIME LAB-R-...........................................................22
VEHICLE ID-TM-.........................................................23
FACE ID-TM-............................................................23
CRIME CAPTURE SYSTEM-TM-...............................................23
ARIZONA DEPARTMENT OF PUBLIC SAFETY....................................24
LOS ANGELES COUNTY, LAKEWOOD...........................................28
NEW YOUR CITY POLICE DEPARTMENT........................................31
HENEPIN COUNTY SHERIFF'S OFFICE (MINNEAPOLIS)..........................31
VENDOR DATA AND REFERENCE SHEET...........................................32
XIMAGE EXPERIENCE & SUCCESS STORIES.......................................35
OTHER NOTABLE BOOKING INSTALLATIONS.......................................35
IMAGEWARE EXECUTIVES......................................................36
KEY PROJECT STAFF.........................................................37
OTHER C.R.I.M.E.S. REFERENCES.............................................43
OTHER XIMAGE REFERENCES........................ Error! Bookmark not defined.
2.4 MAINTENANCE..............................................................44
2.5 TRAINING.................................................................44
2.6 WORKPLAN.................................................................45
PROJECT ORGANIZATION & STAFFING...........................................45
APPROACH TO PROJECT.......................................................45
2.7 FINANCIAL STABILITY......................................................47
IMAGEWARE SOFTWARE, INC. 2 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
ASSUMPTIONS & RFP EXCEPTIONS
- -------------------------------------------------------------------------------
- - Any and all user defined and maintained lists will be the same throughout
the system, and those lists will be provided to ImageWare for initial
loading.
- - All necessary equipment to allow connection to the existing network will be
provided either by the County or each agency where the installation is to
be done. It is expected that there will be adequate ports available at each
remote site for the capture station and investigative workstation
installation and at the central server installation.
- - ImageWare does not desire to take on any network configuration or
modifications.
- - ImageWare Software Inc. requests the Payment Terms to be part of the
contract negotiations, and proposes the following schedule:
40% upon issuance of Purchase Order;
40% upon installation of equipment; and
20% upon final system acceptance.
- -------------------------------------------------------------------------------
2.2 TECHNICAL AND FUNCTIONAL CAPABILITIES
- -------------------------------------------------------------------------------
(IWS ANSWERS IN BOLD/ITALICS)
1. GENERAL FEATURES
----------------
1.1. (Mandatory) The video imaging system (VIS) must be capable of
capturing, storing, retrieving, displaying, and printing video
images.
THE PROPOSED CRIME CAPTURE SYSTEM (CCS) MEETS ALL OF THESE
REQUIREMENTS! ALSO INCLUDED IN THE PROPOSAL ARE 2 FREE COPIES OF
CRIME LAB IMAGE ENHANCING SOFTWARE. CRIME LAB IS CAPABLE OF
CAPTURING VIDEOS FROM EXTERNAL SOURCES, ENHANCING IMAGES AND
REMOVING BACKGROUNDS AS WELL AS A GREAT DEAL OF OTHER PHOTO
EDITING CAPABILITIES. SEE ATTACHMENTS.
1.2. (Mandatory) The VIS must be capable of generating video line-ups
and wanted posters.
CCS GENERATES BOTH VIDEO LINE-UPS AND WANTED POSTERS.
ADDITIONALLY, WE ARE INCLUDING 2 FREE COPIES OF SUSPECT ID
COMPOSITE SOFTWARE, WHICH ALSO PRINTS WANTED POSTERS OF COMPOSITE
DRAWING SUSPECTS. SEE ATTACHMENTS.
1.3. (Mandatory) The VIS must be easy to use and provide a
user-friendly interface employing menus and prompts. The
workstation software should be easy to learn and simple to operate,
even by non-technical personnel.
IMAGEWARE SOFTWARE, INC. 3 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
THE CRIME CAPTURE SYSTEM HAS A VERY EASY NAVIGATION METHOD.
FUNCTIONS ARE DISPLAYED ON THE FIRST SCREEN, AND THE USER
PICKS A FUNCTION. EACH SCREEN WITHIN THE FUNCTION ALWAYS INCLUDES
THE ABILITY TO GO TO THE PREVIOUS SCREEN OR TO GO TO THE MAIN MENU
SCREEN. NO TOOL BARS OR TEXT MENUS ARE REQUIRED. THE SYSTEM IS A
WINDOWS PRODUCT, AND MAKES FULL USE OF THE WINDOWS SCREENING
PROPERTIES. OUR ENGINEERS HAVE DESIGNED ALL OF OUR SOFTWARE WITH
NON-TECHNICAL USERS IN MIND. THE AMOUNT OF SCREENS NECESSARY ARE
KEPT TO AN ABSOLUTE MINIMUM. DROP DOWN MENUS, POP-UP WARNINGS AND
STANDARD WINDOWS FUNCTION FEATURES ARE ALL INHERENT. SIMPLE
BUTTONS AND ICONS MAKE IT VERY EASY TO LEARN AND OPERATE.
1.4. (Mandatory) The VIS must incorporate non-customized software that
can be updated as new features, enhancements, and upgrades become
available.
CCS IS WRITTEN FOR LAW ENFORCEMENT IN GENERAL. THE PROPOSED SYSTEM
IS NON-CUSTOMIZED FOR MILWAUKEE COUNTY. AS CCS IS ENHANCED OR
UPGRADED, THESE FEATURES CAN BE ADDED TO ALL SYSTEMS, NON-SPECIFIC
TO MILWAUKEE COUNTY, BUT INCLUDING MILWAUKEE COUNTY. THIS ALLOWS
IMAGEWARE TO KEEP ALL THEIR CUSTOMERS ON A UNIFIED VERSION OF CCS,
KEEPING MAINTENANCE COSTS DOWN.
HOWEVER, WITHIN CCS, EACH INDIVIDUAL DEPARTMENT CAN CUSTOMIZE
THEIR OWN SYSTEM WITHOUT ENDANGERING THE UNIFORMITY OF SYSTEMS
THROUGHOUT THE COUNTRY. MEANING, PICK LISTS CAN BE CHANGED, FIELDS
CAN BE DEFINED BY USERS AND REPORTS CAN BE DESIGNED AND SAVED.
NOTE: IF THE DIRECT CONNECT OPTION 2 IS CHOSEN FOR THE CJIS
INTERFACE, THE LEVEL OF CUSTOMIZATION WILL INCREASE.
1.5. (Desirable) The VIS should be a modular system that allows
Milwaukee County to purchase only the software needed and affords
the ability to expand functionality at a future date.
IN FACT, OUR SYSTEM IS OF MODULARE NATURE. MILWAUKEE COUNTY CAN
PURCHASE ONLY WHAT IS NECESSARY AND CAN EASILY EXPAND THEIR
CAPABILITIES AT A LATER DATE WITHOUT INCURRING ADDITIONAL HARDWARE
COSTS.
1.6. (Mandatory) The VIS software and hardware must be year 2000
compliant. All dates must contain a century indicator and date
compares and calculations must work correctly in the new
millennium.
CCS AND ALL THE C.R.I.M.E.S. MODULAR SOFTWARE HAS BEEN TESTED AND
DEVELOPED TO BE YEAR 2000 COMPLIANT.
1.7. (Mandatory) The VIS must create, transmit, and store video images
that meet all State and Federal American National Standards
Institute (ANSI) and National Institute of Standards and
Technology (NIST) standards.
CCS MEETS ALL ANSI/NIST STANDARDS. IT IS CAPABLE OF BOTH IMPORTING
AND EXPORTING NIST PACKAGES.
1.8. (Preferred) The VIS should combine video images with fingerprints,
demographics, and arrest charge data, and transmit this
information as a standard packet to the State Crime Information
Bureau (CIB).
IMAGEWARE SOFTWARE, INC. 4 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
CCS IS CAPABLE OF COMBINING THE LIVESCAN FINGERPRINT IMAGES AND
DATA WITH THE MUGSHOT PHOTO DATA, AND EXPORTING THEM AS A SINGLE
PACKAGE.
2. SYSTEM SECURITY
- ------------------
2.1. (Mandatory) The VIS must include security that limits access to
functionality. The respondent must fully describe system security,
including the maximum number of users.
SYSTEM SECURITY WILL MAKE USE OF BOTH OPERATING SYSTEM PERMISSIONS
AS WELL AS DATABASE SOFTWARE SECURITY. THIS WILL ALLOW ACCESS TO
CERTAIN FUNCTIONS AND DATA TO BE CONTROLLED BY THE SYSTEM
ADMINISTRATOR. THESE PRIVILEGES AND PERMISSIONS WILL BE GIVEN AND
CONTROLLED BY USER LOGIN. THERE WILL BE AN ADMINISTRATIVE FUNCTION
AVAILABLE ONLY TO THE SYSTEM ADMINISTRATOR, WHERE THESE
PERMISSIONS AND PRIVILEGES ARE MAINTAINED. THE MAXIMUM NUMBER OF
USERS IS UNLIMITED, HOWEVER, THIS PROPOSAL LIMITS THE CONCURRENCY
TO 25.
SYSTEM SECURITY CONTROLS WHETHER THE IMAGES ARE READ ONLY THROUGH
THE OPERATING SYSTEM PERMISSIONS AS WELL AS THE DATABASE SECURITY.
IMAGES MUST BE EXPORTED FROM THE DATABASE AND IMPORTED INTO OTHER
SOFTWARE TO ALLOW ANY EDITING OF THE IMAGE. IT CANNOT BE SAVED
BACK TO THE DATABASE IN ITS ALTERED STATE AS THE ORIGINAL IMAGE.
HOWEVER IT CAN BE ADDED TO THE RECORD AS A NEW IMAGE.
2.2. (Preferred) The VIS should allow unlimited users and limit access
to functionality by user ID.
CCS ALLOWS FOR AN UNLIMITED NUMBER OF USERS AND PASSWORDS TO BE
GIVEN. CONCURRENCY IS CONTROLLED BY THE NUMBER OF LICENSES SOLD.
THIS PROPOSAL IS WRITTEN FOR 25 CONCURRENT USERS, AS SPECIFIED,
BUT WITH UNLIMITED USER ID'S. ADDITIONAL CONCURRENT USERS CAN BE
PURCHASED AT ANY TIME. FUNCTIONALITY AND ACCESS ARE LIMITED BY
USER ID.
NOTE: IMAGEWARE CAN PROVIDE THE ABILITY TO SEARCH THE DATABASE
USING A SECURE INTRANET AND STANDARD BROWSER, THUS ALLOWING
UNLIMITED USERS, HOWEVER, THIS FUNCTION IS NOT PRICED IN THE QUOTE.
2.3. (Mandatory) The VIS must allow the ability to delete unwanted
saved images. System security must control use of this function.
THE SYSTEM ADMINISTRATOR CAN AUTHORIZE DELETIONS BY CERTAIN USERS
THROUGH THE USER ID PASSWORDS.
2.4. (Desirable) The VIS should allow the ability to disassociate a
captured image from incorrect data and re-associate it to correct
data. System security should control use of this function.
IF THE USER HAS EDITING RIGHTS, THEN THIS MAY BE ACCOMPLISHED.
IMAGEWARE SOFTWARE, INC. 5 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
3. SYSTEM INTEGRATION
- ---------------------
3.1. (Mandatory) The respondent must fully describe how the VIS will
integrate with Milwaukee County's booking system, the Criminal
Justice Information System (CJIS). CJIS stores demographic data in
DB2 tables (version 4.1) on the County's mainframe. Milwaukee
County's mainframe utilizes an Amdahl GS425 mainframe running
MVS/ESA version 4.2.2. An operating system upgrade from MVS/ESA to
OS390 will occur some time in 1999.
IMAGEWARE IS OFFERING TWO SEPARATE INTERFACE OPTIONS.
OPTION 1 FILE TRANSFER. THIS IS THE TRADITIONAL, YET EFFECTIVE,
LOW COST METHOD OF TRANSFERRING DATA BETWEEN DISPARATE SYSTEMS. IT
REQUIRES THE CJIS SYSTEM, UPON COMPLETION OF ANY RECORD, TO CREATE
A FLAT FILE (B.TXT, ASCII, NIST, ETC.) AND TEMPORARILY STORE THIS
FILE IN A DIRECTORY THAT CCS CONSTANTLY MONITORS. IT MAY EVEN BE
THE SAME EXACT FILE THAT IS BEING WRITTEN FOR THE IDENTIX
INTERFACE. ONCE CCS RECOGNIZES THAT A FILE HAS BEEN CREATED, IT
WILL INSTANTLY IMPORT THE DATA INTO THE CCS DATABASE. WHEN THE
USER THEN GOES TO TAKE A MUGSHOT AND GATHER ADDITIONAL SMT
INFORMATION ON THIS SAME SUBJECT, THE DATA FIELDS ARE ALREADY
POPULATED. BASICALLY, ANY TIME A RECORD IS CREATED, EDITED OR
DELETED FROM WITHIN THE CJIS DATABASE, THIS INFORMATION
AUTOMATICALLY FLOWS TO CCS AND IDENTIX, THEREFOR SYNCHRONIZING
BOTH SYSTEMS AND ELIMINATING DUPLICATE ENTRY. THE FILE TRANSFER
METHOD CARRIES MANY BENEFITS:
- IT IS VERY COST EFFECTIVE
- IT IS VERY FAST
- THE SAME FLAT FILE CAN BE USED BY MULTIPLE VENDORS AND SYSTEMS
- IT IS EASY TO TROUBLESHOOT AND MAINTAIN
- CHANGES IN DATA CONTENT (NEW REQUIREMENTS) CAN BE MADE
RELATIVELY EASILY
- IF CJIS IS DOWN, IT DOES NOT AFFECT CCS.
- IT CAN BE QUICKLY ENGINEERED
- NO THIRD PARTY SOFTWARE OR HARDWARE IS NEEDED
- IT REQUIRES ONLY LIMITED CUSTOMIZATION
OPTION 2 - DIRECT CONNECT - THIS METHOD IS THE MORE RELIABLE OF
THE TWO, YET IT INVOLVES MORE CUSTOMIZATION AND ENGINEERING TIME.
CCS CONSTANTLY MONITORS ALL FIELDS WITHIN CJIS AND REPLICATES DATA
TO THE CCS DATABASE AS CHANGES ARE MADE. USING THIRD PARTY
SOFTWARE, STARPIPES ENABLES WINDOWS CLIENT AND SERVER APPLICATIONS
TO ACCESS IBM DB2 DATABASES USING TC/PIP. STARPIPES OPERATES WITH
STARQUEST'S STARSQL SOFTWARE, AN ODBC DRIVER FOR WINDOWS THAT USES
IBM'S DRDA DATABASE INTEROPERABILITY PROTOCOL TO ANY DB2
RELATIONAL DATABASE. THIS METHOD DOES REQUIRE A HIGH LEVEL OF
ENGINEERING AND WILL TAKE SEVERAL MONTHS TO ACCOMPLISH. THIS
METHOD DOES REQUIRE CCS TO REPLICATE DATA, BUT MORE EFFICIENTLY
AND RELIABLY THAN THE FILE TRANSFER METHOD.
3.2. (Mandatory) The VIS cannot utilize screen scraping to retrieve
data from CJIS.
SCREEN SCRAPING WILL NOT BE USED.
3.3. (Preferred) The VIS should directly interface with the DB2 data
stored on the
IMAGEWARE SOFTWARE, INC. 6 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
mainframe and should not employ database replication or a mirrored
database solution.
SEE ANSWER TO 3.1.
3.4. (Desirable) If the preferred VIS interface is not proposed and a
separate database is required, the database should be
non-proprietary and the respondent should be responsible for
insuring that the VIS database remains synchronized with the CJIS
database. Adds, updates, and deletions should only occur within
CJIS. Any polling required to update the VIS database should be
done by the respondent.
CCS IS AN OPEN ARCHITECTURE, ODBC COMPLIANT SYSTEM. THE DATA
TRANSFER OPTIONS RECOMMENDED IN SECTION 3.1. BOTH INSURE THAT THE
VIS REMAINS SYNCHRONIZED WITH CJIS. THE DATA FLOW IS SUCH THAT ALL
ADDS, EDITS AND DELETIONS OCCUR ONLY WITHIN CJIS AND ARE THEN
TRANSFERRED TO CCS. CCS WILL DO ALL POLLING OF EITHER THE SHARED
DIRECTORY OR THE CJIS DATABASE.
3.5. (Mandatory) The VIS must integrate with the existing Criminal
Justice Facility (CFJ) local area network (LAN), a mixed Token
Ring/Ethernet environment (moving to all Ethernet) with Novel IPX
(version 3.12, upgrading to 4.11 in 1999) and TCP/IP communication
protocol.
THIS REQUIREMENT WILL BE MET.
3.6. (Mandatory) The VIS software should run on existing CFJ LAN
workstations running Windows 95 and should be upgradeable to
Windows 98 (MINIMUM CONFIGURATION BELOW).
- Pentium 166Mhz Processor
- 32 MB RAM
- 1.2 GB Hard Drive
- 15" SVGA Monitor
- OS- Windows 95 or 98
THE CCS INVESTIGATIVE SOFTWARE IS CAPABLE OF RUNNING ON THE ABOVE
HARDWARE GIVEN THAT THE SYSTEMS GRAPHICS ARE CAPABLE OF 800X600
RESOLUTION AND CAN DISPLAY MORE THAN 256 COLORS. CCS INVESTIGATIVE
RUNS ON BOTH WINDOWS 95 AND WINDOWS 98.
RECOMMENDED: IWS RECOMMENDS THAT THE WORKSTATIONS BE A PENTIUM II
PROCESSOR WITH 64 MB RAM. ALL GRAPHICS MUST BE CAPABLE OF MORE
THAN 256 COLORS AND 800X600 RESOLUTION.
3.7. (Mandatory) The VIS must have the ability to integrate with
Milwaukee County's Identix live-scan fingerprint system.
CCS HAS SUCCESSFULLY INTEGRATED WITH THE IDENTIX LIVESCAN SYSTEM
AT SEVERAL SITES. DATA FLOW CAN BE EITHER WAY. STANDARD NIST TYPE
DATA TRANSACTIONS ARE USED TO ACCOMPLISH THIS TASK. IT IS ALSO
POSSIBLE TO COMBINE BOTH THE CCS NIST PACKAGE AND LIVESCAN NIST
PACKAGE FOR FORWARDING TO THE STATE'S CIB.
4. VIDEO IMAGE SERVER
- ---------------------
4.1. (Preferred) The VIS should utilize the existing CJF LAN video
image server
IMAGEWARE SOFTWARE, INC. 7 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
(configuration below). The respondent must provide the necessary
server upgrades to meet VIS requirements.
- Compaq Proliant 650OR Server
- 256 MB RAM
- 2.1 G Mirrored SYS Volume
- 30 G, RAID V, VD MUG Volume (Seven 4.3 GB Hard Drives), 24,072 MB
Usable Drive Space 14,367 MB Free
IWS IS PROPOSING TO INSTALL A NEW IBM NETFINITY 5500 SERVER AS
DESCRIBED IN REQUIREMENT 4.2.. IT MAY BE POSSIBLE TO UTILIZE THE
EXISTING SERVER, HOWEVER, UPGRADES WOULD NEED TO BE MADE TO MATCH
THE SPECIFICATIONS FOR THE SERVER IN SECTION 4.2.
4.2. (Mandatory) The VIS should accommodate a minimum of 5 years of
video images on-line (approximately 80,000 images per year).
THE FOLLOWING SERVER WILL ACCOMMODATE MORE THAN 70,000 IMAGES OVER
A PERIOD OF 5 YEARS. FOR FULL DESCRIPTION, SEE PAGE 6.
--------------------------------------------------------------------
DUAL PROCESSOR NETFINITY SERVER (RAID V)
--------------------------------------------------------------------
Netfinity 5500 450MHz
--------------------------------------------------------------------
IBM NETFINITY 5500 PENTIUM II 450 MHZ/512KB L2,256MB ECC,
OPEN,32X,PCI/ISA
--------------------------------------------------------------------
(Std) 10/100 PCI Ethernet
--------------------------------------------------------------------
(Std) 2-Drop 16-bit SCSI Internal Cable
--------------------------------------------------------------------
(Std) 32X Max IDE CD-ROM Drive
--------------------------------------------------------------------
(Std) 450/100 MHz Pentium II Processor with 512KB ECC L2 Cache
--------------------------------------------------------------------
(Std) IBM 1.44MB 3.5-inch Diskette Drive
--------------------------------------------------------------------
(Std) IBM 104-key Keyboard (Stealth Gray)
--------------------------------------------------------------------
(Std) Integrated IDE Controller
--------------------------------------------------------------------
(Std) Integrated PCI Ultra SCSI RAID Controller-dual channel
--------------------------------------------------------------------
(Std) Mouse Stealth Gray
--------------------------------------------------------------------
(Std) Netfinity 400W Hot-Swap Power Supply
--------------------------------------------------------------------
(Std) Netfinity NetBAY3
--------------------------------------------------------------------
(Std) Processor Complex Card
--------------------------------------------------------------------
(Std) S3 Trio64V2 Graphics - 1MB SGRAM
--------------------------------------------------------------------
(Std) Systems Management Processor
--------------------------------------------------------------------
IBM 20/40GB DLT Internal SCSI Tape Drive (FH)
--------------------------------------------------------------------
IBM Netfinity 400W Hot-Swap Redundant Power Supply II
--------------------------------------------------------------------
(4) Netfinity 18.2GB Wide Ultra SCSI SCA-2 SL HDD (Hot Swap, RAID V)
--------------------------------------------------------------------
Smart-UPS 1400-17 Min Runtime
--------------------------------------------------------------------
ISA 56K/33.6KBPS Plug and Play Data/Fax Modem
--------------------------------------------------------------------
(2) 450/100MHz Pentium II Processor with 512KB ECC L2 Cache
--------------------------------------------------------------------
G74 - 17(15.9) in. Color Monitor, 69kHz, Stealth Gray
--------------------------------------------------------------------
Windows NT Enterprise Server, 25 clients
--------------------------------------------------------------------
IMAGEWARE SOFTWARE, INC. 8 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
5. ARCHIVING VIDEO IMAGES
- -------------------------
5.1. (Mandatory) The VIS must archive video images and allow retrieval
of archived images. The respondent must fully describe an
archiving solution including the amount of disk space.
CURRENTLY, THE ARCHIVING SOLUTION IS A MANUAL ONE. RECORDS AND
DATA MAY BE MOVED TO ANOTHER HARD DRIVE OR CD BY DATE AND CONTROL
NUMBER. ONE RECORD WITH TWO PHOTOS IS APPROX. 80K IN SIZE. ONCE
ARCHIVED, THEY MAY BE SEARCHED BY SIMPLY IDENTIFYING THE DRIVE AND
DATABASE DURING LOG-IN.
ENGINEERS ARE CURRENTLY WORKING ON AN AUTOMATIC ARCHIVING
SOLUTION. WHEN READY, THIS WILL BE A NON-CUSTOMIZED ENHANCEMENT
AND DELIVERED TO ALL CCS CUSTOMERS.
5.2. (Preferred) The VIS should archive video images after 5 years.
SEE QUESTION 5.1.
5.3. (Preferred) The VIS should also archive fingerprint images
(approximately 60,000 per yearly, 1 MB per fingerprint image set).
OUR SOLUTION DOES NOT CURRENTLY ARCHIVE FINGERPRINT IMAGES, BUT
THERE IS ROOM FOR DISCUSSION. THE PROPOSED SYSTEM IS DESIGNED FOR
RECORDS THAT INCLUDE AN AVERAGE OF 2.5 PHOTOGRAPHS AND TAKE UP
ONLY 80K TO 100K PER RECORD. FINGERPRINT IMAGES TAKE UP
SUBSTANTIALLY MORE DISK SPACE.
6. CAPTURING VIDEO IMAGES
- -------------------------
6.1. (Mandatory) The VIS must support a minimum of two local and one
remote capture station.
THIS REQUIREMENT WILL BE MET.
6.2. (Mandatory) The VIS must support future remote capture stations.
ADDITIONAL CAPTURE AND INVESTIGATIVE STATIONS CAN BE ADDED EASILY.
6.3. (Mandatory) VIS capture stations must be configured with video
cameras and video-capture hardware.
A COMPLETE NIST COMPLIANT CAMERA SUB-SYSTEM IS INCLUDED WITH EACH
CAPTURE STATION. THIS INCLUDES VIDEO CAMERAS AND CAPTURE BOARDS.
ALL PAN AND TILT, ZOOMING AND FOCUSING ARE DONE REMOTELY.
6.4. (Mandatory) VIS components must be designed for durability in an
adult jail booking room environment.
THIS REQUIREMENT WILL BE MET. THE CAMERA AND LIGHTING IS BOLTED TO
THE CEILING. THE REFLECTIVE PEDESTAL IS BOLTED TO THE FLOOR. ALL
CAMERA FUNCTIONS ARE CONTROLLED FROM THE CAPTURE WORKSTATION
KEYBOARD.
6.5. (Mandatory) The VIS must allow an operator to preview a video
image before
IMAGEWARE SOFTWARE, INC. 9 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
accepting and saving the image. The operator must be able to reject
all unacceptable or incorrect image and capture a new image.
THIS REQUIREMENT WILL BE MET. THIS FUNCTION IS INHERENT IN CCS.
6.6. (Mandatory) The VIS must allow the operator to easily adjust the
video camera using capture station software to obtain the best
quality image. The system must include functionality to help the
user properly align the image (i.e. cross hairs, bullseye, etc.)
THERE ARE CROSSHAIRS AND GUIDELINES WITHIN THE VIEWING AREA TO
ENSURE THAT ALL PHOTOGRAPHS TAKEN MEET NIST REQUIREMENTS. ALL
CAMERA FUNCTIONS ARE CONTROLLED FROM THE CAPTURE WORKSTATION. THIS
INCLUDES ZOOM, PAN, TILT AND FOCUS.
6.7. (Preferred) The VIS should allow the operator to easily adjust the
brightness and contrast of the video image using capture station
software.
THIS REQUIREMENT WILL BE MET.
6.8. (Mandatory) The VIS must capture a minimum of one front and one
side view video image per record.
CCS IS CAPABLE OF ASSOCIATING AN UNLIMITED AMOUNT OF PHOTOGRAPHS
PER RECORD. THESE PHOTOGRAPHS MAY INCLUDE MUGSHOTS, SMT'S,
PROPERTY, EVIDENCE AND CRIME SCENE PHOTOS.
6.9. (Preferred) The VIS should allow the ability to capture multiple
images related to a particular record (i.e. scars, marks, tattoos,
and scanned documents).
CCS IS CAPABLE OF ASSOCIATING AN UNLIMITED AMOUNT OF PHOTOGRAPHS
PER RECORD. THESE PHOTOGRAPHS MAY INCLUDE MUGSHOTS, SMT'S,
PROPERTY, EVIDENCE AND CRIME SCENE PHOTOS. BMP AND JPG FILES MAY
BE IMPORTED USING A TWAIN COMPLIANT SCANNER OR CAMERA.
6.10. (Desirable) The VIS should allow the ability to annotate an image
with free-form text.
EVERY IMAGE CAN HAVE FREE FORM TEXT ASSOCIATED WITH IT. THIS TEXT
MAY ALSO BE KEY-WORD SEARCHED, CREATING A VERY POWERFUL
INVESTIGATIVE TOOL.
6.11. (Desirable) the VIS should allow the ability to capture and store
digital images from any TWAIN compatible device.
ANY TWAIN COMPLIANT DEVICE MAY BE USED TO CAPTURE AND STORE IMAGES.
6.12. (Desirable) The VIS should allow the ability to export images in
multiple formats to any Windows application.
ALL IMAGES MAY BE EXPORTED AS JPG OR BMP FILES FOR USE BY OTHER
APPLICATIONS.
7. RETRIEVING AND VIEWING VIDEO IMAGES
- --------------------------------------
IMAGEWARE SOFTWARE, INC. 10 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
7.1. (Mandatory) The VIS must support a minimum of 25 local and remote
users retrieving and viewing video images.
THE PROPOSAL SUPPORTS 25 CONCURRENT USERS AND UNLIMITED USER ID'S.
ADDITIONAL CONCURRENT USERS MAY BE ADDED AT ANY TIME.
7.2. (Desirable) The VIS should support unlimited local and remote
users retrieving and viewing video images.
CCS CAN SUPPORT UNLIMITED USERS THROUGH THE LAN OR THROUGH A
STANDARD WEB BROWSER, HOWEVER THIS PROPOSAL LIMITS CONCURRENCY TO
25. ADDITIONAL USERS MAY BE ADDED AT ANY TIME.
7.3. (Mandatory) The VIS Must allow users to view video Images using
the existing 25 CJF LAN workstations (MINIMUM CONFIGURATION BELOW).
Pentium 166Mhz Processor
32 MB RAM
1.2 GB Hard Drive
15" SVGA Monitor
OS - Windows 95 or 98
THE CCS INVESTIGATIVE SOFTWARE IS CAPABLE OF RUNNING ON THE ABOVE
HARDWARE GIVEN THAT THE SYSTEMS GRAPHICS ARE CAPABLE OF 800X600
RESOLUTION AND CAN DISPLAY MORE THAN 256 COLORS. CCS INVESTIGATIVE
RUNS ON BOTH WINDOWS 95 AND WINDOWS 98.
RECOMMENDED: IWS RECOMMENDS THAT THE WORKSTATIONS BE A PENTIUM II
PROCESSOR WITH 64 MB RAM. ALL GRAPHICS MUST BE CAPABLE OF MORE
THAN 256 COLORS AND 800X600 RESOLUTION.
7.4. (Mandatory) VIS users must be able to retrieve and view a specific
image.
THIS REQUIREMENT WILL BE MET.
7.5. (Preferred) VIS users should be able to retrieve images based on
specified descriptors and should be able to view retrieved images
one at a time or as a group.
THIS REQUIREMENT WILL BE MET.
7.6. (Mandatory) The respondent must specify response times for
retrieving on-line and archived video images.
THE RESPONSE TIME FOR SEARCHING ON-LINE IMAGES IS LESS THAN TWO
SECONDS. THE RESPONSE TIME FOR SEARCHING ARCHIVED IMAGES IS ALSO 2
SECONDS, HOWEVER FIRST YOU MUST CLOSE DOWN CCS AND UPON RE-ENTRY,
SELECT THE ARCHIVED DATABASE. THIS PROCESS TAKES APPROX. 15
SECONDS.
7.7. (Preferred) The minimum response time for retrieving on-line
images should be under 3 seconds.
THIS REQUIREMENT WILL BE MET.
IMAGEWARE SOFTWARE, INC. 11 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
7.8. (Preferred) The minimum response time for retrieving archived
images should be under 30 seconds.
THIS REQUIREMENT WILL BE MET.
8. PRINTING VIDEO IMAGES
8.1. (Mandatory) The VIS must produce color and gray scale printouts
that include a front view image, a side view image, the booking
number, and tile date of arrest. (SEE EXHIBIT 1.)
THIS REQUIREMENT WILL BE MET
8.2. (Mandatory) The VIS must support any local and remote Windows
compatible printers.
CCS WILL SUPPORT ANY PRINTER THAT HAS A WINDOWS NT DRIVER.
8.3. (Preferred) The VIS should support existing network gray scale
printers (CONFIGURATION BELOW).
HEWLETT PACKARD LASER JET 4 (2MB RAM MINIMUM) HEWLETT PACKARD
LASERJET 4000 (8MB RAM)
THIS REQUIREMENT WILL BE MET
8.4. (Mandatory) The VIS must utilize Windows routing and queuing of
print jobs for local printers and remote printers connected
through print servers. (Print jobs must queue sequentially.)
THIS REQUIREMENT WILL BE MET.
8.5. (Preferred) Users should have the option to prioritize printing
a particular job.
THIS REQUIREMENT WILL BE MET.
8.6. (Preferred) VIS users should be able to specify the quantity of
images to print (i.e. 10 copies of photo # 1 or 1 copy each of
photos # 1-10.)
THIS REQUIREMENT WILL BE MET
8.7. (Mandatory) The VIS must accommodate a minimum of seven
high-quality color image printers (See section 14 Hardware.)
These printers must print waterproof color images at a minimum
resolution of 600dpi.
THE HEWLETT PACKARD 2000CXI PROVIDES 600DPI PHOTO REALISTIC,
WATER-RESISTANT, LOW COST AND HIGH SPEED PRINTS UP TO 8.5X11.
IT UTILIZES REPLACEABLE INK CARTRIDGES TO REDUCE INK WASTE.
PRINTS COSTS ARE UP TO 30% LOWER THAN OTHER COLOR DESKTOP
PRINTERS, AND IT PRINTS ON A WIDE VARIETY OF PAPER WEIGHTS AND
CARD STOCK.
IMAGEWARE SOFTWARE, INC. 12 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
PRINTS ARE WATER RESISTANT, NOT WATERPROOF, HOWEVER, THEY MAY BE
LAMINATED TO MAKE THEM SO.
NOTE: ANY PRINTER THAT HAS A WINDOWS NT PRINT DRIVER WILL WORK
WITH CCS. HIGH COST DYE-SUB PRINTERS WILL WORK AS WELL
(WATERPROOF), BUT BECAUSE THEY ARE VERY TEMPERAMENTAL, AND
HAVE SUCH A HIGH PRINT COST, WE DO NOT RECOMMEND THEM. IF
MILWAUKEE COUNTY WISHES TO USE A DIFFERENT PRINTER THAN THE
ONE WE HAVE SPECIFIED, JUST PROVIDE US WITH A PART NUMBER AND
WE WOULD BE HAPPY TO ORDER THEM FOR YOU.
8.8. (Preferred) The color printers should have the ability to
accommodate various sizes and weights of paper and card stock.
THE HEWLETT PACKARD 2000CXI PRINTS ON A WIDE VARIETY OF PAPER
WEIGHTS AND CARD STOCK FROM SIZES 3.5X5 TO 8.5X11.
9. VIDEO LINE-UPS AND WANTED POSTERS
9.1. (Mandatory) The VIS must have the ability to generate video
line-ups with known suspects, video line-ups with unknown
suspects, and wanted posters.
THIS REQUIREMENT WILL BE MET. IN ADDITION, AND AT NO COST, WE
WILL BE PROVIDING TWO FREE COPIES OF SUSPECT ID COMPOSITE
SOFTWARE. SUSPECT ID ALSO PRINTS WANTED POSTERS.
9.2. (Mandatory) The VIS line-up and wanted poster functions must be
able to query for demographic data specified by the user.
THIS REQUIREMENT WILL BE MET.
9.3. (Preferred) The VIS line-up and wanted poster functions should
be able to query CJIS for demographic data specified by the user.
CJIS DATA IS BEING REPLICATED INTO THE CCS DATABASE. LINE-UP AND
WANTED POSTER FUNCTIONS QUERY THE CCS DATABASE.
9.4. (Mandatory) The VIS must have the ability to produce
non-prejudicial line-ups.
THIS REQUIREMENT WILL BE MET. IN ADDITION, WE WILL BE PROVIDING,
AT NO COST, TWO COPIES OF CRIME LAB IMAGE EDITING SOFTWARE.
THIS SOFTWARE IS CAPABLE OF REMOVING DISTRACTING BACKGROUNDS
AND COPYING SCARS OR TATTOOS FOR PASTING ON THE OTHER SUBJECTS
IN THE LINE-UP. THIS CREATES VERY NON-PREJUDICIAL LINE-UPS.
9.5. (Preferred) VIS users should be able to specify the number of
images to display in a video line-up.
THIS REQUIREMENT WILL BE MET.
9.6. (Preferred) VIS users should be able to save video line-ups.
IMAGEWARE SOFTWARE, INC. 13 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
THIS REQUIREMENT WILL BE MET.
9.7. (Preferred) The VIS should have the ability to present the
results of a line-up query one image at a time using a
step-through approach. Users must be able to interrupt and
later return to viewing the images.
CURRENTLY, THIS IS NOT A FEATURE OF CCS. ENGINEERS ARE CURENTLY
DEVELOPING THIS FUNCTION AND IT WILL BE A STANDARD ENHANCEMENT
TO ALL CCS CUSTOMERS.
9.8. (Preferred) The VIS should have the ability to produce a report
or audit trail of the images a witness reviewed and of line-ups
generated.
THERE IS AN AUDIT TRAIL FUNCTION AVAILABLE TO THE ADMINISTRATOR,
WHICH DOES PROVIDE INFORMATION ON WHO ACCESSED THE SYSTEM,
WHAT FUNCTION THEY PERFORMED (ADD, EDIT, DELETE), AND THE DATE
AND TIME.
9.9. (Preferred) Users should be able to use the VIS to design wanted
posters that include video image(s), static graphics, static
text, and text boxes that are customizable by the user.
IMAGEWARE WILL PROVIDE SIX CUSTOM PRINT FORMATS. ADDITIONAL
FORMATS MAY BE PURCHASED.
10. INMATE WRISTBANDS AND DOCUMENTS
10.1. (Mandatory) The VIS capture stations must be able to print an
inmate wristband photo and data along with two small front
view photos. (SEE EXHIBIT 1.)
THIS REQUIREMENT WILL BE MET.
10.2. (Mandatory) The VIS must have the ability to generate a
tamper-resistant, durable inmate wristband with a photo. In
addition to a photo, the inmate wristband must contian a
standard 39 bar-code of the inmate booking number and the
following data: booking number, last name, first name, middle
initial, sex, race, and date of birth. (SEE EXHIBIT 2.)
THIS REQUIREMENT WILL BE MET.
10.3. (Mandatory) The MCSD and HOC must approve the design of the
inmate wristband including material used, type of clasp, and
lamination method.
IMAGEWARE IS AGREEABLE TO THIS REQUIREMENT.
10.4. (Desirable) The VIS should eliminate the need to use wristband
laminators.
THE CURRENT METHOD IS TO USE LAMINATORS. IWS IS CURRENTLY
TESTING PRINTERS THAT ARE RELIABLE AND CAN ACCOMMODATE THIS
NEED, BUT NONE ARE QUOTED AT THIS TIME.
10.5. (Desirable) The VIS should eliminate the need to use die cutters
to separate images.
THE CURRENT METHOD IS TO USE DIE CUTTERS. IWS IS CURRENTLY
TESTING PRINTERS THAT ARE RELIABLE AND CAN ACCOMMODATE THIS
NEED, BUT NONE ARE QUOTED AT THIS TIME.
IMAGEWARE SOFTWARE, INC. 14 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
10.6 (Preferred) The VIS should have the ability to generate the MCSD
Inmate Locator Card and Classification Card and the HOC Rotor Card.
(SEE EXHIBITS 3 AND 4.)
THIS REQUIREMENT WILL BE MET.
10.7 (Preferred) The VIS should allow users the ability to create and
design document templates and define various paper types.
CCS AND THE PRINTER SPECIFIED ALLOW THE USER TO IDENTIFY
DIFFERENT PAPER TYPES. CCS WILL SHIP WITH 6 CUSTOM PRINT TEMPLATES
THAT ARE TO BE IDENTIFIED DURING THE INSTALLATION STAGE. ADDITIONAL
PRINT TEMPLATES MAY BE PURCHASED.
11. CONVERSION OF EXISTING VIDEO IMAGES
- ---------------------------------------
Milwaukee County has approximately 330,000 images in the existing
system that must be converted for use in the new VIS. These images are
stored on the existing server in working with the County to identify
proper naming standards for the converted images and to populate the
vendor's database.
11.1 (Mandatory) The VIS must allow users to retrieve, display, and
print converted existing images. It must also allow users to create
video line-ups and wanted posters using these images.
IWS WILL CONVERT ALL 330,000 IMAGES AND DATA. ONCE THE IMAGES ARE
CONVERTED INTO THE CCD DATABASE, LINE-UPS AND POSTERS CAN BE
CREATED. SEARCHES CAN BE MADE ON ALL TEXT FIELDS THAT ARE INCLUDED.
RETRIEVING, DISPLAYING AND PRINTING WILL ALL BE POSSIBLE.
11.2 (Mandatory) The respondent must define a process including
timeframe that will be used to populate existing images and data
into the respondent's proposed database. The total cost of
conversion must be included in the cost proposal.
EXHIBIT 5 IN THE RFP SHOWS THE CURRENT DBASE III VIDEO IMAGE
DATABASE FIELDS. ASSUMING THAT THE CUSTOMER PROVIDES ALL THE DATA IN
THE FORMAT DISPLAYED IN EXHIBIT 5, CONVERSION WILL TAKE NO MORE THAN
3 WEEKS. THE PRICE FOR THIS CONVERSION IS INCLUDED IN THE COST
PROPOSAL.
11.3 (Preferred) The VIS should store only the image and a link to
demographic data on the mainframe.
THE SOLUTION THAT WE ARE PROPOSING INVOLVES REPLICATION OF DATA.
TEXT AND PHOTOS MUST BE PROVIDED IF THE USER WISHES TO SEARCH THESE
PHOTOS BASED ON TEXT DESCRIPTORS.
11.4 (Desirable) If the preferred solution (11.3 above) is not
proposed and the VIS requires a separate database, the vendor should
query CJIS data to populate the proposed database.
IMAGEWARE SOFTWARE, INC.
10883 THORNMINT ROAD 15 Phone 619-673-8600
SAN DIEGO, CA 92127 FAX 619-673-1770
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
CCS WILL POPULATE IT'S DATABASE BY ONE OF TWO METHODS. CCS WILL
EITHER MONITOR A SHARED DIRECTORY FOR FLAT FILES (OPTION 1) OR POLL
THE CJIS DATABASE USING STARQUEST. BOTH METHODS INVOLVE REPLICATING
DATA.
12. INSTALLATION
- -----------------
12.1 (Mandatory) The VIS must be implemented and operational in 1999.
THIS REQUIREMENT WILL BE MET
12.2 (Preferred) The VIS should be implemented and operational by
September 1, 1999.
THIS REQUIREMENT WILL BE MET
12.3 (Mandatory) The respondent must be responsible for installation
of hardware if the County elects to accept the respondent's hardware
proposal.
THIS REQUIREMENT WILL BE MET
13. MAINTENANCE AND SUPPORT
- ---------------------------
13.1 (Mandatory) The respondent must include in the cost proposal the
costs for maintenance and support for the first through fifth years
from the date of system acceptance. Costs must be provided for both
twenty-four hours a day, seven days a week coverage and eight hours
a day, five days a week coverage.
THIS REQUIREMENT WILL BE MET AND REFLECTED IN THE COST PROPOSAL.
13.2 (Mandatory) The respondent must provide documentation detailing
maintenance and support coverage.
MAINTENANCE FOR THE SYSTEM WILL BE 7 DAYS PER WEEK, 24 HOURS PER
DAY, WITH ALL AGENCIES IN MILWAUKEE COUNTY SHERIFF'S OFFICE HAVING
JUST ONE TOLL-FREE NUMBER TO CALL FOR SERVICE. IMAGEWARE WILL MEET
THE RESPONSE TIMES AS OUTLINED IN THE RFP. INITIAL CALLS WILL BE
RECEIVED BY THE IWS HELP DESK. IF NO ONE IS AVAILABLE, A CALL BACK
WILL BE MADE WITHIN 1 HOUR. WITHIN AN 8 HOUR PERIOD, A HARDWARE
TECHNICIAN WILL BE ON-SITE TO TROUBLESHOOT AND CORRECT THE PROBLEM.
IF ANY INSTALLATION WITHIN ANY AGENCY WILL REQUIRE ACCESS TO
RESTRICTED AREAS BY IWS EMPLOYEES, IT IS EXPECTED THAT INFORMATION
WILL BE GIVEN TO IMAGEWARE DURING CONTRACT NEGOTIATIONS. IMAGEWARE
WILL MAKE ANY AND ALL INFORMATION AVAILABLE TO THE MILWAUKEE COUNTY
SHERIFF'S OFFICE FOR EACH EMPLOYEE WHO MUST HAVE ACCESS TO THE
RESTRICTED AREAS.
THE EQUIPMENT AND SOFTWARE SUPPLIED AS PART OF THIS PROPOSAL WILL BE
FULLY GUARANTEED FOR A MINIMUM PERIOD OF 12 MONTHS. ALL PRICES
QUOTED AS PART OF THIS PROPOSAL ARE GUARANTEED FOR A PERIOD OF 12
MONTHS.
13.3 (Mandatory) The Respondent must provide twenty-four hours a day,
seven days a week, maintenance and support for twelve months from
the date of system acceptance. (This must include support on county,
state, and federal holidays and in the event of adverse conditions
such as weather, fire, national emergencies, or other
IMAGEWARE SOFTWARE, INC.
10883 THORNMINT ROAD 16 Phone 619-673-8600
SAN DIEGO, CA 92127 FAX 619-673-1770
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
acts of God.)
THIS REQUIREMENT WILL BE MET. AS STATED IN VIS RFP ANSWERS TO VENDOR
QUESTIONS, IN THE EVENT OF ADVERSE CONDITIONS PROVIDING TECHNICAL
ASSISTANCE WITHIN 4 HOURS MAY BE ACCOMPLISHED VIA TELEPHONE AND/OR
ON-LINE SUPPORT.
13.4 (Mandatory) In the second through fifth years, the County must
have the option to continue with twenty-four hours a day, seven days
a week maintenance and support or reduce to eight hours a day, five
days a week.
THIS REQUIREMENT WILL BE MET.
13.5 (Mandatory) Maintenance and support must include software upgrades.
THIS REQUIREMENT WILL BE MET.
13.6 (Mandatory) The respondent must provide technical assistance
within 4 hours.
THIS REQUIREMENT WILL BE MET.
14. TRAINING
- ------------
14.1 (Mandatory) The respondent must provide various levels of local
training to include capture users, retrieval users, system
administrators, maintenance supervisors, and technical support.
SEE OUTLINE ON PAGE 26.
14.2 (Preferred) The respondent should provide a "train-the-trainers"
program for a minimum of 20 people.
TYPICALLY, IWS WOULD LIKE TO KEEP THE CLASS SIZE DOWN TO 15
PEOPLE, HOWEVER IF THE FACILITIES ARE AGREEABLE TO US, WE WILL MAKE
AN EXCEPTION.
14.3 (Mandatory) The respondent must describe the curriculum and
provide the class length for each training session.
TRAINING TIME IS KEPT TO A MINIMUM WITH THE CRIME CAPTURE SYSTEM,
AS IT IS SO EASY TO USE. 2 DAYS ON-SITE TRAINING IS INCLUDED WITH
THE PRICE OF THE SYSTEM. CLASS SIZE IS LIMITED TO 20 AND THE CLASS
STYLE IS LECTURE. AFTER THE TRAINING SESSION, USERS HAVE LAB TIME
FOR HANDS-ON FAMILIARIZATION.
FOLLOW-UP TRAINING IS AVAILABLE, EITHER ON-SITE OR AT THE IWS
FACILITIES. THE LENGTH OF EACH CLASS IS OUTLINED BELOW.
IMAGEWARE SOFTWARE, INC.
10883 THORNMINT ROAD 17 Phone 619-673-8600
SAN DIEGO, CA 92127 FAX 619-673-1770
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
CRIME CAPTURE SYSTEM TRAINING OUTLINE
OBJECTIVE: By the end of the training session, students will know how to
book a suspect, search a database, use the mug book function and create photo
line-ups.
CLASS SIZE: Maximum 15 students
TRAINING OUTLINE:
I. Starting the program 5 minutes
II. New Bookings 90 minutes
a. Adding a New Booking
b. Searching for Matches
1. Linking Records
2. Unlinking Records
c. Viewing Records
d. Viewing Multiple Bookings
e. Editing and Deleting Records
f. Printing Individual Records
III. Searching 45 minutes
a. Quick Search
b. Advanced Search
c. Saving a Search
d. Running and Existing Search
e. Deleting and Existing Search
f. Printing Search Results
IV. Mug Book 30 minutes
a. Searching for Mugshot
b. Saving a Mug Book
c. Viewing an Existing Mug Book
d. Deleting a Mug Book
V. Photo Line-up 40 minutes
a. Creating a Photo Line-up
b. Saving a Photo Line-up
c. Viewing an Existing Photo Line-up
d. Deleting an Existing Photo Line-up
e. Printing a Photo Line-up
IMAGEWARE SOFTWARE, INC. 18 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
15. HARDWARE
VIS components will be located at the CJF, the HOC, and MPD as follows:
CJF
3 capture stations with camera
4 color printers
2 die cutters (if needed)
2 wristband laminators (if needed)
2 print servers
HOC
1 capture station with camera
1 color printer
1 die cutter (if needed)
1 wristband laminator (if needed)
MPD
2 retrieve/view stations
2 color printers
1 print server
15.1 (Mandatory) The respondent must recommend configurations
(including makes and models) and provide costs in the cost
proposal for all necessary hardware.
FOLLOWING IS A LIST OF ALL THE HARDWARE THAT WE ARE PROPOSING.
IT IS A VERY ROBUST SYSTEM THAT WILL MEET THE NEEDS OF THE COUNTY
WELL INTO THE FUTURE. IT IS POSSIBLE TO PROVIDE LESS POWERFUL
SYSTEM COMPONENTS, HOWEVER, THESE ARE OUR RECOMMENDATIONS.
------------------------------------------------------------------
DUAL PROCESSOR NETFINITY SERVER (RAID V) (Mirrored OS)
Netfinity 5500 450MHz 1
IBM Netfinity 5500 Pentium II 450MHz/512KB L2,256MB ECC, OPEN,
32X, PC1/ISA
(Std) 10/100 PCI Ethernet
(Std) 2-Drop 16-bit SCSI Internal Cable
(Std) 32X Max IDE CD-ROM Drive
(Std) 450/100 MHz Pentium II Processor with 512KB ECC L2 Cache
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Keyboard (Stealth Gray)
(Std) Integrated IDE Controller
(Std) Integrated PCI Ultra SCSI RAID Controller-dual channel
(Std) Mouse Stealth Gray
(Std) Netfinity 400W Hot-Swap Power Supply
(Std) Netfinity NetBAY3
(Std) Processor Complex Card
(Std) S3 Trio64V2 Graphics - 1MB SGRAM
IMAGEWARE SOFTWARE, INC. 19 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
(Std) Systems Management Processor
IBM 20/40GB DLT Internal SCSI Tape Drive (FH)
IBM Netfinity 400W Hot-Swap Redundant Power Supply II
(3) Netfinity 18.2GB Wide Ultra SCSI SCA-2 SL HDD
Smart-UPS 1400-17 Min Runtime
(2) IBM Netfinity 4.5GB Wide Ultra SCSI SCA-2 Hot-Swap Hard Disk
Drive (SL)
ISA 56K/33.6KBPS Plug and Play Data/Fax Modem
(2) 450/100MHz Pentium II Processor with 512KB ECC L2 Cache
G74 - 17(15.9) in. Color Monitor, 69 kHz, Stealth Gray
Windows NT Enterprise Server, 25 clients
-------------------------------------------------------------------
CAMERA SUB-SYSTEMS
Hitachi KP-D50 Camera, NIST standards
Computar Lens
3 point Lighting system
Pan and Tilt Camera mount
Reflective Pedestal
Cable bundle
NIST compliance capture software
Capture Card MVPro
Power Supply
-------------------------------------------------------------------
CAPTURE HARDWARE
IBM PC 300PL 6862 (4x4) 2
PC 300PL Pentium II 400MHz MMX/512KB, 64MB, 6.4GB, 4MB, 32X, 16bit
Audio, Win98, PC/ISA
(Std) IBM 6.4GB EIDE Hard Drive
(Std) 10/100 PCI Ethernet WOL
(Std) 16-bit ISA Crystal Audio Integrated
(Std) 400/100MHz MMX Pentium II Processor with 512KB Pipeline B
(Std) 4MB Integrated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internal 32X Max (Variable Speed)
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
G74-17(15.9) in. Color Monitor, 69 kHz, Pearl White
-------------------------------------------------------------------
PRINTERS
HP 2000Cxi 600 DPI Muli Format
-------------------------------------------------------------------
MISC. HARDWARE
Wristband System (Total)
Includes print format, laminator, 500 wristbands, and fastener
tool
IMAGEWARE SOFTWARE, INC. 20 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
15.2 (Mandatory) Milwaukee County must have the option to purchase
recommended system hardware independently.
THIS REQUIREMENT WILL BE MET, HOWEVER, ALL HARDWARE THAT IS
PURCHASED MUST BE APPROVED BY IWS FIRST. ALL HARDWARE MUST BE
SHIPPED TO IWS FOR INSTALLATION.
IMAGEWARE SOFTWARE, INC. 21 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
2.3 EXPERIENCE & REFERENCES
- --------------------------------------------------------------------------------
ImageWare Software, Inc. has proven its ability to successfully complete
projects of the size and magnitude as the Milwaukee County system, with the
state-wide implementation in the state of Arizona. ImageWare is committed to
the law enforcement industry, and to providing tools for the quick resolution
of crime. This is evident by the development of the C.R.I.M.E.S.-R- suite of
modules. C.R.I.M.E.S. is designed to be a tool kit of software for law
enforcement to use in the quick, effective, and safe resolution of crime
cases.
C.R.I.M.E.S. SUITE OF LAW ENFORCEMENT PRODUCTS
- --------------------------------------------------------------------------------
C.R.I.M.E.S. is a modular family of affordable, easy-to-use software
applications that aid law enforcement with the criminal investigative
process. Currently there are five Windows-TM- based C.R.I.M.E.S. modules;
Suspect ID, Crime Lab, Vehicle ID, Face ID and the Crime Capture System. Over
the next two years, ImageWare plans to add additional modules to the
C.R.I.M.E.S. software family. Included will be videotape enhancement, face
aging, crime scene diagramming, forgery analysis and evidence storage. The
multiple module system is fully integrated so information entered into one
module is reflected in all others, thus eliminating the time and expense
required to interface programs designed by different software companies.
SUSPECT ID-R-
Suspect ID is the composite module of the C.R.I.M.E.S. software family.
Using an online cognitive interview process, officers, witnesses and victims
can accurately create full-color, photo-realistic suspect composites within
minutes. The digital composites are constructed from catalogs of facial
features. The catalogs are comprised of actual photographs, not hand-drawn
sketches, so composites from Suspect ID look like people, not like pencil
sketches.
The Suspect ID module was designed specifically for use by law
enforcement agencies. Even officers with little or no computer knowledge or
artistic talent can complete a suspect composite simply by pointing and
clicking with a mouse. Suspect ID is a standard PC-based software application
that can be installed on a laptop computer and taken into the field, allowing
officers to conduct interviews before the witnesses' and victims' memories
fade. For rapid identification, officers can distribute completed composites
within minutes via radio, fax or e-mail.
CRIME LAB-R-
The second module of the C.R.I.M.E.S. family, Crime Lab, is a
sophisticated image enhancement and editing program used to fulfill a host of
investigative imaging needs such as updating old photos, creating
non-prejudicial line-ups, removing distracting backgrounds and enhancing
surveillance videos.
IMAGEWARE SOFTWARE, INC. 22 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
VEHICLE ID-TM-
Vehicle ID is a revolutionary photo-based software program that helps
officers quickly identify and disseminate vehicle information for the purpose
of locating a stolen car or a vehicle involved in a crime. Vehicle ID's
comprehensive database of over 1,000 vehicles can be searched by features,
description, or VIN (Vehicle Identification Number). To ensure a more
accurate identification, vehicles matching the query description can be
viewed from front, rear, side or three quarter angles. The program also
includes a custom paint shop for depicting the exact color of the vehicle. A
color copy of the suspect vehicle can then be produced and immediately
broadcast, printed or faxed to officers in the field to quickly apprehend
suspected criminals.
Information from NICB's (National Insurance Crime Bureau) VINassist-TM-
program has been incorporated into Vehicle ID, enabling officers to obtain
images of vehicles based on VIN translation codes. This feature helps
officers identify stolen vehicles in cases of switched VINs.
FACE ID-TM-
Face ID is a state-of-the-art facial recognition and retrieval program
that helps officers positively identify both unknown suspects and criminals
with multiple aliases. Suspect images that have been captured on a
surveillance video, suspect composite or photograph can be searched against
any digital database of faces. This powerful investigative tool can also be
used at the time of booking to immediately identify criminals with multiple
aliases. In addition, the program's face averaging capability allows a
witness to search for a suspect by "averaging" those photos that have
features similar to those of the actual suspect. Rather than having a witness
look through a database one photo at a time, the detective can utilize the
face averaging capability to dramatically speed up the identification process.
CRIME CAPTURE SYSTEM-TM-
Crime Capture System is a flexible, easy-to-use, and affordable digital
imaging solution for automated capture, storage and retrieval of booking
images and related information. The Crime Capture System utilizes off-the-shelf
hardware that complies with open industry standards and easily integrates
with an agency's records or AFIS system (Automated Fingerprint Identification
System). Utilizing client/server architecture, the Crime Capture System can
operate on an array of systems ranging from a stand-alone PC to a wide area
network.
San Diego based ImageWare Software, Inc. is privately held.
IMAGEWARE SOFTWARE, INC. 23 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
IWS has installed investigative software in more than 650 departments
throughout the country whose needs are similar, if not exact to those of
Milwaukee County. All of the following receive 24 hour customer support with
four hour on-site response time.
ARIZONA DEPARTMENT OF PUBLIC SAFETY
- -----------------------------------
DESCRIPTION OF INSTALLED SYSTEM AND ITS FEATURES:
Central Server is IBM Netfinity server, dual host cluster, with automatic
fail-over in case of one system failure. Shared disk array with RAID level 5
implemented. 15 county intake facilities, with both capture and investigative
Crime Capture System workstations. 2 additional sites at county court
facilities. Features include an interface with the Identix livescan device,
taking all demographic data, creating the record and populating the data
fields, making the image capture portion the only step required by the
operator. All information and images are immediately available for all other
investigative workstations on the network. Arizona DPS has also recently
issued a purchase order for the addition of Face ID-TM- to be added to the
central server. Each county can then purchase the client software and conduct
facial recognition searches using images or composites produced by
Suspect ID-TM-. Crime Lab-TM- was also included in each investigative
workstation.
FACT SHEET
The State of Arizona in an effort to consolidate images and booking
information, has contracted with ImageWare Software, Inc. to install a
statewide digital mugshot repository called Mug Photo Interface (MPI). In
those locations that are part of the system, the booking process begins at
the Identix livescan station where an operator captures the suspect's
fingerprints and enters required demographic and biographical information.
Once the information is entered into the livescan system, the data
automatically transfers to the MPI system via a common linking number. At the
MPI capture station, additional mandatory information is recorded, and
digital images of the suspect are taken. Upon completion of a record, the
information is immediately transmitted via the AZAFIS network to a central
repository housed at the Department of Public Safety. At this point, the data
is readily available for searching purposes by any agency in the state which
has access to the database.
An ImageWare supplied investigative station is used to perform several
functions including quick and advanced searches for querying the database,
mugbook searches and views for witness identification of a suspect, line-ups,
and in the near future, facial recognition which is used to identify unknown
suspects and criminals.
ARIZONA MPI TECHNICAL BREAK DOWN
Initial Number of Capture Stations: 17
IMAGEWARE SOFTWARE, INC. 24 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
Initial Number of Investigative Stations: 17
Approximate Number of Bookings Per Year: 350,000
HARDWARE
Central Site: 2 IBM Netfinity Servers running in a clustered environment and
sharing a RAID level 5 array of 82 GB for database storage. Each server has 4
Pentium Pro Processors, 1 GB of RAM memory and 13 GB of internal system disk
space. The system drives are mirrored. If the active server fails to reset a
heartbeat, the failover takes place automatically, and the drive array fails
over to the control of the now active server. There is dial in capability for
diagnostic purposes. The operating system is Windows NT Server 4.0 Enterprise
Edition with Microsoft Cluster Server.
Capture & Investigative Stations: Each Investigative Station is an IBM 300XL
PC with 64MB RAM and 6.1 GB of hard disk storage. The capture camera is a
Pulnix TMC-73M with a Computar zoom lens. The camera and lens are mounted on
a Hitachi pan and tilt device. The capture card is an Integral Technology
MV-Pro. The camera is mounted on its side to accommodate the NIST Best
Practice Recommendations and proprietary software does a rotation of the
video live feed before it is displayed by the graphics card. Printing and
scanning take place on an Epson Stylus 800 printer and an Epson 636
Expressions scanner (SCSI connection). The operating system is Windows NT
Workstation 4.0. Each capture and investigative station is connected to the
central servers via a wide area network utilizing Ethernet and TCP/IP
protocol. Each station runs client software that connects to the central
server's database.
FOR IMMEDIATE RELEASE
---------------------
ARIZONA DEPARTMENT OF PUBLIC SAFETY AWARDS STATEWIDE MUG PHOTO
INTERFACE CONTRACT TO IMAGEWARE SOFTWARE, INC.
IMAGEWARE'S CRIME CAPTURE SYSTEM-TM- TO HELP ARIZONA LAW ENFORCEMENT
AGENCIES APPREHEND CRIMINALS.
San Diego, California - January 15, 1998 - After an extensive
evaluation process, the State of Arizona announced Wednesday that they had
awarded the Arizona Statewide Digital Mug Photo Interface Contract to
ImageWare Software, Inc. The contract is expected to exceed one million
dollars and is the first contract of its kind to be awarded for a statewide
mugshot system. "We are very pleased to provide Arizona law enforcement with
a complete solution for their mug photo needs," says Jim Miller, President
and CEO of ImageWare Software, Inc., "We feel the Crime Capture System will
provide a quantum leap forward for the State."
Under the terms of the contract, the State of Arizona will utilize
ImageWare's Crime Capture System (CCS), a state-of-the-art digital booking,
identification and retrieval program. The main CCS database will be housed at
the Arizona Department of Public Safety. Seventeen sites will be capable of
capturing mugshots, SMT (scars, marks, and tattoos) photos, and descriptive
data for each suspect
IMAGEWARE SOFTWARE, INC. 25 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
they arrest. Each remote site will also receive an investigative workstation
capable of searching and viewing the mugshot database and creating photo
line-ups. Once information is entered into the remote database, the central
repository is immediately updated allowing all agencies access to the most
recent information. Officers and Detectives will no longer have to spend
hundreds of hours searching through file cabinets of photographs to identify
a suspect or generate a photo line-up, instead they will use CCS's central
repository and systematically search the digital database of images for
similarities between suspects, thus speeding up case processing. The new CCS
system will also interface directly with the existing Arizona Automated
Fingerprint Identification System (AZAFIS) network.
The State of Arizona and ImageWare have agreed to an aggressive
implementation schedule which will have the system fully operational by June
1998. Once the first phase is complete, there are plans to move forward with
the implementation of additional C.R.I.M.E.S.-TM- modules including: Suspect
ID-TM- (a composite program), Crime Lab-R- (an image enhancement and edit
program), Vehicle ID-TM- (a vehicle identification program), and what Ben
Armstrong, the Lead Business Analyst with the Maricopa County Sheriff's
Office considers, "one of the most promising law enforcement tools," Face
ID-TM- (a facial recognition program). All of these modules combined will
create a fully integrated law enforcement solution for the State of Arizona.
San Diego-based ImageWare Software, Inc. is a leader and innovator
in PC-based digital imaging, with its primary focus on law enforcement
software. Through its growing family of C.R.I.M.E.S. software modules,
ImageWare is effectively assisting in the resolution of crime worldwide.
Currently, the five C.R.I.M.E.S. modules are being used by more than 500 law
enforcement agencies worldwide. ImageWare Software, Inc. is privately held.
###
THE ARIZONA REPUBLIC
POLICE SING PRAISES OF NEW STATEWIDE MUG SHOT SYSTEM
PUBLISHED ON SATURDAY, SEPTEMBER 12, 1998
BYLINE: BY JUDI VILLA, THE ARIZONA REPUBLIC
In seconds, a suspect's booking mug can be seen by law enforcement agencies
throughout the state. A few computer keystrokes, and a detective can have
more pictures than he'll ever need for a photographic lineup. And if there is
no suspect, that same detective can type in a physical description and get a
list of potential bad guys in no time.
Welcome to the Mug Photo Interface, a subsystem of the Arizona Automated
Fingerprint Identification System. MPI uses electronic imaging to capture mug
shot photos and transmit them immediately to a statewide image database
operated by the state Department of Public Safety. "It is going to
revolutionize (police work) just like fingerprints did," said Clyde Tess, a
crime lab supervisor with the Maricopa County Sheriff's Office. "It'll solve
cases faster. It'll
IMAGEWARE SOFTWARE, INC. 26 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
help in identifying suspects faster. "If a suspect is entered into the
database in Phoenix then goes down to Tucson and commits a crime, the victim
can identify the suspect the same day. Before an agency would have to send a
photo or fax it. Faxes aren't always that good, and the mail takes a day or
two. This is instant."
The MPI system went online Thursday in 10 counties. The first booking mug was
entered by the Santa Cruz County Sheriff's Office in Nogales. "It's pretty
nice," said Ramon Villela, a detention officer in Nogales. "It's going to
make our jobs easier and faster, and the detectives are going to be able to
do lineups faster."
Arizona's program, funded by a grant from the Arizona Criminal Justice
Enhancement Fund, will be one of the most progressive in the country,
officials say. Although some cities, including San Diego and Boston, have
limited imaging databases, only Arkansas has a statewide system. And that one
collects information form only six sites. Seven more sites, including police
departments in Mesa, Tempe, Phoenix, Scottsdale, and Glendale, will be added
to MPI by next summer. and by the end of this year, five sheriff's
departments that already have their own mug photo systems will be linked to
the statewide system. A few agencies, like the Chandler Police Department,
have purchased their own equipment to hook into the system.
"Here's a great thing," said Mark Hatcher, an identification supervisor for
the Mesa Police Department and chairman of the MPI Task Force. The task
force, a grass-roots effort with members from five police agencies in Arizona
has been working for two years to implement the technology. "This opens up
communication from Yuma County to Navajo County," Hatcher said.
"Geographically, they're at different ends of the state, but they can do a
search just like they were here at DPS."
The system standardizes the way mug shots are taken and stored, sets up a
"major clearinghouse" for all photos and allows investigators anywhere in the
state to search for, retrieve and print out mugs and suspect information from
virtually anywhere in the state. It also can be used to create photo lineups
and books of mug shots for victims to look through. "Say a suspect does a
robbery with a mask, and he's got a tattoo on his arm," Villela said.
"Detectives can take that picture of that tattoo and scan it into the system,
and it'll give you everybody that has that tattoo." The system also is
capable of tracking gang affiliations, weapons and registered sex offenders.
IMAGEWARE SOFTWARE, INC. 27 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
LOS ANGELES COUNTY, LAKEWOOD
- ----------------------------
ImageWare Software has great experience in the area of composite creation and
the identification of suspects using those composites. The most recent and
important news involves the facial recognition software, Face ID. This
software was created using algorithms developed from MIT research, which
ImageWare has the exclusive right to offer to the law enforcement industry.
The software describes a portion of the face of an individual mathematically,
from the eyebrows to the lips. This represents the majority of facial
features used to differentiate individuals and discounts such things as hair
length and style, eyeglasses, hats, and other adornments.
Face ID is presently installed at the Lakewood substation of the Los Angeles
Sheriff's Department, and was recently used to capture a carjacking suspect.
The victim gave a very accurate description to the Sheriff's Department, and
a composite was created using ImageWare's Suspect ID. This composite was used
to then search their mugshot database using Face ID. The returned search
results contained a suspect that the victim identified from a lineup. This
search took approximately 90 seconds to perform, and caused the identification
and apprehension of the suspect, and subsequently the District Attorney's
office has filed charges against the suspect. The press release of this
incident follows, along with a view of the composite and actual photo of the
suspect.
FOR IMMEDIATE RELEASE
---------------------
LOS ANGELES SHERIFF'S DEPARTMENT IDENTIFIES SUSPECT
WITH NEW HIGH-TECH CRIME FIGHTING SOFTWARE
DETECTIVES UTILIZE FACE ID-TM- FACIAL RECOGNITION SOFTWARE
TO ARREST CAR-JACKING AND BATTERY SUSPECT.
San Diego, California - November 3, 1997 - Just three days after installation
of their newest crime fighting weapon, detectives with the Los Angeles County
Sheriff's Department arrested a car jacking and battery suspect "that would
never had been identified without Face ID-TM- facial recognition software",
according to Sergeant Bill Conley of the Los Angeles Sheriff's Office. With
no leads, frustrated detectives had given up on the case weeks prior and
considered it dead until the installation of Face ID. Using a composite of
the suspect, detectives employed the facial recognition program to search
their digital mugshot database for possible matches. Within seconds the
automated search results displayed photos in rank order that were similar to
those of the composite. Detectives investigated the matches, created a
photo-line-up and two witnesses positively identified Eduardo Ochoa as the
suspect. Ochoa was arrested on October 30, 1997 and is being held in lieu of
$125,000 bail. Sergeant Conley was amazed and commented, "Face ID is one of
the most innovative breakthroughs in law enforcement technology."
IMAGEWARE SOFTWARE, INC. 28 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
Face ID, one of the modules of the C.R.I.M.E.S.-R- suite of integrated law
enforcement programs developed by ImageWare Software, Inc., is a
state-of-the-art facial recognition and retrieval program. Now, investigators
no longer have to spend hundreds of hours trying to identify a suspect.
Detectives can take a suspect composite created in ImageWare's Suspect ID-TM-
program, and seamlessly export it to Face ID, which in turn will
systematically search any digital database of booking images to identify
possible suspects. Similarly, a suspect's image caught on a bank or
convenience store surveillance video can be run against a digital photo
database for possible identification. With Face ID, officers will be able to
utilize this facial recognition technology at the time of booking to
immediately identify a criminal with multiple identities or outstanding
warrants.
San Diego-based ImageWare Software, Inc. is a leader and innovator in
PC-based digital imaging, with its primary focus on public sector and law
enforcement software. Through its growing family of modules, ImageWare is
effectively creating a fully integrated solution to assist in the resolution
of crime worldwide. Currently, the C.R.I.M.E.S. suite consists of five
modules: Suspect ID (facial composite module), Crime Lab-TM- (an image
enhancement and edit program), Vehicle ID-TM- (vehicle identification
program), Face ID (facial recognition application) and Crime Capture System
(digital booking module) which are being used by more than 500 law
enforcement agencies worldwide. ImageWare Software, Inc. is a privately held
company.
IMAGEWARE SOFTWARE, INC. 29 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
LOS ANGELES SHERIFF'S DEPARTMENT IDENTIFIES SUSPECT
WITH NEW HIGH-TECH CRIME FIGHTING SOFTWARE
San Diego, California - November 3, 1997 - Just three days after installation
of ImageWare's Face ID-TM-, the program proved itself to be the most effective
high-tech crime fighting software available. Using a composite of a suspect,
detectives employed Face ID to conduct an automated comparison search and
produced a number of photos which closely resembled the suspect in a car
jacking and battery case. Both the victim and witness positively identified
the suspect who was ranked highest in the comparison search.
[PHOTOS]
Face ID
Search
[PHOTOS] [PHOTOS]
Suspect ID-R- Identified
Composite Suspect
"The suspect would never had been
identified without Face ID-TM- facial
recognition software".
-SERGEANT BILL CONLEY-
IMAGEWARE SOFTWARE, INC. LOS ANGELES COUNTY SHERIFF'S
10883 THORNMINT ROAD DEPARTMENT Phone 619-673-8600
SAN DIEGO, CA 92127 FAX 619-673-1770
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
NEW YORK CITY POLICE DEPARTMENT
- -------------------------------
DESCRIPTION OF INSTALLED SYSTEM AND ITS FEATURES:
With over 400,000 bookings each year, the New York City Police Department
is the largest law enforcement agency in the world. The contract for booking
systems for the entire NYPD network clearly establishes XImage as the leading
company for mugshots. XImage was chosen for the high quality of the system,
the adaptability of the software with other technologies and its ability to
be scaled to the size of the project.
The New York City Police Department's booking system, spans 76 precincts in
5 boroughs, including 100 capture stations and redundant central servers.
XImage has a large customer support staff with 24 hours a day, 7 days a week
availability. The operating system is UNIX.
XImage worked as a subcontractor to the worldwide systems integrator, SAIC,
Science Applications International Corporation of McLean, VA. SAIC is an
established provider of computer and information solutions to governmental
agencies worldwide.
HENEPIN COUNTY SHERIFF'S OFFICE (MINNEAPOLIS)
- ---------------------------------------------
DESCRIPTION OF INSTALLED SYSTEM AND ITS FEATURES:
This system is a UNIX installation with a single ImageBank server, but
servicing input and searching from 6 other agencies. There is also a Mail
Server within the system. There are a total of 18 workstations, 3 of which
are capture stations from within the Henepin County Sheriff's Office. The
database size is approximately 600,000 records at present. ImageWare has
recently received a purchase order from Henepin County to install FaceID-TM-
on the network. This will allow for the facial recognition of subjects, based
on a composite or image.
IMAGEWARE SOFTWARE, INC.
10883 THORNMINT ROAD 31 Phone 619-673-8600
SAN DIEGO, CA 92127 FAX 619-673-1770
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
Video Imaging System RFP#098002
ATTACHMENT B
------------
VENDOR DATA AND REFERENCE SHEET
-------------------------------
IMAGEWARE SOFTWARE, INC.
10883 THORNMINT ROAD 32 Phone 619-673-8600
SAN DIEGO, CA 92127 FAX 619-673-1770
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
IMAGEWARE SOFTWARE, INC.
10883 THORNMINT ROAD 33 Phone 619-673-8600
SAN DIEGO, CA 92127 FAX 619-673-1770
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
IMAGEWARE SOFTWARE, INC.
10883 THORNMINT ROAD 34 Phone 619-673-8600
SAN DIEGO, CA 92127 FAX 619-673-1770
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
IMAGEWARE EXPERIENCE & SUCCESS STORIES
XImage Corporation has over 60 successful installations using the ForceField
technology. There are currently
- over 3 million arrestees that have been booked using ImageWare
systems throughout North America
- over 4 million images stored on ImageWare systems worldwide
- over 150,000 lineups that have been created on ImageWare systems
- over 100,000 people booked in the first 4 months of operation using
the New York City PD ImageWare system
- over 1 million images stored in the state of Florida on ImageWare
systems
- over 800,000 images stored in the state of Washington on ImageWare
systems &
- over 434,000 bookings stored on the Orange County, Florida
ImageWare system.
OTHER NOTABLE BOOKING INSTALLATIONS
- Las Vegas Metro PD (Partnered with PRC/Litton and NEC)
- Indianapolis PD
- King County (Seattle)
- Multnomah County (Portland)
- Sonoma County
- Orange County
- Clackamas County
- Marion County
- Yolo County
- Tacoma PD
IMAGEWARE SOFTWARE, INC. 35 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
IMAGEWARE EXECUTIVES
S. JAMES MILLER, JR., CHAIRMAN & CEO
Mr. Miller came to ImageWare in 1990 after 11 years at Oak Industries,
Inc. Most recently a Senior Vice President for the publicly traded company,
Mr. Miller also served as Chief Legal Officer, Chief Administrative Officer
and President of the company's Far East manufacturing subsidiaries. At Oak
Industries, Mr. Miller's responsibilities included business acquisitions,
divestitures and financing. He also headed the negotiation of technology
licensing arrangements. Mr. Miller holds a J.D. in Law (WITH HONORS) from the
University of San Diego School of Law, and a B.A. in History and Economics
(SUMMA CUM LAUDE) from the University of California at San Diego.
WAYNE G. WETHERELL, VICE PRESIDENT OF FINANCE & CFO
Prior to becoming ImageWare's Vice President of Finance and CFO, Mr.
Wetherell served in a similar capacity at Bilstein Corporation of America (a
subsidiary of the Krupp Group) for nearly five years. Before joining
Bilstein, he spent 10 years with Oak Industries, Inc., where he served in
various capacities, including Director of Finance and Director of Financial
Planning and Analysis. His responsibilities included management reporting,
financial and strategic planning, and business development. Mr. Wetherell
holds a M.S. in Finance and a B.S. in Management from San Diego State
University.
PAUL J. DEVERMANN, VICE PRESIDENT OF SALES & BUSINESS DEVELOPMENT
Prior to joining ImageWare in 1996, Mr. Devermann was the Managing
Director and Founding Partner of InTra-International Trade & Transactions, an
international consulting and trading company specializing in facilitating
business transactions between the U.S. and Japan. Prior to that, Mr.
Devermann held the position of Senior Vice President of the San Diego
Economic Development Corporation where he was responsible for marketing and
development from 1985 to 1990. Mr. Devermann spent the previous ten years
with Oak Communications in various capacities of sales, sales management,
marketing and business development positions. He holds a B.S. in Marketing
from Northern Illinois University and a M.B.A. from the University of Puget
Sound.
IMAGEWARE SOFTWARE, INC. 36 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
KEY PROJECT STAFF
Project Coordinator: Eric Carlgren
-------------
Telephone Number: (619) 673-8600
--------------
FAX Number: (619) 673-1770
--------------
Name Years With Project Role
Company
- --------------------------------------------------------------------------------
John Canepa 6 Software Developer
Renee Gutierrez 4 Documentation & Testing
Tracy Toettcher 6 Training Manager
Bill Ibbetson 6 Director of R&D
Other staff will be identified after contract award.
IMAGEWARE SOFTWARE, INC. 37 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
WILLIAM J. IBBETSON
3520 MISSION MESA WAY
SAN DIEGO, CA 92120
(619) 582-0830
================================================================================
EMPLOYMENT IMAGEWARE SOFTWARE, INC. SAN DIEGO, CA
EXPERIENCE MARCH 1992 TO PRESENT
CHIEF TECHNICAL OFFICER
- Responsible for all technical aspects of the company.
- Direct technical solutions and industry positioning of
products.
MANAGER, RESEARCH AND DEVELOPMENT
- Manage software development team.
- Design software applications and utilities.
- Conduct new products feasibility studies.
- Analyze product/project costs and schedules.
PHOTO IMAGING SPECIALIST
- Develop patented imaging technology.
- Design digital image algorithms.
- Integrate imaging technologies into software applications.
INDEPENDENT CONSULTANT, SAN DIEGO, CA
JUNE 1987 TO PRESENT
ADMIT 1 TECHNOLOGIES
- Designed and developed graphic based screensaver.
- Created animation and imaging for screensaver.
RESOURCE SUPPLY, INC.
- Designed accounts payable/receivable database application.
- Created an Inventory Control System.
PUBLICATIONS - WROX PRESS - TECHNICAL EDITOR
Beginners Guide to Visual C+ +, January 1996
- VISUAL BASIC PROGRAMMERS JOURNAL - CO-AUTHOR
Animation Techniques in VB, February 1996
IMAGEWARE SOFTWARE, INC. 38 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
PATENTS - METHOD AND APPARATUS FOR THE ELECTRONIC TRANSMISSION OF AN
IMAGE FROM A PHOTO KIOSK - INVENTOR
Patent Pending
- IMAGEWARES PATENT PORTFOLIO - TECHNICAL LIAISON
U.S. Patent No. 5,345,313 - Image editing system
U.S. Patent No. 5,469,536 - Color masking system
U.S. Patent No. 5,577,179 - Object layering
U.S. Patent No. 5,343,386 - Electronically produced postcards
================================================================================
SPECIALIZED - C/C+ + PROGRAMMING
SKILLS - MICROSOFT FOUNDATION CLASSES (MFC)
- VISUAL BASIC PROGRAMMING
- RDBMS DESIGN, INTEGRATION AND MANAGEMENT
- DIGITAL PHOTO IMAGING MANIPULATION/ENHANCEMENT
- NOVELL/NT SERVER CONFIGURATION, CONNECTIVITY AND
ADMINISTRATION
- INTERNET/INTRANET APPLICATION DEVELOPMENT
EDUCATION COLEMAN COLLEGE COMPUTER ELECTRONICS TECHNOLOGY
GRADUATE 1992 1990-1992
HONORS - TOP 5% OF CLASS COMPUTER HARDWARE SPECIALIST
DEANS LIST - 3.947 GPA
ADDITIONAL - NETSCAPE DEVELOPERS CONFERENCE
TRAINING - MICROSOFT MFC DEVELOPERS CONFERENCE
- MICROSOFT INTERACTIVE MULTIMEDIA CONFERENCE
IMAGEWARE SOFTWARE, INC. 39 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
JOHN J. CANEPA
SENIOR SOFTWARE ENGINEER
- ------------------------
SUMMARY OF EXPERIENCE
Five years experience in the imaging software industry. Senior developer for
windows based law enforcement applications. Designed user interface, database
search tools and data acquisition screens for digital booking and
investigative applications. Worked directly with the State of Arizona in
design, development and acceptance of the AZAFIS Mug Photo System.
EMPLOYMENT HISTORY
FEBRUARY 1993 TO PRESENT. SOFTWARE ENGINEER, IMAGEWARE SOFTWARE, INC.
Hired for quality assurance and software support. Moved into programming to
modify existing code for product updates. Experience using VB, C++, MFC,
ODBC, and SQL on Windows 3.1, Windows 95 and Windows NT. Developed data
acquisition applications for in house utilities. Designed algorithm to rotate
2D raster objects in 3D using OpenGL. Senior software engineer for the
development of the Crime Capture System (CCS). Experienced in developing user
interface, data entry and database query applications using ODBC and MFC.
Developed multithreaded Windows 95/NT law enforcement investigative
application for searching UNIX booking database.
OCTOBER 1991 TO NOVEMBER 1992. MARKETING MANAGER, DESIGN DRAFTING AND
ENGINEERING, INC.
Designed and maintained customer contact management software and database.
Managed direct marketing for the sales of CAD/CAM software.
EDUCATION
B.A. Applied Mathematics, University of California, San Diego, 1993
IMAGE SOFTWARE, INC.
10883 THORNMINT ROAD 40 Phone 619-673-8600
SAN DIEGO, CA 92127 FAX 619-673-1770
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
RENEE GUTIERREZ
TECHNICAL DOCUMENTATION DEVELOPER
SUMMARY OF EXPERIENCE
Ms. Gutierrez has 8 years of experience in the computer software industry.
She has 7 years of documentation and user interface design experience with
extensive recent experience in the usability of law enforcement software.
EMPLOYMENT HISTORY
MAY 1995 TO PRESENT. IMAGEWARE SOFTWARE, INC.
- - Create software user manuals, including research, writing, and design.
Test software for usability and develop hypertext On-line Help. Coordinate
with clients and R&D and Marketing departments to design print reports, user
interface and icons for all law enforcement applications.
- - Responsible for all Webmaster duties, including design and creation of
HTML pages, graphics, photo-imaging, and Web conferencing maintenance.
NOVEMBER 1994 TO PRESENT. INDEPENDENT CONTRACTOR
- - CASIO INC. - Created software user manual and On-Line Help file for
Windows interface to the Casio B.O.S.S.
- - ABACUS DATA SYSTEMS - Created software user manuals for Windows based
legal/attorney software.
- - WINDOWS LINK, INC. - Created software user manual and On-Line Help file
for Windows interface to Royal and Sharp handheld organizers.
- - PERSONAL RESOURCE SYSTEMS - Created software user manual and On-Line
Help file for Windows Time Management software.
- - EAGLE INTERNATIONAL - Created software user manual and On-Line Help file
for Windows PIM.
- - KINGSLEY MACHINE COMPANY - Created software user manual and On-Line Help
file for Windows desktop publishing program. In addition created manual
for foil stamping hardware.
NOVEMBER 1994 TO MAY 1995. STELLCOM TECHNOLOGIES
Independent Contractor. Worked as a contract Technical Writer and Quality
Assurance Engineer.
- - EDITPRO CORPORATION - Created software user manual and On-Line Help file
for Windows program editor.
- - INTUIT - Performed Quality Assurance testing on in-house Windows referral
program. Wrote training documentation and trained staff in use of the
Partners-TM- program.
IMAGEWARE SOFTWARE, INC. 41 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
- - HORIZONS TECHNOLOGY, INC. - Created documentation for CD Rom Maps software
and LAN auditing software.
JULY 1993 TO OCTOBER 1994. POLARIS SOFTWARE, INC.
- - Manager, Information Development. Created software user manuals, including
research, writing, and design. Tested software for usability and developed
hypertext On-Line Help. Coordinated with Usability, Development, and
Marketing departments on design and implementation.
MARCH 1991 TO JULY 1993. MIDRANGE COMPUTING
- - Assistant Director Software Division. Coordinated all software sales,
technical support, and marketing. Senior technical writer of software
manuals. Administered technical support through diagnostics and
troubleshooting. Trained and supervised technical support and sales staffs.
- - Assistant Manager, Business to Business Sales. Trained and supervised
staff in sales of technical manuals, software, and trade journal. Coordinated
trade shows and training seminars.
EDUCATION
B.A., English, University of Arizona, Tucson, AZ, 1985
IMAGE SOFTWARE, INC.
10883 THORNMINT ROAD 42 Phone 619-673-8600
SAN DIEGO, CA 92127 FAX 619-673-1770
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
OTHER C.R.I.M.E.S. REFERENCES
AZ DPS Cyndy Pellien 602-223-2401
Los Angeles SO Sgt. Bill Conley 562-866-9061
Corona PD CA Danny Verdugo 909-279-3642
Raynham PD MA Lou Pacheco 508-824-2727
Independence PD KS Harry Smith 316-332-1700
Little Rock PD AR Chuck Ray 501-371-4660
Long Island Railroad Police Kevin Farrell 718-558-3346
Naval Investigative Service Brandon Armstrong 619-556-1386
E. Prvidence PD RI Capt Broadmeadow 401-435-7626
San Diego PD CA David Cavanaugh 619-531-2623
San Diego SO CA Mark Kelly 619-258-3100
Monroe SO NY Jim Beikirch 716-428-5432
Placentia PD CA Matt Reynolds 714-993-8164
Austin PD TX Cheryl Bowne 512-480-5145
Visalia PD CA Det Sharon Brown 209-738-3235
Wilson County SO TN Lt Bob White 615-444-1459
San Bernardino SO CA Dep Karen Rice 909-387-8812
Los Angeles PD CA Det Tom Barnhart 818-756-8553
Bullhead City PD AZ Capt Rodney Head 520-763-9200
Arlington, PD TX Det Pat Smith 817-459-5710
New York City Police Department Lt. Brian Griffin 212-374-5020
Clackamas County Sheriff's Office Joanne LeBreun 503-650-3155
Stanislaus County Sheriff's Office Gordon Brusso 209-525-7279
Santa Ana Police Department Lt. George Saadeh 714-245-8410
Henepin County Sheriff's Dept Sheryl Loose 612-348-9648
IMAGEWARE SOFTWARE, INC. 43 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
2.4 MAINTENANCE
- -------------------------------------------------------------------------------
Maintenance for the system will be 7 days per week, 24 hours a day, with all
agencies in MILWAUKEE COUNTY SHERIFF'S OFFICE having just one toll-free
number to call for service. ImageWare will meet the response times as
outlined in the RFP. Initial calls will be received by the IWS Help Desk. If
no one is available, a call back will be made within 1 hour. Within a 8 hour
period, a hardware technician will be on-site to troubleshoot and correct the
problem.
If any installation within any agency will require access to restricted areas
by IWS employees, it is expected that information will be given to ImageWare
during contract negotiations. ImageWare will make any and all information
available to the MILWAUKEE COUNTY SHERIFF'S OFFICE for each employee who must
have access to the restricted areas.
The equipment and software supplied as part of this proposal will be fully
guaranteed for a minimum period of 12 months. All prices quoted as part of
this proposal are guaranteed for a period of 12 months.
The central server comes complete with dial-in modem, and the IBM Netfinity
Manager software and clients installed on each supplied workstation. This
will enable the customer service rep to access, and actually 'take over'
workstations when necessary to diagnose and repair any problems.
Software support first level is via toll free number to phone support. This
customer service rep has the ability to escalate the problem up to level 2
support, which is an R&D engineer. It that person requires an on-site rep,
one will be dispatched. We also include IBM hardware support with each IBM
system. Sometimes, the ImageWare programmer just needs a set of hands and
eyes on-site, and an IBM technician will be dispatched. Dial-in access is
available to both levels 1 and 2, and using Netfinity Manager, many problems
can be diagnosed and resolved by 'taking over' the workstation that is having
problems, seeing the error happen, and resolving the situation immediately
via remote connection.
2.5 TRAINING
- -------------------------------------------------------------------------------
Training will be accomplished at each agency location, using their system
equipment. All handout materials and reference materials will be furnished.
It is recommended that at least one training session be video taped and
duplicated for each agency for on-going training purposes. This proposal
includes two full days of training of no more than 20 people at a time.
For Training schedules see page 26.
IMAGEWARE SOFTWARE, INC.
10883 THORNMINT ROAD 44 Phone 619-673-8600
SAN DIEGO, CA 92127 FAX 619-673-1770
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID #5467
2.6 WORKPLAN
- -------------------------------------------------------------------------------
PROJECT ORGANIZATIONS & STAFFING
- --------------------------------
A Project Manager will be named by ImageWare Software, Inc., to oversee and
manage the planning, monitoring, reporting, and acceptance of the system
outlined in the proposal if ImageWare is the successful vendor. This person's
resume will be supplied during contract negotiations. It is expected that the
MILWAUKEE COUNTY SHERIFF'S OFFICE will also name a Project Coordinator who
will work with the IWS Project Manager, who will be responsible for all tasks
outlined as COUNTY responsibility on the task list.
APPROACH TO PROJECT
- -------------------
ImageWare has a well-defined, disciplined approach to program management
which includes:
- Attention to customer satisfaction
- Regular communications with customer via weekly status meetings,
monthly project status reports, and quarterly reviews
- Regularly scheduled status meetings with the project staff
ImageWare will avoid and mitigate risks by reviewing, prioritizing, and
monitoring key project risks throughout the project life cycle. Identified
project risks will be recorded and tracked to resolution. Identification of
risks and potential mitigation plans will be reviewed with the project staff
monthly, documented in the project reports, and presented to the MILWAUKEE
COUNTY SHERIFF'S OFFICE's Project Coordinator during the project reviews. By
identifying risks early before they have impacted the project, the actual
impact to the project can be decreased, if not totally eliminated. An
inescapable fact of project management is that there are always risks. The
key to ensuring a successful project is to manage them. This means the
following must be done early, before the risk actually impacts the project:
- Identify risks (technical, schedule, and cost)
- Prioritize and quantify risks
- Assign responsibility
- Mitigate (determine mitigation action, responsible person, due date)
- Track Progress
IMAGEWARE SOFTWARE, INC.
10883 THORNMINT ROAD 45 Phone 619-673-8600
SAN DIEGO, CA 92127 FAX 619-673-1770
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
<TABLE>
<CAPTION>
<S> <C> <C> <C>
- --------------------------------
CUSTOMIZATION DEFINITION
- --------------------------------
--------------------------------
CUSTOMIZATION IMPLEMENTATION
--------------------------------
PHASE 1: TASKS ---------------
- -------------- DEPLOYMENT
- - Define field definitions ---------------
- - Define field validation rules ---------------------
- - Define code tables PHASE 2: TASKS MAINTENANCE SUPPORT
- - Define print formats, Audit Trail -------------- ---------------------
- Implement customized database
- - Define Mandatory Fields - Implement field validation rules
- Implement customized screens PHASE 3: TASKS
- - Site Surveys - Implement Audit Trail reports --------------
- - Procure Components - Integration
- Develop installation plan - Installation PHASE 4: TASKS
PHASE 1: MILESTONES - Develop acceptance test document - Training --------------
- ------------------- - Develop training material - System Acceptance - HW & SW Maintenance
- - Specifications Review - Develop user manuals - Enhancements &
- - Purchase Order Issued upgrades (Option)
PHASE 2: MILESTONES
PHASE 1: DELIVERABLES ------------------- PHASE 3: MILESTONES
- --------------------- - Ready-To-Ship Review -------------------
- - Specifications Document - Installation Schedule Review - Site Reviews
- - Installation Schedule (preliminary) - Final System Acceptance PHASE 4: MILESTONES
- - Purchase Order PHASE 2: DELIVERABLES --------------------
--------------------- - Maint. Plan Review
- Acceptance Test Plan PHASE 3: DELIVERABLES
- Installation Schedule ---------------------
- Site hardware PHASE 4: DELIVERABLES
- Site software ---------------------
- Training Material - Help Desk Incidence
- User Manual Statistics
- System Administration - Maint. Plan
Manual
</TABLE>
IMAGEWARE SOFTWARE, INC.
10883 THORNMINT ROAD 46 619-673-8600 voice
SAN DIEGO, CA 92127 619-673-1770 Fax
<PAGE>
REQUEST FOR VIDEO IMAGING SYSTEM 11/11/99
PROPOSAL #098002 MILWAUKEE COUNTY
BID # 5467
2.7 FINANCIAL STABILITY
- -------------------------------------------------------------------------------
IWS has included financial statements from 1996, 1997 and through November of
1998. When reviewing the attached financials for November 30, 1998 several
issues should be noted. On the Consolidating Income Statement included in the
11 months, results are approximately $1 million of one time costs related to
the acquisition and integration of XImage operations into ImageWare. When
reviewing the 11/30/98 Balance Sheet, the fact is that IMAGEWARE IS (AS OF
3/1/99) LESS THAN THIRTY DAYS AWAY FROM FUNDING A $10,000,000 EQUITY FROM A
GROUP OF INSTITUTIONAL INVESTORS LED BY J.P. MORGAN. A summarized pro-forma
balance sheet is provided below which shows the 11/30/98 balance sheet
assuming the equity investment and the planned immediate use of funds for
debt and liabilities had already taken place.
<TABLE>
<CAPTION>
Balance Sheet 11/30/98 Actual Pro-Forma
-------------------------------
<S> <C> <C>
Cash 223,627 5,623,627
Other Current Assets 1,538,815 1,538,815
Fixed Assets 273,876 273,876
Other Assets 3,133,738 3,133,738
-------------------------------
Total Assets 5,170,056 10,570,056
Current Liabilities 5,305,564 1,555,564
Long Term Liabilities 674,059 674,059
-------------------------------
Total Liabilities 5,979,623 2,229,623
Stockholders Equity (809,567) 8,340,433
-------------------------------
Total Liabilities and S. E. 5,170,056 10,570,056
-------------------------------
</TABLE>
IMAGEWARE SOFTWARE, INC.
10883 THORNMINT ROAD 47 619-673-8600 voice
SAN DIEGO, CA 92127 619-673-1770 Fax
<PAGE>
PROCUREMENT AGREEMENT
FOR
ORANGE COUNTY SHERIFF'S OFFICE
AND
IMAGEWARE SOFTWARE, INC.
TABLE OF CONTENTS
ARTICLE I. SCOPE OF WORK . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II. HARDWARE . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Site Preparation and Maintenance. . . . . . . . . . . . . . . . . 3
Shipping and Installation . . . . . . . . . . . . . . . . . . . . 3
Equipment Compatibility . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III. OPERATING SYSTEM SOFTWARE . . . . . . . . . . . . . . . . . 4
ARTICLE IV. APPLICATION SOFTWARE . . . . . . . . . . . . . . . . . . . . 4
Delivery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
License Agreement . . . . . . . . . . . . . . . . . . . . . . . . 5
Project Change Requests . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE V. SYSTEM ACCEPTANCE . . . . . . . . . . . . . . . . . . . . . . 6
System Acceptance . . . . . . . . . . . . . . . . . . . . . . . . 6
Notice of Acceptance. . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VI. SYSTEM WARRANTIES AND MAINTENANCE . . . . . . . . . . . . . 6
Hardware Warranty . . . . . . . . . . . . . . . . . . . . . . . . 6
Software Warranty . . . . . . . . . . . . . . . . . . . . . . . . 7
Warranty Disclaimer and Limitation of Liability . . . . . . . . . 7
Hardware and Software Maintenance . . . . . . . . . . . . . . . . 7
ARTICLE VII. MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . 8
Project Contact and Status Reports. . . . . . . . . . . . . . . . 8
Working Space . . . . . . . . . . . . . . . . . . . . . . . . . . 8
<PAGE>
Personnel Support . . . . . . . . . . . . . . . . . . . . . . . . 8
Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . .11
Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Severability. . . . . . . . . . . . . . . . . . . . . . . . . . .11
Disputes. . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Incorporated Exhibits . . . . . . . . . . . . . . . . . . . . . .11
News Releases and Reports . . . . . . . . . . . . . . . . . . . .11
Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Independent Contractor. . . . . . . . . . . . . . . . . . . . . .12
Confidential Information. . . . . . . . . . . . . . . . . . . . .12
BUYER Responsibilities. . . . . . . . . . . . . . . . . . . . . .13
Patent Infringement . . . . . . . . . . . . . . . . . . . . . . .13
Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . .14
ARTICLE VIII. TERMINATION . . . . . . . . . . . . . . . . . . . . . . .14
I. EXHIBITS
Exhibit A, "Functional Specification for Criminal/Employee/Missing Persons
Imaging System"
Exhibit B, "Deliverables for Criminal/Employee/Missing Persons Imaging System.
Exhibit C, "Statement of Work for Criminal/Employee/Missing Persons Imaging
System."
Exhibit D, "Requirements Document: IMAGEWARE Response to Functional
Specification Revision 4 (11/12/98)."
Exhibit E, "IMAGEWARE PROPOSAL, 04/20/99: Pricing and Deliverables."
Exhibit F, "Statement of Work: IMAGEWARE and OCSO Responsibilities."
Exhibit G, "Initial Project Schedule"
Exhibit H, "Project Implementation Plan"
Exhibit I, "Software Escrow Agreement"
Exhibit J, "System Acceptance Testing"
Exhibit K, "Software and Hardware Maintenance Agreement"
Exhibit L, "Crime Capture System Training Outline"
Exhibit M, OCSO Tax Exemption Certificate
Exhibit N, "Year 2000 Warranty and Compliance Agreement"
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OCSO-IWS Agreement: Page 1
PROCUREMENT AGREEMENT
This Agreement (the "Agreement") is made by and between IMAGEWARE SOFTWARE,
INC., a California corporation with its principal place of business at 10883
Thornmint, San Diego, California 92127, which is duly authorized to conduct
business in the State of Florida (hereinafter referred to as "IMAGEWARE"),
and the SHERIFF'S OFFICE OF ORANGE COUNTY, FLORIDA, a governmental entity
under the Florida Constitution and the statutes of the State of Florida,
having its principal place of business at 2400 West 33rd Street, Orlando,
Florida 32839 (hereinafter referred to as "BUYER"), and shall become
effective as stipulated herein.
WHEREAS, BUYER wishes to replace its system for electronically taking,
storing, and retrieving mug shots;
WHEREAS, BUYER requires computer hardware and software for the new system,
the "Sheriff's Crimes Capture System;"
WHEREAS, BUYER also requires installation and maintenance services for the
Sheriff's Crimes Capture System, as well as training and customized design;
WHEREAS, IMAGEWARE has experience in the integration, installation and
maintenance of computer-based systems for state, county, and local
governments, and it is in the business of providing systems such as the
Sheriff's Crime Capture System (hereinafter referred to as the "System");
WHEREAS, IMAGEWARE and BUYER mutually desire that IMAGEWARE make available
software, hardware and services on the terms contained herein;
NOW, THEREFORE, in consideration of these premises and mutual covenants
contained herein, the parties hereby agree as follows:
ARTICLE I: SCOPE OF WORK
IMAGEWARE shall deliver the SYSTEM and services in accordance with this
Agreement. The SYSTEM shall provide the functionality described herein.
IMAGEWARE will provide the warranties set forth in this Agreement,
specifically including those in the Year 2000 Warranty and Compliance
Agreement, Exhibit N.
The following documents describe functions the System must include:
1. Exhibit A, "Functional Specification for Criminal/Employee/Missing Persons
Imaging System":
1.1. Appendix A, listing the specific locations of the image viewing and
capture stations.
1.2. Appendix B, describing required historical data conversion.
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OCSO-IWS Agreement: Page 2
1.3. Appendix C, describing the special indicator flags used to get an
operator's attention.
1.4. Appendix D, describing the interface between the CIS and DEC Alpha
System.
1.5. Appendix E, describing the TIFF interface to the DEC Alpha Warrants
program.
1.6. Appendix F, describing the CJNET interface.
1.7. Appendix G, describing the EIS data field edits and the transferring
of data from the BUYER'S DEC Alpha computer system.
1.8. Appendix H, describing the MIS data field edits and the transferring
of data from the BUYER'S DEC Alpha computer system.
1.9. Appendix I, describing the MDT interface to the image system.
2. "Deliverables for Criminal/Employee/Missing Persons Imaging System,
attached hereto as Exhibit B.
3. "Statement of Work for Criminal/Employee/Missing Persons Imaging System,"
attached hereto as Exhibit "C."
4. "Requirements Document: IMAGEWARE Response to Functional Specification
Revision 4 (11/12/98)," attached hereto as Exhibit "D."
The following documents describe the basic parameters of the System:
1. Exhibit B, "Deliverables for Criminal/Employee/Missing Persons Imaging
System.
2. Exhibit C, "Statement of Work for Criminal/Employee/Missing Persons Imaging
System."
3. Exhibit D, "Requirements Document: IMAGEWARE Response to Functional
Specification Revision 4 (11/12/98)."
4. Exhibit E, "IMAGEWARE PROPOSAL, 07/21/99: Pricing and Deliverables."
5. Exhibit F, "Statement of Work: IMAGEWARE and OCSO Responsibilities."
Work to be performed by IMAGEWARE shall be in accordance with the documents
described in the two foregoing paragraphs. IMAGEWARE will provide a "Project
Implementation Plan" as a formal deliverable for Customer acceptance, which
is not to be unreasonably held. Once accepted the "Project Implementation
Plan" will be attached hereto as Exhibit H, and will serve as the overall
guideline and schedule for completing the work described in this Agreement.
IMAGEWARE agrees that the work, including equipment and materials provided,
shall conform to professional standards of care and practice in effect at the
time the work is performed and be of the highest quality. All equipment and
materials provided shall be new. All services and materials shall be provided
in accordance with Exhibit G, "Initial Project Schedule," and Exhibit H,
"Project Implementation Plan." If there is a conflict between the provisions
of Exhibits G and H, Exhibit H shall govern.
This Agreement shall take effect when it has been fully executed by duly
authorized representatives of both parties, and upon receipt by IMAGEWARE of
notice to proceed from BUYER, and receipt by BUYER of IMAGEWARE's evidence of
insurance as required herein.
ARTICLE II: HARDWARE
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OCSO-IWS Agreement: Page 3
IMAGEWARE agrees to sell and BUYER agrees to purchase the hardware
specified in Exhibit E. At no additional cost to BUYER, IMAGEWARE shall
update Exhibit E with the latest and fastest hardware on the market that is
available at the time of order from vendors approved by the BUYER at the
prices listed in Exhibit E. This updated document will supersede and replace
the "IMAGEWARE PROPOSAL, 04/20/99: Pricing and Deliverables" document in
Exhibit E, and will become part of this Agreement when submitted by IMAGEWARE.
PRICE
The purchase price of the hardware shall be as specified in Exhibit E.
IMAGEWARE shall invoice BUYER for said hardware in accordance to the payment
schedule described within article VII, Miscellaneous provisions. These
invoices are payable in accordance with the Florida Prompt Payment Act.
SITE PREPARATION AND MAINTENANCE
IMAGEWARE shall notify BUYER of all necessary site requirements at least
sixty (60) calendar days in advance. At least thirty (30) calendar days prior
to the scheduled delivery date of the hardware, BUYER shall ready the site
for installation of the hardware in accordance with installation/planning
specifications provided by IMAGEWARE. BUYER shall have full responsibility
for maintaining the site.
SHIPPING AND INSTALLATION
Shipments to and from BUYER's installation site shall be made by padded van
or air freight or other acceptable method prepaid by IMAGEWARE. IMAGEWARE
shall be responsible for all hardware during transit. Reasonable freight and
insurance charges shall be borne by BUYER. IMAGEWARE shall obtain BUYER's
written approval before incurring such expenses.
While the hardware is in transit, IMAGEWARE shall bear all risks of loss or
damage to it (F.O.B. Destination). Upon delivery, and written receipt, of the
hardware to BUYER's specified location(s), BUYER shall bear all risks of loss
or damage to the hardware except for damage caused by the negligent actions
of IMAGEWARE.
IMAGEWARE shall furnish all labor required for normal unpacking and placing
of the hardware at BUYER's site without additional charge. IMAGEWARE, or a
subcontractor approved by BUYER, shall install the hardware and any modems
required to support the SYSTEM at BUYER's site(s) in accordance with
Exhibit F.
EQUIPMENT COMPATIBILITY
IMAGEWARE agrees to provide equipment hereunder that performs in accordance
with Exhibit A, B, C, D, and F. This extends to the equipment's performance as
part of the total SYSTEM, but not in combination with products, elements, or
components not supplied by IMAGEWARE, except to the extent that IMAGEWARE is
responsible for interfaces to equipment or systems defined in Exhibit E,
including but not limited to, the existing Orange County Sheriff's Office
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OCSO-IWS Agreement: Page 4
DEC Alpha Computer System. This provision does not limit the terms or
conditions of the software or hardware warranties described in Article II
herein.
If IMAGEWARE proposed to use equipment that subsequently became unavailable
because of model changes or other reasons beyond IMAGEWARE's control,
IMAGEWARE shall provide equipment from the same vendors, or from other
vendors approved by the BUYER. Said equipment shall be of the same or
superior quality, performance and capacity.
For any equipment not provided by IMAGEWARE, BUYER shall be responsible for
installation of hardware and associated software, integration into any
applicable communications network, compatibility with IMAGEWARE software,
performance and data capacities, IMAGEWARE personnel costs and related
expenses resulting from time lost due to problems with BUYER-provided
software or equipment, and any negative impact on IMAGEWARE software or
equipment that affects overall system operation or performance.
ARTICLE III: OPERATING SYSTEM SOFTWARE
All operating system software and firmware, including database and
communications software and firmware, shall hereinafter be referred to as
"operating software" and shall be distinguished from and shall not include
"application software," as listed in the "Software Escrow Agreement," Exhibit
I. The possession and right to use all operating software, including any
subsequent improvements or updates provided to BUYER by IMAGEWARE, are
furnished by IMAGEWARE to BUYER through the purchase of a nonexclusive,
perpetual license(s) to use the operating software from the manufacturer(s)
and are subject to the terms of the manufacturer's license agreement. A list
of all operating system software licensed to BUYER under this Agreement is
included in Exhibit E.
IMAGEWARE shall provide any third-party software and associated licenses in
the quantities requested by BUYER for operation of the SYSTEM. As part of the
deliverables of this contract, IMAGEWARE will integrate this licensed
software into the hardware and software systems to be delivered and certified.
ARTICLE IV: APPLICATION SOFTWARE
DELIVERY
BUYER and IMAGEWARE hereby agree the application software shall be delivered
and installed in accordance with the schedule set forth in Exhibits G and H,
unless superseded by project change requests. IMAGEWARE shall advise BUYER of
any updates in programs or subroutines of its licensed application software
provided hereunder, which may be developed at a future date for general use,
and IMAGEWARE shall furnish such items to BUYER on electronically readable
media, compatible with BUYER'S SYSTEM, at no cost to BUYER, during both the
initial warranty period and the term of any software maintenance agreement
between the parties. BUYER must review and approve all application software
upgrades prior to
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OCSO-IWS Agreement: Page 5
IMAGEWARE installing them.
LICENSE AGREEMENT
A list of the application software licensed to BUYER hereunder is provided in
the "Software Escrow Agreement," Exhibit I. BUYER and IMAGEWARE acknowledge
that BUYER is purchasing a good and clear nonexclusive, perpetual license to
use this application software on hardware installed at BUYER's location(s)
for use only by BUYER, subject to compliance by BUYER with associated terms
and conditions in this Agreement. BUYER is also purchasing the physical media
on which such software is transported to it.
Upon delivering the application software to BUYER, IMAGEWARE shall retain,
subject to the "Software Escrow Agreement" in Exhibit I, full ownership
rights to the application software, or any changes made to it by IMAGEWARE.
IMAGEWARE hereby agrees to permit BUYER to make copies of the application
software for backup purposes only. BUYER hereby agrees not to intentionally
remove from any copies of the source or current versions of the application
software any statement appearing therein concerning copyrights and
proprietary rights. BUYER further agrees to take all reasonable precautions,
including compliance with reasonable precautions specified in writing by
IMAGEWARE, to assure that copies of the application software or any part
thereof are not made available in any form to any third party except to
correct warranty issues, following exhaustion of reasonable efforts by
IMAGEWARE to correct problems. BUYER agrees not to sell, give or otherwise
make available the application software to any other party without the
express written permission of IMAGEWARE. The above provision shall be equally
applicable to any enhancements, improvements, new releases, or new or
additional application software made available to BUYER by IMAGEWARE.
BUYER agrees the application software is proprietary to IMAGEWARE or its
suppliers, is the trade secret, copyright or patent of IMAGEWARE or its
suppliers, was developed by IMAGEWARE or its suppliers at great expense, and
that BUYER shall have no right, title or interest therein, except as
expressly set forth in this Agreement. Upon reasonable notice by IMAGEWARE,
BUYER shall allow IMAGEWARE to inspect all copies of application software
that are in the BUYER'S possession.
PROJECT CHANGE REQUESTS
If the BUYER requests changes to the system that necessitate additional
programming by IMAGEWARE, IMAGEWARE may impose a mutually agreeable charge
for the extra work. IMAGEWARE and the BUYER shall negotiate changes to the
"Project Implementation Plan" in Exhibit H, if required to complete the
additional customizations.
IMAGEWARE shall document any such requests in a Project Change Request. Each
Project Change Request will describe the change, the rationale for the
change, and the effect the change will have on the project, including price
and schedule and, if appropriate, other terms and conditions of this
Agreement. IMAGEWARE shall provide Project Change Requests to the
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OCSO-IWS Agreement: Page 6
BUYER'S project manager for discussion, review and approval. IMAGEWARE shall
implement the terms of a Project Change Request approved by the BUYER'S project
manager.
Approved Project Change Requests shall be incorporated into this Agreement by
written amendment duly executed by the authorized representatives of BUYER and
IMAGEWARE, and shall be subject to the provisions of this Agreement to the same
extent and with the same effect as if originally set forth herein.
ARTICLE V: SYSTEM ACCEPTANCE
SYSTEM ACCEPTANCE
System functional testing shall be in accordance with "System Acceptance
Testing," Exhibit J. If a test is not completed successfully, IMAGEWARE shall
correct or repair the failed component and re-test at no cost to BUYER, in
accordance with Exhibit F. The system acceptance period shall cover thirty (30)
days and begin when IMAGEWARE, having completed system acceptance testing,
certifies to BUYER that the System is ready for use.
NOTICE OF ACCEPTANCE
Within thirty (30) business days after IMAGEWARE completes system acceptance
testing and certifies the System is ready for use, BUYER shall notify IMAGEWARE
in writing of system acceptance or non-acceptance. If the BUYER does not
provide said notice to IMAGEWARE, the SYSTEM will be deemed accepted by BUYER.
ARTICLE VI: SYSTEM WARRANTIES AND MAINTENANCE
HARDWARE WARRANTY
IMAGEWARE represents and warrants (1) that all hardware delivered pursuant
hereto will be new and all hardware shall be free from defects in material;
(2) that all items will conform to the final versions of Exhibits A, D and E;
and (3) that all hardware warranty services performed hereunder will be free
from defects in material and workmanship and will be performed in accordance
with the specifications and instructions of BUYER. However, SELLER retains
discretion and control with respect to the manner and means of performing
such services and shall at all times remain an independent contractor. This
warranty shall survive for a period of one (1) year from final acceptance of
the System. Should any failure of the hardware to conform to this warranty
appear during the manufacturer's warranty period, IMAGEWARE shall, provided
that it is given immediate notice of such nonconformity and provided that its
inspection confirms the existence of the same, correct, at no cost to BUYER,
such nonconformity by, at its election, repair or replacement. Said notice
may be by telephone, e-mail or fax. IMAGEWARE'S inspection shall occur
within forty-eight (48) hours of receiving notice. If any such hardware
failure substantially impacts BUYER's operation, as determined exclusively by
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OCSO-IWS Agreement: Page 7
BUYER, and IMAGEWARE fails to correct the problem within three (3) calendar
days, BUYER may elect to obtain service from a mutually agreed upon third-party
provider at IMAGEWARE'S expense. The parties shall maintain a list of such
third-party providers. The warranty coverage per line item is exclusively
defined by the manufacturer's warranties, delivered with each item of equipment
provided, in no case being less than one (1) year in duration. Any
contradictions between the manufacturers' warranties and other portions of this
Agreement shall be resolved per the terms specified in the manufacturers'
warranty agreements.
Repair or replacement in the manner provided above shall constitute fulfillment
of all IMAGEWARE obligations under this warranty. Such warranty shall not apply
to any supplies to the extent they have been subject to accident, misuse, acts
of God, unauthorized alteration, or where IMAGEWARE installation, maintenance
and service requirements have not been met.
BUYER may at its sole option, attach peripherals manufactured by any vendor to
the SYSTEM, provided IMAGEWARE approves in writing, which approval shall not
unreasonably be withheld. The hardware warranty shall become invalid if BUYER
fails to acquire IMAGEWARE prior approval for the attachment of any major
component, including, but not limited to, the server's central processing units,
disk drives, tape drives or printer(s).
SOFTWARE WARRANTY
IMAGEWARE represents and warrants that all software and related materials
furnished hereunder are in conformity with the final versions of Exhibits A, D
and E, and they are fit for their intended purpose under this Agreement.
IMAGEWARE warrants the software will perform its required functions to support
and operate the System, as long as the software is not modified without
IMAGEWARE'S permission, and it is operated in accordance with IMAGEWARE'S
instructions. IMAGEWARE'S sole obligation and liability under this warranty
shall be to correct the software, enabling it to fully support and operate the
System. The warranty period is one (1) year following acceptance of the System.
WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
The above warranties are exclusive and are in lieu of all other warranties,
express or implied, arising out of or in connection with the system, or the use
or performance thereof. BUYER's sole remedies shall be to require IMAGEWARE and
its suppliers to satisfy the express warranties set forth above. IMAGEWARE'S
total cumulative liability under this Agreement shall not exceed the contract
price received by IMAGEWARE and under no circumstances shall IMAGEWARE be liable
for special, indirect, incidental, tort or consequential damages resulting from
the operation, delay or failure of software or equipment provided by IMAGEWARE,
or for the inaccuracy or incompleteness of data, or from any other defects
covered by the warranty in this article.
SOFTWARE AND HARDWARE MAINTENANCE
IMAGEWARE shall provide BUYER with extended maintenance service, as stipulated
in the "Software and Hardware Maintenance Agreement," Exhibit K, that is in
accordance with, and
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OCSO-IWS Agreement: Page 8
subject to, the terms and conditions of this Agreement.
ARTICLE VII: MISCELLANEOUS PROVISIONS
PROJECT CONTACT AND STATUS REPORTS
BUYER agrees to designate one person as a system administrator and a second
person as an alternate system administrator to represent BUYER and help
coordinate BUYER's efforts during the integration, installation, warranty
period, and extended maintenance agreement term of BUYER's System.
IMAGEWARE shall designate a project manager acceptable to BUYER for all purposes
related to this Agreement. IMAGEWARE shall not replace the approved project
manager without written approval of BUYER. IMAGEWARE'S project manager shall be
fully responsible for IMAGEWARE meeting all of its obligations under this
Agreement. He or she shall provide BUYER'S project manager with a written
status report once every month until IMAGEWARE completes system acceptance
testing and certifies the System is ready for use, to include ongoing status of
custom code development performed by IMAGEWARE. This status report will be
provided on a day each month that is mutually determined as part of the "Project
Implementation Plan," Exhibit H.
At any time prior to completing this project, IMAGEWARE shall replace its
assigned project manager within seven (7) calender days upon BUYER's written
request, which shall include reasonable cause for removal. The replacement
project manager must be acceptable to BUYER. Such acceptance shall not be
unreasonably withheld.
WORKING SPACE
BUYER agrees to provide IMAGEWARE staff with reasonably sufficient working space
and reasonably sufficient access to the SYSTEM twenty-four (24) hours per day,
seven (7) days per week so IMAGEWARE may fulfill its obligations under this
Agreement.
PERSONNEL SUPPORT
IMAGEWARE agrees to furnish BUYER qualified personnel (e.g., analysts,
programmers and trainers) for support of, and training on, the SYSTEM.
IMAGEWARE's project manager shall be responsive to BUYER's reasonable requests
for his or her presence on-site, including but not limited to all critical
stages of the project.
FORCE MAJEURE
Neither IMAGEWARE nor BUYER shall be liable, nor may cancel this Agreement for
default, when delays arise out of causes beyond the control of IMAGEWARE or
BUYER. Such causes may include, but are not restricted to, acts of God or the
public enemy, acts of BUYER in sovereign capacity, fires, floods, lightning
strikes, epidemics, quarantine restrictions, strikes,
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OCSO-IWS Agreement: Page 9
freight embargoes, wars, civil disturbances, work stoppage, power failures,
laws, regulations, ordinances, acts or orders of any governmental agency or
official thereof, and unusually severe weather. In every case, the delay must
be beyond the control of the claiming party. If IMAGEWARE is delayed in its
performance as a result of the above causes, BUYER shall, upon written request
of IMAGEWARE, agree to equitably adjust the provisions of this Agreement,
including the delivery schedule, as may be affected by such delay. However,
this provision shall not be interpreted to limit BUYER's right to terminate for
convenience.
TRAINING
IMAGEWARE shall be responsible for training BUYER'S personnel, as stipulated in
the "Crime Capture System Training Outline," Exhibit L. BUYER shall be
responsible for identifying personnel requiring training and ensuring they are
available for scheduled training. Training shall take place on dates mutually
agreed upon by IMAGEWARE and BUYER. The training described in Exhibit L may be
revised with the mutual agreement of the parties. All training provided by
IMAGEWARE shall be conducted on a functional training system located at the
BUYER's site(s). All training activities may be videotaped at BUYER's expense
for future in-house training. To the extent permitted by Florida law, such
videotapes shall not be sold, loaned or made available for use to other than
BUYER's staff and shall be used for training of BUYER's staff only.
All IMAGEWARE costs related to training BUYER'S staff in accordance with Exhibit
L are included in the purchase price of this Agreement. BUYER'S expenses
include, but are not limited to, providing adequate classroom space, training
workstation and network equipment, and sufficient copies of printed materials.
BUYER'S expenses also include the cost of videotaping training sessions.
If IMAGEWARE is solely responsible for any implementation delays that affect the
scheduling or substance of System training provided by IMAGEWARE or BUYER to
BUYER's personnel, IMAGEWARE shall re-train those members of BUYER'S staff who
were affected thereby at no cost to BUYER.
IMAGEWARE training shall be sufficient to allow BUYER to meet its operations and
maintenance responsibilities described in Exhibit F. IMAGEWARE shall not be
required to provide training days in excess of those specified in Exhibit L, if
BUYER'S users fail to achieve competence due to absence, turnover, failure to
complete adequate preparation and practice exercises, or due to demonstrably
deficient native ability or qualifications.
IMAGEWARE shall develop and provide, in both electronic and printed format,
procedural manuals containing all procedures, methods, documentation
requirements, and techniques necessary for the successful use and operation
of the SYSTEM. Such manuals will document any SYSTEM customizations,
modifications, tailoring or other enhancements. IMAGEWARE agrees that BUYER
may reproduce this material for its internal use on an unlimited basis.
IMAGEWARE shall deliver such manuals at least thirty (30) calendar days prior
to the start of the training process.
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INSURANCE
At its own expense, IMAGEWARE shall procure and maintain the following insurance
during the term of this Agreement to cover risks that may arise from its acts or
omissions: 1) all coverages required by statute or regulation; and 2) general
liability in the amount of $1 million, including property damage in the amount
of $500,000. The BUYER shall maintain insurance coverage consistent with
Florida Statute 768.28.
INDEMNITY
IMAGEWARE shall indemnify, defend and hold harmless BUYER, and the officers and
personnel of BUYER, from and against any and all liability, claims, demands,
damages, losses, injuries, expenses, penalties, proceedings, actions and cost of
actions, including reasonable attorney's fees at trial and on appeal, arising
out of the acts or omissions of IMAGEWARE, its officers, employees or others
under its direction or control. In no event shall IMAGEWARE be liable for
special, indirect, incidental, or consequential damages, or damages from loss of
profits, revenue, data or use, whether incurred by the BUYER or any third party,
whether in an action in contract or tort, even if the other party or any other
person has been advised of the possibility of such damages. This section shall
not be read to apply to defects in hardware, software, firmware, data or
programming that are the responsibility of IMAGEWARE under the warranties set
forth in this Agreement.
ASSIGNMENT
Neither this Agreement nor any interest under it shall be assignable by either
party without the prior written consent of the other party, which consent shall
not be unreasonably withheld.
NOTICES
Any notice or other communication by one party to another that is required by
this Agreement to be in writing shall be hand-delivered, or mailed by government
or private courier, or sent by facsimile to the parties' project managers at the
following addresses, with written confirmation of receipt:
IMAGEWARE Project Manager: Tracy Canepa
IMAGEWARE Software, Inc
10883 Thornmint Road
San Diego, CA 92127
Crimes Capture System Project Manager
Information Management Services.
Orange County Sheriff's Office
P.O. Box 1440
Orlando, FL 32802-1440
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OCSO-IWS Agreement: Page 11
Notices are deemed timely upon mailing. All electronic media provided by
IMAGEWARE to BUYER must be in Word format. Either party may change, by
notice, the person or address of the contact to whom these notices must be
sent.
ENTIRE AGREEMENT
This Agreement shall be construed and governed in accordance with laws of the
State of Florida. The venue of any litigation arising from this Agreement
shall be Orange County, Florida. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter
hereto, superseding all negotiations, prior discussions and preliminary
agreements made prior to the date hereof. Any awareness of conflict among
these contents by BUYER or IMAGEWARE shall be made known to the other party
in order that a mutually agreeable understanding is reached and documented.
AMENDMENTS
No amendment to this Agreement shall be effective unless it is in writing and
signed by duly authorized representatives of each party hereto.
SEVERABILITY
If any part or parts of this Agreement shall be construed to be invalid or
otherwise unenforceable, the remaining parts of the Agreement shall,
nevertheless, remain in full force and effect.
DISPUTES
If a dispute arises between BUYER and IMAGEWARE relating to this Agreement,
the parties shall promptly hold a meeting to attempt in good faith to
negotiate a resolution of the dispute. This meeting shall be attended by
representatives of both parties, and those representatives shall have
decision-making authority regarding the dispute.
HEADINGS
The paragraph headings herein are for convenience only and are not intended
to aid in or limit the construction or interpretation of any of the terms and
conditions of this Agreement.
INCORPORATED APPENDICES AND EXHIBITS
All appendices and exhibits referenced herein constitute integral parts of,
and are incorporated into, this Agreement.
NEWS RELEASES AND REPORTS
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OCSO-IWS Agreement: Page 12
Other than listing BUYER as a customer in general marketing literature,
neither party shall make or imply any endorsements, nor make any news or
advertising releases pertaining to the System for any other purpose without
the prior written consent of the other party. This provision shall not be
construed to limit either party's right to respond to media requests for
information that is subject to disclosure pursuant to Chapter 119, Florida
Statutes.
All written materials, graphical representations and data prepared or
obtained under this Agreement shall become the property of BUYER without
restriction or limitations on their use and shall be made available promptly
upon request to BUYER.
PAYMENTS
The total contract price is listed in Exhibit E; the following payment schedule
shall apply:
30% of the contract price when this Agreement goes into effect.
30% of the contract price when IMAGEWARE completes system acceptance testing
and certifies the System is ready for use;
40% of the contract price upon final system acceptance.
IMAGEWARE shall remain solely responsible for paying all its contractors and
subcontractors.
BUYER is exempt from state and local taxes and will provide a tax exemption
certificate attached hereto as Exhibit M. IMAGEWARE shall send invoices to:
Crimes Capture System Project Manager
Information Management Services
Orange County Sheriff's Office
P.O. Box 1440
Orlando, FL 32802-1440
INDEPENDENT CONTRACTOR
IMAGEWARE is retained by BUYER only for the purposes and to the extent set
forth in this Agreement and any schedule supplements and amendments attached
hereto. IMAGEWARE's relationship to BUYER shall be that of an independent
contractor.
CONFIDENTIAL INFORMATION
To the extent permitted by the laws of the State of Florida, IMAGEWARE shall
regard all BUYER's data and documentation as BUYER's confidential information
and shall not release said data or documentation to outside parties without
the BUYER's written consent. To the extent permitted by the laws of the State
of Florida, BUYER shall regard all software and documentation provided by
IMAGEWARE as confidential information and shall not release or provide access
to said software or documentation to outside parties without IMAGEWARE's
written consent.
<PAGE>
OCSO-IWS Agreement: Page 13
BUYER RESPONSIBILITIES
BUYER and IMAGEWARE agree the scope and schedule of services to be provided
by IMAGEWARE under this Agreement may depend upon the BUYER'S timely
fulfillment of its responsibilities listed in Exhibit F. The parties reserve
the right to mutually modify the "Project Implementation Plan" in Exhibit I
if significant delay is occasioned by BUYER'S neglect of these
responsibilities. BUYER shall be liable for additional expenses (i.e., actual
and reasonable expenses) incurred by IMAGEWARE because of BUYER'S said
neglect. Such expenses may include, but are not limited to, equipment
rescheduling or storage charges, additional equipment maintenance charges,
and transportation charges.
BUYER shall respond within fifteen (15) calendar days to all designs,
specifications, documents, requests for information or clarification,
amendments and updates delivered by IMAGEWARE. By mutual agreement of the
parties, this period may be extended in writing for specific review items.
BUYER'S failure to so respond shall constitute acceptance of such items, when
IMAGEWARE confirms such in writing to BUYER.
PATENT INFRINGEMENT
IMAGEWARE will, at its own expense, defend any suit or proceeding brought
against BUYER based on an allegation that the System furnished hereunder
constitutes an infringement of any United States patent or copyright if
IMAGEWARE is notified promptly in writing and timely given authority,
information and assistance for the defense of said suit or proceeding.
IMAGEWARE will pay the damages and costs awarded in any suit or proceeding.
IMAGEWARE will not be responsible for any settlement of such suit or
proceeding made without its prior written consent. In case the System, as a
result of any suit or proceeding so defended, is held to constitute
infringement or its use by BUYER is enjoined, IMAGEWARE will, at its option
and its expense, either: 1) procure for BUYER the right to continue using
said SYSTEM; 2) replace it with a substantially equivalent non-infringing
system; 3) modify it so it becomes non-infringing; or 4) as a last resort,
remove it and refund an appropriate portion of the purchase price.
The foregoing indemnity does not apply to the following extent: 1) infringement
by a combination of the System with other hardware not furnished by IMAGEWARE
hereunder; 2) infringement resulting from changes made to the System by or
under the direction of BUYER for which BUYER has not given prior notice to
and received written approval from IMAGEWARE; and 3) any settlement of a
claim, suit or proceeding made without IMAGEWARE'S written consent. This
paragraph is an exclusive statement of all the duties of the parties relating
to patents or copyrights, direct or contributory patent or copyright
infringement, and all BUYER'S remedies against IMAGEWARE regarding any
claims, suits or proceedings involving patents or copyrights. IMAGEWARE'S
compliance with these provisions shall constitute fulfillment of its
responsibilities herein with respect to patents or copyrights.
<PAGE>
OCSO-IWS Agreement: Page 14
WAIVER
The failure of either party to exercise in any respect any right provided for
herein shall not be deemed a waiver of any right hereunder.
COMPLIANCE WITH LAWS
IMAGEWARE shall comply with all federal, state and local laws and ordinances,
and it shall not discriminate on the grounds of race, color, religion, gender,
or national origin in performing work under this Agreement.
ARTICLE VIII: TERMINATION
BUYER may terminate this Agreement at its convenience upon advance written
notice to IMAGEWARE. Upon any such termination, IMAGEWARE shall forthwith
discontinue all work and the incurring of any expenses related to this
Agreement, except as may be directed by BUYER in the termination notice. If
it elects termination for convenience, BUYER shall pay IMAGEWARE on a
prorated basis for work satisfactorily performed to the date of termination.
All hardware and third-party software delivered to or placed on order for
BUYER that is capable of re-stocking by IMAGEWARE's suppliers shall, at
BUYER's option, be returned by BUYER, who shall be responsible for a
restocking fee of 10% of the item's cost. All hardware and software delivered
to or placed on order for BUYER that is not acceptable for restocking shall
remain BUYER's property. BUYER shall also pay IMAGEWARE for reasonable costs
associated with the termination for convenience that are mutually agreed upon
by both parties. In no event will BUYER be responsible for payment of
damages, including loss of anticipated profits.
In the event of termination for convenience, BUYER agrees to destroy or
return to IMAGEWARE those components of the System not accepted and paid for
in full, together with all related copies of software, documentation and
other material. Any data or data files generated by BUYER shall remain the
property of BUYER.
Either party may terminate this Agreement for default upon advance written
notice to the other party, and the other party shall have thirty (30)
calendar days to cure such default or, if the default cannot reasonably be
cured within thirty (30) calendar days, the defaulting party may submit a
plan to cure the default and such plan shall not be unreasonably rejected.
The parties agree that time is of the essence in the performance of this
Agreement. Should IMAGEWARE fail to correct such defects within sixty (60)
calendar days, BUYER shall, at its option, be entitled to terminate for
default. If any portion of the schedule in the "Project Implementation Plan"
in Exhibit H is exceeded by sixty (60) calendar days or more, the parties
agree this shall constitute default.
Upon termination of this Agreement for any reason, the provisions relating to
confidential information, independent contractor, indemnity and software
licensing shall survive.
<PAGE>
OCSO-IWS Agreement: Page 15
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives on the dates indicated below.
SHERIFF'S OFFICE OF IMAGEWARE SOFTWARE, INC.
ORANGE COUNTY, FLORIDA
/s/ Kevin Beary /s/ Jim Miller
- ------------------------------------ ------------------------------------
Kevin Beary Signature
as Sheriff of Orange County, Florida
Print Name: Jim Miller
------------------------
Title: Chmn & CEO
-----------------------------
Date: 08/02/99 Date: July 23, 1999
------------------------------- ------------------------------
LIST OF EXHIBITS
Exhibit A, "Functional Specification for Criminal/Employee/Missing Persons
Imaging System"
Exhibit B, "Deliverables for Criminal/Employee/Missing Persons Imaging System.
Exhibit C, "Statement of Work for Criminal/Employee/Missing Persons Imaging
System."
Exhibit D, "Requirements Document: IMAGEWARE Response to Functional
Specification Revision 4 (11/12/98)."
Exhibit E, "IMAGEWARE PROPOSAL, 04/20/99: Pricing and Deliverables."
Exhibit F, "Statement of Work: IMAGEWARE and OCSO Responsibilities."
Exhibit G, "Initial Project Schedule"
Exhibit H, "Project Implementation Plan"
Exhibit I, "Software Escrow Agreement"
Exhibit J, "System Acceptance Testing"
Exhibit K, "Software and Hardware Maintenance Agreement"
Exhibit L, "Crime Capture System Training Outline"
Exhibit M, OCSO Tax Exemption Certificate
Exhibit N, "Year 2000 Warranty and Compliance Agreement"
<PAGE>
OCSO-IWS Agreement: Page 16
EXHIBIT A
FUNCTIONAL SPECIFICATION
FOR
CRIMINAL / EMPLOYEE /
MISSING PERSONS
IMAGING SYSTEM
REV 5
By: Debby Stepien
Orange County Sheriff's Office
Information Management Systems
November 12, 1998
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 17
REVISIONS REV 5
Appendix A Changed #5 to CID, fixed HRD
address, and took out VIN's
address (undercover facility)
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 18
Functional Specification
For
Criminal/Employee/Missing Persons Imaging System
1.0 INTRODUCTION
The purpose of this Specification is to define the functional
requirements for replacing the current Orange County Sheriff's
Office Mugshot Imaging System (Ximage). The new imaging system will
consist of a criminal component, a Sheriff's Office employee
component, and a Missing Persons Component:
- Criminal Image System (CIS)
- Employee Image System (EIS)
- Missing Persons Image System (MIS)
The Criminal Image System (CIS) will record the photographs of
inmates, criminal registrants, sexual predators, and career
criminals. The Employee Image System (EIS) will record the
photographs of Orange County Sheriff's Office employees and create
identification badges. The Missing Persons Image System (MIS) will
record the photographs of missing persons and create bulletins with
the missing persons' picture.
This specification is structured to allow the widest possible vendor
participation and price competition without restricting the solutions
which the vendors may offer. It is intended that the vendors will
respond with their considered and best priced solutions.
Exhibit A
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OCSO-IWS Agreement: Page 19
2.0 CRIMINAL IMAGING SYSTEM (CIS)
This section will describe the detailed functional requirements for
The Criminal Image System.
2.1 LOCATION OF CIS IMAGE STATIONS
CIS shall be able to handle at least seventeen image stations at
various locations throughout Orange County Florida. The image
capture stations will be installed at two different locations in
Orange County, Florida. The CIS system shall communicate via TCP/IP
through the Orange County Network. Please see Appendix A for
specific locations of the imaging workstations. Some of the imaging
stations that are going to be replaced belong to other agencies but,
all of them must communicate with the image and data servers though
the Orange County Network.
2.2 TRANSFER OF HISTORICAL IMAGES
The vendor shall make provisions to load approximately 660,000
historical inmate front profile images with data and 25,000
photolineups from our current system (XImage) as of September 22,
1998. The vendor shall convert the historical images from the older
version of JPEG format to the most recent JPEG format at the time
of contract award. Currently, Orange County books a little over 200
adults and 27 juveniles each day. CIS shall be capable of handling
at least 400 adult and juvenile bookings. Our current image system
has two separate databases for the adult and juvenile inmates. The
current vendor did not provide tools to transfer adults to the
juvenile database and vice versa.
This has caused adults to be in the Juvenile database and juveniles
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 20
to be in the adult database. Any vendor considered will have to make
provisions to either flag the inmates correctly in a single database
or put them in the proper database for separate databases when loading
them onto their system. Please see Appendix B for the details on
flagging or putting the historical inmates into the new system (CIS).
The current systems's data is not all year 2000 compatible. Any
vendor considered must convert the historical data so that it includes
a century field. Please see Appendix B for details for converting
historical data upon transfer to the new system (CIS).
2.3 BOOKING FUNCTIONS
This section will describe the functionality needed by the two Booking
image capture stations.
2.3.1 IMAGE VIEWING
CIS shall allow the operator to view the image before it is stored.
This will allow a better quality of picture to be stored.
2.3.2 PROFILES
CIS shall allow an inmate to be photographed facing the camera (front
profile) and turned for a side profile. The CIS operator shall have
the capability of viewing both profiles side by side.
2.3.3 ZOOM
CIS shall allow the operator to zoom in on the captured image to focus
in on any identifying details.
2.3.4 CAMERA ADJUSTMENTS
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 21
- Provide the capability for the operator to auto adjust the
camera according to the height of the inmate easily and quickly
- Provide auto focus of the camera with manual override
- Provide auto zoom with remote control
- Provide auto light balancing
2.3.5 ADULT/JUVENILE DATABASE SEPARATION
If CIS has separate databases for adults and juveniles, they
shall provide the tools to transfer images from one database to
the other.
2.3.6 POWER BACKUP
CIS shall have an uninterrupted power source on every image
station to keep the system from going down on power loss or
brown-outs. CIS shall have a backup system when the power is
out or the main system server is down. The operator shall be
allowed to continue capturing inmate images until the power is
restored. When the power is restored, the CIS system shall
automatically load the images to the main system server without
or with minimal operator intervention.
2.3.7 WRISTBANDS
CIS shall have the capability to create an inmate wristband with
a barcode of the inmate's booking number, name, race, sex and
date of birth. Barcode 39 is the Orange County Standard. The
wristband shall also have the photo of the inmate. If the
wristbands wear out or need to be replaced, the operator shall
have the capability of replicating wristbands.
2.3.8 JAIL CARDS
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 22
CIS shall have the capability to create a small 3" X 5" and a
larger jail card 8.5" X 11" of the inmate's information plus
photograph. If the jail cards wear out or need to be replaced,
the operator shall have the capability of replicating the cards.
The exact format of the jail cards will be provided at a later
date.
2.4 VIEWING, SEARCHING, UPDATING, SEALING, UN-SEALING IMAGES
This section will describe the functionality needed by all of
the CIS stations.
2.4.1 SEARCHING
CIS shall allow the operator to retrieve images using a single
textual field or an operator selectable group of textual fields
associated with the image. CIS shall put a limitation on the
number of images an image station can retrieve per single
search. The limit should not exceed fifty images.
2.4.2 SEALING
CIS shall provide the capability to seal all images, composites,
photolineups, etc. as mandated by the courts, or via juvenile
emancipation, or death, or for expunging purposes, etc. The
sealing capability will not facilitate a permanent erase as
there are frequent requests to unseal photos of a deceased
person so that the photos can be printed again. If an operator
tries to view a "sealed" image or folder, the CIS system shall
inform the operator that the images are sealed.
2.4.3 UN-SEALING
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 23
CIS shall provide the capability to unseal "sealed" images,
composites, photolineups, etc. in case of accidental sealing.
2.4.4 UPDATING
CIS shall provide the capability to update all the textual data
associated with the images, composites, photolineups, etc.
except for the creation date and time, the name of the operator
who created the image, the date and time the image was changed,
and the name of the operator who made the change. CIS shall
provide editing on all fields that the operator can input or
update. The edits shall be as described in Appendix D.
2.4.5 MULTIPLE NAMES AND ALIASES
CIS shall provide the capability of creating a computerized
"folder" of all CIS images, documents, photolineup, composites,
etc. (same name or alias names). CIS shall provide the tools to
move operator selected images from one "folder" to another
"folder" or consolidate "folders". CIS shall provide the tools
to open a "folder" and to view, update, seal, or unseal individual
"folder" items or all of the folder information.
2.4.6 FLAGS
CIS shall allow the operator to flag inmates as Career
Criminals, Sexual Predators, Criminal Registrants, etc. See
Appendix C for the details.
2.4.7 CRUCIAL VIEWING ITEMS
Exhibit A
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OCSO-IWS Agreement: Page 24
CIS shall provide the operator with the following information
about all CIS images, photolineups, composites, etc.:
- operator who created
- date/time created
- date/time of last change or update
- operator who made the last change or update
- image station number of capture and update
2.5 INPUT/OUTPUT/TRANSMISSION REQUIREMENTS
This section will describe in detail the I/O requirements for
the CIS.
2.5.1 PRINTING
CIS shall provide black and white or color printers in the
configuration shown in Appendix A.
2.5.2 FAXING
CIS shall provide faxing of images with or without text,
photolineups, composites, generated reports, bulletins, etc. to
operator selectable or input fax telephone numbers.
2.5.3 FLOPPY DISKS
CIS shall provide a utility to store operator selected images,
photolineups, composites, etc. to a floppy disk in an operator
selected image format (e.g. TIFF, GIF, JPEG).
2.5.4 SCANNING
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 25
CIS shall provide tools for the operator to easily manipulate
the colors of the scanned image backgrounds to match the
standard CIS system backgrounds. The operator should also be
able to rotate the scanned images, clip an image from a group
shot of people, and manipulate the colors (e.g., the DHSMV
driver's license pictures have a yellow cast).
2.5.5 REPORTS
CIS shall provide the following automatic reports:
-- A daily supervisory report which shows the records that have
been updated, changed, added, sealed for each image station
-- A report which indicates which image records have not
received data via the Booking/Descriptor Interface (see
section 2.10.1)
2.6 SUSPECT IDENTIFICATION
This section will describe the features needed to help a deputy
or officer find a suspect and/or create a likeness of wanted
suspects.
2.6.1 FACIAL COMPOSITES
CIS shall provide an operator with the ability to make a facial
composite or some likeness of a suspect (artist rendering).
2.6.2 FACIAL RECOGNITION
CIS shall provide a facial recognition capability. The facial
recognition shall be done from the image facial composite
features. The operator shall not be required to identify and
enter the facial composite features for the recognition
capability i.e., the facial recognition software shall
automatically determine the composite
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 26
features upon capture of the image. Our current image system (Ximage)
can use a skin tone value 0 (white) to 255 (black) for searches but,
the user has to physically move the mouse to the skin tone field press
the left mouse button, move the mouse to the specific location used by
our agency to get the skin tone (there is no mark for this), THEN
click the left and right mouse buttons SIMULTANEOUSLY. It is so much
trouble that our agency has elected to NOT USE this feature. The new
system should be more user friendly.
2.6.3 DISGUISES
CIS shall provide tools for the operators to add disguises to any of
the saved images. For example, add a mustache, beard, glasses, mole,
thin the hair, add a scar, tattoo, change the color of the hair, etc.
2.7 IMAGE AND DATA BACKUP
CIS shall provide an automatic backup of all captured images and data
on a daily basis.
2.8 SYSTEMS ADMINISTRATION
- Provide tools to assign/de-assign user names and passwords
- Provide tools to assign/de-assign security levels for all operator
functions in all three components of the proposed imaging system
provided by the vendor e.g., seal, unseal, update, create
photolineups, etc.
- Provide tools to generate statistical & data reports
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 27
- Provide tools to assess interfaces, image stations, backup, and
system problems
- Provide tools for doing the system backups
- Provide server/main CIS system analysis tools e.g., to determine
amount of disk space available, disk analysis, size of database,
count of images stored, how many image stations are logged onto the
system, etc.
- Provide tools for image station analysis e.g., determine amount of
disk space available, printer problems on the station, scanner
problems on the station, etc.
- Provide tools to add, change, delete items from all drop down menus.
- Provide tools to send messages to the image stations when the
system is going to be down, and provide new system changes, etc.
2.9 SUPPORT AND MAINTENANCE
The vendor shall provide support and maintenance 24 hours a day 7 days
a week.
2.10 INTERFACE REQUIREMENTS
This section will describe in detail all the interfaces with the CIS
system.
2.10.1 BOOKING/DESCRIPTOR INTERFACE
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 28
CIS shall interface with our current DEC Alpha 2100-5250 for the
booking and personal descriptive information. The ASCII booking and
personal descriptive information will be transferred every 15 minutes
from the DEC Alpha to the CIS system via TCP/IP using the File
Transfer Protocol (FTP) in the format as described in Appendix D.
2.10.2 WARRANT INTERFACE
CIS shall provide an interface to the Orange County Sheriff's Office
Warrants program. This means that the image must be transferrable in
the TIFF format and be accessible on demand from our current DEC Alpha
System via TCP/IP FTP. Please see Appendix E for the details.
2.10.3 CJNET INTERFACE
CIS shall provide an interface for our State's Criminal Justice
Network (CJNET). This means that the images must be transferrable
in the JPEG format and be accessible on demand from our current
System, the DEC Alpha via TCP/IP using the FTP. Please see Appendix
F for the details.
2.10.4 IMPORTING IMAGES
CIS shall have the capability to store other images from other sources
such as, scanned images (positive and negative), scanned documents,
surveillance tape, photographs, video tape/camera, etc.
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 29
2.10.5 EXPORTING IMAGES
CIS shall provide tools for exporting the JPEG CIS images and
composites to other sources such as intranets e.g., CJNET,
Intelligence databases, or gang database; the Orange County Sheriff's
Internet site; intranet sites; PC tools such as photoshop,
paintshop, word processing, etc.
2.10.6 MOBILE DATA TERMINALS
CIS shall provide the on demand compressed JPEG thumbnail images for
exporting to Mobile Data Terminals. See Appendix I for the details.
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 30
3.0 EMPLOYEE IMAGE SYSTEM (EIS)
3.1 LOCATION OF EIS IMAGE STATION
The Employee Image System (EIS) shall provide a single personnel
station in the Human Resources Department that has the capability of
capturing personnel photographs. This station shall communicate via
TCP/IP through the Orange County Network. See Appendix A for the
specific location.
3.2 EMPLOYEE ID BADGES
EIS shall provide personnel ID badges with the employee's ID number
(name key) in a barcode at the bottom of the badge. If the barcoding
cannot contain spaces, the character "$" will be used to replace each
space in the employees's ID number. The barcodes must be in the
barcode 39 format (standard for Orange County). EIS shall provide two
types of badges one with a Orange County star insignia and one without
the star insignia. The badge type shall be operator selectable and be
no larger than 2 1/8" X 3 3/8" to be compatible with the Orange
County proximity cards (building access cards). Please see Appendix G
for EIS badges.
3.3 TRANSFER OF HISTORICAL IMAGES
The vendor shall make provisions to convert approximately 4000 images
(from the older version of JPEG format to the most recent JPEG format
at the time of contract award) and data from our current system as of
September 22, 1998.
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 31
3.4 PERSONNEL FUNCTIONS
This section will describe in detail the operator's functional
needs.
3.4.1 IMAGE VIEWING
EIS shall allow the operator to view the image before it is
stored. This will allow for a better quality of picture to be
stored.
3.4.2 PROFILE
EIS shall allow an employee to be photographed facing the
camera (front profile).
3.4.3 CAMERA ADJUSTMENTS
Same as section 2.3.4.
3.4.4 POWER BACKUP
Same as section 2.3.6.
3.4.5 VIEWING, SEARCHING, UPDATING, SEALING, UN-SEALING IMAGES
Same as section 2.4.1.
3.4.6 SEALING
Same as section 2.4.2.
3.4.7 UN-SEALING
Same as section 2.4.3.
3.4.8 UPDATING
EIS shall provide the capability to update all the textual
data associated with the employees' images. EIS shall provide
editing on all data fields as described in Appendix G.
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 32
3.4.9 ENTERING MULTIPLE EMPLOYEE IMAGES
EIS shall provide the capability of creating a computerized
"folder" of all EIS employee images, documents, fingerprints,
etc. EIS shall provide the tools to add new images and name
changes of an employee into a "folder". EIS shall provide the
tools to open a "folder" and view, update, seal, or unseal all
or some of the folder's contents.
3.4.10 REPORTS
The EIS system shall provide reports as described in Appendix
G.
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 33
4.0 MISSING PERSONS IMAGE SYSTEM (MIS)
4.1 LOCATION OF MIS IMAGE STATION
The Missing Persons Image System (MIS) shall provide a single
Imaging station in the Missing Persons Department capable of
scanning in photographs of missing persons. This station
shall communicate via TCP/IP through the Orange County
Network. See Appendix A for the specific location.
4.2 MISSING PERSON FUNCTIONS
This section will describe in detail the operator's functional
needs.
4.2.1 IMAGE CAPTURE
MIS shall provide tools for the operator to scan a
photograph(s) of a missing person, and easily manipulate the
colors of the scanned backgrounds to match the standard MIS
system backgrounds. The operator should also be able to
rotate the scanned images, clip an image from a group shot of
people, and manipulate the colors. The operator shall be able
to scan other images related to a missing person such as,
tattoos, jewelry, fingerprints, dental records, etc. MIS
shall allow the operator to view the scanned image before it
is stored. This will allow for a better quality of picture to
be stored. After the image(s) are captured, the operator will
be required to enter the case number as described in Appendix
H.
4.2.2 FACIAL COMPOSITES
MIS shall provide an operator with the ability to make a
facial composite or some likeness of the missing person
(artist rendering).
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 34
4.2.3 BULLETINS
MIS shall provide an operator with the ability to create
bulletins with an image of a missing person or persons.
Formats for the bulletins will be provided later.
4.2.4 AGING IMAGES
MIS shall provide an operator with the tools to age a captured
image.
4.2.5 SEARCHING
MIS shall allow the operator to retrieve only missing person
images using single textual field or an operator selectable
group of textual fields associated with the image. MIS shall
put a limitation on the number of images an image station can
retrieve per single search. The limit should not exceed fifty
images.
4.2.6 SEALING
MIS shall provide the capability to seal all images,
composites, tattoos, etc. The sealing capability will not
facilitate a permanent erase. If the operator tries to view a
"sealed" image or folder, the operator shall be informed by
the MIS system that it is sealed.
4.2.7 UN-SEALING
MIS shall provide the capability to unseal "sealed" images,
composites, tattoos, etc in case of accidental sealing.
4.2.8 UPDATING
MIS shall provide the capability to update all the textual
data associated with the images, composites, etc. except for
the creation date & time, the name of the operator who created
the image, the
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 35
date & time the image was changed, and the name of the
operator who made the change. All of the times shall be in
hours, minutes, seconds, milliseconds. MIS shall provide
editing of all fields the operator can input or update. The
edits shall be as described in Appendix H.
4.2.9 HABITUAL RUNAWAYS
MIS shall provide the capability of creating a computerized
"folder" of all MIS images, documents, bulletins, composites,
etc. for a missing person that habitually runs away. MIS shall
provide the tools to move operator selected images from one
"folder" to another "folder" or consolidate "folders". MIS
shall provide the tools to open a "folder" and to view,
update, seal, or unseal individual "folder" items or the
entire folder itself.
4.3 INTERFACE REQUIREMENTS
This section will describe in detail all of the interfaces
with the MIS system.
4.3.1 MISSING PERSON INTERFACE
MIS shall interface with our DEC Alpha for the missing person
information. The ASCII missing person data will be
transferred to the MIS system via TCP/IP using FTP. Please see
Appendix H for a detailed description of the text and data
transfer.
4.3.2 CJNET INTERFACES
MIS shall provide an interface for the Florida Criminal
Justice Network (CJNET). This means that the missing person
images must be transferrable in the JPEG format and be
accessible on demand from our current system, the DEC Alpha
via TCP/IP using FTP. Please see
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 36
Appendix F for the details.
4.3.3 IMPORTING IMAGES
MIS shall have the capability to store other images from
other sources such as, scanned images (positive and negative),
scanned documents, photographs, video tape/camera, etc.
4.3.4 EXPORTING IMAGES
MIS shall provide the tools for exporting the JPEG MIS images
and composites to other sources such as intranets e.g., CJNET,
Missing Persons Clearinghouse, etc.; the Orange County
Sheriff's Office Internet site; intranet sites; PC tools such
as photoshop, paintshop, word processing, etc.
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 37
5.0 SYSTEM REQUIREMENTS
This section will describe the system level requirements for
all three components of the imaging system (CIS, EIS, MIS).
5.1 SECURITY LEVELS
CIS shall provide all the capabilities and functions described
in this Specification on every installed image station i.e.,
view, add, update, seal, archive, etc. This will allow an
operator to use any of the installed image stations with
his/her normally assigned capabilities. By having all
functions available at each of the image stations, this will
allow for easier handling of the equipment and personnel
reassignments. The Systems Administrator shall have the tools
to assign or de-assign these capabilities to an operator
depending on the operator's assigned or newly assigned duties.
For example, some operators will have the capability of
viewing the adult and juvenile images whereas, others will
only be allowed to view the adult images.
5.2 HARDWARE EXPANSION
The vendor shall allow for expansion of up to 25 image
stations and up to at least 6 capture stations.
5.3 IMAGE & DATA ARCHIVING
The vendor shall provide the capability of archiving any
images and data in any of the three components of the system.
The operator designated via security privilege shall be
allowed to archive the images and data by a selectable date
range. The system shall also allow the designated operator to
retrieve any images and data from the archives as needed.
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 38
6.0 TEST PLANS & TEST PROCEDURES
The vendor shall develop detailed test plans and formal test
procedures for the Orange County Sheriff's Office (OCSO)
Imaging System. The test procedures shall include a
Requirements Traceability Matrix that maps each requirement in
the OCSO Functional Specification to a specific vendor
developed test procedure. The Test Plan, the Test Procedures
and the Requirement Traceability Matrix shall be submitted to
OCSO at least 60 days prior to the beginning of on-site
testing. OCSO will review the documentation within 15 days and
will report any deficiencies to the vendor. The vendor will
have 30 days to take corrective action and resubmit the
documents.
6.1 TESTING
The vendor and OCSO shall jointly participate in on-site
testing. The OCSO test conductor will verify that each test
procedure has been executed, and that the results are
acceptable. All failed tests will require re-test after
corrective action has been taken.
6.2 TRAINING
The vendor shall develop a training plan (curriculum) as well
as classroom materials to be used in formal training classes
for the OCSO users. The training plan and training materials
shall be submitted to OCSO at least 60 days prior to the
beginning of on-site training. OCSO shall have 15 days to
review the materials and report any deficiencies. The vendor
will have 30 days to take corrective actions and resubmit the
documents. The vendor's curriculum shall include separate
training for:
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 39
- System's Administrator
- Corrections
- Juvenile Assessment Center
-Orlando Police Departments:
Identification
Investigative Division
- OCSO Departments:
Records/Identification
Warrants
VIN (Vice, Intelligence, Narcotics)
Sector 1
Sector 2
Sector 3 (Criminal Investigation Division)
Sector 4
Sector 5 (Tourist Oriented Policing)
Human Resources (Personnel)
Missing Persons
- Winter Park Police Department
6.3 ACCEPTANCE
Receipt and approval of all contract deliverables, completion
of all training, and a successful conclusion to testing shall
constitute acceptance.
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 40
7.0 CONTACTS
1. Ms. Janice Knight, Director of Information Management Services
407-836-9184
2. Mr. Peter Gookins, Project Manager 407-836-3956
3. Ms. Debby Stepien, Information Systems Supervisor (Technical
Contact) 407-836-9067
Exhibit A
<PAGE>
OCSO-IWS Agreement: Page 41
APPENDIX A (Revised 5/5/1999)
The specific locations of the image viewing and capture stations shall be as
follows:
TYPE OF IMAGE STATION LOCATION
1. Image Capture Station #1 Central Booking Office
with one black & white printer 3803 Vision Blvd.
Orlando, FL
2. Image Capture Station #2 Juvenile Assessment
with one black & white printer Center
823 W. Central Avenue
Orlando, FL
3. Image Viewing Station Info Mgmt Services
Image system servers and/or 6590 Amory Court
Main Image System/Database Winter Park, FL
4. Three Image Viewing Stations Records/Identification
Sheriff's Operations
station #1 (Records): 2400 W. 33rd Street
one black & white printer Orlando, FL
one color printer
scanner (negative & positive)
station #2 (Records):
with one color printer
station #3 (Identification):
one color printer capable of 8" x 10" printing
one black & white printer
scanner (negative & positive)
5. Two Image Viewing Stations Major Case
Cassady Building
Station #1 (CID): 2450 W. 33rd Street
one color printer Orlando, FL
Station #2 (Missing Persons):
one color printer
one black & white printer
scanner (negative & positive)
6. One Image Viewing Station Warrants
with one black & white printer 425 N. Orange Avenue
one color printer Orlando, FL
7. One Image Viewing Station Sector 4
with one color printer Operations Building
2400 W. 33rd Street
Orlando, FL
8. One Image Viewing Station Sector 1 (Apopka)
with one color printer 1111 N. Rock Springs Rd.
Exhibit A, Appendix A
<PAGE>
OCSO-IWS Agreement: Page 42
Apopka, FL
9. One Image Viewing Station Sector 2 (East Orange)
with one color printer 10244 E. Colonial Dr
Orlando, FL
10. One Image Viewing Station Sector 3 (West Orange)
with one color printer 475 W. Story Rd.
Ocoee, FL
11. One Image Viewing Station VIN
with one color printer Address will be
provided during the
site survey
12. One Image Viewing Station Sector 5 (TOPS)
with one color printer 6825 Westwood Blvd.
Orlando, FL
13. One Image Capture Station Human Resources Dept
with two badge printers Cassady Building
one black & white printer 2450 W. 33rd Street
Orlando, FL
14. Two Image Viewing Stations Orlando Police Dept
100 S. Hughey Ave
station #1 (Identification): Orlando, FL
one black & white printer
station #2 (Investigation):
no printer prints to shared printer
on station #1
15. One Image Viewing Station Winter Park Police
with one color printer 401 Park Ave. South
(Pending) Winter Park, FL
16. One Image Viewing Stations Metropolitan Bureau of
with one color or b/w printer Investigation
(Pending) 9th Judicial District
250 N. Orange Avenue,
Suite 1600
Orlando, FL
17. One Image Viewing Station Professional Standards
with one color printer 55 W., Pineloch
Orlando, FL
Exhibit A, Appendix A
<PAGE>
OCSO-IWS Agreement: Page 43
APPENDIX B
This appendix describes all of the required historical data conversion from our
current system (Ximage) to the new CIS system.
The conversions are as follows:
1. The Inmate Number is currently 8 characters long. The first two digits
represent the year and must be converted to include the century. The new
Inmate Number would for example be converted from 98041894 to 1998041894.
2. The case number is currently 9 characters long. In case the Orange County
court system changes the case number to be year 2000 compliant, the vendor
shall put six extra characters at the end of this field for future
expansion.
3. The current image system has two separate databases for the its criminal
component (Adult and Juvenile). Some adults are in the juvenile database
and vice versa. During the conversion process, this can be corrected by
looking at the third position of the inmate number. If third position of
the inmate number is 9, then the inmate is a juvenile otherwise it is an
adult.
4. The current image system has a status field that indicates whether the
image is sealed or not sealed. All of the images should be transferred to
the new system. The status fields are "A" for active, "S" for sealed, and
there are also some "D" statuses which also mean sealed.
Exhibit A, Appendix B
<PAGE>
OCSO-IWS Agreement: Page 44
5. As each record is converted from the current system to the CIS system, the
ASCII characters "CONVERT" shall be inserted into the operator id create
and update fields of each image record along with the date and time stamp.
6. The current image system has a charge code table which contains the charge
code, degree, and charge description. The vendor shall either provide a
similar table with System Administrator add/delete/change capabilities or
accept the data from the Orange County Sheriff's Office DEC Alpha using
newly assigned tags as described in Appendix D.
Exhibit A, Appendix B
<PAGE>
OCSO-IWS Agreement: Page 45
APPENDIX C
This appendix will describe the special indicator flags used to get the
operator's attention. This flag should be displayed on the image station's
display at the top in bold, large, or differentiating color when the user brings
up an image with one of the listed flags below.
The flags are as follows:
1. DEATH ROW
2. SIGNAL 20
3. SECURITY RISK
4. ESCAPE RISK
5. EXTREMELY VIOLENT
6. SIGNAL 300
7. REPEAT OFFENDER
8. CAREER CRIMINAL
9. VIOLENT OFFENDER
10. DECEASED
See Appendix D for the details on transferring the flags from the DEC Alpha to
the CIS system.
Exhibit A, Appendix C
<PAGE>
APPENDIX D
This Appendix will describe in detail the CIS interface with the DEC Alpha
System.
The operator will add an image to CIS as follows:
1. The operator will enter his/her name or have the system automatically
enter his/her name from the system log-on process. Then the system will
automatically record the system date and time. If the operator needs to
request a new inmate number, the operator will enter the booking type
(sexual predator, criminal registrant, adult, or juvenile). The CIS
system software will automatically generate the inmate number from the
type of booking entered by the operator. The inmate number shall be in
the following format:
<TABLE>
<CAPTION>
SIZE FORMAT
---- ------
<S> <C>
10 YYYYTNNNNN
WHERE YYYY = 4 DIGIT YEAR
T = BOOKING TYPE
V = CRIMINAL REGISTRANT
S = SEXUAL PREDATOR
9 = JUVENILE
NOT 9 = ADULT
NNNNNN = NEXT SEQUENTIAL NUMBER
The sequential number will start
at zero at the beginning of each
new year.
</TABLE>
Exhibit A, Appendix D
<PAGE>
*** Note: The vendor shall be responsible for determining the last
inmate number (sequential number) entered into each
booking type from the current system.
The operator shall be given the option of requesting a new inmate number
or using an existing inmate number. If the operator uses an existing
inmate number, the CIS system shall allow a new image or images to be
captured.
2. The operator will enter the booking data and inmate's descriptive textual
information. This information shall be provided later.
3. The operator will then capture the front and side profiles and any other
images wanted.
4. Then the operator will manually indicate that the record is to be saved,
for example press the F12 function key. When the operator saves a
record, the CIS system shall transfer all the booking and descriptive
textual information to the DEC Alpha System via TCP/IP using FTP. The
format for the FTP file will be provided later.
5. The DEC Alpha System will transfer any booking textual data changes made
on the DEC Alpha System for updating on the CIS system every 15 minutes
via TCP/IP using FTP.
The data format for the FTP file that will be transferred via TCP/IP to the
CIS system shall be as follows:
1. ASCII TEXT FILE
2. ONE TAGGED DATA ITEM PER LINE
3. EACH LINE IN THE FILE MUST BE TERMINATED WITH A CR/LF (CARRIAGE RETURN
AND LINE FEED CONTROL CHARACTERS)
Exhibit A, Appendix D
<PAGE>
Tagged Data Line Format:
<TABLE>
<CAPTION>
Item Columns
---- -------
<S> <C>
Tag 1 - 6
Underscore 7
Tag Group 8 - 10
Unused 11 - 12
Value 13 - ?? (variable length)
CR/LF at the end of the tagged data line
</TABLE>
The tag numbers and values are as follows for the current image system. The
tag numbers can be expanded if the vendor's system has other values that
currently reside on the DEC Alpha. All values will be ASCII characters (X =
ALPHANUMERIC, A = ALPHABETIC, N = NUMERIC, Y = YEAR, MM = MONTH, DD = DAY).
<TABLE>
<CAPTION>
Tag Number Description Size Values
---------- ----------- ---- -----
<S> <C> <C> <C>
0101 Transaction Type 2 10 = add/update
by inmate number
20 = update every
image record with
this namekey
0102 Adult/Juvenile 8 ADULT
JUVENILE
2001 Inmate Number 10 YYYYNNNNNN
2005 Last Name 30 ALPHABETIC
2006 First Name 30 ALPHABETIC
2007 Middle Name 20 ALPHABETIC
2008 Suffix Name 10 JR, SR, I, II, ETC.
2009 Date of Birth 8 MMDDYYYY
Exhibit A, Appendix D
<PAGE>
Tag Number Description Size Values
---------- ----------- ---- -----
2012 Sex 1 M = MALE
F = FEMALE
U = UNKNOWN
2014 Flags 18 See appendix B
2018 Namekey 9 AAAAAXXXX
AAAAA = FIRST 5
LETTERS OF LAST
NAME
2019 Juvenile Jacket 8 XXXXXXXX
Number
2021 Original Case 15 XXXXXXXXXXXXXXX
Number
3001 Sexual Appearance 1 M = MALE
F = FEMALE
U = UNKNOWN
3003 Race 1 W = WHITE
B = BLACK
H = HISPANIC
I = AMERICAN
INDIAN
A = ASIAN
O = OTHER
3004 Height in inches 3 NNN
3005 Weight in pounds 3 NNN
3007 Hair Color 3 BRO = BROWN
BLK = BLACK
BLN = BLONDE
RED = RED
WHI = WHITE
GRY = GRAY
SDY = SANDY
SAP = SALT&PEPPER
3010 Eye Color 3 BLK = BLACK
BRO = BROWN
BLU = BLUE
GRY = GRAY
HAZ = HAZEL
MAR = MAROON
PNK = PINK
GRN = GREEN
Exhibit A, Appendix D
<PAGE>
Tag Number Description Size Values
---------- ----------- ---- -----
5001_001 Charge Code 1 25 ALPHANUMERIC WITH
PERIODS AND
PARENTHESIS
5001_002 Charge Code 2 25
5001_### More Charge Codes if needed...
</TABLE>
Note: The inmate number is mandatory for type 10 transactions
and should be omitted for type 20 transactions. Updates
received from the DEC computer, shall be entered into the
appropriate Image System record. The ASCII characters
"JAIL" shall be inserted into the operator ID update
field of each image record along with a date and time
stamp. The CIS system shall not update the CIS record if
the inmate's last name on the CIS system, (i.e. that was
entered by the operator in step 2 above) does not match
the inmate's last name transferred from the DEC Alpha.
This will be an added check to prevent the overlay of an
inmate's last name and inmate number when the operator
has typed the inmate number into the CIS system
incorrectly. This will also allow the CIS operators the
ability to correct the inmate numbers more easily.
Exhibit A, Appendix D
<PAGE>
OCSO-IWS Agreement: Page 51
APPENDIX E
----------
This appendix will describe in detail the TIFF interface to the DEC Alpha
Warrants program.
The data format for the ASCII FTP file that will be transferred via TCP/IP to
the CIS system will be as follows:
1. ASCII text file
2. One tagged data item per line
3. Each line in the file must be terminated with a CR/LF (carriage return
and line feed control characters)
Tagged Data Line Format will be as follows:
1. The word KEY followed by the key wanted (inmate number) and CR/LF
(carriage return and line feed control characters).
2. The word DATABASE followed by the database name and CR/LF.
3. The word IMG_FORMAT followed by TIFF and CR/LF.
A sample FTP ASCII text file would look as follows:
KEY 1998900028(CR/LF)DATABASE CIS(CR/LF)IMG_FORMAT TIFF(CR/LF)
The request file names shall be WAR(inmate_number)####.REQ. #### will be a
unique DEC Alpha program generated sequence number. The above example would
have a request file name
WAR1998800028001.REQ
The CIS system shall return a status file. The CIS status file name will be a
derivative of the data requested. The file name that contains the status of
the request will be WAR(inmate number)####.RES
The above example would have a response file name
WAR1998900028001.RES
Exhibit E, Appendix A
<PAGE>
OCSO-IWS Agreement: Page 52
The contents of the status file shall be in the following format:
STATUS_CODE #
# is the number of the status codes which are:
0 = image found
1 to 9 = error statuses may be defined by the vendor
The CIS system shall return the requested image in the file named as
WAR(inmate_number)####.IMG
The example above would be WAR1998900028001.IMG
Exhibit E, Appendix A
<PAGE>
OCSO-IWS Agreement: Page 53
APPENDIX F
----------
This appendix will describe in detail the CJNET interface. The Interface with
CJNET will allow the Orange County Sheriff's Office DEC Alpha system via
TCP/IP to request a JPEG image from the three different components of the new
image system (CIS, EIS, MIS).
The image request FTP ASCII file shall have a file name like
CIS(inmate_number)####.REQ
Or
EIS(social_security_number)####.REQ
Or
MIS(case_number)####.REQ
where #### is a unique sequence number generated by the requesting
DEC Alpha program.
The record in the request file shall be in the following format:
KEY followed by key of image system component, DATABASE followed by the
image component name (CIS or EIS or MIS), IMG_FORMAT followed by JPEG and
CR/LF (carriage return/line feed control characters).
Examples:
1. KEY 1998000114(CR/LF)DATABASE CIS(CR/LF)IMG_FORMAT JPEG(CR/LF)
2. KEY 222889999(CR/LF)DATABASE EIS(CR/LF)IMG_FORMAT JPEG(CR/LF)
3. KEY 1998901234(CR/LF)DATABASE MIS(CR/LF)IMG_FORMAT JPEG(CR/LF)
The FTP ASCII status file will have a file name like
CIS(inmate_number)####.RES
EIS(social_security_number)####.RES
MIS(case_number)####.RES
Exhibit A, Appendix F
<PAGE>
OCSO-IWS Agreement: Page 54
The contents of the status file will be the same as the contents described in
Appendix E for the TIFF interface.
The image shall be returned in a file with the name in the following format:
CIS(inmate_number)####.IMG
EIS(social_security_number)####.IMG
MIS(case_number)####.IMG
Exhibit A, Appendix F
<PAGE>
OCSO-IWS Agreement: Page 55
APPENDIX G
----------
This section will describe in detail the EIS data field edits and the
transferring of data from the Orange County Sheriff's Office DEC Alpha
computer system.
The EIS system shall edit the EIS fields as shown in the table below.
The values are defined in the table below as A = ALPHA, N = NUMERIC,
X = ALPHANUMERIC. The tags will be used to transfer the data as described in
Appendix D.
<TABLE>
<CAPTION>
Size Element/Tags Values Description/Values
- ---- -------------------------- --------- --------------------
<S> <C> <C> <C>
9 SOCIAL SECURITY NUMBER/2040 NNNNNNNNN EMPLOYEE'S SOCIAL
SECURITY NUMBER
20 LAST NAME/2005 ALPHA EMPLOYEE'S LAST
NAME
20 FIRST NAME/2006 ALPHA EMPLOYEE'S FIRST
NAME
12 MIDDLE NAME/2007 ALPHA EMPLOYEE'S MIDDLE
NAME
8 SUFFIX NAME/2008 ALPHA EMPLOYEE'S SUFFIX
NAME
11 EMPLOYEE STATUS/2041 ALPHA CURRENT
NOT CURRENT
9 NAME KEY/2042 AAAAAXXXX EMPLOYEE'S NAME
ASSIGNED KEY
6 EMPLOYEE ID/2043 NNNNNN EMPLOYEE'S ID NUMBER
FROM THE ORANGE
COUNTY'S PAYROLL SYSTEM
7 BADGE TYPE/2044 ALPHA SWORN
CIVILIAN
RETIREE
15 REASON/2045 ALPHA NEW IDCARD
REPLACEMENT
FOUND&DESTROYED
PROMOTION
LOST
</TABLE>
Exhibit A, Appendix G
<PAGE>
OCSO-IWS AGREEMENT: PAGE 56
<TABLE>
<CAPTION>
Size Element/Tags Values Description/Values
- ---- ---------------------- ------ ------------------
<S> <C> <C> <C>
REPRINT
STOLEN
DEMOTED
RECLASSIFY
15 DEPARTMENT/2046 ALPHA ** S-RES DEPUTY I
S-RES DEPUTY II
S-DEP SHERIFF I
S-DEP SHERIFF II
S-DEP F CLASS I
S-DEP F CLASS II
S-CORPORAL I
S-CORPORAL II
S-SERGEANT I
S-SERGEANT II
S-LIEUTENANT
S-COMMANDER
S-CAPTAIN
S-DIRECTOR
S-MAJOR
S-UNDERSHERIFF
S-SHERIFF
S-CBO/DEPUTY
C-CIVILIAN
*** C-VOLUNTEER
C-CIVIL PROC OFF
C-TASK FORCE
C-SCHOOL GUARD
C-PSO
C-EXPLORER
C-CITIZEN ADVR
C-TEMP EMPLOYEE
C-POLL DEPUTY
C-CHAPLAIN
C-INTERN
C-HON DEPUTY
C-PARKING ENF
C-FSO
' R-DEP SHERIFF
R-DEP F CLASS
R-CORPORAL
R-DEP F CLASS
R-CORPORAL
R-SERGEANT
R-LIEUTENANT
R-CAPTAIN
R-COMMANDER I
R-DIRECTOR
R-COMMANDER II
R-UNDERSHERIFF
R-SHERIFF
R-CIVILIAN
P-SPEC PROC SRV
</TABLE>
** "S-" MEANS SWORN
EXHIBIT A, APPENDIX G
<PAGE>
OCSO-IWS AGREEMENT: PAGE 57
<TABLE>
<CAPTION>
Size Element/Tags Values Description/Values
- ---- ---------------------- ------ ------------------
<S> <C> <C> <C>
"C-" MEANS CIVILIAN
"R-" MEANS RETIRED
"P-" MEANS PROCESS OFFICER
*** C-VOLUNTEER IS NO LONGER ISSUED A BADGE.
VENDOR SHALL NOT HAVE IT IN THE DROP DOWN
LIST OR EDIT LISTS BUT, IT MUST BE
RETAINED FOR HISTORICAL DATA PURPOSES
1 FTP transfer
status/2047 N 0 = no errors
1 = no data available
on DEC Alpha
</TABLE>
The badge numbers shall be automatically generated by the EIS software. The
vendor must make provisions to find the last numbers issued in the following
categories of sworn (S######), civilian (C######), retired (R######), and
special process officer (P######) where ###### is an EIS system generated
number.
The EIS system shall request the employee data from the Orange County Sheriff's
Office DEC Alpha system via TCP/IP using the FTP. The operator of EIS will
enter the social security number. Upon entry of the social security number, the
EIS system will send an FTP file with the social security number entered by the
EIS operator. The EIS shall allow the operator to enter the data into the EIS
system upon failure to receive the data from the DEC Alpha for example if the
DEC Alpha or network is down, TCP/IP errors, no data on the DEC Alpha for that
employee, etc. The DEC Alpha system will open the EIS file, extract the social
security number and transfer via FTP and tag numbers the employee data as shown
in the table above. If the EIS has other data which is also on the DEC Alpha,
that data can also be transferred to the EIS as it is identified.
The EIS system shall provide the reports on (details to be provided later):
EXHIBIT A, APPENDIX G
<PAGE>
1. Alphabetical by employee name of all badge numbers issued to current
employees.
2. Report of current badge numbers in numerical order by badge numbers.
3. Alphabetical listing of current employees.
4. Listing by department of current employees.
EXHIBIT A, APPENDIX G
<PAGE>
OCSO-IWS AGREEMENT: PAGE 59
APPENDIX H
This section will describe in detail the MIS data field edits and the
transferring of data from the Orange County Sheriff's Office DEC Alpha computer
system.
The MIS system shall edit the MIS fields as shown in the table below. The
values are defined in the table below as A = ALPHA, N = NUMERIC, X =
ALPHANUMERIC. The tags will be used to transfer the date as described in
Appendix D.
<TABLE>
<CAPTION>
Size Element/Tags Value Description/Values
- ---- ------------------------- ---------- ------------------
<S> <C> <C> <C>
10 CASE NUMBER CCYYNNNNNN CASE NUMBER:
CC = CENTURY
YY = 2 DIGIT YEAR
20 LAST NAME/2005 ALPHA LAST NAME
20 FIRST NAME/2006 ALPHA FIRST NAME
12 MIDDLE NAME/2007 ALPHA MIDDLE NAME
8 SUFFIX NAME/2008 ALPHA SUFFIX NAME
1 SEX/2012 A F = FEMALE
M = MALE
U = UNKNOWN
1 RACE/3003 A W = WHITE
B = BLACK
H = HISPANIC
I = AMERICAN INDIAN
A = ASIAN
O = OTHER
8 DOB/2009 MMDDYYYY DATE OF BIRTH
11 HAIR COLOR/3007 ALPHA BROWN
BLACK
BLONDE
RED
WHITE
GRAY
SANDY
SALT&PEPPER
UNKNOWN
</TABLE>
EXHIBIT A, APPENDIX H
<PAGE>
OCSO-IWS AGREEMENT: PAGE 60
<TABLE>
<CAPTION>
Size Element/Tags Value Description/Values
- ---- ------------------------- ---------- ------------------
<S> <C> <C> <C>
8 EYE COLOR/3010 ALPHA BLACK
BLUE
BROWN
GRAY
HAZEL
MAROON
PINK
GREEN
MULTIPLE
UNKNOWN
3 HEIGHT/3004 NNN HEIGHT IN INCHES
3 WEIGHT/3005 NNN WEIGHT IN POUNDS
1 FTP TRANSFER STATUS/2047 N 0 = NO ERRORS
1 = NO DATA AVAILABLE
ON DEC ALPHA
</TABLE>
The MIS system shall request the missing person data from the Orange County
Sheriff's Office DEC Alpha system via TCP/IP using the FTP. The operator of MIS
will enter the case number. Upon entry of the case number, the MIS system shall
send an FTP file to the DEC Alpha with the case number entered by the MIS
operator. The MIS shall allow the operator to enter the data into the MIS
system upon failure to receive the data from the DEC Alpha for example if the
DEC Alpha or network is down, TCP/IP errors, no data on the DEC Alpha for that
missing person, etc. The DEC Alpha system will open the FTP file, extract the
case number and transfer via FTP and tag numbers the missing person data as
shown in the table above. If the MIS has other data which is also on the DEC
Alpha, that data can also be transferred to the MIS as it is identified.
EXHIBIT A, APPENDIX H
<PAGE>
OCSO-IWS Agreement: Page 61
APPENDIX I
This appendix will describe in detail the MDT interface to the image system.
The data format for the ASCII FTP file that will be transferred via TCP/IP to
the Image system will be as follows:
1. ASCII text file
2. One tagged data item per line
3. Each line in the file must be terminated with a CR/LF (carriage return and
line feed control characters)
Tagged Data Line Format will be as follows:
1. The word KEY followed by the key wanted and CR/LF:
(carriage return and line feed control characters).
The keys will be as follows:
Database Key
-------- ----
CIS inmate number
EIS social security number
MIS case number
2. The word DATABASE followed by the database name (CIS, EIS, OR MIS) and
CR/LF.
3. The word IMG_FORMAT followed by JPEGTN and CR/LF where JPEGTN is a
compressed JPEG thumbnail image.
A sample FTP ASCII text file would look as follows:
KEY 1998900028(CR/LF) DATABASE CIS (CR/LF)IMG_FORMAT JPEGTN(CR/LF)
The request file names shall be MDT(key)####.REQ. #### will be a unique DEC
Alpha program generated sequence number. The above example would have a request
file name
Exhibit A, Appendix I
<PAGE>
OCSO-IWS Agreement: Page 62
MDT1998800028001.REQ
The Image System shall return a status file. The status file name will be a
derivative of the data requested. The file name that contains the status of the
request will be MDT(key)####.RES
The above example would have a response file name
MDT1998900028001.RES
The contents of the status file shall be in the following format:
STATUS_CODE #
# is the number of the status codes which are:
0 = image found
1 to 9 = error statuses may be defined by the vendor
The Image system shall return the requested image in the file named as
MDT(key)####.IMG
The example above would be MDT1998900028001.IMG
Exhibit A, Appendix I
<PAGE>
OCSO-IWS Agreement: Page 63
EXHIBIT B
DELIVERABLES
FOR
CRIMINAL / EMPLOYEE /
MISSING PERSONS
IMAGING SYSTEM
By: Debby Stepien
Orange County Sheriff's Office
Information Management Services
Exhibit B
<PAGE>
OCSO-IWS Agreement: Page 64
<TABLE>
<CAPTION>
PHASE 1 CONTRACT DELIVERABLE LIST
ITEM QUANTITY DATE
---- -------- -----
<S> <C> <C>
1 Training Classes 6 classes 1 month before
For Corrections installation of
trainers booking image
stations
2 Training Classes 12 classes 1 month before
for OCSO trainers installation of
each OCSO image
station
3 Training Classes 3 classes 1 month before
*currently have per agency installation of
1 outside agency each outside agency
2 are pending image stations
4 User Manuals 1 per trainer At time of training
for all trainers (55 trainers)
5 Computer Based 1 per image At time of
Training station installation
(optional) of image station
6. Video Training 1 per agency 1 month before
(optional) currently 3 installation of
agencies 2 each image station
pending
7 System Admin 2 systems 1 month before
Training admin installation of
system
8 System Admin 2 At time of training
Manuals
9 Historical data See technical 4 MAC
conversion specification
(Appendix B)
10 Image servers and/ 1 4 MAC
or main image
system/database
Exhibit B
<PAGE>
<CAPTION>
OCSO-IWS Agreement: Page 65
ITEM QUANTITY DATE
---- -------- -----
<S> <C> <C>
11 System Admin 1 4 MAC
software
12 Image station 1 4 MAC
+ software
(Info Mgmt
Services)
13 Image capture 1 5 MAC
station
+ software +
peripherals
(Central booking
Office)
14 Image capture 1 5 MAC
station
+ software +
peripherals
(Juvenile
Assessment Center)
15 DEC Alpha/Image 1 5 MAC
System Interfaces
(Appendix D)
16 Image station 3 5 MAC
& printers,
scanners (Records)
17 DEC Alpha image 1 5 MAC
interface See functional
(Appendix F) specification
18 Image station 1 6 MAC
& printer
(CID)
19 Image station 1 6 MAC
& printer
& scanner
(Missing Persons)
20 Image station 1 6 MAC
& printer
(Sector 4)
</TABLE>
Exhibit B
<PAGE>
OSCO-IWS Agreement: Page 66
<TABLE>
<CAPTION>
Item Quantity Date
---- -------- ----
<S> <C> <C>
21 Image station 1 6 MAC
& printer
(VIN)
22 Warrants TIFF 1 6 MAC
Interface Software See technical
(Appendix E) specification
23 Image station 1 6 MAC
& printers
(Warrants)
24 Image station 1 6 MAC
& printer
(Sector 1)
25 Image station 1 6 MAC
& printer
(Sector 2)
26 Image station 1 6 MAC
& printer
(Sector 3)
27 Image station 1 6 MAC
& printer
(Sector 5)
28 Image station 2 7 MAC
& shared printer
(Orlando Police)
29 Image station 1 7 MAC
& printer
(Winter Park)
</TABLE>
Exhibit B
<PAGE>
OCSO-IWS Agreement: Page 67
PHASE 2 CONTRACT DELIVERABLE LIST
<TABLE>
<CAPTION>
Item Quantity Date
---- -------- ----
<S> <C> <C>
1 Training Classes 1 class 1 month before
for Human Resources installation of
Department trainers EIS capture station
2 User Manuals 1 per trainer At time of training
for all trainers (2 trainers)
3 Computer Based 1 per image At time of
Training station installation
(optional) of image station
4 Video Training 1 1 month before
(optional) installation of
each image station
5 System Admin 2 systems 1 month before
Training admin installation of
system
6 System Admin 2 At time of training
Manuals
7 Historical data See technical 4 MAC
conversion specification
8 EIS database 1 4 MAC
installation
9 System Admin 1 4 MAC
software
10 EIS capture 1 5 MAC
station + software
+ peripherals
(Human Resources
Department)
11 DEC Alpha/Image 1 5 MAC
System interface See functional
(Appendix G) specification
Exhibit B
<PAGE>
OCSO-IWS Agreement: Page 68
Item Quantity Date
---- -------- ----
12 DEC Alpha/Image 1 5 MAC
system interface See functional
(Appendix F) specification
</TABLE>
Exhibit B
<PAGE>
OCSO-IWS Agreement: Page 69
PHASE 3 CONTRACT DELIVERABLE LIST
<TABLE>
<CAPTION>
Item Quantity Date
---- -------- ----
<S> <C> <C>
1 Training Classes 1 class 1 month before
for the Missing installation of
Persons trainers MIS capture station
2 User Manuals 1 per trainer At time of training
for all trainers (2 trainers)
3 Computer Based 1 per image At time of
Training station installation
(optional) of image station
4 Video Training 1 1 month before
(optional) installation of
each image station
5 System Admin 2 systems 1 month before
Training admin installation of
system
6 System Admin 2 At time of training
Manuals
7 MIS database 1 4 MAC
installation
8 System Admin 1 4 MAC
software
9 MIS image 1 5 MAC
station + software
+ peripherals
(Missing Persons
Department)
11 DEC Alpha/Image 1 5 MAC
System Interface See functional
(Appendix H) specification
12 DEC Alpha/Image 1 5 MAC
System Interface See functional
(Appendix F) specification
</TABLE>
Exhibit B
<PAGE>
OCSO-IWS Agreement: Page 70
STATEMENT OF WORK
FOR
CRIMINAL / EMPLOYEE /
MISSING PERSONS
IMAGING SYSTEM
BY: DEBBY STEPIEN
ORANGE COUNTY SHERIFF'S OFFICE
INFORMATION MANAGEMENT SERVICES
Exhibit C
<PAGE>
OCSO-IWS Agreement: Page 71
STATEMENT OF WORK
1. The Vendor shall deliver the system in three phases. The first phase
shall be the CIS system, the second phase shall be the EIS system, and the
third phase shall be the MIS system.
2. The Vendor shall keep the old system up and running until it is
determined by the Orange County Sheriff's that the new system is
acceptable.
3. All hardware and software shall be Y2K compliant.
4. The Vendor shall determine which hardware devices (PCs, printers,
cameras, etc.) can continue to be utilized with the new system.
5. The Vendor will conduct a site survey to determine where the hardware
will be located and determine if any new outlets, hardware shelves,
cabinets, etc. are needed before any installation of hardware and
software takes place.
6. The Vendor shall provide a quote for the implementation of booking
wristbands. The Orange County Jail uses approximately 100,000 wristbands
per year.
7. The Vendor shall provide a quote for booking jail cards (large and
small). The Orange County Jail uses approximately 55,000 to 65,000 jail
cards per year.
8. The Vendor shall provide a quote for any special paper, cartridges,
disks, etc. that will be required for all new peripheral devices.
9. All of the PC image stations will utilize DELL PCs. The DELL PC is the
standard for the Orange County Sheriff's Office.
10. The Vendor shall provide on-site maintenance and software support 24
hours a day 7 days a week. The Vendor shall also provide an 800 telephone
number for help and problem reporting that is manned 24 hours a day (no
answering service).
Exhibit C
<PAGE>
OCSO-IWS Agreement: Page 72
11. The Vendor shall be able to provide hardware replacement parts within at
least 24 hours during work week hours and 72 hours for weekends. The only
exception will be the booking capture stations which will need on-site
replacement parts within 12 hours during the work week and 24 hours for
weekends.
12. The Vendor shall have software version control. The System's
Administrator shall know at all times what version of software is running
on the system, image station PCs, etc. The Vendor shall inform the Systems
Administrator of any new software upgrades applied to the system.
13. The Vendor shall provide a secure modem dial in capability to speed up
the determination of software/hardware problems. The Vendor shall also
provide operator assistance via a software package such as, The NORTON
pcAnywhere.
14. The Vendor shall retain the historical photo lineup identification
numbers. The historical identification numbers have become very important
because they are currently included in our court case documentation.
Exhibit C
<PAGE>
OCSO-IWS Agreement: Page 73
EXHIBIT D - REQUIREMENTS DOCUMENT
IMAGEWARE RESPONSE TO FUNCTIONAL SPECIFICATION REVISION 4 (11/12/98)
<TABLE>
<S> <C>
1.0 Understood and Comply
2.1 Understood and Comply
2.2 Understood and Comply
2.3 Understood and Comply
2.3.1 Understood and Comply
2.3.2 Understood and Comply
2.3.3 Understood and Comply
2.3.4 The camera has a power focus lens which is controlled by the CCS
software. The camera does not auto focus on its own, and the zoom
in NOT automatic. Both cases require operator intervention.
2.3.5 Understood and Comply
2.3.6 Understood and Comply
2.3.7 Understood and Comply
2.3.8 Understood and Comply
2.4. Understood and Comply
2.4.1 Understood and Comply
2.4.2 Understood and Comply
2.4.3 Understood and Comply
2.4.4 Understood and Comply
2.4.5 Understood and Comply
2.4.6 IWS will accept the data and will house and display the data in
one of the user defineable fileds on the screen. The data will
display in bold red font.
2.4.7 Understood and Comply
2.5 Understood and Comply
2.5.1 Understood and Comply
2.5.2 Understood and Comply
2.5.3 Understood and Comply
2.5.4 Colors must be manipulated via a separate module known as Crime Lab.
2.5.5 Understood and Comply
2.6 Understood and Comply
2.6.1 Facial composite software, Suspect ID is provided in the original
quote as an optional purchase.
2.6.2 Understood and Comply
2.6.3 Disguises software, Crime Lab is provided in the original quote
as an optional purchase.
2.7 Understood and Comply
2.8 Understood and Comply
2.9 IWS supports IBM Netfinity.
2.10 Understood and Comply
2.10.1 Understood and Comply
2.10.2 Understood and Comply
2.10.3 Understood and Comply
2.10.4 Understood and Comply
2.10.5 Understood and Comply
2.10.6 Understood and Comply
3.1 Understood and Comply
3.2 Understood and Comply
Exhibit D
<PAGE>
OCSO-IWS Agreement: Page 74
3.3 Understood and Comply
3.4 Understood and Comply
3.4.1 Understood and Comply
3.4.2 Understood and Comply
3.4.3 Understood and Comply
3.4.4 Understood and Comply
3.4.5 Understood and Comply
3.4.6 Understood and Comply
3.4.7 Understood and Comply
3.4.8 Understood and Comply
3.4.9 Data which is not captured by the Crime Capture System such as
documents, fingerprints, etc. may be entered into a folder by
scanning or importing a standard .jpg or .bmp image.
3.4.10 Understood and Comply
4.1 Understood and Comply
4.2 Understood and Comply
4.2.1 The functions outlined in section 4.2.1 require the Crime Lab
module which is provided in the original quote as an OPTIONAL purchase.
4.2.2 Understood and Comply
4.2.3 Understood and Comply
4.2.4 Crime Capture System DOES NOT support automatic aging.
4.2.5 Understood and Comply
4.2.6 A composite CANNOT be sealed or expunged.
4.2.7 A composite CANNOT be sealed or expunged.
4.2.8 Understood and Comply
4.2.9 IWS will provide a habitual runaways database of photos and data
which can be added/deleted to each record. Image and data can be moved
from one folder to another.
4.3 Understood and Comply
4.3.1 Understood and Comply
4.3.2 Understood and Comply
4.3.3 Understood and Comply
4.3.4 Understood and Comply
5.1 Understood and Comply
5.2 Understood and Comply
5.3 Understood and Comply
6.1 Understood and Comply
6.2 Understood and Comply
6.3 Understood and Comply
7.0 N/A
Appendix A Understood and Comply
Appendix B Understood and Comply
Appendix C See response to 2.4.6
Appendix D Understood and Comply
Appendix E Understood and Comply
Appendix F Understood and Comply
Appendix G Understood and Comply
Appendix H Understood and Comply
Appendix I Understood and Comply
Statement of Work 1 - 8 Understood and Comply
Exhibit D
<PAGE>
OCSO-IWS Agreement: Page 75
Statement of Work 9 ImageWare supplies and supports IBM Hardware
Statement of Work 10 ImageWare Software has NOT included in the response maintenance
personnel to be on-site 24 hours a day 7 days a week. Maintenance
is by phone 24 hours a day 7 days a week. An 800 number is available
24 hours a day 7 days a week with no answering service.
Statement of Work 11, 12 Understood and Comply
Statement of Work 14 Understood and Comply
Phase 1 Deliverables 1-3 The original quote includes 2 classes (a user class and a SA class)
per site, per phase.
Phase 1 Deliverables 4-6 Understood and Comply
Phase 1 Deliverables 7 The original quote includes 2 classes (a user class and a SA class)
per site, per phase.
Phase 1 Deliverables 8-10 Understood and Comply
Phase 1 Deliverables 11-29 Understood and Comply
Phase 2 Deliverables 1 The original quote includes 2 classes (a user class and a SA class)
per site, per phase.
Phase 2 Deliverables 2-4 Understood and Comply
Phase 2 Deliverables 5 The original quote includes 2 classes (a user class and a SA class)
per site, per phase.
Phase 2 Deliverables 6-12 Understood and Comply
Phase 3 Deliverables 1 The original quote includes 2 classes (a user class and a SA class)
per site, per phase.
Phase 3 Deliverables 2 Understood and Comply
Phase 3 Deliverables 3-5 The original quote includes 2 classes (a user class and a SA class)
per site, per phase.
Phase 3 Deliverables 6-12 Understood and Comply
</TABLE>
Exhibit D
<PAGE>
4/20/99 Revision 7/28/99 OCSO-IWS Agreement:Page 76
EXHIBIT E - IMAGEWARE PROPOSAL, PRICING AND DELIVERABLES
<TABLE>
<CAPTION>
DESCRIPTION QTY UNIT EXT TOTAL
----------- --- ---- --- -----
<S> <C> <C> <C> <C>
IBM Netfinity 5500 Pentium II 450MHz/512KB L2,256MB
ECC(R), OPEN, 32X, PCI/ISA 1 $8,031.15 $ 8,031.15
(Std) 10/100 PCI Ethernet
(Std) 2-Drop 16-bit SCSI Internal Cable
(Std) 32X Max IDE CD-ROM Drive
(Std) 450/100 MHz Pentium II Processor with 512KB ECC L2 Cache
(Std) IBM 1.44 MB 3.5-inch Diskette Drive
(Std) IBM 104-key Keyboard (Stealth Grey)
(Std) Integrated IDE Controller
(Std) Integrated PCI Ultra SCSI RAID Controller - dual channel
(Std) Mouse Stealth Grey
(Std) Netfinity 400W Hot-Swap Power Supply
(Std) Netfinity NetBAY3
(Std) Processor Complex Card
(Std) S3 Trio64V2 Graphics - 1MB SGRAM
(Std) Systems Management Processor
IBM 20/40GB DLT Internal SCSI Tape Drive (FH) 1 $3,172.50 $ 3,172.50
IBM Netfinity 400W Hot-Swap Redundant Power Supply II 1 $ 810.00 $ 810.00
IBM Netfinity 256MB SDRAM ECC RDIMM 1 $1,282.50 $ 1,282.50
Netfinity 18.2GB Wide Ultra SCSI SCA-2 SL HDD 6 $2,023.65 $12,141.90
450/100MHz Pentium II Processor with 512KB ECC L2 Cache 1 $1,618.65 $ 1,618.65
G74 - 17(15.9) in. Color Monitor, 69 KHz, Stealth Gray 1 $ 476.55 $ 476.55
OBI External V.34 Data/Fax Modem 2 $ 496.80 $ 993.60
Smart-UPS 1400-17 Min Runtime 1 $ 793.80 $ 793.80
SUBTOTAL $29,320.65
- -----------------------------------------------------------------------------------------------------------------------
CAPTURE HARDWARE
PC 300PL Pentium II 350 MHz
MMX/512KB, 64MB, 6.4GB, S3Trio, 4MB, 32X, 16bit, NT 6 $1,869.75 $11,218.50
(Std) IBM 6.4GB EIDE Hard Drive
(Std) 10/100 PCI Ethernet WOL
(Std) 16-bit ISA Crystal Audio Integrated
(Std) 350/100MHz MMX Pentium II Processor with 512KB Pipeline
B
(Std) 4MB Integrated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internal 32X Max (Variable Speed)
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
G74 - 17(15.9) in. Color Monitor, 69 KHz, Pearl White 6 $ 452.25 $ 2,713.50
SUBTOTAL $13,932.00
- -----------------------------------------------------------------------------------------------------------------------
CAMERA SUB-SYSTEMS
Hitachi KP-D50 Camera, NIST standards (single chip) 3 $1,471.50 $ 4,414.50
Computar Lens 3 $1,147.50 $ 3,442.50
3 point Lighting system 0 $1,343.25 $ 0.00
Pan and Tilt Camera mount 3 $1,620.00 $ 4,860.00
Reflective Pedestal 0 $ 924.75 $ 0.00
Cable bundle 3 $ 202.50 $ 607.50
NIST compliance capture software 3 $1,500.00 $ 4,500.00
Capture Card MVPro 3 $ 904.50 $ 2,713.50
Power Supply (Single Chip) 3 $ 67.50 $ 202.50
SUBTOTAL $20,740.50
- -----------------------------------------------------------------------------------------------------------------------
INVESTIGATIVE HARDWARE
PC 300PL Pentium II 350MHz
MMX/512KB, 64MB, 6.4GB, S3Trio, 4MB, 32X, 16bit, NT 12 $1,869.75 $22,437.00
(Std) IBM 6.4GB EIDE Hard Drive
(Std) 10/100 PCI Ethernet WOL
(Std) 16-bit ISA Crystal Audio Integrated
</TABLE>
Exhibit E
<PAGE>
4/20/99 Revision 7/28/99 OCSO-IWS Agreement:Page 77
<TABLE>
<S> <C> <C> <C> <C>
(Std) 350/100 MHz MMX Pentium II Processor with 512KB Pipeline
B
(Std) 4MB Integrated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internal 32X Max (Variable Speed)
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
G74 - 17(15.9) in. Color Monitor, 69KHz, Pearl White 12 $ 452.25 $ 5,427.00
SUBTOTAL $ 27,864.00
- ------------------------------------------------------------------------------------------------------------------------
SOFTWARE
CCS Investigative Display Software (Full) 12 $ 6,750.00 $ 81,000.00
CCS Capture Software 6 $10,000.00 $ 60,000.00
Investigative Mugbook 25 $ 500.00 $ 12,500.00
SUBTOTAL $153,500.00
- ------------------------------------------------------------------------------------------------------------------------
PRINTERS
Atlantek ID card Printer 1 $ 7,418.25 $ 7,418.25
Epson Stylus 850, color, 1440X720DPI 13 $ 476.55 $ 6,195.15
HP Laserjet B&W, 6P, 600DPI, 8PPM 6 $ 1,140.00 $ 6,840.00
SUBTOTAL $ 20,453.40
- ------------------------------------------------------------------------------------------------------------------------
MISC HARDWARE
Wristband System (Total) 3 $ 1,875.00 $ 5,625.00
SUBTOTAL $ 5,625.00
- ------------------------------------------------------------------------------------------------------------------------
SCANNERS
Epson 800 Executive Scanner w/SCSI card 3 $ 846.45 $ 2,539.35
SUBTOTAL $ 2,539.35
- ------------------------------------------------------------------------------------------------------------------------
FACE ID SOFTWARTE AND HARDWARE
Face ID Client Software 1 $15,000.00 $ 15,000.00
Face ID Server Software 1 $60,248.00 $ 60,248.00
Swarm 450 MHz - 1GB RAM Processor 1 $12,285.00 $ 12,285.00
Additional 1 GB RAM 1 $ 5,400.00 $ 5,400.00
Additional Processor 1 $ 4,050.00 $ 4,050.00
SUBTOTAL $ 96,983.00
- ------------------------------------------------------------------------------------------------------------------------
ADDITIONAL SOFTWARE AND HARDWARE
Suspect ID 1st License 1 $ 5,000.00 $ 5,000.00
Vehicle ID 1st License 1 $ 1,500.00 $ 1,500.00
Vehicle ID Each Additional License 10 $ 750.00 $ 7,500.00
SUBTOTAL $ 14,000.00
- ------------------------------------------------------------------------------------------------------------------------
TOTAL HARDWARE/SOFTWARE $384,957.90
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
SERVICES
Database Customization 104 $ 900.00 $ 93,600.00
Conversion of Images and line-ups 689000 $ 0.20 $137,800.00
SUBTOTAL $231,400.00
- ------------------------------------------------------------------------------------------------------------------------
LICENSES
5-User Windows NT Server License #606670 1 $ 687.23 $ 687.23
Additional Windows NT Server License #794840 1 $ 30.43 $ 30.43
SQL (20 User) 1 $ 5,590.00 $ 5,590.00
SUBTOTAL $ 6,307.66
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
Exhibit E
<PAGE>
4/20/99 Revision 7/28/99 OCSO-IWS Agreement:Page 78
<TABLE>
<S> <C> <C> <C> <C>
Shipping/Handling/Installation $ 46,194.95 $ 46,194.95
Training 4 $ 750.00 $ 3,000.00 $ 3,000.00
SUBTOTAL BEFORE DISCOUNTS $671,860.51
- ------------------------------------------------------------------------------------------------------------------------
AGENCY DISCOUNT
Investigative Mugbook $ 12,500.00
Database Customization $ 46,800.00
Conversion of Images and line-ups $137,800.00
Face ID server $ 32,000.00
DISCOUNT SUBTOTAL $229,100.00
- ------------------------------------------------------------------------------------------------------------------------
PROJECT SUBTOTAL $442,760.51
- ------------------------------------------------------------------------------------------------------------------------
Preventive Maintenance and Customer Support (Year 1) $ 51,969.32
PROJECT FINAL TOTAL $494,729.82
- ------------------------------------------------------------------------------------------------------------------------
OPTIONAL SOFTWARE
Face ID Client Software $15,000.00
Suspect ID Each Additional License $ 2,500.00
Crime Lab 1st License $ 1,200.00
Crime Lab Each Additional License $ 600.00
Vehicle ID Each Additional License $ 750.00
- ------------------------------------------------------------------------------------------------------------------------
MEDIA AND CONSUMABLES (SUBJECT TO CHANGE)
30 Mil PVC Card, 500 cards per box $ 85.00
Card Cleaner Tape, one roll for 1000 cards $ 16.00
1Mil Poly Over laminate, 150 per roll $ 44.00
Ribbon, color/black front, back resin, for 500 cards $ 175.00
Ribbon, black, for 500 cards $ 87.50
Epson black ink cartridge $ 28.50
Epson color ink cartridge $ 28.25
Epson Photo quality paper, 4X6, 20 sheets $ 6.85
Epson Photo quality paper, 8.5X11, 20 sheets $ 12.75
HP Toner cartridge $ 85.50
Wristbands, 500 per box $ 220.00
MAINTENANCE AND CUSTOMER SUPPORT
Year 2 $69,292.42
Year 3 $69,292.42
Year 4 $69,292.42
Year 5 $69,292.42
</TABLE>
<PAGE>
OCSO-IWS Agreement: Page 79
EXHIBIT F - STATEMENT OF WORK
IMAGEWARE AND OCSO RESPONSIBILITIES
This document identifies the product to be delivered and specifies work to be
performed by the Contractor during the upgrade of the current ForceField System
as well as outlines those tasks which are the responsibility of Orange County
Sheriff's Department.
TECHNICAL OVERVIEW
The purpose of the Crime Capture System upgrade is to provide a method for
capturing digital images and data in a NT based digital mugshot system. Upon
completion of the install, the new system will meet all NIST standards, will be
Y2K compliant and will capture images in a standard jpg format.
I. WORK TO BE COMPLETED BY IMAGEWARE
1. Server configuration and installation
2. Installation of capture hardware and software
3. Installation of investigative hardware and software
4. Installation of printers
5. Installation of wristband making subsystems
6. Conversion of current images and data
7. Development of interconnects
8. Custom requests as outlined in the functional specifications document
9. Training
II. HARDWAARE/SOFTWARE
ImageWare will provide all software for the upgrade in addition to the hardware
listed below: (See Exhibit B)
1. Capture PC's
2. Investigative PC's
3. NT Server
4. Camera Subsystems
5. Pan and Tilt devices
6. Mugbook, Investigative and Capture software licenses
7. Printers
8. Scanner
9. Sybase and NT licenses
III. INTEGRATION AND TEST
ImageWare will configure, integrate, install and test all hardware and software
prior to System Acceptance and Testing.
IV. DATA CONVERSION
All data and images in the current ForceField system will be converted and
transferred to the CCS system.
V. INTERCONNECTS
ImageWare is responsible for porting over to CCS any current interconnects as
identified in the Requirements Document, Exhibit A.
Exhibit F
<PAGE>
OCSO-IWS Agreement: Page 80
VI. TRAINING
ImageWare will provide training. See, Crime Capture System, Exhibit C
VII. DOCUMENTATION
ImageWare will provide one manual per capture and per investigative station.
VIII. RESPONSIBILITIES OF ORANGE COUNTY SHERIFF'S OFFICE
1. Network connections
2. Sites must be clean and ready for installation
3. Phone lines
4. Personnel available for technical questions
5. Provide specifications on interconnects
6. Proper electrical availability
7. Space and tables for computers and printers
8. IP addresses
Exhibit F
<PAGE>
OCSO-IWS Agreement: Page 81
EXHIBIT G - INITIAL PROJECT SCHEDULE
The purpose of this document is to define the sequence of events and describe
the installation process for the upgrade of ForceField.
I. PROJECT MANAGEMENT
The program management effort will ensure compliance with requirements
pertaining to overall project management, configuration management,
installation management, quality assurance and technical deliveries in
accordance with the Requirements Document, Exhibit A.
II. PROJECT MANAGERS
ImageWare Software,Inc. and Orange County Sheriff's Office will each appoint
one project manager who will act as the liason for each party. The project
manager's responsibilities are outlined in section I. of this document.
III. PROJECT SEQUENCE OF EVENTS
1. Partial payment due
2. Kick off meeting to cover the following: (2 Days)
a. Site Surveys
b. Interconnect reviews
c. CCS customization reviews
d. Implementation Schedule
3. Interconnect Development (21 Days)
4. CCS Customization (21 Days)
5. Data Conversion (5 Days)
6. Equipment Orders (5 Days)
7. System Configuration (7 Days)
8. System Installation (10 Days)
9. CCS Training (5 Days)
10. System Acceptance Testing (30 Days)
Exhibit G
<PAGE>
OCSO-IWS Agreement, Exhibit I: Page 1
Agreement No: IWS99001
SOFTWARE ESCROW AGREEMENT
MULTI USER PLAN
This Agreement is effective ___________, 19____ among Lincoln-Parry
SoftEscrow, Inc., (hereinafter known as "Trustee"), a company with principal
offices located at 400 Inverness Drive, Suite 200, Englewood, CO 80112,
ImageWare Software Incorporated (hereinafter known as "Licensor"), a
Corporation, with principal offices located at 10883 Thornmint, San Diego, CA
92127 and any additional party, (herinafter known as "Licensee"), signing the
Acceptance Form attached to this Agreement, reference herein as "Attachment
1" and incorporated herein by this reference.
WHEREAS the Licensor carries on the business of licensing computer
software and is desirous of making available severally to certain of its
customers, each herein called the Licensee the benefits contemplated by this
agreement, and ;
WHEREAS the Licensor has granted or shall grant to the Licensee the
right to use certain computer programs in object form and has agreed or shall
agree to support the programs but wishes to maintain their confidentiality as
trade secrets, and;
WHEREAS the Licensee is desirous of being assured that the source code,
documentation and related materials for such programs will be made available
to it for the purposes of self support if certain events named herein occur;
THEREFORE the parties agree as follows:
1. ESCROW MATERIALS
Depositor shall deliver to the Trustee a sealed package containing
magnetic tapes, disks, disk packs, or other forms of media, in machine
readable form, and the written documentation prepared in connection
therewith, and any subsequent updates or changes thereto (the "Deposit
Materials") for the computer software products (the "System(s)"), all as
identified from time to time on Exhibit A hereto. Deposit Materials shall
consist of the source code magnetically or optically stored, and such
supporting documentation and related materials as are necessary for a
reasonably competent programmer to routinely maintain and modify such code.
2. BENEFICIARIES
All Licensees of the System shall seperately become a beneficiary
hereunder upon the signing by the Licensee and Licensor of the Acceptance
Form attached to this Agreement. Amendments introduced in the Acceptance
Form by the agreement of Licensor and Licensee will supersede any
provisions of this Software Escrow Agreement, providing that said
amendments do not modify the rights of the Trustee.
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OCSO-IWS Agreement, Exhibit I: Page 2
Agreement No: IWS99001
3. DELIVERY AND CERTIFICATION
The following procedure shall be adopted for the presentation and
certification of the Deposit Materials into escrow.
(a) Within 10 days after the signing of this agreement by both
parties, the Trustee shall supply to the Licensor an appropriate sized
container which is capable of being sealed and in which the Deposist
Materials shall be stored.
(b) The Licensor shall thereupon deposit the Deposit Materials into
the said container, identifying it by name and release number, and shall
certify as to the authenticity of the contents in the sealed container on
the form supplied by the Trustee.
(c) The Licensor shall seal the container and shall deliver it to
the Trustee to hold in accordance with the terms of this agreement.
(d) The Licensor will deposit new releases into escrow, and the
Trustee shall retain the latest such deposits and shall return earlier
deposits to the Licensor.
(e) The Trustee shall hold the container in its sealed state and
shall not open, cause or permit it to be opened under any circumstances
whatsoever except as may be permitted under this agreement or amendments
thereto.
4. EVENTS CAUSING RELEASE
The Deposit Materials shall be held in escrow by the Trustee until
the earliest of the following events:
(a) A cessation of the use of the System by the Licensee and the
termination or expiration of its program license agreement with the
Licensor, or the termination or expiration caused or permitted by the
Licensee of the System maintenance and support services portion of the
said program license agreement.
(b) A termination of this agreement by consent of the Licensor and
Licensee, or the Licensee alone.
(c) The occurrence of any of the following events, and provided in
all events that the Licensor has not made suitable alternate arrangements
for the continued supplying of maintenance of the System:
(1) A petition in bankruptcy, or an assignment for the benefit of
creditors of the Licensor is filed by the Licensor, or a third party
against the Licensor and is not dismissed within 30 days of its filing;
(2) A cessation of normal business operations by the Licensor during
the term of this agreement;
(3) A failure or refusal by the Licensor to provide the System
maintenance and support services required of it under its program license
agreement with the Licensee, which failure has been preceded by a notice
in writing to the Licensor that its continued default would cause the
Licensee to invoke its rights under this agreement fifteen (15) days after
the date of the said notice;
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OCSO-IWS Agreement, Exhibit I: Page 3
Agreement No: IWS99001
5. RETURN TO LICENSOR
The Trustee shall deliver the Deposit Materials back to the Licensor if
any of the events named in paragraph 4(a) or 4(b) occurs before any of the
events named in paragraph 4(c), provided that a Termination Notice in the
form set out in Schedule A and signed by the Licensor and the Licensee has
been delivered to the Trustee along with the balance of any fees and charges
that are due, and further provided that no other Licensee is a beneficiary
under this agreement at the time.
6. DELIVERY TO LICENSEE
The Trustee shall deliver a copy of the Deposit Materials to the Licensee
if any of the events named in paragraph 4(c) occur before any of the events
named in paragraphs 4(a) or 4(b), provided that the procedure set out below
has been followed and the conditions met.
(a) The Licensee has delivered to the Trustee a written request for the
release of the Deposit Materials, accompanied by a sworn affidavit in a form
satisfactory to the Trustee from a senior officer of the Licensee stating the
particulars of the reasons for its request.
(b) A copy of the request and affidavit have been delivered by the
Trustee to the Licensor, and the Licensor has received at least the notice
period named in paragraph 4(c)(3).
(c) No dispute in writing has been received from the Licensor by the
Trustee within ten (10) days of the Licensor's receipt of the Licensee's
request and affidavit.
(d) The Licensee has signed a non disclosure covenant in the form set
out in Exhibit B and delivered it to the Trustee.
(e) All outstanding charges under this agreement have been paid to the
Trustee, and the Licensee has paid copying and delivering costs incurred by
the Trustee.
7. DISPUTES AND ARBITRATION
If the Licensor enters a dispute as contemplated by paragraph 6(c) then
the procedure set out below shall be followed before the Deposit Materials is
delivered to the Licensee.
(a) The Licensor and Licensee shal within ten (10) days after the
entering of a dispute name an arbitrator to decide whether the Licensee is
entitled to receive the Deposit Materials. If they are unable to agree upon
the selection of an arbitrator then the Trustee shall make the said
selection.
(b) The arbitration shall otherwise be conducted in San Diego,
California in accordance with the Rules of the American Arbitration
Association and the Trustee shall immediately upon the expiry of any appeal
period carry out the decision of the arbitration.
8. VERIFICATION PROCEDURE
In order to verify the authenticity of the contents of any container
deposited by the
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OCSO-IWS Agreement, Exhibit I: Page 4
Agreement No: IWS99001
Licensor and being held in escrow the Licensee may at any time call for its
inspection in the manner and subject to the conditions below.
(a) The Licensee shall notify the Licensor and the Trustee in writing of
its demand to inspect the contents of a container, and such notification
shall be made at least 30 days in advance of the date appointed for such
inspection.
(b) The Trustee shall appoint the location for such inspection.
(c) The Trustee shall attend at the appointed time and place and shall
thereat produce the sealed container in question.
(d) The contents of the container shall be removed and inspected by the
Licensee and a determination made as to whether they are as purported by the
Licensor on its certificate.
(e) If the contents are determined to be as purported, they will be
resealed and returned to the Trustee to continue to hold in escrow. The
Licensee shall pay all costs associated with the inspection, including
machine time, operating personnel, travel, food, lodging and a reasonable per
diem fee for the attendance of all the parties attending at the inspection.
(f) If the contents of the container are determined not to be as
purported, then Licensor shall pay all of the costs named in sub paragraph
(e) and shall also forthwith deliver to the Trustee a copy of the authentic
software as purported on the Licensor's certification, and the Licensee may
first verify that the same are authentic.
9. DUTIES OF TRUSTEE
(a) The Trustee shall store the sealed containers in a safe and
secure location of its own choosing.
(b) The Licensor may direct the Trustee to store the sealed
containers in a location selected by the Licensor, in which event the Trustee
shall comply with such direction provided that access to the location is
under the Trustee's control and that any additional costs incurred by the
Trustee in using the site are paid by the Licensor.
(c) The Licensor represents that Deposit Materials do not require any
storage conditions other than office environment conditions.
(d) The Trustee shall exercise reasonable judgment in the handling of
the Deposit Materials in the event of a dispute and shall not be liable to
either party except for grossly or deliberately negligent conduct.
10. FEES, CHARGES AND TERM
The Licensor shall pay to the Trustee the following fees and charges:
(a) An annual fee of $500.00 US payable upon execution by the
Licensor of this Agreement and on each anniverary date thereafter unless
earlier terminated by either party.
(b) This agreement shall continue thereafter on a yearly basis
unless terminated by either party by giving the other at least ninety (90)
days written notice prior to any anniversary date, and provided that all
named beneficiaries have either ceased to hold a use license for the System
or have consented to the termination of this agreement by signing the
Termination Notice attached to this Agreement, reference herein as
"Attachment 2" and incorporated herein by this reference.
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OCSO-IWS Agreement, Exhibit I: Page 5
Agreement No: IWS99001
(c) A fee of $50.00 US per container per year or part year for each
container in excess of one being held by the Trustee at any given time
payable on the anniversary date of this agreement.
(d) A fee of $25.00 US per written notice delivered by the Trustee
under paragraph 6(b).
(e) A charge representing all expenses incurred by the Trustee for
media, copying, shipping, delivery, and special storage requested by the
Licensor payable on receipt of account.
(f) The term of this agreement shall continue so long as any
beneficiary has rights under it.
11. DEFAULT IN PAYMENT
In the event of non-payment of any fees invoiced by the Trustee, the Trustee
shall give notice of non-payment of any fee due and payable hereunder to the
Licensor and, in such an event, the Licensor shall have the right to pay the
unpaid fee within ninety (90) days after receipt of notice from the Trustee. If
Licensor fails to pay in full all fees due during such ninety (90) day period,
the Trustee shall give notice of non-payment of any fee due and payable
hereunder to the Licensee and, in such event, the Licensee shall have the right
to pay the unpaid fee within ten (10) days of receipt of such notice from the
Trustee. Upon payment of the unpaid fee by either the Licensor or Licensee, as
the case may be, this Agreement shall continue in full force and effect until
the end of the applicable term. Failure to pay the unpaid fee by both Licensor
and Licensee shall result in termination of this Agreement. In such event the
Trustee shall return the Deposit Materials to the Licensor.
The remedies above do not exclude any other remedies that are otherwise
available to the Trustee.
12. INSPECTION
For the purpose of insuring that any sealed container delivered to and
held by the Trustee under this agreement remains in a sealed state, either the
Licensor or the Licensee may at any time demand to inspect such container at the
offices of the Trustee, and the Trustee shall produce such container on a timely
basis for inspection.
13. NOTICES
Any notice required to be given in writing under this agreement shall
be given by prepaid certified or registered post, return receipt requested, to
the respective addresses above first mentioned or to such other addresses as the
parties may from time to time direct.
14. TITLE
Title to the Deposit Materials shall remain in the Licensor either in
its own right or as agent for the owner. The Trustee shall have title to the
physical storage medium but not to the Deposit Materials residing on it.
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OCSO-IWS Agreement, Exhibit I: Page 6
Agreement No: IWS99001
15. GOVERNING LAW
This agreement shall be governed in accordance with the laws of the
State of California without giving effect to its conflict of laws provisions.
16. ENUREMENT
This agreement shall be binding upon and inure to the benefit of
parties and the beneficiaries named by the Licensor and the assignees of each of
them. This agreement may not be assigned by the Trustee without the prior
written consent of the Licensor.
17. ENTIRE AGREEMENT
This Agreement, which includes the Acceptance Form and the Exhibits
described herein, embodies the entire understanding among all of the parties
with respect to its subject matter and supersedes all previous
communications, representations or understandings, either oral or written.
The Trustee is not a party to the License Agreement between Licensor and
Licensee and has no knowledge of any of the terms or provisions of any such
License Agreement. Trustee's only obligations to Licensor or Licensee are as
set forth in this Agreement. No amendment or modification of this Agreement
shall be valid or binding unless signed by all the parties hereto.
IN WITNESS WHEREOF the parties have by their representatives so
authorized executed this agreement to go into force on the date below first
mentioned.
- ----------------------------------- --------------------------------------
Lincoln-Parry SoftEscrow, Inc. ImageWare Software, Inc.
By: By:
-------------------------------- -----------------------------------
Title: Title:
----------------------------- --------------------------------
Date: Date:
------------------------------ ---------------------------------
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OCSO-IWS Agreement, Exhibit I,A: Page 1
Agreement No: IWS99001
EXHIBIT A - LIST OF ESCROW MATERIALS
A1. PRODUCT NAME:
Version #:
Prepared/Confirmed by:
----------------------------------------------------------
Title: Date:
------------------- ------------------------------------------------
Signature:
-------------------------------------
Type of deposit:
Initial Deposit
----
Update Deposit to replace current deposits
----
ITEMS DEPOSITED:
- --------------------------------------------------------------------------------
Label Media Type Description of Material Operating Hardware
System Platform
- --------------------------------------------------------------------------------
- -
- --------------------------------------------------------------------------------
- -
- --------------------------------------------------------------------------------
A2. PRODUCT NAME:
Prepared/Confirmed by:
----------------------------------------------------------
Title Date:
--------------------- ------------------------------------------
Signature:
----------------------------
Type of deposit:
Initial Deposit
----
Update Deposit to replace current deposits
----
ITEMS DEPOSITED:
- --------------------------------------------------------------------------------
Label Media Type Description of Material Operating Hardware
System Platform
- --------------------------------------------------------------------------------
- -
- --------------------------------------------------------------------------------
- -
- --------------------------------------------------------------------------------
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OCSO-IWS Agreement, Exhibit I,1: Page 1
Agreement No: IWS99001/001
ATTACHMENT 1 - ACCEPTANCE FORM
Image Ware Software Inc. and Lincoln-Parry SoftEscrow Inc., hereby
acknowledge that _________ is a Beneficiary referred to in the Software
Escrow Agreement number _______, effective _______, 19 ___ with Lincoln-Parry
SoftEscrow as the Trustee and ImageWare Software Incorporated as the
Licensor. Licensee hereby agrees to be bound by all provisions of such
Agreement when in conformity with the following provisions specifically
agreed by Licensor and Licensee.
The Trustee shall provide a copy of the server source code for the
application software to the Licensee for its use as backup in case Licensor
enters bankruptcy, ceases to do business or fails to pay trustee fees.
If Licensor enters bankruptcy or ceases to do business, Licensee shall have
the non-exclusive, non-transferable right to use and modify the source code
solely for the purpose of fulfilling Licensor's obligations under the
OCSO-IWS Procurement Agreement No: __________ and any related software
support agreement then in force covering the application software. Licensee
understands and agrees that receipt of such source code will not result in
conveyance of its title to Licensee, and all ownership interests and
proprietary rights in said source code shall remain vested exclusively in
Licensor. Licensee's modifications shall not reduce Licensor's ownership of
the application software. Accordingly, all of such source code shall be
retained in confidence and shall not be transferred, disclosed, or revealed
in whole or in part to any third party, unless required by law. Licensee
shall not use the source code to provide support services to persons or
entities other than Licensee's internal users or for any other purpose not
specified herein. Licensee's receipt of the source code shall not be
construed to enlarge or alter in any way the terms of the license under which
the use of the application software was originally acquired by Licensee.
In the event Licensor and Licensee are unable to resolve any matter through
discussions, they agree to resolve the matter through mediation in Florida
according to Florida law.
The Licensee's rights under this Agreement shall relate to the Deposit Materials
in those container(s) held by the Trustee for which the Licensee has a valid
license agreement that is not in arrears or otherwise in default, at such time
as those rights are exercised.
Programs of the software licensed by the Licensee:
1.
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OCSO-IWS Agreement, Exhibit I,1: Page 2
Agreement No: IWS99001/001
Notices and communications to Licensee Company Name:
-----------------------
should be addressed to: Address:
----------------------------
----------------------------
----------------------------
Designated Contact:
-----------------
Telephone:
--------------------------
Fascimilie:
-------------------------
In Witness Whereof, the Licensor and Licensee, have by their representatives so
authorized executed this agreement to go into force on the date first below
written.
- -------------------------------- --------------------------------------------
Licensee Licensor
By: By:
---------------------- ----------------------
Title: Name:
-------------------- --------------------
Date: Title:
-------------------- --------------------
Date:
--------------------
Received by Lincoln-Parry, SoftEscrow, Inc.
- -------------------------------------------
By:
----------------------
Name:
--------------------
Title:
--------------------
Date:
--------------------
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OCSO-IWS Agreement, Exhibit I,B: Page 1
Agreement No: IWS99001/001
EXHIBIT B - NON DISCLOSURE COVENANT
TO: ImageWare Software Inc. Date:
(Licensor)
WHEREAS the Licensor and the Licensee are parties to a Software Escrow
Agreement bearing No. and date
pursuant to which the Deposit Materials therein shall be released to the
Licensee by the Trustee, and;
WHEREAS a prior condition of such release is set out in paragraph 6(d)
of the said agreement, namely that the Licensee must first execute this form
of non disclosure covenant and deliver it to the Trustee;
THEREFORE the Licensee covenants as follows for the benefit of the
Licensor:
1. To hold the Deposit Materials in the strictest of confidence, recognizing
that it is a valuable trade secret of the Licensor and that its improper
disclosure will cause substantial and irreparable injury to the Licensor.
2. To restrict the use of the Deposit Materials solely and exclusively for
the purpose of supporting and developing the Licensee's own installation and
for no other purpose whatsoever.
3. To restrict disclosure of the Deposit Materials or any part thereof to
only those of the Licensee's employees or agents who have a bona fide need to
know, and who have received written notice of the confidential nature of the
Deposit Materials and have agreed to abide by these restrictions.
4. Not to make any copy (other than for back up), derivation, translation or
imitation of the Deposit Materials, or to use any of its algorithms, designs
or architecture in producing another program.
5. To fully observe and perform all other obligations which may bind the
Licensee under any other agreement which exist between it and the Licensor.
---------------------------------
Licensee
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OCSO-IWS Agreement, Exhibit I,2: Page 1
Agreement No: IWS99001/001
ATTACHMENT 2 - TERMINATION NOTICE
TO: Lincoln-Parry SoftEscrow, Inc. Date:
400 Inverness Drive South
Suite 200
Englewood, CO 80112
TAKE NOTICE THAT the Licensor and the Licensee being parties to a
Software Escrow Agreement bearing No. and date do
hereby terminate the said agreement as of the date of this notice and direct
you to deliver the Deposit Materials thereunder held by you to the Licensor
forthwith.
- -------------------------- ------------------------
Licensor Licensee
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OCSO-IWS Agreement: Page 82
EXHIBIT J - SYSTEM ACCEPTANCE TESTING
J.1 SYSTEM ACCEPTANCE TESTING (SAT)
The SAT will take place after the installation of all hardware and software
and the SELLER has certified the System installation completed and ready for
testing. OCSO will conduct the SAT. The SAT team will utilize all capture and
display stations to capture live images and to make sufficient inquires of
the system to measure its conformance and compatibility with the following:
J.1.2 The booking, employee or missing persons transaction will result in a
transfer of data between interconnects and the CCS computer System. The CCS
must also allow for the manually enter of and or updating of all fields
listed in the Functional Specification document, Exhibit A: Appendix D for
the booking fields, Appendix G for the personnel fields and Appendix H for
missing person fields.
J.1.3 Each capture station must capture, display, and print images in color
and black and white. Format and size must be to Buyer's current
specifications and designs.
J.1.4 Any black and white or color print must be printed within two (2)
minutes.
J.1.5 Each investigative station must be able to display a minimum of 25
color full-face images at one time.
J.1.6 Each capture station or investigative station must be able to display
images with/without the demographic information displayed or just with the
jail number.
J.1.7 Each investigative station must be able to access the database using
name or booking number, and display the proper image and data within 15
seconds or less.
J.1.8 Each investigative station must be able to generate and display photo
line-ups. The line-ups must be able to be recalled by suspect name, or
line-up identification number. The identification number must appear on
every copy of the line-up that is generated and printed. Historical photo
lineups must be able to be recalled by the ForceField (historical) line-up
identification numbers.
J.1.9 Each scanner must be able to scan photographs, books into the
permanent database from which they can be displayed and printed from any
investigative station.
J.1.10 The system must generate all color identification cards currently in
the ForceField system. It must also be able to print all black and white
formats currently used in the ForceField system.
J.1.11 The System's training mode must be accessible from any capture or
investigative station and must not effect on-line data nor interfere with
other stations on the system.
J.1.12 The System must be able to seal, expunge, or delete any recorded
image and associated data. Any sealed image must be able to be unsealed and
demographic data must be able to be updated.
J.1.13 The System must automatically log it self off after 10 minutes of no
operator use.
J.1.14 An audit trail must be produced at the conclusion of the SAT.
J.1.15 The System must allow for the interface to other Law Enforcement
agencies that purchase the Crimes Capture System.
J.1.16 Systems Integration testing. All of the interfaces described in the
Functional Specification Rev. 4 with the DEC/Alpha computer must be tested.
Exhibit J
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OCSO-IWS Agreement: Page 83
J.1.17 Standalone testing. The system must be tested to ensure booking
images can be captured when:
a. The ImageWare server(s) are down
b. The power is completely out via digital camera
J.1.18 The system must be tested to ensure that all historical images, photo
lineups, and identification card images have been added to the system and
that they can be retrieved and printed.
J.1.19 The system must be tested to ensure that it can archive all images
including the historical images.
J.1.20 The system must be tested to ensure the uninterrupted power source is
operational.
J.1.21 The system must be tested to ensure wristbands can be made with
barcode 39 and that wristbands can be duplicated.
J.1.22 The system must be tested to make sure it can print 3"X 5" and
8.5"X 11" jail cards.
J.1.23 The system must be tested to make sure that multiple names and
aliases can be consolidated into a folder and can be retrieved as such.
J.1.24 The system must be tested to ensure that the flags in section 2.4.6
are displayed in one of the user definable fields on the screen. The data
will display in bold red font.
J.1.25 The system must be tested to ensure that all
input/output/transmission requirements are functional as described in section
2.5 of the functional specification (printing, faxing, floppy disks,
scanning, import/export of images, etc.).
J.1.26 The system must be tested to ensure that all reports and bulletins as
described in the functional specification are operational.
J.1.27 The system must be tested to ensure that facial composites can be
created if this function is purchased by the Orange County Sheriff's Office.
J.1.28 The system must be tested to make sure that the facial recognition
function is working for new as well as historical images if purchased by the
Orange County Sheriff's Office.
Exhibit J
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OCSO-IWS Agreement: Page 84
EXHIBIT K - SOFTWARE AND HARDWARE MAINTENANCE AGREEMENT
K.1 TERM.
K.1.1 Initial Term. The initial term of this Agreement shall commence on
the date of Acceptance and shall extend for five (5) years.
K.2 MAINTENANCE SERVICE TO BE PROVIDED.
K.2.1 GENERAL. During the initial term of this Agreement, and any renewal
term thereof, SELLER shall provide to BUYER maintenance service
with respect to the System consisting of (I) Preventive
Maintenance as described in paragraph K.2.2, (ii) Remedial
Maintenance as described in paragraph K.2.3, and (iii) Extra
Services as described in paragraph K.2.4, all in accordance with and
subject to the terms and conditions of this Agreement.
K.2.2 PREVENTIVE MAINTENANCE. Preventive Maintenance shall consist of all
maintenance service, other than Excluded Services as defined in
paragraph K.2.5, performed by SELLER in accordance with a
predetermined schedule and independently of any System Failure, for
the purpose of maintaining the System in good working order.
Preventive Maintenance, which shall require quarterly, semi annual,
and annual maintenance work and shall be performed by SELLER
personnel on normal working days between the hours of 8:00 a.m. and
4:30 p.m. or as otherwise arranged. Pursuant to the provisions of
the SELLER's maintenance manual and in accordance with a schedule
mutually acceptable to BUYER and SELLER, consistent with BUYER's
operating requirements and the specific needs of the System as
determined by SELLER from time to time.
For the purpose of this agreement, Normal Business Hours shall be
from 8:00 a.m. to 4:30 p.m. on working days, i.e. Monday - Friday
except holidays.
K.2.2.a. QUARTERLY MAINTENANCE shall include, but not limited to, SELLER's
personnel performing a quality control check of the system to
assure BUYER that the system is performing at the prescribe
standards for System functionality.
K.2.2.b. SEMI ANNUAL MAINTENANCE shall include the Quarterly Maintenance in
addition, but not limited to, a general cleaning of the system.
K.2.2.c. ANNUAL MAINTENANCE shall include a thorough inspection, cleaning,
hardware alignment, and general system check to preserve image and
system performance quality.
K.2.3 REMEDIAL MAINTENANCE. Remedial Maintenance shall mean all
maintenance, other than Excluded Services, reasonably required as a
result of, and for the purpose of correcting, a System Failure. For
purposes of this Agreement, System Failure shall mean any
malfunction in the System that prevents or materially interferes
with, the accomplishments of any or all of the System intended
functions. Following any identification of any System Failure by
BUYER, and BUYER's completion of the diagnostic checklist and
procedures recommended by SELLER in the User Documentation Set,
BUYER shall provide notification thereof to SELLER.
In the event of any software failure, SELLER shall thereafter make
a good faith effort to cause the appropriate software support
person to respond to the BUYER within 30 minutes of the
notification with an update as to cause and/or possible solutions.
Software support shall be available 24 hours per day 7 days each
week including holidays regardless of the severity of the software
failure.
Exhibit K
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OCSO-IWS Agreement: Page 85
In the event of any hardware failure, SELLER shall thereafter make a
good faith effort to cause an authorized representative of SELLER to
arrive at the location where the System is installed no later than
twenty-four (24) hours following SELLER's receipt of such
notification. SELLER shall from time to time advise BUYER of the
name(s) and location(s) of locally-based SELLER personnel authorized to
receive such notifications and SELLER shall ensure that such personnel
are available to BUYER at all times that the System is
scheduled by BUYER to be in operation. Hardware support shall be
available 7 days per week 24 hours per day for critical items as
defined in PARAGRAPH K.2.3.1, and during normal work days and hours for
non critical items as defined in PARAGRAPH K.2.3.2.
K.2.3.1 CRITICAL ITEMS: All SELLER hardware associated with the Server,
SELLER supplied interfaces, and Capture Stations that prohibit the
BUYER from performing their day to day duties associated with the
capture and storage of mug photo images shall be considered as CRITICAL
ITEMS. The only hardware exception to this paragraph will be the
printers.
K.2.3.2 NON CRITICAL ITEMS: All SELLER supplied hardware items not mentioned
in paragraph K.2.3.1 will be considered non critical items and shall be
repaired during the SELLER's normal work hours. This will include the
printers associated with any capture station and display stations.
K.2.4. EXTRA SERVICES. Extra Services shall consist of any
maintenance services with respect to the System, other than
Preventive Maintenance and Remedial Maintenance, including without
limitation, Excluded Services. SELLER shall be under no firm
obligation to perform any Extra Service but undertakes to make a good
faith effort to render such services to the extent that it is capable
of doing so without substantially interfering with its other
obligations under this Agreement or its obligations to other
customers. If so requested by BUYER, SELLER shall provide a written
estimate of extra charges likely to be incurred or accrued as a
result of the performance of such services, to the extent such
services can be reasonably ascertained in advance.
K.2.5. EXCLUDED SERVICES. For the purpose of this Agreement,
Excluded Services shall be defined as; Any maintenance services
necessary or appropriate in order to correct any System Failure, or
potential failure, attributable in whole or in part to any of the
following factors or any combination thereof.
K.2.5.1 Failure by BUYER to provide or maintain a suitable
installation environment as the System Site in accordance with the
operations documentation, and any other reasonable requirements
thereafter communicated in writing by SELLER to BUYER, including
without limitation, any electrical power, air conditioning, or
humidity control failure or changes to the environment of the System
Site.
K.2.5.2. Use of supplies or materials not approved by the SELLER, or
by the equipment manufacture.
K.2.5.3. Use or attempted use of the System for any purpose other than that
for which it was acquired.
K.2.5.4. Alterations to the System (other than alterations installed by the
SELLER or authorized in writing by the SELLER).
K.2.5.5. Connection of the System by mechanical or electrical means to any
other machine, equipment or device (other than those installed by the
SELLER or authorized in writing by SELLER) other than normal network
connections
K.2.5.6. Removal, transportation or relocation of the System by any person
other than the SELLER, unless authorized by SELLER in writing.
K.2.5.7. Neglect or misuse of the System by BUYER or any third party, except
persons for which the SELLER is responsible under this Agreement.
K.2.5.8 Any other intentional or negligent damage to the System by the BUYER
or third party except for prospective customers of the SELLER for which
SELLER is responsible.
Exhibit K
<PAGE>
OCSO-IWS Agreement: Page 86
K.2.5.9 Any other failure by BUYER to comply with its obligations under this
agreement or the Purchase and License Agreement.
K.2.5.10 Any event of force majeure, or any other cause other than ordinary
use, unless otherwise authorized in writing by the SELLER.
K.2.5.11 Any maintenance services to be performed on any software, hardware
or other item not furnished by SELLER to BUYER or any other work
external to the System by anyone other than the SELLER.
K.2.6 Replacement or Repair. In performing Preventive Maintenance
and Remedial Maintenance, SELLER shall be entitled to exercise
reasonable discretion in determining whether to replace or repair any
malfunctioning item, provided, however, that any such replacement
shall be of equal or better quality and, in the event of a
malfunction of key circuit boards, to be specified by SELLER, a
replacement board will be provided pending completion of repairs on
the defective board.
K.2.7 DIAGNOSTIC SOFTWARE. In order to facilitate rapid analysis of System
Failure involving software, SELLER will provide a trained staff, at
their company location, capable of handling all software failures in
an expedient manner. In addition they will have diagnostic software
for the purpose of identifying the cause of any System Failure,
temporarily patching around the problem if necessary or temporarily
disabling the use of that software module so that the System can be
returned to use for all other activities with only a minor
degradation in operation.
K.2.8 OFF-SITE MAINTENANCE: Any maintenance services required to
be performed under this Agreement which cannot, in the SELLER's
reasonable judgment, be performed effectively at or near the System
Site shall be performed at such other location(s) as SELLER may
determine, at no extra cost to Customer. However, a loaned part(s)
from the SELLER's warehouse must be installed prior to the shipping
of the item(s) being removed for maintenance.
K.2.9 LOG ENTRIES: BUYER shall receive monthly or have access to
all log entries with regards to system failures, and any other
malfunctions, problems, or defects in the System, in accordance with a
format to be provided by SELLER. Upon completion of each Preventive
Maintenance task, Remedial Maintenance task, or Extra Service, SELLER
shall provide a written report to the BUYER of the problem, resolve,
and any equipment replaced. This shall be kept in a binder on site at
each capture station and display station location.
K.2.10 NOTIFICATION: SELLER shall notify BUYER of all routine,
scheduled, unscheduled, and non-routine maintenance completed to the
system. This notification shall include the BUYER's reference number
(if maintenance was a result of a problem call), SELLER's reference
number, point of contact for the maintenance and a description of the
maintenance or correction. Notification will be provided to the
person reporting the problem and/or BUYER's maintenance contact.
K.2.11 DOWN-TIME CREDIT: If SELLER fails to respond to a request
from the user resulting from the total failure of a Critical Item as
defined in paragraph K.2.3.1, the SELLER may be assessed a downtime
credit of $50.00 per hour for every hour thereof that the response
time requirement is exceeded. Any credits resulting from excessive
down-time shall be accounted for and resolved within thirty (30)
calendar days from the date of being incurred. System downtime shall
not include the time that the System is inoperable due to (i)
Scheduled Preventative Maintenance, (ii) equipment cables, wires,
programs or other items, not supplied by SELLER, which are not
rendered inoperable by the System provided by the SELLER, (iii) any
event described in ARTICLE VII, LETTER D (FORCE MAJEURE) of the
Agreement, (iv) BUYER's negligence or knowing misuse of the of the
System, equipment, cables, wires, programs, or other items, or any
other act or omission of BUYER or any third party (other than a
prospective customer of SELLER for which SELLER is responsible under
any other provisions of this Agreement) or (v) BUYER's network
failure or (vi) any travel time, and system and problem analysis
time of up to one (1) hour for software support or six (6) hours for
hardware support beginning when SELLER has received notification of
each separate and unrelated problem as distinguished from a recurring
problem within a 24-hour period.
Exhibit K
<PAGE>
OCSO-IWS Agreement: Page 87
EXHIBIT L - CRIME CAPTURE SYSTEM TRAINING OUTLINE
CRIME CAPTURE SYSTEM TRAINING
Per the original RFP Response and Functional Specifications Document,
IMAGEWARE will provide one day of training per phase for the system
administrator, as well as one day of training per phase for the system users
(Maximum of 15 trainees per session).
CRIME CAPTURE SYSTEM-TM- TRAINING OUTLINE
OPERATOR TRAINING
OBJECTIVE: By the end of the training session, students will know how to
book a suspect, search a database, use the mug book function and create photo
line-ups.
TRAINING OUTLINE:
I. Starting the program 5 minutes
III. New Bookings 120 minutes
a. Adding a New Booking
1. Taking a picture
2. Quality control
b. Searching for Matches
1. Linking Records
2. Unlinking Records
c. Viewing Records
d. Viewing Multiple Bookings
e. Editing and Deleting Records
f. Printing Individual Records
IV. Searching 45 minutes
a. Quick Search
b. Advanced Search
c. Saving a Search
d. Running and Existing Search
e. Deleting and Existing Search
f. Printing Search Results
V. Mug Book 30 minutes
a. Searching for Mugshot
b. Saving a Mug Book
c. Viewing an Existing Mug Book
d. Deleting a Mug Book
VI. Photo Line-up 40 minutes
Exhibit L
<PAGE>
OCSO-IWS Agreement: Page 88
a. Creating a Photo Line-up
b. Saving a Photo Line-up
c. Viewing an Existing Photo Line-up
d. Deleting an Existing Photo Line-up
e. Printing a Photo Line-up
SYSTEM ADMINISTRATOR TRAINING
a. Setting up passwords
b. Defining operator rights
c. Backing up the system
d. Archiving Information
e. Setting Mandatory Fields
f. Customizing Data Pick Lists
Exhibit L
<PAGE>
OCSO-IWS Agreement, Exhibit M: Page 1
EXHIBIT M - OCSO TAX EXEMPTION CERTIFICATE
Exhibit M
<PAGE>
OCSO-IWS Agreement: Page 89
EXHIBIT N - YEAR 2000 WARRANTY AND COMPLIANCE AGREEMENT
ImageWare Software, Inc. hereby certifies that the software products
developed by IMAGEWARE included in the following list are "Millennium
Compliant".
- Crime Capture System-TM-
- Face ID-TM-
- Suspect ID-TM- Version 3.0
- Crime Lab-TM-
- Vehicle ID-Registered Trademark- Version 2.0
For the purpose of this certification a "Millennium Compliant" product is
such that accurately processes date data (including, but not limited to:
calculating, comparing and sequencing dates), from, into and between the
twentieth and twenty-first centuries, the years 1999 and 2000, and leap year
calculations, when used in accordance with its product documentation, and
provided that all other products used in combination with the product
properly exchange data with it.
Exhibit N
<PAGE>
Page 1 of 1
Janice Knight
- ------------------------------------------------------------------------------
FROM: Carmen Errejon [[email protected]]
SENT: Wednesday, July 28, 1999 3:34 PM
TO: Janice Knight
Cc: Bob Bannan
SUBJECT: Re: email 07/28/99. OCSO contract
Janice,
Please find attached the modified documents:
Exhibit E: was modified to add a viewing station an a color printer.
Appendix A of exhibit A: was modified to add the Professional Standards
station at the following location: 55 W. Pineloch Orlando, Fl. 32806
Please print two copies of said documents and insert them in the signed
contract.
Page 55 - Appendix G. The table is flexible to accommodate changes. The
change can be done during implementation. After implementation OCSO will be
responsible for maintaining the table. (It's a picklist)
Software Escrow Agreement - Exhibit I
Exhibit I is an example. Once the project is finished, we will fill up the
acceptance form with the software and version installed and licensed to OCSO.
A container with a copy of the source code for this software will be
delivered to the Escrow agent. The source code will be held in Colorado,
where the Escrow Agent is located. When I spoke to Bernie she understood that
IWS in order to protect our business and trade secrets opts to have all of
our source code in a centralized location.
The acceptance form of the Software Escrow Agreement supersedes the terms and
conditions of the Agreement for the signing parties, in this case OCSO and
IWS, therefore unresolved issues will be resolved through mediation.
Please don't hesitate to call me or email me if you have any questions.
Thanks,
Carmen Errejon
International Sales Coordinator
ImageWare Software, Inc.
(619) 673-8600 (619) 673-1770 FAX
[email protected]
<PAGE>
EXHIBIT H - INSTALLATION SCHEDULE
<TABLE>
<CAPTION>
DAY 1 DAY 2 DAY 3 DAY 4 DAY 5 DAY 6 DAY 7 DAY 8 DAY 9 DAY 10 DAY 11 DAY 12
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
SERVER BACKUP 1 DAY
SERVER INSTALL 3 DAYS
CAPTURE ST. UPGRADE (6) 6 DAYS
DISPLAY ST. UPGRADES (10) 3 DAYS
FINAL SYSTEM TEST BY IWS 1.5 DAYS
SYSTEM REVIEW WITH OCSO 1 DAY
</TABLE>
1. Server backup will take 1 day.
2. Capture stations will require 1 day per station, and will begin during
server installation. Capture stations can operate in stand alone mode
until new server is on-line.
3. Server Installation will require no down time.
4. Configure server will require 3 days to allow for configuration and
data conversion.
5. Display stations will require 2 hours per station and will be completed
at server is on line.
<PAGE>
SUBCONTRACT AGREEMENT
- --------------------------------------------------------------------------------
SUBCONTRACTOR: XImage Corporation SUBCONTRACT #: 4500076043
- --------------------------------------------------------------------------------
ADDRESS: 1050 North Fifth Street MODIFICATION #: Basic
San Jose, CA 95112
- --------------------------------------------------------------------------------
TYPE: Firm Fixed Price with Options
- --------------------------------------------------------------------------------
SUBCONTRACT AGREEMENT VALUE: $2,389,500
- --------------------------------------------------------------------------------
INTRODUCTION
This Subcontract Agreement, effective as of signature date to this
Subcontract Agreement, is made between SCIENCE APPLICATIONS INTERNATIONAL
CORPORATION (hereinafter known as "Buyer"), a company with principal offices
located at 8301 Greensboro Drive, McLean, VA 22102 and XIMAGE CORPORATION
(hereinafter known as "Seller"), a Corporation, with principal offices
located at 1050 North Fifth Street, San Jose, CA 95112. The effort to be
performed by Seller under this Subcontract Agreement will be part of Buyer's
Prime Contract (The Prime Contract), which has been issued by the City of New
York Police Department. The material and services defined in Schedule C -
"CLIN List/Price Matrix" shall be delivered on a Firm Fixed Price With
Options and in accordance with Schedule A - "Specific Terms and Conditions",
Schedule B - "Statement of Work" and Schedule C and other Attachments
incorporated herein by reference as delineated in Section 18.0.
SCHEDULE A
SPECIFIC TERMS AND CONDITIONS
1.0 SCOPE OF SERVICES
The Seller shall perform services and deliver equipment in accordance with
the Schedule B - "Statement of Work" and Attachment 1 - "System
Requirements". The term of this Subcontract Agreement is valid through final
acceptance of the delivered system in accordance with the criteria defined in
Schedule B - "Statement of Work" or for termination for other than default,
at which time the final milestone payment shall be remitted to Seller with
the contents of the Technical Data Package and Seller shall provide Buyer
with a "Release of Claim" statement.
2.0 OPTIONS
Buyer shall have the unilateral right to exercise an undefined quantity of
equipment options provided by Seller, for (i) additional hardware/software at
any quantity; (ii) system maintenance options for up to sixty (60) month of
on-site maintenance services in the City of New York as defined in Schedule B
- - "Statement of Work"; and (iii) "Housing Authority Module". All options
shall be exercised prior to completion of the Final System Acceptance
Milestone. The Pre-acceptance maintenance option shall be exercised prior to
expiration of warranty periods for all hardware/software items on a per line
item basis and the Post-acceptance option shall be exercised upon successful
completion of final acceptance tests.
3.0 FIRM FIXED PRICE
All prices shall be firm fixed price for each line item identified in
Schedule C - "CLIN List/Price Matrix". These prices are firm fixed for the
duration of the Subcontract Agreement and include all options available to
Buyer. All prices are predicated on the exclusive use of non-union labor for
all tasks required, including on-site installation and support and do not
include ancillary furnishings and fixtures (e.g. chairs, printer stands,
lamps, etc...). Current
SAIC Form 9-932-024 (4/96)
Modification: 04 September 1996
<PAGE>
funding is limited to $1,000,000 and will be incrementally increased after
review of completed milestone(s). Unless amended in writing by mutual
agreement of the parties, Seller is not obligated to incur expenses or make
commitments in excess of this amount and Buyer is not obligated to compensate
Seller beyond the amount stated.
4.0 PAYMENTS
Progress payments shall be provided in accordance with the scheduled payments
identified in Attachment 4 - "Payment Schedule", which shall be made after
verification of schedule compliance and review. Transfer of ownership title
to the subject delivered material(s) to Buyer upon delivery to Seller shall
be provided with each invoice in the form of an attached inventory list.
Authorization for payment shall be issued exclusively by Buyer's contractual
representative delineated in Section 7.0. Seller shall retain liability for
theft, loss, and/or damage that may occur to Seller's negligence until
delivery of material to the point of installation at which time Buyer and/or
Buyer's customer shall inherit liability of its physical security.
5.0 LIQUIDATED DAMAGES
5.1 After all software and hardware has been installed for the system,
all prototyping and beta stress testing has been completed, and
after the end user has received the proposed training, the final
system acceptance period of ninety (90) days will begin. This
acceptance testing is for purpose of demonstrating that the entire
system has been integrated and all interfaces to external systems are
functional.
5.2 A total equal to five hundred thousand ($500,000) of the Subcontract
Agreement value shall be withheld without interest to Seller,
pending satisfactory completion of the ninety (90) day final system
acceptance period as stated in Attachment 7 - "Acceptance Criteria".
5.3 If the system software and hardware as provided by Seller, performs
to all specifications, standards, interfaces, and response times as
stipulated in this agreement during the entire ninety (90) day
acceptance period, the Seller will be paid for all withheld money.
If during the acceptance period, the system software and hardware
as provided by Seller, does not perform as stipulated in this
agreement, the Seller will be contacted by the Buyer and the Seller
will provide a strategy and time line for meeting the required
specifications. A new acceptance period of ninety (90) days will
begin when the system performs to all specifications.
5.4 If the same problem occurs three (3) times or more and materially
affects the proper performance of the system as provided by Seller,
cannot be corrected within thirty (30) days from the third
failure/problem, the system will be considered non-acceptable. At
the Buyer's unilateral option and to the extent imposed on Buyer,
any payments and/or monies previously withheld from the Seller as
identified in Attachment 4, may be permanently retained as total
compensation for liquidated damages between the Seller and the
Buyer. Final resolution may include termination for default and
suspension of progress payments until satisfactory resolution of
the problem is completed.
6.0 INVOICES
Invoices shall be mailed to: SAIC/Subcontracts Department
M/S E-8-4
8301 Greensboro Drive
McLean, VA 22102
Invoices will be submitted on a monthly basis with Net 30 payment terms and
clearly reference the Buyer's Subcontract Agreement Number. The invoice will
clearly define the costs included therein. Invoices shall include the "Amount
previously billed", the "Amount of this invoice" and the "Total amount billed
to date". Compensation shall be in accordance with the progress payments
schedule identified in Attachment 4 with the exception of
SAIC Form 9-932-024 (12/92)
Modification: 11/09/95
<PAGE>
hardware/software maintenance, which shall be invoiced monthly in arrears to
performance of services.
Payment of invoices shall not constitute Buyer final acceptance of
deliverable material and/or milestone completion in some instances. Final
acceptance of a milestone shall be upon successful approval of data items or
testing in accordance with the acceptance criteria detailed in Schedule B -
"Statement of Work" for hardware/software related tasks.
7.0 TECHNICAL AND CONTRACTUAL REPRESENTATIVES
The following authorized representatives are hereby designated for this
Subcontract Agreement:
<TABLE>
<S> <C>
Seller: XImage Corporation Buyer: Science Applications International Corp.
TECHNICAL: Jagdish Narasimhan TECHNICAL: Robin Briceno
Phone: 408/288-8800 Ext. 128 Phone: 703/556-5951
Fax: 408/993-1050 Fax: 703/556-9722
CONTRACTUAL: Ken Fields CONTRACTUAL: Thomas Morris
Phone: 408/288-8800 Ext. 105 Phone: 703/556-7327
Fax: 408/993-1050 Fax: 703/790-8463
</TABLE>
Any notice, request, document or other communication submitted by either
party to the other under this subcontract shall be in writing or through a
wire or electronic medium which produces a tangible record of the
transmission, such as a telegram, cable or facsimile, and will be deemed duly
given or sent when delivered to the Contractual Representatives identified
above to:
<TABLE>
<S> <C>
Seller: XImage Corporation Buyer: Science Applications International Corp.
1050 North Fifth Street 8301 Greensboro Drive
San Jose, CA 95112 MS E-8-4
McLean, VA 22102
</TABLE>
8.0 KEY PERSONNEL
(a) For purposes of this clause, "Key Personnel" as identified below is
defined as those individuals who are mutually recognized by Buyer and Seller
as essential to the successful completion and execution of this subcontract.
(b) Personnel designated as "Key Personnel" shall be assigned to the extent
necessary for the timely completion of the task thru a minimum of "Milestone
B2AT" identified in Attachment 2 - "Project Milestones and Schedule".
Continued participation as a "Key Personnel" shall be as an oversight
function of program and subcontract requirements compliance and will escalate
on an as required basis. Any substitution involving Seller's "Key Personnel"
assigned to this work shall be made only with persons of equal abilities and
qualifications and is subject to prior approval of Buyer in writing which
shall not be unreasonably withheld.
(c) Buyer reserves the right to direct the removal of any individual assigned
to this subcontract with reasonable cause.
Seller's Key Personnel are: Ken Fields
Jagdish Narasimhan
9.0 CHANGES
Buyer with written notice to Seller at any time before complete delivery is
made under this order, may make changes within the specific scope in any one
or more of the following: (a) drawings, designs, or specifications; (b)
quantity; (c) delivery; (d) method of shipment or routing, and (e) make
changes in the amount of Buyer furnished property; or Buyer, for any reason,
may direct Seller to suspend, in whole or part, delivery of items or
performance
SAIC Form 9-932-024 (4/96)
Modification: 04 September 1996
<PAGE>
of services hereunder for such period of time as may be determined by Buyer
to be necessary or desirable. If any such change or suspension causes an
increase or decrease in the cost of, or the time of performance for any part
of the work under this order, an equitable adjustment shall promptly be made
in the price, order and/or delivery schedule, or other issues that may
require amendment. Seller shall notify Buyer in writing of any claim for such
adjustment within twenty (20) days from the date of such notice from Buyer,
or from the date of any act of Buyer, which Seller may consider constitutes a
change. No such adjustment or any other modification of the terms of this
order will be allowed unless authorized by Buyer by means of a written
revision to this order. Seller shall proceed with the work as changed without
interruption and without awaiting settlement on any such claim and Buyer
shall promptly resolve the pending claim for equitable adjustment.
10.0 SUBCONTRACT AGREEMENT ACCEPTANCE
The Acceptance Copy of this Subcontract Agreement shall be signed and
returned by the Seller within five (5) calendar days after it is received by
the Seller. Receipt by the Buyer of the signed Subcontract Agreement or
initiation of performance under this Subcontract Agreement by the Seller
shall constitute acceptance of the Subcontract Agreement by the Seller,
including all of the terms and conditions herein. Acceptance is limited to
the terms stated herein. Any additional or different terms and conditions
proposed by the Seller are rejected unless expressly agreed to in writing by
an authorized representative of the Buyer's Procurement Department.
11.0 CONTACTS
Contacts with Buyer which affect the labor rates, schedule, statement of
work, and subcontract agreement terms and conditions shall be made with the
authorized contractual representative. No changes to this Subcontract
Agreement shall be binding upon Buyer unless incorporated in a written
modification to the Subcontract Agreement and signed by Buyer's and Seller's
contractual representative.
The effort set forth in Schedule B - "Statement of Work" shall be performed
under the technical direction of Buyer's technical representative. When, in
Seller's opinion, such technical direction constitutes a change to the
Subcontract Agreement, Buyer's contractual representative shall be notified
immediately for authorization of such change. Until such authorization is
granted by Buyer's contractual representative, Seller shall perform in
accordance with the Subcontract Agreement as specified.
12.0 HARDWARE WARRANTY
Seller represents and warrants (1) that all hardware delivered pursuant
hereto will be new and all hardware shall be free from defects in material;
(2) that all items will conform to the specifications and drawings as set
forth in Attachment 1 - "System Requirements" of this Agreement; and (3) that
all hardware warranty services performed pursuant hereto will be free from
defects in material and workmanship and will be performed in accordance with
the specifications and instructions of Buyer. However, Seller retains
discretion and control with respect to the manner and means of performing
such services and shall at all times remain an independent contractor. All
the representations and warranties of Seller together with its service
warranties and guarantees, if any shall transfer to Buyer and Buyer's
customer. This warranty shall survive acceptance and payment for a period of
ninety (90) days from the date of Block Acceptance Test for the particular
set of material under consideration, at which time the specific warranty
period for the aforementioned material shall terminate. This warranty shall
not apply to any hardware which has been subjected to misuse, repair,
alteration of system components or configuration, neglect, accident,
inundation, or fire.
12.1 SOFTWARE MAINTENANCE WARRANTY
Seller represents and warrants that all software related materials furnished
under this Agreement are in conformance with Subcontract Agreement
requirements set forth in Attachment 1 - "System Requirements" of this
Agreement and that the software is fit for the intended purpose of which it
is sold. Seller warrants that the Software will perform the functions set
forth in Attachment 1 - "System Requirements" of this Agreement so long as
the software is
SAIC Form 9-932-024 (12/92)
Modification: 11/09/95
<PAGE>
unmodified and operated in accordance with the instructions of the Seller.
Seller's sole obligation and liability under this warranty shall be to provide
corrections to the Software to cause it to perform as specified in Attachment
1 - "System Requirements". All the representations and warranties of Seller
together with its service warranties and guarantees, shall transfer to Buyer
and Buyer's customer. This warranty shall survive acceptance for a period of
ninety (90) days from the date of Block Acceptance Test completion for the
particular set of Software under consideration, at which time the standard
warranty period for the aforementioned Software shall terminate.
12.2 EXTENDED SOFTWARE/HARDWARE MAINTENANCE
Buyer shall have the unilateral option to procure extended maintenance
coverage from Seller for all hardware and software products provided by Seller
as identified in Section 2.0. This maintenance shall be in accordance with
Attachment 6 of Schedule B.
12.3 SYSTEM/SUBSYSTEM DOWN-TIME CREDIT
Seller shall provide Buyer with the unilateral option in accordance with
Section 2.0 of this Schedule A, for Seller's performance of system
maintenance at the agreed to price contained in Schedule C. If Seller fails
to respond with an on-site maintenance representative within two (2) hours
of a maintenance service request from the user resulting from the total
failure of a major systems or subsystem, the Seller may be assessed a
downtime credit of fifty dollars ($50.00) per hour for every hour or fraction
thereof that the two (2) hour response time requirement is exceeded. Major
systems and subsystems are defined as; (i) the Central Server Subsystem; and
(ii) all capture stations at any one location. Any credits resulting from
excessive down-time shall be accounted for and resolved within thirty (30)
calendar days from the date of it being incurred. Multiple requests for the
support of a single failure (e.g. a server failure which results in a call
from each precinct.) shall be considered a single failure and single
maintenance service request.
13.0 COMPLIANCE WITH LAWS, REGULATIONS AND ETHICS
In addition to the obligations in this Agreement and generally in performing
the Services both Parties accept that their individual conduct shall at all
times comply with all laws, rules and regulations of government and other
bodies having jurisdiction over the area in which the Services are being
conducted.
14.0 ASSIGNMENTS AND SUBCONTRACTS
Seller may assign this Subcontract Agreement if Buyer provides written
consent to such assignment in advance, which shall not be unreasonably
withheld. If such assignment occurs in connection with the sale of Seller's
company or with the sale of all or substantially all of Seller's assets
("transaction"), the parties agree that Buyer's failure to consent to an
assignment to an acquirer whose financial condition and technical expertise is
equal to or better than that provided by Seller would be unreasonable. If
Seller assigns this Subcontract Agreement, the assignee shall be fully
responsible for Seller's obligations hereunder. If a Transaction occurs and
this Subcontract Agreement is not assigned, Seller shall remain fully
responsible for its obligations hereunder. Seller agrees to obtain Buyer's
approval before subcontracting this order or any substantial portions
thereof; provided however, that this limitation shall not apply to the
purchase of standard commercial supplies or raw materials.
15.0 TECHNICAL DATA PACKAGE
Seller represents and warrants to Buyer that it is owner of, and holder of
all rights in the Technical Data Package (TDP), and has the right to grant
Buyer the license rights to the TDP with escrow agent pursuant to the terms
of the Subcontract Agreement.
15.1 Seller represents and warrants to Buyer that the TDP deposited
with Escrow Agent will at all times be the current release of the
material(s) offered to Buyer in support of this Subcontract
Agreement.
SAIC Form 9-932-024 (4/96)
Modification: 04 September 1996
<PAGE>
15.2 Seller represents and warrants that the TDP shall be
understandable and useable by educated computer programming
personnel who are generally familiar with "C" programming,
though not necessarily those incorporating the Seller's
programs. Seller also represents and warrants that the programs
do not involve any proprietary languages or programming components
that such a contractor could not reasonably be expected to
understand, except to the extent the TDP contains sufficient
commentary to enable and use such languages or components. Seller
further represents and warrants that the TDP includes all of the
devices, programming, and documentation necessary for the
maintenance of the program(s) by Buyer upon release of the TDP
pursuant to this Subcontract Agreement, except for devices,
programming, and documentation commercially available to Buyer on
reasonable terms through readily known sources other than the
Seller. In addition the TDP shall include exploded bills of
material which include manufacturer and manufacturer part numbers,
assembly drawings, inter-connect diagrams, Software Source Code
for ForceField, any other Seller provided software, and
applicable peripheral drivers, duplication (Master) disks for all
software and documentation, and process control/test plan
documents.
15.3 The deposit of the TDP and any license(s) thereof are intended to
provide Buyer access to, and right to use of, the TDP in the
event that Seller defaults to its contractual obligations as
defined in this Subcontract Agreement in accordance with Section
27.0 "Default" or is otherwise unable to perform its contractual
obligations. Seller shall immediately release to Buyer
copies of the TDP deposited in escrow pursuant to this
Subcontract Agreement only upon written notification from
Buyer's contractual representative identified in Section 7.0.
Seller shall arrange for a reputable Escrow Agent to accept from
Seller, and Seller agrees to deposit with Escrow Agent, within
thirty (30) days of the effective date of this Subcontract
Agreement with the copies of the TDP being current versions of
the subject data. For each deposit, Escrow Agent will issue a
receipt to Buyer, accompanied by a general list or description of
the materials so deposited. In the event that an update or series
of updates supersede a prior version of the TDP in their
entirety, Seller may require Escrow Agent to return or destroy
portions of the TDP representing such prior version(s) of the TDP
by so notifying the Escrow Agent and Buyer in writing, provided
that any such action on the part of the Escrow Agent may not
commence until one (1) year after the delivery of the TDP for all
updates that so supersede the prior version of the TDP.
15.4 Buyer's technical representative shall have the right to
inspect, compile, test and review the TDP (subject to appropriate
undertakings of confidentiality and restrictions on subsequent
use or disclosure) at any time, and Escrow Agent shall permit
such inspections and testing promptly upon request. Except as
otherwise authorized by Seller, which shall not be unreasonably
withheld, such inspections and testing shall be conducted at the
principal offices of the Escrow Agent.
15.5 Upon receipt of the TDP, Buyer shall maintain the TDP in strict
confidence, shall use and disclose it only as reasonably
appropriate to exercise such Buyer rights in the TDP, and shall
use the same degree of care it provides for its own data
identified as restricted, proprietary and confidential.
15.6 Seller shall incur all financial liabilities pursuant to the
compensation to Escrow Agent for the storage of the TDP which
shall expire at the termination of this Subcontract Agreement.
16.0 CALENDAR DATES
All periods of days referred to in this Subcontract Agreement shall be
measured in calendar days unless otherwise identified.
SAIC Form 9-932-024 (12/92)
Modification: 11/09/95
<PAGE>
17.0 OTHER SUBCONTRACTS
The Buyer may undertake or award other Subcontract Agreements for additional
work on this specific contract identified in "Introduction", and the Seller
shall fully cooperate with such other subcontractors and the Buyer's
employees and carefully fit its own work to such additional work as may be
subcontracted for by the Buyer. The Seller shall not commit or permit any act
which will interfere with the performance of work by any other subcontractors
or by the Buyer's employees.
18.0 DOCUMENTS INCORPORATED BY REFERENCE
The following documents are hereby incorporated into this Subcontract
Agreement by reference:
A. Schedule B: Statement of Work
B. Schedule C: CLIN List/Price Matrix
C. Attachment 1: System Requirements
D. Attachment 2: Project Milestones and Schedule
E. Attachment 3: Contract Data Requirements List
F. Attachment 4: Payment Schedule
G. Attachment 5: Technical and Performance Requirements
H. Attachment 6: Maintenance
I. Attachment 7: Acceptance Criteria
J. Attachment 8: Training
19.0 SOFTWARE LICENSE AGREEMENT
Seller grants to Buyer a non-exclusive, non-transferable license to install
the software on the system and to use as necessary in performance of its
contractual obligations as they relate to the prime contract. Seller also
grants to Buyer the right to sublicense the software to the City of New York.
The software shall be and remain the sole and exclusive products of Seller.
Buyer shall not have rights in or to the Software. Buyer agrees not to remove
from any copies of the Software any statements appearing thereon regarding
copyrights or proprietary rights of Seller. Buyer shall not copy (in any
form), distribute, sell, lease, assign, encumber, license or sub-license this
Software or programs written using this Software to anyone other than the
City of New York without prior written consent from Seller. Buyer hereby
acknowledges and agrees that Software may be licensed by Seller to other
users without limitation of any kind. Buyer acknowledges that the license
granted hereby extends solely to City of New York and that Software shall not
be used by any other political subdivision, division, subsidiary or
affiliated entity.
Buyer acknowledges that the computer program, manuals and related data which
comprise or are related to the Software are proprietary products of Seller
who retains all rights, title and interest, including copyright to these
products. Buyer agrees that the Software constitutes proprietary information
and trade secrets of Seller, whether or not any portion thereof is or may be
the subject of a valid copyright or patent. Buyer agrees not to reverse
assemble, reverse compile or otherwise reverse engineer any of the Software.
Any distribution, sale, or other disposition by the Buyer of the Software,
including derivative modifications or extensions of them, and including any
proprietary products, is expressly prohibited. Buyer recognizes and agrees
that any unauthorized use or distribution of the Software or proprietary
products would immediately and irreparably damage Seller in a way not capable
of being fully compensated by monetary damages in accordance with the
"Indemnification" Section contained in this document, and accordingly, Seller
shall be entitled without waiving any other rights which Seller may have, to
injunctive relief in the event of any such unauthorized use, distribution or
violation of this agreement. The Software is subject to the U.S. Governments
Restricted Rights Legend and use, duplication, or disclosure by the
Government is subject to restrictions set forth in Subparagraph (c)(1)(ii)
of the Rights in Technical Data and Computer Software clause at 52.227-7013
of the Department of Defense Federal Acquisition Regulations.
SAIC Form 9-932-024 (4/96)
Modification: 04 September 1996
<PAGE>
20.0 LIMITATION OF LIABILITY
Notwithstanding any provisions of this contract to the contrary, the Buyer
hereby acknowledges and agrees that Seller's total liability to Buyer under
this contract shall in no circumstance exceed the aggregate of the amounts
paid to it for services and products pursuant to this contract.
21.0 NON-WAIVER OF RIGHTS
The failure of Buyer to insist upon strict performance of any of the terms
and conditions in the Subcontract Agreement, or to exercise any rights or
remedies, shall not be construed as a waiver of its rights to assert any of
the same or to rely on any such terms or conditions at any time thereafter.
The invalidity in whole or in part of any term or condition of this
Subcontract Agreement shall not affect the validity of other parts hereof.
22.0 ASSISTANCE
Buyer shall provide reasonable good faith efforts to (i) utilize its
influence and assist Seller in attempting to acquire the best possible
pricing for materials and services; (ii) obtain use of a police van and
driver for Seller install use during install periods; (iii) attempt to begin
on-site maintenance within the City of New York by 01 January 1997; obtain
office space for use by a single Seller personnel at Buyer's customer
facility; and provide Seller the use of Buyer's recruiting services internal
to Buyer's organization.
23.0 GENERAL RELATIONSHIP
Seller agrees that in all matters relating to this Subcontract Agreement it
shall be acting as an independent contractor and shall assume and pay all
liabilities and perform all obligations imposed with respect to the
performance of this Subcontract Agreement. Seller shall have no right, power
or authority to create any obligation, expressed or implied, on behalf of
Buyer and shall have no authority to represent Buyer as an agent.
24.0 DISPUTES
If a dispute arises between both parties, the parties shall attempt, in good
faith, to resolve the disputes by negotiation. Any dispute not disposed of in
accordance with this Section shall be determined in accordance with the
subsections below.
(a) Buyer and Seller agree to enter into negotiation to resolve any
dispute. Both parties agree to negotiate in good faith to reach a mutually
agreeable settlement within ninety (90) days from the date of notification.
(b) If negotiations are unsuccessful, Buyer and Seller agree to enter into
binding Arbitration. The American Arbitration Association (AAA) Commercial
Arbitration Rules (most recent edition) are to govern this Arbitration. The
Arbitration shall take place in the County of San Diego, State of California.
The Arbitrator shall be bound to follow the applicable subcontract
provisions and California law in adjudicating the dispute. Both parties
agree that the Arbitrator's decision is final, and that neither party shall
take any action, judicial or administrative, to overturn this decision. The
Arbitrator's judgment shall be enforceable in any court of competent
jurisdiction.
Pending any decision, appeal or judgment referred to in this provision or the
settlement of any dispute arising under this Subcontract, Seller shall
proceed diligently with the performance of this Subcontract.
25.0 RESERVED
26.0 TERMINATION
26.1 Either Party hereto shall have the right to terminate this
Agreement summarily by notice in writing, (without prejudice to
any other remedy it might have against the other Party for breach
or infringement of any provisions of the Agreement) if such other
Party has committed a Material
SAIC Form 9-932-024 (12/92)
Modification: 11/09/95
<PAGE>
breach of its obligations under this Agreement, and in the case
of a breach capable of remedy has failed to remedy such breach
within thirty (30) days of receiving written notice.
26.2 Buyer reserves the right to terminate the Contract at any time by
giving Seller written notification specifying the date of
termination. On the date of such termination Seller shall
discontinue performance of the Services and shall wholly comply
with Buyers instructions regarding such termination related to
the requirements within this Subcontract Agreement. Buyer shall
pay Seller in respect of Material and/or Services satisfactorily
delivered or performed and other reasonable associated direct
costs incurred by Seller in complying with Buyers instructions,
subject to the limitation of funding identified in Section 3.0 in
accordance with the terms of the Subcontract Agreement and up to
the date notice of termination is effectively provided. In no
event shall Seller be entitled to prospective profiles on any
damages because of such termination.
27.0 DEFAULT
(a) The Buyer may, by written notice of default to Seller, terminate the
whole or any part of this Subcontract Agreement in any one of the following
circumstances: (I) if the Seller fails to make delivery of the supplies or to
perform the services within the time specified herein or any extension
thereof; of (ii) if Seller fails to perform any of the other provisions of
this Subcontract Agreement in accordance with its terms, and in either of
circumstances (I) or (ii) does not provide a plan to cure such failure within
a period of fourteen (14) days (or such longer period as Buyer may authorize in
writing) after receipt of notice from the Buyer specifying such failure; or
(iii) Seller becomes insolvent or the subject of proceedings under any law
relating to bankruptcy or the relief of debtors (non-specific debtors) or
admits in writing its inability to pay its debts as they become due. Any of
the events described in clauses (I), (ii) or (iii) constitute a "Default"
provided that such default shall not be deemed to have occurred until the end
of any applicable cure period.
(b) If this Subcontract Agreement is so terminated, Buyer may procure or
otherwise obtain, upon such terms and in such manner as Buyer may deem
appropriate, supplies or services similar to those terminated, Seller,
subject to the exceptions set forth below, shall be liable to Buyer for
excess costs based on actual costs incurred to a maximum of one hundred-ten
(110) percent of this Subcontract Agreement price for similar supplies and
services.
(c) Seller shall continue performance of this Subcontract Agreement to the
extent not terminated. Buyer shall have no obligations to Seller with respect
to the terminated part of this Subcontract Agreement except as herein
provided. In case of Seller's default, Buyer's rights as set forth herein
shall be as stated in their entirety.
(d) Seller shall not be liable for damages resulting from default due to
causes beyond the Seller's control and without Seller's fault or negligence,
provided, however, that if Seller's default is caused by the default of a
Subcontract Agreement or supplier, such default must arise out of causes
beyond the control of Seller and Subcontract Agreement or supplier, assuming
Seller took all reasonable precautionary measures to ensure good Subcontract
Agreement or performance and, provided further, the supplies or services to be
furnished by the Subcontract Agreement or supplier were not obtainable from
other sources.
(e) The Seller may, by written notice of default to Buyer, terminate the
whole Subcontract Agreement if Buyer fails to perform any obligation to
Seller for which Buyer is required to perform, excluding Material options and
source inspections/test witness, under this Subcontract Agreement in
accordance with its terms and does not provide a plan to cure such failure
within a period of fourteen (14) days (or such longer period as Seller may
authorize in writing) after receipt of notice from the Buyer specifying such
failure. Upon such failure, Seller shall have the right to collect from
Buyer payment(s), to the extent of the limitation in funding, for services
satisfactorily completed or material(s) delivered up to the date notice of
Termination for Default is effectively given. Any of the events described in
this clause constitute a "Default" provided that such default shall not be
deemed to have occurred until the end of any applicable cure period.
SAIC Form 9-932-024 (4/96)
Modification: 04 September 1996
<PAGE>
28.0 FORCE MAJEURE
2.8.1 Neither Party to this Subcontract Agreement shall be liable to
the other for any loss or damage which may be suffered by the
other due to any cause beyond the first Party's reasonable
control ("force majeure") including without limitation any act
of God, inclement weather, failure or shortage of power
supplies, flood, drought, lightning or fire, strike, lock-out,
trade dispute or labor disturbance (other than within the
first Party's organization or any Associated Company of that
Party), the act or omission of Government, highways
authorities, public telecommunications operators (including
for the avoidance of doubt the first Party or an Associated
Company of that Party) or other competent authority, war,
military operations, or riot. The Party seeking to rely on
force majeure shall as a condition precedent to the
availability of this defense give full particulars in writing
to the other Party of the facts or circumstances giving rise
to force majeure within (3) Working Days of the occurrence and
thereafter in respect of successive occurrences and shall
further demonstrate that it has and is taking all reasonable
measures to mitigate the events complained of.
2.8.2 In the event that force majeure shall continue for a period in
excess of six (6) months either Party may give notice of
immediate termination.
29.0 INSURANCE
Seller agrees, if and when requested by Buyer to procure a policy or policies
of insurance in form satisfactory to Buyer insuring all property of Buyer or
its customer(s) which is connected with this Subcontract Agreement and of
which Seller has care, custody, control or the right of control against loss
or damage resulting from fire (including extended coverage), malicious
mischief and vandalism. Satisfactory evidence of such insurance shall be
submitted to Buyer within a reasonable period of time after request. Without
prejudice to the generality of the foregoing, such policies of insurance
shall include (a) General Liability insurance policy with a minumum policy
limit of $1,000,000 per occurrence and a general aggregate of $2,000,000;
and (b) Automobile Liability insurance policy of $1,000,000 per occurrence
and a general aggregate of $2,000,000; and (c) Workmen's Compensation
insurance policy.
30.0 INDEMNIFICATION
Each party shall indemnify and save the other party harmless from and against
any and all liability for injury to persons or property occasioned wholly or
in part by an act or omission of the other party, its sub-contractors or
suppliers, or employees, including any and all expense, legal or otherwise,
incurred by the injured party in the defense of any claim or suit arising out
of the work done under this Subcontract Agreement; provided, however, that
each party shall not be liabile for injury to persons or property caused by
the sole negligence of the other party, its agents or employees.
Each party shall promptly notify the other party of any claim against the
injured party which is covered by this indemnification provision and shall
authorize representatives of the other party to settle or defend any such
claim or suit and to represent the party in, or to take charge of, any
litigation in connection therewith.
31.0 INFRINGEMENT INDEMNITY
(a) In lieu of any warranty by Buyer or Seller against infringement,
statutory or otherwise, it is agreed that Seller shall defend, at its
expense, any suit against Buyer or its customers based on a claim that any
item furnished by Seller under this Subcontract Agreement for the normal use
or sale thereof infringes any U.S. Letters patent or copyright, and shall pay
costs and damages finally awarded in any such suit, provided that Seller is
notified in writing of the suit and given authority, information, and
assistance at Seller's expense for the defense of same. If the use or sale of
said item is enjoined as a result of such suit, Seller, at no expense to
Buyer, shall obtain for Buyer and its customers the right to use and sell
said item or shall substitute an equivalent item acceptable to Buyer and
extend this patent indemnity thereto. Seller shall not be liable for
infringements resulting from Buyer directed or
SAIC Form 9-932-024 (12/92)
Modification: 11/09/95
<PAGE>
induced modifications to Seller's products.
(b) Notwithstanding the foregoing paragraph, when this order is performed
under the Authorization and Consent of the U.S. Government to infringe U.S.
Patents, Seller's liability for infringement of such Patents in such
performance shall be limited to the extent of the obligation of Buyer to
indemnify the U.S. Government.
(c) Buyer shall defend, at its expense, any suit against Seller or its
customers based on a claim that Buyer provided work share (i.e. DB2)
furnished under the prime contract for the normal use or sale thereof
infringes any U.S. Letters patent or copyright, and shall pay costs and
damages finally awarded in any such suit, provided that Buyer is notified in
writing of the suit and given authority, information, and assistance at
Seller's expense for the defense of same.
32.0 NONEXCLUSIVE LICENSE
Any software provided hereunder is licensed and not sold. Seller grants and
Buyer hereby accepts, a nonexclusive, nontransferable license to use the
Seller's provided software on the material(s) systems provided under the
Prime Contract at those sites directed by Buyer. Buyer shall transfer and
sub-license to end users, Seller's commerical license in its entirety. No
right to use, display, produce derivative works of, or make printouts of the
Seller's provided software in whole or in part, is granted, except as
expressly provided in the license.
33.0 NONDISCLOSURE OF PROPRIETARY INFORMATION
Seller shall retain rights in or title to, any patents, inventions, designs,
discoveries, technical data, copyrights, trademarks, trade names, service
marks, trade secrets or other intellectual property rights arising out of
Seller's performance hereunder or otherwise relating to the goods and
services delivered or provided hereunder. Buyer and Seller agree to hold all
of each parties proprietary information in confidence and not to, directly or
indirectly, copy, publish, summarize or disclose to any person or entity such
information without the other parties prior written consent. Both parties
agree to take all reasonable steps necessary to protect and prevent
disclosure to and/or use by third parties of any proprietary information of
the other party. Neither party shall have any obligation with respect to any
such Information; a) if it is in the public domain at the time of disclosure
or becomes publicly known through no wrongful act of either party; b) is
known to the other at the time of disclosure or is independently developed by
the other party; c) is used or disclosed with the prior written approval of
the other party; d) is furnished to a third party by the other party without
similar non-disclosure restrictions on the third parties rights; e) is
received by the other party from a third party who had a lawful right to
disclose it to either party; or f) is disclosed pursuant to the requirement
of a governmental agency or court. This restriction of disclosure shall be
for a period fo seven (7) years from the effective date of this Subcontract
Agreement, unless otherwise mutually agreed to in writing by both parties
contractual representatives or their appointed personnel.
34.0 ENTIRE AGREEMENT
Upon acceptance of this Subcontract Agreement, both Buyer and Seller agree
that the provisions under this Subcontract Agreement, including all documents
incorporated herein by reference, shall constitute the entire Agreement
between the parties hereto and supersede all prior implied, written or oral
agreements relating to the subject matter hereof. This contract may not be
modified or terminated orally, and no modification nor any claimed waiver of
any of the provisions hereof shall be binding unless in writing and signed by
the party against whom such modification or waiver is sought to be enforced.
35.0 SEVERABILITY
If any of the provisions of this Subcontract Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate or
render unenforceable the entire Subcontract Agreement, but rather the entire
Subcontract Agreement shall be construed as if not containing the particular
invalid or unenforceable provision or provisions, and the rights and
obligations of Seller and the Buyer shall be construed and enforced
accordingly.
SAIC Form 9-932-024 (4/96)
Modification: 04 September 1996
<PAGE>
36.0 ORDER OF PRECEDENCE
In the event of an inconsistency or conflict between or among the provisions
of this Subcontract Agreement, the inconsistency shall be resolved by giving
precedence in the following order:
A. Schedule A: Specific Terms and Conditions
B. Schedule B: Statement of Work
C. Schedule C: CLIN List/Price Matrix
D. Referenced Documents as "Attachments"
In witness whereof, the duly authorized representatives of Buyer and the
Seller have executed this Subcontract Agreement on the date show.
SELLER: XImage Corporation BUYER: Science Applications International Corp.
By: /s/ Ken Fields By: /s/ Thomas W. Morris
------------------------- -------------------------------
Name: Ken Fields Name: Thomas W. Morris
------------------------- -------------------------------
(Typed or Printed) (Typed or Printed)
Title: Vice President Title: ITS Sector Eastern Regional Manager of
------------------------- ---------------------------------------
Procurement and Subcontracts
---------------------------------------
Date: 16 Sept 96 Date: 29 September 96
------------------------- -------------------------------
SAIC Form 9-932-024 (12/92)
Modification: 11/09/95
<PAGE>
Schedule B
Statement of Work
Table of Contents
<TABLE>
<CAPTION>
<S> <C>
1.0 Introduction....................................................... B-1
1.1 Purpose........................................................ B-1
1.2 NYCPD Automated DB2 Warrant and Integrated
Digitized Photo Imaging System Program Summary................. B-1
1.2.1 Technical Overview.......................................... B-1
1.2.2 Schedule Milestones Overview................................ B-1
1.3 Subcontractor Scope............................................ B-2
1.3.1 Hardware/Software/Firmware.................................. B-2
1.3.2 Data........................................................ B-2
1.3.3 Tasks and Resources......................................... B-2
1.3.4 Schedule and Milestones..................................... B-2
2.0 Applicable Documents............................................... B-3
3.0 Subcontract Tasks.................................................. B-3
3.1 Program Management............................................. B-3
3.1.1 Program Management Reviews.................................. B-3
3.1.2 Schedule Management......................................... B-4
3.1.3 Configuration Management.................................... B-4
3.1.4 Risk Management............................................. B-4
3.1.5 Quality Assurance........................................... B-4
3.1.6 Source Inspection and Surveillance.......................... B-4
3.1.7 Engineering Reviews......................................... B-5
3.2 System Engineering............................................. B-6
3.3 Software/Firmware.............................................. B-6
3.4 Hardware/Software Acquisition.................................. B-7
3.5 Integration & Test............................................. B-7
3.6 Installation & Test............................................ B-7
3.6.1 Site Surveys................................................ B-7
3.6.2 Stage and Ship.............................................. B-7
3.6.3 Installation & Test......................................... B-7
3.7 Training....................................................... B-8
3.8 End-Product Documentation...................................... B-8
3.9 Maintenance & Support.......................................... B-8
4.0 Customer Furnished Material/Equipment/Services..................... B-9
</TABLE>
<PAGE>
Schedule B
Statement of Work
1.0 INTRODUCTION
1.1 PURPOSE
This document identifies the products to be delivered and specifies the tasks
to be performed by the Seller in support of the New York City Police
Department (NYCPD) Automated DB2 Warrant and Integrated Digitized Photo
Imaging System Program.
1.2 NYCPD AUTOMATED DB2 WARRANT AND INTEGRATED DIGITIZED PHOTO IMAGING
SYSTEM PROGRAM SUMMARY
1.2.1 TECHNICAL OVERVIEW
The NYCPD will contract with the Buyer to procure a full implementation of a
DB2 Automated Warrant system and Integrated Digitized Photo Imaging System
for NYCPD. This procurement consists of three major Components:
1) Software development for the DB2 environment which includes
re-engineering NYCPD's current Warrant/Want/WOLF system, developing an
enhanced name search capability, and developing an automated sealing
tracking system to replace the current manually intensive system. The
software developed will execute on the NYCPD's existing IBM 3090-400J
computer.
2) Photo Imaging System which utilized photo/video imaging technology to
capture, store, and retrieve "mugshots" thereby replacing the present
time consuming and labor intensive photo identification process. In
addition, this system prints warrants (with or without photos) and
provides for generating and printing line-up photo arrays and mugshots.
This system consists of three subsystems: the Basic Photo Imaging System
and two investigative subsystems, the Intelligence Subsystem and the
Missing Persons Subsystem. A small subset fo the Basic Photo Imaging
system will be deployed early so that NYCPD can begin capturing photos
before the final system is actually operational. This subset is referred
to as the Federal Interface Subsystem (FIS).
3) Additonal Components (Option), as identified in Schedule C, which
provides for the procurement of addional image capture stations, image
display stations, and peripherals.
Work to be performed under this procurement consists of designing,
developing, delivering, and installing all materials, equipment, supplies,
software, training and documentation necessary for an Automated Warrant
System and Digitized Photo Imaging System. Under this subcontract agreement,
materials do not include facilities (i.e., facilities' modifications,
fixtures, and network infrastructure) and furniture and office fixtures (i.e.,
desks, chairs, monitor stands, printer stands, etc.).
1.2.2 SCHEDULE MILESTONES OVERVIEW
The high-level overall program schedule milestones for this procurement are
shown below with "no-later-than" dates.
Deployment of Federal Interface Subsystem 3MAC
Deployment of Pilot Digitized Photo Imaging System 10MAC
Interface between OLBS & Photo Imaging System Complete 10MAC
Schedule B-1 Revision D
<PAGE>
Schedule B
Statement of Work
Deployment of Photo Imaging System Complete 18 MAC
On-Site System Testing 19 MAC
Final System Acceptance Testing 20(start)-22(end)MAC
5-Year Operations & Maintenance Support 23(start)-82(end)MAC
1.3 SUBCONTRACTOR SCOPE
The Seller shall provide Component 2 (i.e.: the Photo Imaging System which
includes the Basic Photo Imaging System, the Federal Interface Subsystem, the
Intelligence Subsystem, and the Missing Persons Subsystem) and Component 3
(i.e.: the additional image capture stations, display stations, and
peripherals). These Components shall fully meet the performance requirements
as stated in Attachment 5, and the functional requirements, as defined in the
Basic Photo Imaging System Requirements, the Federal Interface Subsystem
Requirements, the Intelligence Subsystem Requirements, and the Missing
Persons Subsystem Requirements (see Attachment 1). The Seller shall support
the Buyer in further refining the requirements with the NYCPD. The Seller
shall design, develop, install, test, and provide documentation, training and
optional operational support and maintenance for these systems, subsystems,
and additional components.
1.3.1 HARDWARE/SOFTWARE/FIRMWARE
The Seller shall acquire, install, test, and provide optional maintenance for
the hardware, software, and firmware required for the Basic Photo Imaging
System, the Federal Interface Subsystem, the Intelligence Subsystem, the
Missing Persons Subsystem, and (as an option when so directed by the Buyer)
the Additional Components. The quantity and specifications of the hardware
and software components are identified in Schedule C of this subcontract. The
configuration delineated in Schedule C is "as proposed" by the Seller who
shall retain sole liability for its compliance to the functional requirements
identified in Attachment 1 and the performance requirements identified in
Attachment 5.
1.3.2 DATA
The Seller shall provide the deliverable data items in accordance with
Attachment 3 of this subcontract.
1.3.3 TASKS AND RESOURCES
The seller shall perform management, engineering, testing, installation,
training, maintenance, and operations support tasks as specified in Section 3
of this Statement of Work, and provide all material, resources, and
capabilities necessary to satisfy the subcontract requirements with the
exception of Customer Furnished Material (CFM), Customer Furnished Equipment
(CFE), and Customer Furnished Services (CFS), as identified in section 4.0 of
this Statement of Work.
1.3.4 SCHEDULE AND MILESTONES
The Seller shall schedule the tasks and apply adequate resources to ensure
that the milestones as shown in Attachment 2 of this subcontract and
described in Section 3 of this Statement of Work are met.
Schedule B - 2 Revision D
<PAGE>
Schedule B
Statement of Work
2.0 APPLICABLE DOCUMENTS
The following documents form a part of this Statement of Work and are
applicable and incorporated by reference. In the event of a conflict between
documents referenced herein and the Statement of Work, the Statement of work
shall take precedence and be considered the superseding document.
a.) Attachment 1: System Requirements
b.) Attachment 2: Project Milestones and Schedule
c.) Attachment 3: Contract Data Requirements List
d.) Attachment 4: Milestone and Payment Schedule
e.) Attachment 5: Technical and Performance Requirements
f.) Attachment 6: Maintenance
g.) Attachment 7: Acceptance Criteria
h.) Attachment 8: Training
I.) Attachment 9: Definitions and Acronyms
3.0 SUBCONTRACT TASKS
3.1 PROGRAM MANAGEMENT
The program management effort shall ensure compliance to requirements
pertaining to configuration management, risk management, quality assurance,
technical deliveries, financial management, administrative and other
supporting efforts necessary to satisfy subcontract requirements. The Seller
shall assign and identify to the Buyer, a Program Manager with the authority
and responsibility for total Seller performance under this SOW. The Program
Manager shall maintain liaison with Buyer and coordinate the Seller's efforts
with those of the Buyer. The Program Manager shall review, approve, and
submit project status reports in Seller's format on a monthly basis. These
reports shall include: status of work against schedule, material deliveries,
installations completed or in progress during the reporting period, financial
management, work planned for the next month, and problem identification and
planned resolution. In addition, the Program Manager shall participate in
weekly status reviews by telephone with the Buyer and quarterly Program
Management Reviews, as described in section 3.1.1.
3.1.1 PROGRAM MANAGEMENT REVIEWS
The Seller shall conduct the first program review with the Buyer two (2)
weeks after receipt of subcontract award from Buyer. Topics to be reviewed at
the first program review shall include Seller's schedule management,
configuration management, and QA processes setup for this program. Additional
program reviews lasting no-more than 1 day shall be conducted quarterly to
address all functions: technical, management, administrative, problem
identification and resolution, assurance of compliance with contract
requirements, program status and tracking. The location of these reviews
shall be at the Seller's facility in San Jose, CA unless it is mutually
agreeable to both the Seller and Buyer to meet in another location. In
addition, special purpose reviews will be scheduled as reasonably required to
ensure successful program execution.
Summary typewritten minutes shall be prepared by the Seller within one (1)
week of each program management review. The Seller/Buyer shall recognize and
agree that these Buyer/Seller reviews are solely for the purpose of
exchanging and coordinating efforts concerning this procurement and status of
the subcontract. Nothing which transpires shall be interpreted, construed or
treated by the Seller and/or Buyer as modifying the subcontract
Schedule B - 3 Revision D
<PAGE>
Schedule B
Statement of Work
unless and until a written subcontract modification is mutually agreed to by
the Buyer and Seller.
3.1.2 SCHEDULE MANAGEMENT
The Seller shall develop, maintain, and provide detailed scheduling and
resource allocation for the various phases and specialty areas and
disciplines required to deliver Seller's deliverable item. The Seller shall
provide this data to SAIC to support the integrated program Resource Loaded
Network.
3.1.3 CONFIGURATION MANAGEMENT
The Seller shall maintain configuration control over all the products,
services, and documentation being provided. The Seller shall provide notice
to the Buyer prior to any changes to the product baseline established at the
time of the subcontract. Buyer approval shall be required for changes to the
software that affect the form, fit or function of the system, changes in
manufacturers of components, or changes in specifications of components, as
identified in Schedule C. The Buyer shall respond to the notification within
48 hours either with (1) approval, (2) needs further review, or (3)
disapproval. Such approval shall not be unreasonably withheld by the Buyer
and any disapproval shall be documented by the Buyer with a written
explanation. The Seller shall provide a CI Change Report to the Buyer of all
changes on a monthly basis. The CI Change Report shall list all authorized
changes and all "bug" fixes implemented during that reporting period.
3.1.4 RISK MANAGEMENT
The Seller shall maintain a list of risks and the mitigation for each risk.
The Seller shall provide a Risk Management Report with the monthly Project
Status Report. The Seller shall be prepared to discuss the risks at the
weekly status reviews and quarterly Program Management Reviews. The Seller
shall notify the Buyer when a new risk is identified or a known risk has
become so great that meeting the program schedule is in jeopardy.
3.1.5 QUALITY ASSURANCE
An established quality assurance program shall be identified by the Seller.
The Seller shall ensure quality throughout the engineering design, assembly,
test, preparation for delivery and shipping, installation, and maintenance.
The Seller shall be responsible for inspecting and testing of deliverable
items before shipping to ensure that each item shipped meets all the
requirements.
3.1.6 SOURCE INSPECTION AND SURVEILLANCE
The Buyer has the right to perform inspection/test of products/services at
the Seller's facilities prior to each shipment or at the final destination
after each shipment. The earliest notice possible shall be furnished to the
Buyer regarding the Seller's plans for incoming, in-process, final assembly
inspection/test of products or services, and shipping and installation to
permit mutual Seller and Buyer schedule and understanding of each inspection
point (if any) and magnitude.
All items covered by this purchase may be subject to source surveillance by
the Buyer and customer quality representative. This will include surveillance
of the Seller's systems, procedures, facilities, and products. The Seller
shall at no additional charge supply
Schedule B - 4 Revision D
<PAGE>
Schedule B
Statement of Work
inspection records and when specified perform or repeat under surveillance of
the Buyer's representative selected inspections and tests required by
Seller's inspection instructions.
3.1.7 ENGINEERING REVIEWS
The Seller shall conduct the following formal engineering reviews. The
location of these reviews shall be at the Seller's facility in San Jose, CA
unless it is mutually agreeable to both the Seller and Buyer to meet in
another location.
CUSTOMIZATION SPECIFICATIONS REVIEW (CSR) - The Seller shall conduct a
CSR at the end of the NYCPD customization definition phase. The Seller
shall develop and deliver a Customization Specification Document two
(2) weeks prior to the CSR. A separate CSR shall be conducted for each
of the following subsystems:
- Basic Photo Imaging System,
- Intelligence Subsystem,
- Missing Person Subsystem
CUSTOMIZATION DESIGN REVIEW (CDR) - The seller shall conduct a CDR at
the end of the NYCPD customization design phase. The Seller shall
deliver an updated Customization Specifications Document two (2) weeks
prior to the CDR. The Seller shall develop and deliver a Customization
Design Document two (2) weeks prior to the CDR which shall describe
the physical design of the customization. A separate CDR shall be
conducted for each of the following subsystems:
- Basic Photo Imaging System,
- Intelligence Subsystem,
- Missing Person Subsystem
CUSTOMIZATION DEMONSTRATION - The Seller shall conduct a Customization
Demonstration for the Buyer after the implementation phase and prior
to shipping and delivery of the system/subsystem to the NYCPD
facilities. The Seller shall deliver an updated Customization
Design Document two (2) weeks prior to the Customization Demonstration
which shall describe the final physical design of the customization.
A Customization Demonstration shall be conducted for the following
subsystem.
- Basic Photo Imaging System
READY-TO-SHIP REVIEW (RSR) - The Seller shall conduct a Ready-to-Ship
Review witnessed by both the Buyer and NYCPD after the Customization
Demonstration and prior to shipping and delivery of the
system/subsystem to the NYCPD facilities. The Seller shall conduct a
pre-Ready-to-Ship Review (PRSR) to be witnessed by the Buyer only prior
to the RSR. The Seller shall deliver an updated Customization Design
Document two (2) weeks prior to the RSR which shall reflect any
changes in the final physical design of the customization. A separate
PRSR and RSR shall be conducted for each of the following subsystems.
- Federal Interface Subsystem
- Basic Photo Imaging System,
- Intelligence Subsystem,
- Missing Person Subsystem
Schedule B - 5 Revision D
<PAGE>
Schedule B
Statement of Work
Summary typewritten minutes shall be prepared by the Seller within one (1)
week of each engineering review. The Seller/Buyer shall recognize and agree
that these Buyer/Seller reviews are solely for the purpose of reviewing the
specifications, design, and implementation to ensure that the solution is
compliant with the NYCPD requirements. Nothing which transpires shall be
interpreted, construed or treated by the Seller and/or Buyer as modifying the
subcontract unless and until a written subcontract modification is mutually
agreed to by the Buyer and Seller.
3.2 SYSTEM ENGINEERING
The Seller shall provide the engineering effort necessary to ensure
successful development, testing, installation, and maintenance of
specification-compliant end items. The Seller shall provide engineering
efforts, as necessary, to support the development of the Interface Control
Document (ICD), pre-planned product improvement, technology insertion, and to
solve problems associated with the Seller's product. The sections within the
ICD which deal with external interfaces to the Photo Imaging System shall be
reviewed during the Customization Specifications Review.
3.3 SOFTWARE/FIRMWARE
The Seller shall provide their Commercial-Off-The-Shelf (COTS) product
(ForceField II) which has been customized to meet the NYCPD requirements.
This customization includes:
- Modifications to Screens, Reports, Warrants, Code Tables, and
Validation Rules
- Creation of NYCPD-specific database fields
- Postage-Stamp Strategy to reduce communications traffic across WAN
- Interfaces to OLBS, Automated DB2 Warrant System, and DB2 Sealing
System
- Generic data format for the purpose of interfacing which can be used
by other external systems
- Generation of digitized photo for transmission to MDT
- Case Management capabilities to support the Intelligence and Missing
Persons Subsystems. The basis of this capability is the Hennepin
County system.
The customization shall be done in three phases. (1) customization definition
phase, (2) customization design phase, and (3) customization implementation
phase. The Seller shall develop and/or update documents and conduct a formal
engineering review at the end of each phase as described in Section 3.1.7.
1) CUSTOMIZATION DEFINITION PHASE - The Seller shall participate in
requirements definition meetings with NYCPD and the Buyer in
NYCPD facilities to define the customization requirements for the
NYCPD procurement. The results of these meetings shall be
documented in the Customization Specification Document. At
completion of the Customization Definition Phase, the Seller shall
conduct a Customization Specification Review.
2) CUSTOMIZATION DESIGN PHASE - The Seller shall document the physical
design for the NYCPD customization of their standard COTS product in
the Customization Design Document. At completion of the
Customization Design Phase, the Seller shall conduct a Customization
Design Review.
Schedule B - 6 Revision D
<PAGE>
Schedule B
STATEMENT OF WORK
3) CUSTOMIZATION IMPLEMENTATION PHASE - The Seller shall implement
the customization of their standard COTS product based on the
Customization Design Document. At completion of the implementation
phase, the Seller shall conduct a Customization Demonstration to
be witnessed by the Buyer.
3.4 HARDWARE/SOFTWARE ACQUISITION
The Seller shall procure and test all hardware and software components, as
specified in SCHEDULE C, for the Federal Interface Subsystem, the Basic Photo
Imaging System, the Intelligence Subsystem, the Missing Persons Subsystem,
and the Additional Components (option).
3.5 INTEGRATION & TEST
The Seller shall integrate and test all hardware and software components for
the Federal Interface Subsystem, Basic Photo Imaging System, the Intelligence
Subsystem, the Missing Persons Subsystem, and the Additional Components
(option). The Seller shall be responsible for the integration and test of all
hardware and software in their facilities before shipping and delivery to the
NYCPD facilities. The Seller shall conduct pre-Ready-to-Ship Reviews (PRSR)
at the Seller's facilities to be witnessed by the Buyer prior to conducting a
Ready-to-Ship Review. The Seller shall conduct Ready-to-Ship Reviews (RSRs)
at the Seller's facilities to be witnessed by the Buyer and NYCPD prior to
shipping to the NYCPD facilities.
3.6 INSTALLATION & TEST
The Seller shall develop an Implementation Plan which provides a schedule for
the site installations, describes the required site preparations, and
highlights any inadequacies in the current facilities that need to be
corrected prior to installation.
3.6.1 SITE SURVEYS
The Seller shall conduct a detailed site survey to identify and notify the
Buyer of all detailed site modifications and preparation activities required
to support the installation of the new equipment in the NYCPD-designated
location within the following time-frames: (1) for sites with Display-Only
Workstations, at least six (6) weeks prior to the planned installation date,
and (2) for sites with Capture Stations, at least two (2) months prior to the
planned installation date. NYCPD is responsible for all site modifications
and preparation activities and costs, including providing cabling and
electrical power directly to the NYCPD-designated system installation points.
In the event that the Buyer notifies the Seller of the need for more time to
implement the site modifications and preparation activities for a given site,
the Seller will try to rearrange the order of the site installations to
accommodate the delay anticipated for that site.
3.6.2 STAGE AND SHIP
The Seller shall pre-configure the hardware and software components for the
Federal Interface Subsystem, the Basic Photo Imaging System, the Intelligence
Subsystem, the Missing Persons Subsystem, and the Additional Components
(option) in their facilities prior to shipping. The Seller shall ship the
hardware and software components to the NYCPD facilities.
3.6.3 INSTALLATION AND TEST
Schedule B - 7 Revision D
<PAGE>
Schedule B
STATEMENT OF WORK
The Seller shall install, and test the hardware and software components for
the Federal Interface Subsystem, the Basic Photo Imaging System, the
Intelligence Subsystem, the Missing Persons Subsystem, and the Additional
Components (option) in the NYCPD facilities in accordance with the overall
program milestones identified in Section 1.2.2. The Seller shall install and
test the system/subsystems in blocks. The composition of each installation
block and the milestones associated with each installation block is
identified in ATTACHMENT 2 of this subcontract. The Seller shall reconfigure
and integrate the Federal Interface Subsystem into the Basic Photo Imaging
System and load the data and images captured by the Federal Interface
Subsystem into the Basic Photo Imaging System.
The Seller shall conduct three levels of Acceptance Testing, in accordance
with ATTACHMENT 7 of this subcontract, to be witnessed by the Buyer and
NYCPD: (1) Functional Acceptance (executed at RSR), (2) Block Acceptance
Testing (executed after installation of each block), and (3) Module
Acceptance Testing (executed after installation of all blocks). Acceptance
Testing shall be based on the acceptance procedures and test cases defined in
the applicable Customization Specification Document. A Plan of Correction
shall be submitted to the Buyer one (1) week after acceptance testing.
The Seller shall support the On-Site System Testing of the total Automated
DB2 Warrant and Integrated Digitized Photo Imaging System in accordance with
the overall program milestones identified in Section 1.2.2. The Seller shall
support Final System Acceptance Testing of the Automated DB2 Warrant and
Integrated Digitized Photo Imaging in accordance with ATTACHMENT 7 of this
subcontract, and the overall program milestones identified in Section 1.2.2.
The Seller shall deliver the final "as-built" Customization Design Documents
two (2) weeks prior to the start of the Final System Acceptance Testing of
the total Automated DB2 Warrant and Integrated Digitized Photo Imaging System.
3.7 TRAINING
The Seller shall conduct training for the Federal Interface Subsystem, the
Basic Photo Imaging System, the Intelligence Subsystem, and the Missing
Persons Subsystems in accordance with ATTACHMENT 8 of this subcontract. The
Seller shall deliver to the Buyer the Training Material for review one (1)
month prior to the start of training classes/activities. Any updates to the
training material shall be delivered to the Buyer for review one (1) month
prior to user distribution.
3.8 END-PRODUCT DOCUMENTATION
The Seller shall customize their standard documentation for the COTS product
for the NYCPD procurement: the System Administration Manual, User's Manual,
the Utilities Guide, and Support Reference Card. The Seller shall deliver to
the Buyer for review the first set of documentation one (1) month prior to
block 1 acceptance testing. Any updates to these documents shall be delivered
to the Buyer for review one (1) month prior to user distribution.
3.9 MAINTENANCE & SUPPORT
The Seller shall provide pre-acceptance maintenance support up to and
including 22 MAC (regardless of when final system acceptance occurs) and
optional 5 years of maintenance and operational support from months 23
through 82. The maintenance and operations package shall provide
24-hrs-a-day, 7-days-a-week support to meet the availability requirements. As
part of this maintenance and operations package, the Seller shall provide
Schedule B - 8 Revision D
<PAGE>
Schedule B
STATEMENT OF WORK
on-site response to a service call within 2 hours. The Seller shall be the
single point of contact for all maintenance calls. The Seller shall provide
access to a Help Desk via a 1-800 number 24 hours a day, 7 days a week. A
description of the maintenance and operations support plan is provided in
ATTACHMENT 6 of this subcontract.
4.0 CUSTOMER FURNISHED MATERIAL/EQUIPMENT/SERVICES
The Buyer has the responsibility to, and shall provide to the Seller the
following items:
Overall Project Schedule
Test Data (for generation of Warrants)
Interface Control Document (to be completed by CSR)
Schedule B - 9 Revision D
<PAGE>
CONFIDENTIAL
Schedule C
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Ext. Maint.
Nomenclature Qty Unit Price Total Price per Month
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
HOUSING AUTHORITY MODULE
CAPTURE CAMERA SUB-SYSTEM W/REMOTE 0 $13,500 $0 $135
FF2 CAPTURE IMAGESTATION 0 $9,500 $0 $95
FF2 DISPLAY IMAGESTATION 31 $6,500 $201,500 $65
INSTALLATION, SHIPPING, STORAGE 1 $30,000 $30,000 $0
COLOR LASER PRINTER SUB-SYSTEM 13 $9,500 $123,500 $95
SMALL FORMAT COLOR PRINTER SUB-SYSTEM 0 $3,750 $0 $38
LARGE FORMAT COLOR PRINTER SUB-SYSTEM 0 $12,000 $0 $120
BLACK & WHITE LASER PRINTER SUB-SYSTEM 0 $2,250 $0 $23
TRAINING 1 $10,000 $10,000 $0
DOCUMENTATION 1 $0 $0 $0
===================================================================================================
TOTAL $365,000 $571
===================================================================================================
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Ext. Maint.
Nomenclature Qty Unit Price Total Price per Month
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
EARLY/FIS
CAPTURE CAMERA SUB-SYSTEM W/REMOTE 11 $13,500 $148,500 $135
FF2 CAPTURE IMAGESTATION 11 $9,500 $104,500 $95
FF2 DISPLAY IMAGESTATION 14 $6,500 $91,000 $65
INSTALLATION, SHIPPING, STORAGE 1 $40,000 $40,000 $0
COLOR LASER PRINTER SUB-SYSTEM 6 $10,000 $60,000 $100
SMALL FORMAT COLOR PRINTER SUB-SYSTEM 0 $3,750 $0 $38
LARGE FORMAT COLOR PRINTER SUB-SYSTEM 0 $12,000 $0 $120
BLACK & WHITE LASER PRINTER SUB-SYSTEM 14 $2,250 $31,500 $23
FF2 IMAGEBANK--RENTAL (UP TO 9 MON) 1 $5,000 $5,000 $0
FF2 IMAGESTORAGE--RENTAL (UP TO 9 MON) 1 $10,000 $10,000 $0
DELTA INSTALL, DEINSTALL, DATA LOAD 1 $20,000 $20,000 $0
TRAINING 6 $1,000 $6,000 $0
DOCUMENTATION 1 $0 $0 $0
===================================================================================================
TOTAL $516,500 $576
===================================================================================================
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Ext. Maint.
Nomenclature Qty Unit Price Total Price per Month
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
BASIC SYSTEM MODULE
CAPTURE CAMERA SUB-SYSTEM W/REMOTE 0 $13,500 $0 $135
FF2 CAPTURE IMAGESTATION 1 $9,500 $9,500 $95
FF2 DISPLAY IMAGESTATION 77 $6,500 $500,500 $65
SCANNER SUB-SYSTEM 1 $9,500 $9,500 $95
COLOR LASER PRINTER SUB-SYSTEM 6 $10,000 $60,000 $100
SMALL FORMAT COLOR PRINTER SUB-SYSTEM 8 $3,750 $30,000 $38
LARGE FORMAT COLOR PRINTER SUB-SYSTEM 0 $12,000 $0 $120
BLACK & WHITE LASER PRINTER SUB-SYSTEM 62 $2,250 $139,500 $23
FF2 IMAGEBANK 2 $105,000 $210,000 $1,050
FF2 IMAGESTORAGE 2 $260,000 $260,000 $2,600
FF2 OPTICAL SUB-SYSTEM 1 $50,000 $50,000 $500
WARRANTS INTERFACE DEVELOPMENT 1 $70,000 $70,000 $700
NYCPD CUSTOMIZATION 1 $70,000 $70,000 $700
SEALING SOFTWARE DEVELOPMENT 1 $0 $0 $0
INSTALLATION, SHIPPING, STORAGE 1 $180,000 $180,000 $0
ONSITE SUPPORT STAFF $0 $0 $8,333
TRAINING 1 $60,000 $60,000 $0
DOCUMENTATION 1 $10,000 $10,000 $100
===================================================================================================
TOTAL $1,659,000 $13,354
===================================================================================================
Page 1
<PAGE>
Schedule C
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Ext. Maint.
Nomenclature Qty Unit Price Total Price per Month
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
INTELLIGENCE MODULE
STILL VIDEO CAPTURE SUB-SYSTEM 2 $6,500 $13,000 $65
FF2 CAPTURE IMAGESTATION 2 $9,500 $19,000 $95
FF2 DISPLAY IMAGESTATION 2 $6,500 $13,000 $65
SCANNER SUB-SYSTEM 2 $9,500 $19,000 $95
COLOR LASER PRINTER SUB-SYSTEM 1 $10,000 $10,000 $100
SMALL FORMAT COLOR PRINTER SUB-SYSTEM 1 $3,750 $3,750 $38
LARGE FORMAT COLOR PRINTER SUB-SYSTEM 0 $12,000 $0 $120
BLACK & WHITE LASER PRINTER SUB-SYSTEM 0 $2,250 $0 $23
INTELLIGENCE APPLICATION DEVELOPMENT 1 $130,000 $130,000 $1,300
IMAGING SOFTWARE DEVELOPMENT 1 $0 $0 $0
SEALING SOFTWARE DEVELOPMENT 1 $0 $0 $0
INSTALLATION, SHIPPING, STORAGE 1 $12,500 $12,500 $0
ONSITE SUPPORT STAFF $0 $0 $0
TRAINING 1 $2,000 $2,000 $0
DOCUMENTATION 1 $7,500 $7,500 $75
===================================================================================================
TOTAL $229,750 $1,976
===================================================================================================
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Ext. Maint.
Nomenclature Qty Unit Price Total Price per Month
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
MISSING PERSONS MODULE
STILL VIDEO CAPTURE SUB-SYSTEM 1 $6,500 $6,500 $65
FF2 CAPTURE IMAGESTATION 1 $9,500 $9,500 $95
FF2 DISPLAY IMAGESTATION 1 $6,500 $6,500 $65
SCANNER SUB-SYSTEM 1 $9,500 $9,500 $95
COLOR LASER PRINTER SUB-SYSTEM 0 $10,000 $0 $100
SMALL FORMAT COLOR PRINTER SUB-SYSTEM 1 $3,750 $3,750 $38
LARGE FORMAT COLOR PRINTER SUB-SYSTEM 0 $12,000 $0 $120
BLACK & WHITE LASER PRINTER SUB-SYSTEM 0 $2,250 $0 $23
MISSING PERSON APPLICATION DEVELOPMENT 1 $120,000 $120,000 $1,200
IMAGING SOFTWARE DEVELOPMENT 1 $0 $0 $0
SEALING SOFTWARE DEVELOPMENT 1 $0 $0 $0
INSTALLATION, SHIPPING, STORAGE 1 $5,000 $5,000 $0
24 HOURS/DAY--7 DAYS/WEEK SUPPORT $0 $0 $0
ONSITE SUPPORT STAFF $0 $0 $0
TRAINING 1 $1,000 $1,000 $0
DOCUMENTATION 1 $7,500 $7,500 $75
===================================================================================================
TOTAL $169,250 $1,876
===================================================================================================
Page 2
<PAGE>
Schedule C
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Ext. Maint.
Nomenclature Qty Unit Price Total Price per Month
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
ADDITIONAL EQUIPMENT OPTIONS
STILL VIDEO CAPTURE SUB-SYSTEM each $8,500 $85
FF2 CAPTURE IMAGESTATION each $9,500 $95
FF2 DISPLAY IMAGESTATION each $6,500 $65
SCANNER SUB-SYSTEM each $9,500 $95
ADDITIONAL STORAGE - CENTRAL SITE each $20,000 $200
STILL VIDEO PLAYBACK SUB-SYSTEM each $6,500 $65
STILL VIDEO CAPTURE SUB-SYSTEM each $6,500 $65
REMOTE FOCUS AND ZOOM CONTROL LENS each $5,000 $50
AUTOMATED WEIGHT CAPTURE each $3,650 $37
COLOR LASER PRINTER SUB-SYSTEM each $10,000 $100
1-25 $9,500 $95
26-50 $9,000 $90
51+ $8,500 $85
SMALL FORMAT COLOR PRINTER SUB-SYSTEM each $3,250 $33
1-50 $3,250 $33
51+ $3,000 $30
LARGE FORMAT COLOR PRINTER SUB-SYSTEM each $13,000 $130
1-50 $12,500 $125
51+ $11,500 $115
BLACK & WHITE LASER PRINTER SUB-SYSTEM each $2,250 $23
1-25 $2,250 $23
26-50 $2,250 $23
51+ $2,250 $23
- ---------------------------------------------------------------------------------------------------
</TABLE>
Page 3
<PAGE>
Attachment 1
SYSTEM OVERVIEW
1. Introduction
The purpose of this attachment is to provide a system-level overview of the
Automated DB2 Warrant and Integrated Digitized Photo Imaging System.
Section 2 provides a high-level functional overview describing the
systems/subsystems, the data associated with the systems/subsystems, the
interfaces between those systems/subsystems, and the interfaces to external
systems. Section 3 identifies the hardware and software components for the
systems/subsystems. Section 4 provides a physical view of the
systems/subsystems including the connectivity between the systems/subsystems,
connectivity to the external systems, and the detailed specifications for
each of the Commercial-Off-The-Shelf (COTS) components of the
systems/subsystems.
2. Functional Overview
The Automated DB2 Warrant and Integrated Digitized Photo Imaging System
consists of two main functional components: (1) the Automated DB2 System, and
(2) the Photo Imaging System. A functional overview is provided in Exhibit
2-1 showing the subsystems of the Automated DB2 System, the subsystems of
the Photo Imaging System, the data associated with each of the subsystems,
the interfaces between the subsystems, and the interfaces to external
systems. As shown in Exhibit 2-1, the Automated DB2 System and the Photo
Imaging System are independent systems with three defined interfaces. The
Automated DB2 System sends Warrant data and Seal/Unseal notifications to the
Photo Imaging System. The Photo Imaging System sends UF90 data (audit data of
who received a photo and when) to the Automated DB2 System. A brief
description of each system/sub-system is provided in the following sections.
2.1 Automated DB2 System Overview
The Automated DB2 System will be developed in MicroFocus Cobol and will
execute on NYCPD's existing mainframe, the IBM 3090-400J, in a CICS/DB2
environment. (Attachment K of this contract provides the detailed hardware
and software configuration of the existing NYCPD mainframe environment.) The
Automated DB2 System consists of the (1) Warrant System, (2) Name Search
System, (3) Sealing System, and (4) Database Conversion software. A brief
description of each these systems is provided in the following paragraphs.
2.1.1 Warrant System
The Warrant System will support the data entry and tracking of Warrants,
Wants, Recidivists, and Drug Users, and investigative actions associated with
Warrants and Wants. The Warrant System will replace the current
Warrant/Want/WOLF system. The Warrant System can receive warrant data from
the Office of Court Administration (OCA) and will transmit certain types of
warrants to DCJS. The Warrant System will initiate name searches against the
Warrant System Data. The Warrant System will send warrant data to the Photo
Imaging System so that hardcopy Warrants, with or without imbedded mugshots,
can be printed on the Photo Imaging System printers either in black & white
or in color.
System Overview: 1 Revision C
<PAGE>
[FLOWCHART]
Exhibit 2-1 Overview of Automated DB2 Warrant and Integrated Digitized
Photo Imaging System
<PAGE>
Attachment 1
SYSTEM OVERVIEW
2.1.2 Name Search System
The Name Search System will support the ability to search the data maintained
by the Warrant System using a combination of Name, DOB, Sex, and Race. The
Name Search System will use the NCIC-2000 NYSIIS algorithm for converting the
name string into the "phonetic" equivalent.
2.1.3 Sealing System
The Sealing System will support the electronic sealing and unsealing of the
photo images associated with an arrest. The Sealing System will receive
seal/unseal requests from the On-Line Booking System (OLBS). The Sealing
System will notify the Photo Imaging System of the Seal or Unseal event, send
letters requesting the return of the photo to the command posts which
received a copy of the photo, and track the return of the photos to the
Sealed Records Unit. The Sealing System will receive UF90 data (audit data of
who received a photo and when) from the Photo Imaging System.
2.1.4 Database Conversion Software
The Database Conversion software will convert the existing Warrant/Want/WOLF
records from the current VSAM/Adabas format to the new DB2 database format
which will be used for the new Warrant System. This will be done on a
one-time basis for the purpose of populating the new DB2 Warrant database.
2.2 Photo Imaging System Overview
The Photo Imaging System which utilizes photo/video imaging technology to
capture, store, and retrieve "mugshots" will replace the present time
consuming and labor intensive manual-intensive photo identification process.
In addition, the Photo Imaging System will print warrants (with or without
photos) and provide for on-line generation and printing of line-up photo
arrays and mugshots. This system consists of three subsystems: the Basic
Photo Imaging System and two investigative subsystems, the Intelligence
Subsystem and the Missing Persons Subsystem. A brief description of each
these systems/subsystems is provided in the following paragraphs.
2.2.1 Basic Photo Imaging System
The Basic Photo Imaging System will be a Commercial-Off-The-Shelf
(COTS)-based package which provides the capability to capture mugshots at the
booking sites, create and print photo line-ups, produce warrants with or
without imbedded mugshots, and support sealing and unsealing of photos. The
Basic Photo Imaging System will exchange booking data with the On-Line
Booking System (OLBS). The Basic Photo Imaging System will receive warrant
data from the Warrant System so that hardcopy Warrants, with or without
imbedded mugshots, can be printed on the Basic Photo Imaging System printers
either in black & white or in color. The Basic Photo Imaging System will send
UF90 data (audit data of who received a photo and when) to the Sealing
System. The Basic Photo Imaging System is based on the COTS Photo Imaging
System, "ForceField", which runs in a Unix environment.
System Overview: 3 Revision C
<PAGE>
<TABLE>
<S><C>
------------------------
Automated DB2 Warrant
and Integrated Digitized
Photo Imaging System
------------------------
|
|
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| | |
------- --------- --------
Photo Automated Communi-
Imaging DB2 cations
System System System
------- --------- --------
| | |
--------------------------------------------------- ----------------------------------------- --------
| | | | | | | | | | | |
| | | | | | | | | | | |
-------- ------------ ---------- --------- ------- -------- -------- -------- -------- ---------- -------- --------
Missing Facial DB2 Name Database Communi- Network
Basic PI Intelligence Persons PI PI Aging DASD Warrant Search Sealing Conversion cations Mngmnt
Software PI Software Software Hardware System Hardware Software Software Software Software Devices Software
-------- ------------ ---------- --------- ------- -------- -------- -------- -------- ---------- -------- --------
| |
| |
---------------------------------------------------------------------------- -----------------------------------
| | | | | | | | | | |
| | | | | | | | | | |
---------- ------- ---------- ---------- -------- --------- -------- ------- ------- ---------- -------
PI Central PI Display- PI Video Hdqrtrs Precinct/ Male
PI Capture PI Server Only PI Freeze- PI Hdqrtrs IP-SNA Borough DTE V35
Stations Cameras Subsystem Stations Scanners Frame Printers Routers Gateway Routers Cables
---------- ------- ---------- ---------- -------- --------- -------- ------- ------- ---------- -------
| |
| |
------------------------------------------- -----------------------------------
| | | | | | | |
| | | | | | | |
---------- ------------ --------- --------- -------- -------- -------- --------
PI Magnetic PI Color PI Small PI Large
PI Central Disk PI Backup PI Backup PI B&W Laser Dye-Sub Dye-Sub
Servers Storage Server Device Printers Printers Printers Printers
---------- ------------ --------- --------- -------- -------- -------- --------
Exhibit 3-1 NYCPD System Specifications Tree | | Commercial-Off-The-Shelf (COTS)
| | Developed
</TABLE>
<PAGE>
<TABLE>
<S><C>
------------------------
Automated DB2 Warrant
and Integrated Digitized
Photo Imaging System
------------------------
|
|
--------------------------------------------------------------------------
| | |
| | |
--------- --------- --------
Photo Automated Communi-
Imaging DB2 cations
System System System
--------- --------- --------
|
|
----------------------------------------------------
| | | | |
| | | | |
- -------- ------------ ---------- -------- ------
Missing Facial
Basic PI Intelligence Persons PI PI Aging
Software PI Software Software Hardware System
- -------- ------------ ---------- -------- ------
|
|
--------------------------------------------------------------------------
| | | | | | |
| | | | | | |
- ---------- ------- ---------- ------------- --------- -------- --------
PI Capture PI PI Central PI Display- PI PI Video
Stations Cameras Server Only Scanners Freeze- PI
(12) (11) Subsystem Stations (91) (1) Frame Scanners
- ---------- ------- ---------- ------------- --------- -------- --------
| |
| |
-------------------------------------------- --------------------------------------
| | | | | | | |
| | | | | | | |
- ---------- ----------- --------- --------- -------- ------------- ------------ ---------
PI Magnetic PI B&W PI Color PI Small PI Large
PI Central Disk PI Backup PI Backup Printers Laser Dye-Sub Dye-Sub
Servers Storage Server Device (76) Printers (12) Printers (8) Printers
- ---------- ----------- --------- --------- -------- ------------- ------------ ---------
| | Components of Basic Photo Imaging System
| | Shared Components of Basic Photo Imaging System
Exhibit 3-2 NYCPD System Specifications Tree - Basic Photo Imaging System
</TABLE>
<PAGE>
<TABLE>
<S><C>
------------------------
Automated DB2 Warrant
and Integrated Digitized
Photo Imaging System
------------------------
|
|
--------------------------------------------------------------------------
| | |
| | |
--------- --------- --------
Photo Automated Communi-
Imaging DB2 cations
System System System
--------- --------- --------
|
|
----------------------------------------------------
| | | | |
| | | | |
- -------- ------------ ---------- -------- ------
Missing Facial
Basic PI Intelligence Persons PI PI Aging
Software PI Software Software Hardware System
- -------- ------------ ---------- -------- ------
|
|
--------------------------------------------------------------------------
| | | | | | |
| | | | | | |
- ---------- ------- ---------- ------------- --------- --------- --------
PI Capture PI PI Central PI Display- PI PI Video
Stations Cameras Server Only Scanners Freeze- PI
(2) Subsystem Stations (2) (2) Frame (2) Printers
- ---------- ------- ---------- ------------- --------- --------- --------
| |
| |
-------------------------------------------- --------------------------------------
| | | | | | | |
| | | | | | | |
- ---------- ----------- --------- --------- -------- ------------- ------------ ---------
PI Magnetic PI B&W PI Color PI Small PI Large
PI Central Disk PI Backup PI Backup Printers Laser Dye-Sub Dye-Sub
Servers Storage Server Device Printers (1) Printers (1) Printers
- ---------- ----------- --------- --------- -------- ------------- ------------ ---------
| | Components of Intelligence Subsystem
| | Shared Components of Intelligence Subsystem
Exhibit 3-3 NYCPD System Specifications Tree - Intelligence Subsystem
</TABLE>
<PAGE>
<TABLE>
<S><C>
------------------------
Automated DB2 Warrant
and Integrated Digitized
Photo Imaging System
------------------------
|
|
--------------------------------------------------------------------------
| | |
| | |
--------- --------- --------
Photo Automated Communi-
Imaging DB2 cations
System System System
--------- --------- --------
|
|
----------------------------------------------------
| | | | |
| | | | |
- -------- ------------ ---------- -------- ----------
Missing Facial
Basic PI Intelligence Persons PI PI Aging
Software PI Software Software Hardware System (1)
- -------- ------------ ---------- -------- ----------
|
|
--------------------------------------------------------------------------
| | | | | | |
| | | | | | |
- ---------- ------- ---------- ------------- --------- --------- --------
PI Capture PI PI Central PI Display- PI PI Video
Stations Cameras Server Only Scanners Freeze- PI
(1) Subsystem Stations (1) (1) Frame (1) Printers
- ---------- ------- ---------- ------------- --------- --------- --------
| |
| |
-------------------------------------------- --------------------------------------
| | | | | | | |
| | | | | | | |
- ---------- ----------- --------- --------- -------- ------------- ------------ ---------
PI Magnetic PI B&W PI Color PI Small PI Large
PI Central Disk PI Backup PI Backup Printers Laser Dye-Sub Dye-Sub
Servers Storage Server Device Printers Printers (1) Printers
- ---------- ----------- --------- --------- -------- ------------- ------------ ---------
| | Components of Missing Persons Subsystem
| | Shared Components of Missing Persons Subsystem
Exhibit 3-4 NYCPD System Specifications Tree - Missing Persons Subsystem
</TABLE>
<PAGE>
<TABLE>
<S><C>
- ----------------------------------------------------------------------------------------------------------------------------------
------------------------
IBM 3090-400J Warrant & Name
Search System Data:
DCJS-- ------ - Warrant Data
---- DASD - Want Data
OCA -- OLBS ------ - Recidivist Data
- Drug User Data Photo Imaging
Warrant System - Investigative Data Central Server
Name Search System Sealing System Data: Subsystem
Sealing System - Sealing Data
Database Conversion - UF90 Data
------------------------
LAN
NOTE:
- - All Hardware and System Software for the
Automated DB2 System is provided by NYCPD
(except the DASD)
- - Infrastructure for access to the Automated DB2 -------------
System from remote sites already exists Routers (3) Headquarters
------------- (Manhattan Central)
- ----------------------------------------------------------------------------------------------------------------------------------
NOTE: all WAN connections are
already in place
----------------- -----------------
Routers (76) Routers (6)
----------------- -----------------
| |
| |
--------------------------------------- --------------------------------------
Precincts (76 Sites) Central Booking (6 Sites)
- Existing Workstations with access - Existing Workstations with
to Mainframe Applications access to Mainframe Applications
- Existing LAN - Existing LAN
- Existing Printers (output from - Existing Printers (output from
Mainframe Applications) Mainframe Applications)
--------------------------------------- --------------------------------------
| | Comm Option
| | SAIC Provided
Exhibit 4-1 Automated DB2 Systems Diagram & Connectivity to External Systems
</TABLE>
<PAGE>
[GRAPH]
Exhibit 4-2 Photo Imaging Systems Diagram & Connectivity to External Systems
<PAGE>
[GRAPH]
Exhibit 4-3 Automated DB2 Warrant and
Integrated Digitized Photo Imaging System Block Diagram
<PAGE>
Automated DB2 System
[GRAPH]
Photo Imaging System: Central Server Subsystem
[GRAPH]
Basic Photo Imaging System: Capture Subsystem
[GRAPH]
Basic Photo Imaging System: Station-Level Subsystem
Intelligence Missing Person
[GRAPH]
Exhibit 4-4 Configuration of each system/subsystem with detailed specifications
for each component
<PAGE>
Attachment 1
SYSTEM OVERVIEW
sites which will have access to the Photo Imaging System functionality. The
Central Server Subsystem resides at headquarters on its own LAN and is
connected to the remote sites via the existing WAN infrastructure. The Basic
Photo Imaging System is further broken down into (1) the Capture Subsystem
which is located at the central booking sites, and (2) the Station-Level
Subsystem which is located at precincts and special units. The Station-Level
Subsystem consists of 76 precinct configurations and 16 special unit
configurations. All workstations for the Photo Imaging System will be
connected to the existing LANs.
EXHIBIT 4-3 provides a high-level diagram of the hardware components of the
system and subsystems and the connectivity between those components.
EXHIBIT 4-4 provides the exact configuration of each subsystem, including the
types and quantities of components and the detailed specifications for each
of the components. The exact configuration for the precincts and each type of
special unit within the Station-Level Subsystem is also shown in Exhibit 4-4.
System Overview: 11 Revision C
<PAGE>
Attachment 1
PHOTO IMAGING SYSTEM
1. INTRODUCTION
1.1 OVERVIEW - DESCRIPTION
The Photo Imaging System will utilize photo/video imaging technology to
capture, store, and retrieve "mugshots" and will replace the present time
consuming and labor intensive photo identification process. In addition, the
Photo Imaging System will print warrants (with or without photos) and provide
for on-line generation and printing of line-up photo arrays and mugshots. The
Photo Imaging System is based on the Commercial-Off-The-Shelf (COTS) photo
imaging system, "ForceField", which runs in a Unix environment. The Photo
Imaging System consists of three subsystems: the Basic Photo Imaging System
and two investigative subsystems, the Intelligence Subsystem and the Missing
Persons Subsystem. A brief description of each these systems/subsystems is
provided in the following paragraphs.
THE BASIC PHOTO IMAGING SYSTEM will provide the capability to capture
mugshots at the booking sites, create and print photo line-ups, produce
warrants with or without imbedded mugshots, and support sealing and
unsealing of photos. The Basic Photo Imaging System will exchange
booking data with the On-Line Booking System (OLBS). The Basic Photo
Imaging System will receive warrant data from the Warrant System so that
hardcopy Warrants, with or without imbedded mugshots, can be printed on
the Basic Photo Imaging System printers either in black & white or in
color. The Basic Photo Imaging System will send UF90 data (audit data of
who received a photo and when) to the Sealing System and will receive
seal/unseal notifications from the Sealing System.
THE INTELLIGENCE SUBSYSTEM will support the retention of electronic
photographs/images and reference data associated with intelligence
information which can include general intelligence, gangs, organized
crime, threats, and other intelligence sources. The Intelligence
Subsystem will send UF90 data (audit data of who received a photo and
when) to the Sealing System and will receive seal/unseal notifications
from the Sealing System. The Intelligence Subsystem will be capable of
obtaining photos/mugshots from the Basic Photo Imaging System.
THE MISSING PERSONS SUBSYSTEM will support the retention of electronic
photographs and alpha-numeric data associated with missing persons,
unidentified persons (unidentified DOA and amnesia victims), and
body-parts. The Missing Persons Subsystem will receive missing persons
data from the DB2 Missing Persons Case Management System. The Missing
Persons Subsystem will be capable of obtaining photos/mugshots from the
Basic Photo Imaging System. In addition, this subsystem incorporates a
stand-alone commercial facial aging system, "PhotoSketch", to be
provided by the Buyer.
EXHIBIT 1.1-1 provides a high-level functional view of the Photo Imaging
System and its associated functional subsystems: the Basic Photo Imaging
System, the Intelligence Subsystem, and the Missing Persons Subsystem.
Because all three functional subsystems are supported by the same central
server configuration, this central server configuration is broken out as a
separate subsystem. In addition, the Basic Photo Imaging System is broken
down into (1) the Capture Subsystem which is located at the central booking
sites,
Photo Imaging System: 1 Revision C
<PAGE>
[GRAPH]
Exhibit 1.1-1 High-level Functional view of the Photo Imaging System and its
Associated Subsystems.
Photo Imaging System: 2
<PAGE>
Attachment 1
PHOTO IMAGING SYSTEM
and (2) the Station-Level Subsystem which is located at precincts and special
units. The Station-Level Subsystem consists of 76 precinct configurations and
16 special unit configurations.
EXHIBIT 1.1-2 provides the exact configuration of each physical subsystem,
including the types and quantities of components and the detailed
specifications for each of the components. A brief description of each of the
physical subsystems shown in EXHIBIT 1.1-2 is provided in the following
paragraphs.
The CENTRAL SERVER SUBSYSTEM consists of a pair of Sun SPARCserver 20s
with shared access to the centralized images and pedigree data on RAID
Level-5 disks via 25 MB/sec Fiber Optics. This configuration provides
fail-save operations using the High Availability Option: if one server
goes down, the other server takes over the functions of the failed
server. This level supports the on-line repository of all Borough images
and pedigree data, and the optical disk storage for backup and archival
purposes. When an image is added to the central image repository, a
copy is also written to the optical disk. After 3 years, the magnetic
copy of the image is deleted from magnetic disk but will remain on
optical disk for archival purposes. All searches are serviced at this
level, and a list of "matches" are returned to the workstations. In
addition, the Network and System Management is performed from this
level.
The CAPTURE SUBSYSTEM consists of a Pentium-based Unix workstation,
with a video capture board for digitizing the photo images from the
Hitachi HV-C20 camera. Each Borough provides centralized photo image
capture for its associated Precincts during the booking process. The
number of Capture Subsystems allocated to each of the Boroughs is
based on the expected workload (i.e.: number of bookings) performed at
that Borough. The Capture Subsystem temporarily stores the image(s) on
its local magnetic disk storage and sends a copy of the image(s) to the
Central Server Subsystem. The Capture Subsystem can perform in a
stand-alone mode for a period of time.
The STATION-LEVEL SUBSYSTEM consists of a Pentium-based Unix
workstation and a variety of printers for the display of photos,
generation and printing of photo line-ups, and the printing of both
color and black-and-white warrants. The types and quantities of
components allocated to each type of station is shown in EXHIBIT 1.1-2.
The INTELLIGENCE SUBSYSTEM consists of the standard Display Stations
and Capture Stations with a Tektronix Phaser 540 laser color printer, a
Mitsubishi CP50 dye-sublimation color printer, and the Hitachi HV-C20
with a copy-stand.
The MISSING PERSONS SUBSYSTEM consists of the standard Display Station
and Capture Station with a Mitsubishi CP50 dye-sublimation color
printer and the Hitachi HV-C20 with a copy-stand.
Photo Imaging System: 3 Revision C
<PAGE>
[DIAGRAM]
EXHIBIT 1.1-2 Configuration of each system/subsystem with detailed
specifications for each component
Photo Imaging System: 4
<PAGE>
Attachment 1
PHOTO IMAGING SYSTEM
1.2 OVERVIEW - FEATURES
The system will be a turnkey solution that utilizes a client/server
architecture communicating over the token-ring local area network (LAN)
existing at the boroughs, as well as an existing wide area network (WAN). A
pair of file servers at the Central Data Server site will ensure redundancy.
The system architecture approach to the ForceField system offers the utmost
in system availability, very efficient network load management, and
flexibility in data searches. The open system architecture of the ForceField
system will ensure future flexibility of programming options.
The Precinct workstations, the client portion of the client/server
architecture, are configured around powerful workstations with processing
capabilities to provide rapid response to requests from the user, allowing
the Central Data Site Servers to focus on the efficient management and
transfer of data and images to the workstations. The workstation's processing
facility is used for managing the user interface, local
compression/decompression, image review and enhancement and image
input/output device control. These workstations will be tied to the Central
Site Servers over the existing LAN.
To handle additional workstations and future enhancements without degrading
the response times of the system, the Central Data Servers can be easily
upgraded with additional memory, more or faster disks and other enhancements
as desired. Should the Central Site completely outgrow their current servers,
more powerful servers can be installed with little or no effect to the
application software.
KEY FEATURES OF THE FORCEFIELD SYSTEM. During the initial research and
development of the ForceField System, various concepts and design goals were
defined as essential to a viable image database and automated warrant system.
An ongoing commitment to development has yielded the most powerful tool for
use by law enforcement agencies worldwide. Key features of the system include:
- - MULTI-FUNCTION UNIX WORKSTATIONS. The latest development encompasses truly
multi-tasking and multi-function client/server workstations.
- - LARGE-SCALE DATABASE MANAGEMENT. SYBASE%, a high-speed relational
database, was selected for the system and forms the basis for managing
textual data. Since no commercially available software exists for managing
large numbers of images, specialized software was developed to store and
retrieve images efficiently. This software is device independent and
supports both magnetic and optical drives.
- - DOD COMMUNICATIONS PROTOCOL. The communication protocol used by the
ForceField system is the Department of Defense standard TCP/IP. Token-Ring
is fully supported by the ForceField system configuration provided as part
of this contract. In addition, a variety of other physical networking
options such as asynchronous RS-232 using SLIP (Serial Line Internet
Protocol), fiber optics, microwave, and Ethernet can be supported by the
ForceField system (although not included in this contract), allowing for both
local-area and wide-area networks.
- - ON-LINE MULTI-USER CAPABILITY. The image database is an information
resource, available for access by a large number of users and was designed
to be on-line 24 hours/day -- 7 days/week.
Photo Imaging System: 5 Revision C
<PAGE>
Attachment 1
PHOTO IMAGING SYSTEM
- - STRICT ACCESS CONTROL. The New York City Police Department System
Administrators will receive special training and will become the in-house
experts responsible for the system. The System Administrators determine
what functions are available to different personnel and workstations.
Through a single designated system console, the System Administrators can
assign and identify specific functions each operator or terminal is
authorized to perform. Hierarchical security levels controlled by the
System Administrators are provided in the system, ranging from the lowest
level that allows only input of data to the highest level that permits a
complete reorganization of data.
- - PROTECTED OPERATOR SIGN-ON/OFF. An operator's identity and authorization
code must be verified before he/she can begin a work session. This process
is called CONNECTION and is performed by using the CONNECT command on the
system menu. An operator must have a pre-assigned user name and password
before they can CONNECT. When the session is completed, the DISCONNECT
command is used. In addition, the system will automatically DISCONNECT a
user after a specified inactive time period.
- - EASE OF USE. As the end-users perceive the ForceField system as a tool
assisting them in completing their work quickly and efficiently, a large
amount of development effort was spent on the design of an easy-to-use user
interface. The software is menu-driven and incorporates both pull-down and
pop-up windows. The easy to operate user-interface allows most functions to
be performed through a traditional keyboard sequence or mouse selection.
Screens and messages have been designed to inform the users, as well as
put them at ease.
- - HIGH-RESOLUTION PHOTO CAPTURE. The Hitachi HV-C20, a high quality, 3-CCD,
RGB camera can be controlled via RS-232 connection. By utilizing the remote
control capability, a workstation can automatically adjust the gain, color
balance, pedestal, and iris to pre-defined optimal levels -- ensuring
consistency from image to image. This also enables the system to
automatically compensate for skin-tone regardless of clothing color. The
capture station will be equipped with an appropriate lighting system for
quality images with minimal shadowing. Three point lighting will be
incorporated with the 18% gray background and a reflective pedestal to
provide optimum capture conditions. The camera will be securely mounted on
a wall or ceiling at a height that will provide limited access to inmates.
The camera will be equipped with the Vicon Model V3000 APT remote pan & tilt
mechanism. This wall mounted device can be controlled by a control stick
located at the workstation. The camera and lens configuration will ensure
consistent capture of short and tall subjects.
- - PHOTO CAPTURE FLEXIBILITY. The Hitachi HV-C20 RGB camera can be attached
to a copy stand for the input of existing positive or negative images,
including identifiable photos, fingerprint cards, or other related
documents.
- - WIDE ARRAY OF PRINTERS. The system supports a variety of printer options
ranging from economical black and white printers utilizing standard copier
paper for the production of internal jail cards, warrants, and other agency
defined forms, to large format color printers used for ID card production,
suspect prints, and photo lineups used in court cases.
- - JPEG COMPRESSION TECHNOLOGY. Advanced techniques, based on the JPEG (Joint
Photography Experts Group) compression standards, are used to reduce the
image storage and transmission needs. Compression ratios of 10:1 to 15:1
ensure the
Photo Imaging System: 6 Revision C
<PAGE>
Attachment 1
PHOTO IMAGING SYSTEM
image can be reconstructed with no degradation visible to the human eye.
It is the our intent to be remain compliant with the ANSI X3L2.8 compression
standards. Given the size of the CAL-PHOTO mug images of 400,000 bytes
uncompressed, a compression ratio of 15:1 may be used to yield a compressed
image size of 25,000 bytes.
- - SECURE REMOTE DIAGNOSTICS. As the system has been developed to span a wide
geographic area, remote diagnostic capability for the hardware and software
of all components of the system is standard. The System Administrators are
provided the necessary utilities to monitor and in some cases reconfigure
workstations from the server system console. The remote diagnostic
capability is used by the Seller's technical support personnel in
diagnosing problems, as well as in upgrading software releases and
installing new features. To prevent unauthorized remote access, modem
password protection, call back features and port password protection are
all available as part of the system.
- - AUTOMATIC START-UP AND RECOVERY. The ForceField system start-up is
automatic. The boot sequence will start all necessary processes, open
required files, and create batch queues for necessary batch jobs. In the
event the system was previously shutdown improperly, disk and database
recovery are automatic. In normal use, a workstation is left in continuous
operation after it is installed and rarely powered down. In the event a
workstation needs to be powered on, the initializing of hardware and
loading of software takes no more than five minutes.
- - ON-LINE SYSTEM BACKUP AND RESTORATION. Both the textual information and
the image data can be backed-up while the system is in full operation. The
text data is copied to magnetic tape, while the image files will be written
to large-format optical WORM.
- - AUDIT TRAIL FACILITIES. To ensure adequate documentation of database
record review and modifications, audit trail facilities will be part of the
system.
Photo Imaging System: 7 Revision C
<PAGE>
Attachment 1
PHOTO IMAGING SYSTEM
2. REQUIREMENTS
This section provides the system requirements for the Photo Imaging System.
As stated in section 1; the solution provided by the Seller for the Photo
Imaging System is a COTS product, Forcefield. As part of this COTS package,
NYCPD-specific customization of screen formats, print formats, database
content, and data validation rules will be done. The detailed customization
specifications for the Basic Photo Imaging System, the Intelligence
Subsystem, and Missing Persons Subsystem will be developed during the
customization definition phase, documented in a Customization Specifications
Document, and reviewed during the Customization Specifications Review.
2.1 ENVIRONMENT
The application software and hardware will support the Department's
environment. The ForceField system, built around an open system architecture,
will ensure future flexibility of programming options. Additionally, it is the
overall objective to provide a standardized imaging solution for law
enforcement agencies that can be tied to a network for the exchange of
information with other agencies utilizing varying imaging systems. By
strictly adhering to the CAL-PHOTO standards, the system will offer
consistent data transmission quality that will enable useful information
exchange between agencies. Future replacement and upgrades associated with
the related hardware and software will be supported.
2.1.1 LAN ENVIRONMENT
The Department's LAN environment is described in this section.
2.1.1.1 NETWORK REQUIREMENTS
2.1.1.1.1 Token-Ring LAN Environment.
Communications among workstations and servers will be over existing Novell
token-ring LANs, and through WAN communications networks supplied by the
Department. All workstations and servers will be configured with token-ring
network interface cards which will allow physical connection to the Novell
networks. Communications among the devices will be through peer-to-peer
TCP/IP protocols rather than through the Department's Netware servers.
However, the Department's routers will need to be configured for TCP/IP use.
Communication between the Department's 3090 mainframe and the ForceField data
server will be via SNA/3270 protocol emulation software (I/O Connect) and
physical gateway. Support is also available for LU 6.2 and TCP/IP. The final
protocol choice will be made as a joint decision between the Buyer and Seller.
2.1.1.1.2 Mainframe Interface.
The Department shares criminal justice information with the Office of Court
Administration (OCA) via the Department's IBM 3090. As many law enforcement
agencies share criminal justice data on a mainframe, a key concern is how the
imaging system will interface with the mainframe system to avoid duplicate
data entry. A real-time interface will be established to OLBS. In addition to
the real-time interface, a batch interface to OLBS will also be provided to
handle those situations in which either the OLBS system is not available, or
when the OLBS data is incomplete, or when the OLBS data has been updated. The
Photo Imaging System: 8
Revision C
<PAGE>
Attachment 1
PHOTO IMAGING SYSTEM
transaction protocols and content/format will be defined in the Interface
Control Document which will be jointly developed by the Buyer and the Seller.
2.1.1.1.3 OLBS Interface.
Depending on the actual physical location chosen for the ForceField Central
Data Server, either a direct gateway connection or a 56KB connection will be
established. The ForceField workstations will access mainframe data through
the ForceField server. This minimizes the number of connections coming into
the 3090 and isolates any changes in the interconnect to a single machine.
OLBS currently runs in an ADABAS environment, but will be converted by the
Department to DB2. The Department is responsible for modifying OLBS to
send/receive the transactions, as defined in the Interface Control Document.
2.1.1.2 SYSTEMS/FILE SERVERS
The ForceField system's central processing will be handled by a pair of Sun
Microsystems SPARCserver 20s with shared access to dual Sun Microsystems
SPARCstorage Arrays supporting RAID level 5. This configuration provides
FAIL-SAFE operations using OpenVision's OpenV* HIGH AVAILABILITY OPTION. If
one server goes down, the other server takes over the functions of the failed
server. Both pedigree and image searches from system ImageStations (display
and capture workstations) will go against the database at the Central Data
Server site. Because high-speed 25MB/sec fiber optic connections will be
incorporated between these components, this fully replicated pair of file
servers and storage arrays at the Central Data Server Site will provide fast
access within a fully redundant and secure environment. An optical disk
storage subsystem will be incorporated for image backup and archival purposes.
This substystem is comprised of 2 SONY WDD-600 3.2 GB optical drives, 1 SONY
WDC-610 optical controller, and is managed by a SPARC 5 optical server. In
addition, the Network and System Management is performed from this level.
Communication between workstations and servers will be over existing Novell
Token-Ring LANs and through WAN communication networks to be supplied by the
Department. All workstations and servers will be configured with token-ring
network interface cards that will allow physical connection to the Novell
networks. Communications among the devices will be through peer-to-peer
TCP/IP protocols rather than through the Department's Netware servers.
However, the Department's routers must be configured for TCP/IP use.
The Sun Microsystems SPARCserver 5 and the SPARCserver 20 servers are members
of an upward-compatible family of processors. These servers can accommodate
future expansion by upgrading the CPU with minimal effect on applications
software.
The Central Data Server will be configured to handle up to 175 TO 200
simultaneous users. The file servers at the Central Data Server site will be
initially equipped with sufficient real main memory and enough input/output
capability to support all the software functions and meet all the performance
requirements, as specified in Attachment E. In addition, the server is
capable of future expansion to twice the initially supplied memory and I/O
capacity.
The system will be able to support double the original maximum amount of
storage with appropriate upgrades to file server RAM and disk storage.
The dual SPARCserver 20 file servers will be configured with adequate disk
space for system administration, buffering, and other server operations.
Photo Imaging System: 9
Revision C
<PAGE>
Attachment 1
PHOTO IMAGING SYSTEM
The dual SPARCserver 20 file servers will have their own dedicated system
terminal and keyboard for software maintenance and other administrative tasks.
The dual SPARCserver 20 file servers will have their own laser jet printer
for software database maintenance and will have the ability to print high
quality black & white management reports.
The dual SPARCserver 20 file servers will provide multi-tasking, allowing
workstations to query the database while other workstations are storing
images. This is enabled by utilizing Sun Microsystems Solaris, a true UNIX
multi-tasking operating environment.
The dual SPARCserver 20 file servers will be equipped with a UNISON Series -
On-line - Sine Wave UPS manufactured by Tripp Lite. The model chosen is the
MPS 1200 with backup times of 22 minutes (half load) and 10 minutes (full
load), and a zero transfer time. This UPS provides 4 receptacles.
Because of the independent processing capability of the workstations, a total
system shutdown is unlikely. In addition, equality in functions and
processing power of the capture and display workstations allows them to be
virtually interchangeable. In the event of a system outage, the ForceField
"data shadowing" feature prevents the loss of virtually any data or images.
The system is capable of continued operation in degraded modes. The system
will be provided with power conditioning equipment at each file server such
that outage or fluctuations of commercial power will not significantly disrupt
operation of the system.
2.1.1.2.1 File Server Specifications
The specification for the file server are as follows:
a. MANUFACTURER:
Sun Microsystems, Inc.
b. PROCESSOR -- TYPE, MANUFACTURER, SPEED
(Central Servers) - Superscalar SPARC Version 8
(Optical Archive Server) - SPARC Version 8.70 MHz
c. AMOUNT OF STANDARD MAIN MEMORY; AMOUNT OF MEMORY THAT CAN BE
INCREASED WITHOUT SPECIAL BOARDS
(Central Servers)
128 MB standard main memory, expandable to 2.0 GBytes
(Optical Archive Server)
32 MB standard main memory, expandable to 256 MB
d. AMOUNT OF CACHE
(Central Servers)
1 MB external
(Optical Archive Server)
8 KB data and 16 KB instruction on chip.
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e. CAPACITY OF INTERNAL HARD DISK
(Central Servers) - (1) 1.05 GB disk
(Optical Archive Server) - (1) 1.05 MB disk
f. SIZE AND CAPACITY OF EXTERNAL STORAGE MEDIUM, MANUFACTURER,
ACCESS SPEED
Dual Sun Microsystems SPARCstorage Arrays supporting RAID
5.25MB/sec fiber optical connections between storage
subsystem and servers. Configured with (24) 2.9 GB 5.25"
full height differential SCSI-2 disk drives. These drives
will have an access speed better than 15MS.
g. TYPE AND NUMBER OF AVAILABLE SLOTS
(Central Data Servers & Optical Archive Server)
(3) S BUS expansion slots with 32-bit data bus width.
h. OPERATING SYSTEM
(Central Data Servers & Optical Archive Server)
Sun Solaris, a true UNIX multi-tasking operating environment.
i. NUMBER OF PARALLEL AND SERIAL PORTS
(Central Data Servers)
(2)RS-232C/RS-423 synchronous serial ports.
(Optical Archive Server)
(1) Centronics-compatible parallel port, and
(2) RS-232C/RS-423 synchronous serial ports.
j. MONITOR -- SCREEN SIZE, MANUFACTURER, RESOLUTION
15-inch, Sun Microsystems, 1024x768 resolution, 100 dots per
inch.
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2.2 IMAGE STORAGE
A three year retention capacity before archiving will be provided with the
system. The system will be configured to handle the expected volume of 3.8
million records on-line. The storage total of the Central Data Server is
noted in EXHIBIT 2.2-1. Dual Sun Microsystems SPARCstorage Arrays supporting
RAID level 5 will be incorporated into the Department's system for both
pedigree and image data. 25MB/sec fiber optic connections will be
incorporated between the SPARCstorage Arrays and the SPARCservers, and will
provide fast access within a fully redundant and secure environment. RAID
systems are an intelligently managed collection of disk drives with their
data organized to optimize performance for a particular set of tasks. RAID
systems bring needed relief to environments that have demanding performance
and reliability requirements.
RAID technology was selected for the Department's Photo Imaging System
because no single drive failure will take the system off-line, and other
drives can be used to reconstruct data. RAID 5 provides high transfer
bandwidth since different parts of the desired data are being read from
multiple spindles simultaneously. Random read performance is also very high
since the actuators are not tied together and may operate independently of
one another. Both the parity information and data are interleaved across the
array in a cyclic pattern to improve write performance.
Each SPARCstorage Array 200 configured for the Department will hold (24) 2.9
GB 5.25" full height differential SCSI-2 disk drives for a total of 70 GB.
Additionally, there is room in each cabinet for expansion by 50%, or a total
capacity in each cabinet of 104 GB with (36) 2.9 GB drives. Additional array
cabinets can be added in the future as needed to greatly increase online
capacity.
Some of the main benefits delivered by disk arrays include:
- Higher transfer rates
- Large number of I/O operations per second
- Increased data availability
- Easier management of large amounts of data
- Deferred maintenance when a drive fails
- Improved configuration flexibility
<TABLE>
<CAPTION>
-------------------------------------------------
GB
Capacity
-------------------------------------------------
<S> <C>
Central Data Server Site (RAID 5) 140
-------------------------------------------------
</TABLE>
Exhibit 2.2-1: Image storage configuration for the Central Data Server Site.
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2.3 PHOTO IMAGE SPECIFICATIONS
The ForceField system will include the equipment necessary for capturing,
storing, retrieving, and printing mug shot images using imaging technology.
The equipment requirements following describe each module/component of the
imaging system.
2.3.1 INSTALLATION OF EQUIPMENT
All necessary LAN transceivers and/or network cards necessary to permit the
system to communicate to the LAN will be provided and installed.
Prior to installation, the Seller shall survey the sites and identify
locations for each piece of equipment (or identify special needs) and will
provide a location for each piece of imaging equipment in each facility. This
equipment includes color printers, black and white printers, workstations,
cameras, external storage media, scanners, etc.
A project timeline will be included for delivery, installation, systems
testing, training, and any other major tasks.
All imaging equipment including the camera, lights, remote control equipment,
workstations, server, and software will be installed.
No special furniture is needed to support the imaging system. At the time of
the site survey the Seller will make recommendations for the layout and
configuration of the hardware.
2.3.1.1 POWER/ENVIRONMENTAL REQUIREMENTS
SUN MICROSYSTEMS SPARCSERVER 20 (Central Data Servers)(2)
3.1"H x 16.4" W x 16.1"D 27.0 lbs
100-240 VAC, 47-63 Hz, 0.4K VA
SUN MICROSYSTEMS SPARCSERVER 5 (Optical Archive Server)(1)
3.1"H x 16.4" W x 16.1" D 27.0 lbs
100-240 VAC, 47-63 Hz, 0.4K VA
SPARCSTORAGE ARRAY 200 STORAGE SUBSYSTEM (RAID 5)(2)
8.9"H x 19.5"W x 21.1"D 200.0 lbs
100-240 VAC, 47-63 Hz
SONY WDC-610 OPTICAL CONTROLLER (1)
7.1"H x 14.8"W x 19.4"D 38.6 lbs
90-132 VAC, 50-60 Hz
SONY WDD-600 OPTICAL DRIVE(2)
7.1"H x 14.8"W x 20.5"D 35.0 lbs
90-132 VAC, 50-60 Hz
PENTIUM WORKSTATION
5.7"H x 15.9"W x 16.6"D 21.4 lbs
100-240 VAC, 50-60 Hz
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WORK STATION MONITOR
16.15"H x 15.75"W x 17.5"D 14.5 lbs
100-240 VAC, 50-60 Hz
HITACHI HV-C20 CAMERA (w/o lens) 3.1 lbs
4.1"H x 3.9"W x 6.1"D
12 VDC (10.5-12V) Converter Supplied
TEKTRONICS PHASER 540 COLOR/BLACK & WHITE LASER PRINTER
18.0"H x 27.4"W x 19.5"D 117.0 lbs
87-240 VAC, 50-60 Hz
HEWLETT PACKARD IV LASER PRINTER
11.7"H x 16.4"W x 15.9"D 37.0 lbs
100-240 VAC, 50-60 Hz
- - PHYSICAL ENVIRONMENT. As a general rule if the working conditions are
comfortable for the operators, they will also be suitable for the system
hardware. The area must be free of dust and debris. The following are
general recommendations:
- TEMPERATURE. Operating: 59 DEG. F to 86 DEG. F, Non-operating: -40 DEG.
F to 122 DEG. F
- TEMPERATURE (RATE OF CHANGE). Operating: 51 DEG. C per hour Max
- RELATIVE HUMIDITY. Operating: 20% to 80% (non-condensing)
- HARDWARE UL CERTIFICATION. The equipment installed under this
procurement is fully UL tested and certified.
- ADHERENCE TO FIRE AND ELECTRICAL CODES. Common fire and electrical
codes will be observed and adhered to when installing the system.
- - PREVENTATIVE MAINTENANCE. The primary elements of the ForceField system
will utilize solid-state technology, and require no routine maintenance
to continue functioning effectively. The Department has the
responsibility to maintain equipment in clean condition and manage all
environmental factors. Specific instructions for performing these
responsibilities are provided by the trainers during the system
installation.
- - ENVIRONMENTAL FACTORS. Attention to the following can help ensure that
your system will continue to function without difficulty. The most
important factors in protecting the lifetime of all elements are
environmental factors (temperature, humidity and cleanliness.)
- Keep area around the system free from any materials obstructing air
flow.
- Keep area free from excessive dirt, dust or moisture (within 0-95%
non-condensing).
- Assure and maintain proper A.C. electrical grounding as specified
with prompt corrections of any unspecified condition.
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- Minimize static electric build-up in carpeted areas with use of
properly grounded static mats and/or application of anti-static spray
as frequently as required.
- Provide A.C. outlets and assure that any other electrical devices
such as motors, heating apparatus, fluorescent and/or blinking lights
are not plugged into the same outlet/circuit.
- Printing and scanning devices, which include mechanical parts for
moving the paper or film, will require regular cleaning and care by
the user to ensure satisfactory results.
2.3.2 CAMERAS
Capture workstations at the booking sites will include a high-resolution,
3-Chip RGB Solid State Video Camera, as well as provide the capability to run
the display applications of the ForceField system. Equality in functions and
processing power of the capture and display workstations allows them to be
virtually interchangeable.
- - 3-CHIP RGB SOLID STATE VIDEO CAMERA. For CAL-PHOTO specification systems,
the remote controllable Hitachi HV-C20 will be installed. The HV-C20 is a
3 chip, 700+ line, high quality, RGB camera that has the ability to be
controlled via RS-232 connection. By utilizing the remote control capability,
a workstation can automatically adjust the gain, color balance, pedestal
and iris to pre-defined optimal levels -- ensuring consistency from image to
image. The system will automatically compensate for skin-tone regardless of
clothing color.
- - REMOTE CONTROL PAN & TILT. The camera will be securely mounted on a wall
or ceiling at a height that will provide limited access to inmates. The
camera will be equipped with the Vicon Model V3000 APT remote pan & tilt
mechanism. This wall mounted device can be controlled by a control stick
located at the workstation. The camera and lens configuration will ensure
consistent capture of short and tall subjects.
- - AUTOMATIC REMOTE ZOOM. When capturing scars, marks, or tatoos, and
stand-up photos, this subsystem will allow the user to change the camera
focus and aperture settings (zoom in or out) via the operator keyboard.
After capturing the desired image, the operator can return the camera focus
and aperture settings to the previously calibrated default setting via the
operator keyboard.
- - THREE-POINT LIGHTING. Three-point lighting with 3200-degree Kelvin bulbs
and a photo-gray backdrop ensure that an optimal 18% gray background are
provided at each capture site. In addition, a reflective pedestal that
eliminates undesirable shadowing from beneath the subject's chin is also
included at each capture location.
- - OTHER INPUT DEVICES. The Hitachi HV-C20 RGB camera will be attached to a
copy stand for the input of existing positive or negative images, including
identifiable photos, fingerprint cards, or other related documents.
- - FREEZE FRAME CAMERAS. Still video technology will be incorporated at the
Intelligence Division and the Missing Persons Unit. These capture sites will
be handled by the Canon RC-570 still video camera. The RC-570 offers
450-line horizontal TV-lines of resolution in the Hi-Band mode. Automatic
point, shoot, and play features ensure ease of operation. These digital
"snap shots" will be taken and saved on a
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removable 2-inch floppy disk. Each disk has the capacity of 50 images.
Images can be directly input from the RC-570 through a provided VID I/O
subsystem. Images can also be recorded, played back, or erased directly on
the RC-570. No other equipment is necessary. Once transferred, the images
will be instantly available at all stations on the network. A wireless
remote is included.
- - CAL-PHOTO The camera specified will meet or exceed the CAL-PHOTO standard
requirement. The following information provides a more technical discussion
as to how video cameras are rated.
Unlike text and numerical data that can be entered and then updated at
will, images must be acquired properly the first time. Recognizing this,
the California Law Enforcement's Electronic Photographic Imaging System
Standard (CAL-PHOTO) was created not only to define a format that would aid
in the inter-agency exchange of images, but would also establish the
minimum acceptable level of image quality. While most RFQ specifications
call for compliance with CAL-PHOTO, many vendors are proposing camera and
lighting systems that neither meet the spirit nor the letter of the
standard.
CAL-PHOTO requires, that regardless of all other specifications, the
resultant captured image must be "...[subjectively] comparable in quality
to a Polaroid image." In addition the camera itself must be a "solid state,
CCD-RGB camera with a minimum 500 line resolution." This means that 1) the
overall quality of the camera, lighting, and image processing systems must
be able to produce an image that is visually comparable in quality
(resolution, color fidelity, etc.) to a Polaroid photograph; and 2) that
the camera have, at a minimum, an RGB resolution of 500 lines.
Given the current state of technology, these specifications will require
that the camera be a broadcast quality, 3 CCD camera, whose RGB resolution
is greater than 500 lines. However most camera manufacturers do not quote
an RGB resolution in their specification sheets, rather they quote the
Y-channel (or luminance signal) resolution. Because of the spatial
offsetting of the CCD elements, the Y-channel resolution will always be
higher than the camera's RGB resolution. As an example, consider the
Hitachi HV-C20. Its Y-channel resolution is specified as 700 lines. The
HV-C20 and combined lighting subsystem exceed all elements of the CAL-PHOTO
standard.
2.3.3 COLOR PRINTER
The Tektronics Phaser 540 color laser printer will meet all of the printing
needs for the Department at 12 sites (2 each at 4 Borough Warrant Squads, 2
each at the Central Warrant Unit, 1 each at the Joint Fugitive Task Force,
and 1 for the Police Commissioner) for both color and black & white. This
printer offers excellent durability (up to 15,000 pages per month per
printer) and as can be seen from EXHIBIT 2.3.3-1, also meets the
requirements.
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<TABLE>
<CAPTION>
----------------------------------------------------------------
ITEM COLOR B & W
----------------------------------------------------------------
<S> <C> <C>
Cost Per Page (including all consumables) S.20-.35 S.05 - .15
----------------------------------------------------------------
Print Quality (simultaneous colors) Continuous 60
Tone
----------------------------------------------------------------
Resolution 300 x 300 600 x 600
----------------------------------------------------------------
Throughput 2 -4 PPM 12 - 14 PPM
----------------------------------------------------------------
</TABLE>
EXHIBIT 2.3.3-1: Comparison matrix for Tektronics Phaser 540 color laser
printer in color and black & white modes.
In addition, 10 sites (1 each at the Photo Unit, Missing Persons Unit,
Intelligence Bureau, and 7 at the Detective Bureau) will utilize the
Mitsubishi CP50U dye diffusion thermal printer. The Mitsubishi CP50 provides
a sharp Postscript images with a print resolution of 800x480.
The ForceField system has been designed to support both local printing (with
the printer directly attached to the local workstation) and remote (network)
printing (with the printer attached to some other workstation). For network
printing the output can be directed to a workstation which is either at the
same physical location (via the local network) or it can be directed to a
workstation that is remote (via the wide area network). In this manner many
users can share a single printer. In addition this means that a workstation
remains fully functional even when its local printer is "down". The user
would simply direct the output to any other workstation that has a
functioning printer.
The ForceField product supports a variety of printers from small format
dye-sublimation type printers like the Mitsubishi CP50U to very large laser
printers like the Cannon CLC350 and 550.
As part of the on-site training, all of the steps necessary for adding paper
and replacing toner cartridges will be demonstrated.
2.3.4 BLACK & WHITE PRINTER
The DEClaser 5100 printer will be used for black & white printing. The
DEClaser 5100 has a B&W resolution of 600 x 600 dpi and is rated at 12-14 PPM.
The DEC 5100 is completely HPLJ4 compatible.
The DEClaser 5100 offers a standard 300 x 300 resolution and an optional
600 x 600 and 1200 x 1200 resolution. The DEClaser 5100 configuration for
this contract supports the 600 x 600 resolution.
The DEClaser 5100 is easy to use and maintain.
2.3.5 DISK/OPTICAL STORAGE
2.3.5.1 OPTICAL DISK
An optical disk storage subsystem will be incorporated for backup and
archival purposes. This subsystem is comprised of 2 SONY WDD-600 3.2 GB
optical drives, 1 SONY WDC-610 optical controller, and is managed by a SPARC 5
optical server.
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12" optical platters have a storage capacity in excess of 3 GB per side.
Assuming 25,000 bytes per image, one side of a platter can store over 100,000
images. With a projected media life of more than 100 years, these Write Once
Read Many (WORM) devices are particularly well suited for an archival
application such as a mugshot system. Additionally, the backup and
restoration times are measured in minutes and not hours.
Programs, Indexes, Description Data Files, System Administration Data Files,
and History File Archiving backups will be handled by a 5.0 GB 8mm device
located at the Central Data Server site. Image files will be handled by large
format Sony WORM (Write Once, Read Many) opticals. These 12-inch optical
platters have a total storage capacity in excess of 6.0 GBytes. Again
assuming about 25,000 bytes per image, one side of a platter can store about
100,000 images.
The system has built-in features for monitoring, measuring, and reporting on
its own performance. These areas would include throughput, workloads,
capacity, utilization, and processing delays. The system monitoring software
allows the System Administrators to monitor system utilization and
performance information through the use of the System Administrator's
console. In the event that additional storage is required, a fail-safe
contingency will allow for continued capture of photo images while additional
storage is being allocated/installed.
2.3.5.2 HIGH-CAPACITY MAGNETIC STORAGE. (CENTRAL DATA SERVER)
A description of the high-capacity magnetic storage devices for on-line
storage of both pedigree and image data is provided in Section 2.2.
2.3.5.3 HIGH-CAPACITY 8MM TAPE BACKUP. (CENTRAL DATA SERVER)
Two 5.0 GB 8mm SCSI devices will provide backup cability for pedigree data
and system software at the Central Data Server Site.
2.3.5.4 WORM OPTICAL DISK ARCHIVE. (CENTRAL DATA SERVER)
An optical disk storage subsystem will be incorporated for backup and
archival purposes. This subsystem is comprised of 2 SONY WDD-600 3.2 GB
optical drives, 1 SONY WDC-610 optical controller, and is managed by a SPARC
5 optical server (see Section 2.3.5.1 for additional details).
2.3.6 BACKUP AND RECOVERY/CONTINGENCY
The Central Data Server site will support RAID copy of all images and
pedigree data, and the optical disk storage subsystem for backup and archival
purposes. Programs, Indexes, Description Data Files, System Administration
Data Files, and History File Archiving backups will be handled by a 5.0 GB
8mm device located at the Central Data Server site. Image files will be
handled by large format WORM (Write Once, Read Many) opticals. These 12-inch
optical platters have a total storage capacity in excess of 6.0 GBytes. Again
assuming about 25,000 bytes per image, one side of a platter can store about
100,000 images.
We suggest a daily backup to tape of the demographic databases, as well as a
backup to optical of the image files. In addition, we suggest maintaining a
minimum of 3 generations
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of backups to off-site locales. An image backup of 1,000 images will take
less than 5 minutes.
Data can be restored directly from the most current set of optical disk
archives at the Central Site, obviating any need to transfer data online.
The system will remain fully available to all functions while backups are
run. The client server configuration ensures that little or no degradation
should be perceived by the workstations on the system while backups are run
at the Central Subsystem.
When a data restoration process is completed, utilities may be run to
"re-index" and verify the integrity of the system. The system is equipped
with a set of utilities that will be run after a restoration has taken place
to ensure the integrity of the data sync.
2.3.7 CAPTURE/DISPLAY STATION
The Seller will apply advanced techniques, based on the JPEG (Joint
Photography Experts Group) compression standards, to reduce the image storage
and transmission needs. Compression ratios of 10:1 to 15:1 ensure the image
can be reconstructed with no degradation visible to the human eye. It is our
intent to be remain compliant with the ANSI X3L2.8 compression standards.
Given the size of the CAL-PHOTO mug images of 400,000 bytes uncompressed, a
compression ratio of 15:1 may be used to yield a compressed image size of
25,000 bytes.
The ForceField system captures CAL-PHOTO specification mug images of 400,000
bytes uncompressed. Because of the considerable size of these images, they
undergo a CAL-PHOTO compliant JPEG compression and yield a standard
compressed image size of 25,000 bytes. When multiplying 25,000 bytes times
the number of images that could match search criteria during the creation of
a lineup (or when issuing a search with few criteria), the possibility of
significant transmission load over the network between the central file
server and the requesting workstation is great.
To improve response time, the Seller will implement the "Postage Stamp"
approach. This approach will transfer a smaller image (postage stamp) to the
workstation for viewing under witness mode or photo lineup creation. This
creation of a 5K image file effectively reduces image transfer time by a
factor of 5, or 80%. To maintain the highest print quality the ForceField
system will utilize the full-sized stored image at the time of printing. This
sophisticated approach allows the system to send the remaining 4/5 of the
image only when needed, i.e., printing. This will reduce the amount of
network traffic between the ImageBank Central Server and the ImageStation.
The ForceField system will display images in full color with SVGA resolution
on a non-interlaced 15-inch monitor.
The ForceField system will utilize a single display monitor as a view finder
for image capture and as the text and image display device.
The ForceField system incorporates broadcast quality lenses which by nature
do not incorporate automatic focus. Focus is calibrated for optimal sharpness
at the time of installation. The camera has automatic iris control for the
adjustment of brightness and contrast. Optionally, the system does make
provision for the manual adjustment of zoom and focus from the keyboard
though an available remote control subsystem. This feature is
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PHOTO IMAGING SYSTEM
used to enable the operator to capture scar, mark, or tattoo information from
a seated position at the capture terminal.
The Hitachi HV-C20 has automatic iris control for the adjustment of
brightness and contrast.
The ForceField system has a menu driven function to import and export images
in TIFF and other formats to facilitate the use by commercial graphics
packages.
Compression/decompression requirements are:
a. The system will support a resolution of 1024 x 768 x 16-bit
resolution.
b. The system is compatible with the ANSI X3L2.8 standard.
c. Compression utilizing the JPEG standard in less than 10 seconds
from image capture to image storage (across a LAN)
The workstation will provide multi-tasking capability, allowing workstations
to query the database while other workstations are storing images. This is
enabled by SCO UNIX, a true UNIX multi-tasking operating environment.
Surge protection will be supplied at all workstations. We use the Current
Technology PLUS 15 series of protection. The PLUS 15 is rated at 15 Amps,
50/60Hz Frequency, and has an operating voltage of 120 VAC.
2.3.7.1 CAPTURE/DISPLAY WORKSTATION SPECIFICATIONS
The specifications for the Capture/Display Workstation are provided below:
a. International Business Machines, Inc.
b. Pentium/75MHz processor manufactured by Intel Corporation.
c. 12 MB standard main memory, expandable to 64MB. The workstations
will be configured with 16 MB.
d. 8 KB internal cache standard.
e. Internal 400 MB IDE hard drive.
f. External storage devices are provided via the Central Server
Subsystem (see Sections 2.3.5.3 and 2.3.5.4).
g. 5 AT expansion slots (including one 32-bit VESA Local Bus), and
5 bays.
h. SCO Open Desktop 3.0, a true UNIX multi-tasking operating system.
i. Configured with 1 parallel port and 2 serial (1 DMA serial) ports.
j. The ForceField system will utilize the Targa+ board for the
digitization process. This board is manufactured by Truevision,
Inc. The
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PHOTO IMAGING SYSTEM
TARGA+ represents an enhancement of the industry standard Targa
Series and provides over 32,000 colors at 16-bit resolution.
k. The ForceField system utilizes software compression that adheres
to the JPEG standard. The ForceField compression algorithm fully
complies with CAL-PHOTO specifications and enables the user to
define the compression ratio.
l. 15-inch diagonal SVGA monitor, manufactured by Sony Corporation.
This monitor has a resolution of 1024 x 768 x 16 with a .28 dot
pitch. The monitor will utilize a display card equipped with the
workstation.
2.3.8 DISPLAY-ONLY STATION
The SVGA display monitor supports a non-interlaced resolution of 1024 x 768 x
16.
Equality in functions and processing power of the display-only workstation
between the capture/display workstation allow them to be virtually
interchangeable. The primary difference is in the absence of the digitizer
board.
2.3.8.1 DISPLAY-ONLY STATION SPECIFICATIONS:
The specifications for the Display-Only Workstation are provided below:
a. International Business Machines, Inc.
b. Pentium/75 MHz processor manufactured by Intel Corporation.
c. 12 MB standard main memory, expandable to 64MB. The workstations
will be configured with 16 MB.
d. 8 KB internal cache standard.
e. Internal 400 MB IDE hard drive.
f. External storage devices are provided via the Central Server
Subsystem (see Sections 2.3.5.3 and 2.3.5.4).
g. 5 AT expansion slots (including one 32-bit VESA Local Bus), and
5 bays.
h. SCO Open Desktop 3.0, a true UNIX multi-tasking operating system.
i. Configured with 1 parallel port and 2 serial (1 DMA serial) ports.
j. The ForceField system utilizes software compression that adheres
to the JPEG standard. The ForceField compression algorithm fully
complies with CAL-PHOTO specifications and enables the user to
define the compression ratio.
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PHOTO IMAGING SYSTEM
k. 15-inch diagonal SVGA monitor, manufactured by SONY Corporation.
This monitor has a resolution of 1024 x 768 x 16 with a .28 dot
pitch. The monitor will utilize a display card equipped with the
workstation.
2.3.9 SCANNING REQUIREMENTS
The system will include the equipment necessary for capturing images from
existing color or black and white photos and negatives.
Image scanning for positive and negative images will be handled by a high
resolution 3-chip video camera mounted on a copy stand equipped with special
lighting for the capture of negative and positive photographic images.
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2.4 MUGSHOT/LINE-UP PHOTO ARRAY
2.4.1 PHOTO CAPTURE
Listed below are the required common database elements used for the search
criteria (pedigree information) which serves as the linkage between the Photo
Image database and the mainframe On-Line Booking System (OLBS).
a. NYCPD Arrest Number (Unique Index)
b. Defendant NYSID (New York State identifying number)
c. Defendant original NYSID number
d. Date and time booked
e. Capture facility (system provided)
f. Date and time photo taken (system provided)
g. Image number (system provided)
h. Number of distinguishing images stored (system provided) (limit 20)
i. Arresting Officer ID (tax number)
j. Defendant name (last, first, middle initial)
k. Defendant AKA (up to 6 alias)
l. Defendant date of birth
m. Defendant place of birth
n. Defendant race code
o. Defendant sex code
p. Defendant height
q. Defendant weight
r. Defendant eye color
s. Defendant eyes
t. Defendant hair color
u. Defendant hair dyed
v. Defendant hair length
w. Defendant hair type
x. Defendant part bald
y. Defendant wig
z. Defendant sideburns
aa. Defendant mustache
ab. Defendant beard
ac. Defendant skin complexion
ad. Defendant skin tone
ae. Defendant facial structure
af. Defendant pimpled
ag. Defendant pockmarked
ah. Defendant ruddy
ai. Defendant teeth
aj. Defendant ears
ak. Defendant freckled
al. Defendant glasses
am. Defendant hearing aid
an. Defendant lefty
ao. Defendant limb gone
ap. Defendant limp
aq. Defendant mark location 1
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ar. Defendant mark location 2
as. Defendant mark type 1
at. Defendant mark type 2
au. Flag to indicate existence of marks, scars or tattoos
av. Defendant masked
aw. Defendant nose
ax. Defendant physical condition
ay. Defendant physical description (up to 12 codes)
az. Defendant posture
ba. Defendant speech
bb. Defendant drug tracks
bc. Defendant drug used
bd. Defendant team member
be. Juvenile gang name
bf. Juvenile school
bg. Weapon used code
bh. Defendant firearm type
bi. Crime method (M.O. code)
bj. Criminal event type
bk. Defendant residence precinct
bl. Defendant home phone
bm. Defendant occupation
bn. Charges (up to 6)
bo. Arresting Precinct
bp. Repeat offender status
bq. Accent
br. Deformed arm/hand
bs. Deformed ears
bt. Deformed eyes
bu. Deformed nose
bv. Deformed teeth
bw. Deformity description
bx. Muscular
by. Eyebrows
bz. Odor
ca. Line-up Photographable Offense Flag (this flag will be set based
upon a table lookup of current photographable offenses as determined by
local, state and federal penal codes)
The System Administrators will not have the ability to create additional data
elements. Typically changes such as these can be quickly handled by our 24
hour/7 day week support center. This will ensure future compatibility with
upgrades provided to our software.
The system will exchange data with OLBS as described in Section 2.1.1 and
will provide the ability to send images to OLBS upon request.
The ForceField system will provide the capability to display photo and
optionally to display identification information side by side on the screen
together with text concerning the subject and the inquiry.
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2.4.2 MUG SHOT/SUBJECT IDENTIFICATION
2.4.2.1 RELATIONAL DATABASE FEATURES
The ForceField system utilizes SYBASE-TM-, the leading relational database
management system that effectively addresses the demanding requirements of
distributed, on-line applications such as the Department's Photo Imaging
System. SYBASE-TM- handles on-line applications with its advanced
Client/Server Architecture. With this architecture, data management and
transactions functions can be performed independently from client
applications and user interfaces. The result is a dramatic gain in
application development productivity and applications reliability. SYBASE-TM-
clients and servers can be deployed on the different machines, communicating
transparently across a network of workstations. ForceField utilizes SYBASE-TM-
SQL Server that handles all data management and transaction functions,
independent of client applications and user interface functions.
The system software is able to perform searches by booking number and
specified descriptive data. The system has the ability to page forward or
backward through the file from the match starting point. The active
information regarding a particular image can be viewed instantly on the same
screen.
The ForceField system will randomly place the suspect in the development of a
photo line-up. The system will provide for automatic random reordering of the
photos after final selection. Reordering of photos will be prohibited once
the line-up is stored. We can provide the ability to control the placement of
the suspect, however we have found that our randomized placement is a more
accepted approach.
New algorithms within the ForceField system will eliminate many of the
duplications experienced in previous line-up sessions. Only one person from a
particular ID number, or Master Key will be allowed to show during any given
photo line-up session. This will reduce the possibility of a different
appearance of the same person when constructing a photo line-up. Last
Name/DOB Match provides that an image with the same last name and same date
of birth as the suspect will be excluded from the photo line-up session. This
will reduce the possibility of a different appearance of the same person when
constructing a photo line-up.
A feature unique to the system known as Soundex is helpful in retrieving
names that sound alike. For example, the last name Cane can be spelled one of
three ways; Cane, Kane, or Caine. In this case the system has built-in
algorithms which search for similar sounding names. The Soundex character is
"S" and can be placed anywhere in the string of a name field.
In addition, a Wild Card search can be accomplished using any text field such
as the Name field, Case #, or Jacket/Folder. This feature is of value when
the operator has an inaccurate or partial spelling of a person's name or an
incomplete case number. For example, you have the last three digits of a
6-digit long Case number. You would activate the Wild Card search by entering
the "%" key and the numbers 123 in the Case # field. This will retrieve all
records with case numbers ending in 123.
The following features are provided by the ForceField system.
a. Full Boolean queries (AND/OR) on all fields
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b. Wild-card searches
c. No sealed or non-photographable offense records will be displayed
d. Display number of matches (to further sub-define)
e. Order matches by number of criteria matched
f. Upon option, eliminate and insert 1 to 6 images at a time from a
set of selected images into the display array
g. Upon option, scroll backward and forward among selected images
h. Upon option, scroll through all images on file for a suspect
i. Upon option, select a specific image from the displayed images and
the system will display that image and the appropriate attribute data
j. Upon option, insertion of voluntary defendant photos into the array
Upon option, the ForceField system will print black and white or color print
of suspect (if not sealed), and print frontal image or frontal and profile
image or distinguishing photo images. The system will identify the requester
of these printed photos for use in the sealing process.
2.4.3 PHOTO LINE-UP
The ForceField system line-up application will return all images and
identifying data of persons whose description matches another person already
entered into the system. The system will allow the user to save, suspend for
later review or disqualify/delete a photo from the line-up list. The final
version of a line-up will be saved for later retrieval. The system will allow
a user to print a line-up with or without associated identifying data. The
system randomly places the suspect in the development of a photo line-up. The
system will provide for automatic random reordering of the photos after final
selection. Reordering of photos will be prohibited once the line-up is
stored. We can provide the ability to control the placement of the suspect,
however we have found that our randomized placement is a more accepted
approach.
The ForceField system will display 6 images at a time when in Photo line-up
mode.
Display suspects in random sequence or in a sequence as defined by the user
allowing suspects to be added or removed from the line-up.
Upon option, capture line-up array for the case history while recording the
photo #s and position # in the case history.
Upon option, display identifying information on a suspect.
Does not allow altering of image.
Under security, print 8.5 x 11 black and white/color copy of the line-up
array and print a 4 x 5 color print of each selected individual displayed in
the finalized line-up array.
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Upon option, under security, print 2 x 2.5 color prints of each suspect
chosen for the photo line-up array.
Simultaneous display of images and text on a single screen.
Allow for sealing designation and by-pass of sealed photos.
2.4.4 WARRANT DOCUMENT PRINTING
The ForceField system will print 8 1/2 x 11 black and white warrants of
wanted suspects including black and white/color photo image and selected
alphanumeric data. The ability to print pre-defined output formats with and
without a photo will be provided.
The ForceField system will print a 4 x 5 color print of suspect with image
and selected data; upon print 4 x 5 color print with images only (e.g., no
alphanumeric data).
The system optionally has the ability to produce movement identification
utilizing bar codes within prisoner wrist bracelets or ID-cards.
The ForceField system has a menu driven function to import and export images
in TIFF and other formats to facilitate the use by commercial graphics
packages.
2.4.5 USER-DEFINED AUDITING REPORTS
The system will be installed with a set of standard management reports,
indicating usage and access to the system. Further, an advanced 4GL report
writer is part of the system, allowing the Department to modify and develop
new management report formats. The report generator has the ability to store
the ad-hoc search criteria as objects for future re-use.
The ForceField system will automatically record every significant system
transaction and event in a log file on disk and retain on-line for a minimum
of 60 days. The transaction to be recorded will include all system start-ups,
authorization file changes, sign-ons and sign-offs, and images taken. Each
history record will include the date and time of the transaction and the
operator, unit, officer, and event identification as applicable. The
following details our approach:
The Management/Statistical Reporting System consists of four reports allowing
an agency to track ForceField usage and utilization, one transaction file to
audit usage of users and equipment, and an Ad-Hoc Reporting Function. These
reports are designed to help manage the completeness of booking records. Only
active (not sealed) records will be reported from.
- - DAILY RECAP REPORT. The Daily Recap Report provides basic Booking and
Folder Information within a selected date range. The Daily Recap report
will indicate, with Master/Booking Key, the last names of individuals
booked through the ForceField system. Person names are also displayed.
- - FOLDER/BOOKING: WITHOUT IMAGE REPORT. The Folder/Booking: Without Image
Report displays records with appearances that are missing an image. This
report will generate a list of Master/Booking keys, with booking
incidents.
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- FOLDER/BOOKING: MISSING APPEARANCE INFORMATION REPORT. The
Folder/Booking: Missing Appearance Information Report displays records
in Booking where selected appearance fields are missing within a
selected date range. This report will generate a list of Master/Booking
keys missing partial (or all) appearance information. The user selects
which appearance data to check the absence of, and is given the option
to select the missing appearance data with the operational operators
and/or.
- MONTHLY RECAP REPORT. The Monthly Recap Report counts the number of
Folder, Booking And Images within a selected date range.
- AUDIT TRANSACTION FILE. The Audit Transaction File creates a file
containing a file containing system access, date of transaction, user
performing transaction and the type of transaction that was performed for
a select date range.
- AD HOC REPORTING FUNCTION. The Ad Hoc Reporting Function will enable
trained personnel to create specialized reports using ForceField data
elements.
The following fields will be available for ad hoc reports:
- Number of mug shots taken by a Booking site for a specified period of
time.
- Number of lineups by Precinct/Command for a specified period of time.
- Number of photos printed by Precinct/Command for a specified period of
time (black and white/color).
- Number of local misdemeanor or felony warrants printed by a Precinct
or Borough Warrant Squad for a specified period of time (black and
white/color).
- Number of queries and prints by special investigative units for a
specified period of time.
- Audit list of police officers or other authorized outside agencies
showing the ID of requester, NYSID # of the mug shot, number of photos
printed, command (agency), case #, arrest # and date printed over a
specified period of time.
- System administration audit by location, terminal, ID and password for:
a. List of users, passwords, security level access privileges
b. List of attempts for possible breaches of security
2.4.6 SECURITY
The file servers will be located in a secure area, physically distant from
the workstations. This significantly reduces the risk of malicious
destruction of hardware and data. Comprehensive software security features
are built into ForceField system, and include password protected log-ons,
session records, and multiple levels of database access.
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The ForceField system also has a complete authorization and control subsystem
that enables the System Administrators to restrict a user to only specific
functions. In addition user-ID's can be created with pre-defined expiration
dates so that no explicit action needs to be taken to deactivate user access.
Security is also provided on a database by database basis. That is, a person
granted privileges in one database, is not automatically granted the same
privileges in another database. Futhermore, the software is designed to
prevent accidental or unauthorized destruction of records, by asking for
passwords and confirmation before information is deleted. User authorization
is on a function by function basis, and the System Administrators are
provided utilities to manage user log-ons, password, and function
authorization.
The system requires each operator to "sign on" to the system prior to the
operation of any function of the system. An operator's identity and
authorization code must be verified before he/she can begin a work session.
This process is called CONNECTION and is performed by using the CONNECT
command on the system menu. An operator must have a pre-assigned user name
and password before they can CONNECT. When the session is completed, the
DISCONNECT command is used. In addition, the system will automatically
DISCONNECT a user after a specified inactive time period. The sign-on controls
access to critical system functions, defines the functions to be performed by
each workstation and operator, and provides for "tagging" each transaction in
the history file with the identification of the operator who performed the
transaction.
Access control is implemented on both a machine, operator, and database
basis. An operator control table will list all authorized operators and the
specific functions each individual operator is authorized to perform. The
system will permit an operator at a workstation to perform only those
functions for which both the operator and the workstation are authorized.
Only the System Administrators or supervisory personnel will be able to
access and update the control tables themselves.
The ForceField system will automatically record every significant system
transaction and event in a log file on disk and retain on-line for a minimum
of 60 days. The transactions to be recorded will include all system
start-ups, authorization file changes, sign-ons and sign-offs, and images
taken. Each history record will include the date and time of the transaction
and the operator, unit, officer, and event identification as applicable.
The system will use ID-codes and passwords to restrict access to the
individual for display, update, and image capture (including outside
agencies).
The system can have the capability to allow a user to change his/her
password. For utmost security we suggest that only the System Administrators
or supervisory personnel have the ability to access and update the control
tables.
The system will not permit on-line changes to the NYCPD arrest number.
The system will allow records to be electronically sealed or unsealed only by
the System Administrators manually or via a secured programmatic feed.
Once the record has been sealed, only the System Administrator will have the
capability to retrieve the image(s) associated with that record regardless of
the media type.
The system will allow the System Administrators to make administrative
changes from any imaging workstation.
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The system will allow only the Department to control the authorization of
specific personnel via security to view/print, add, change, delete or capture
images and data. Outside agencies can only view photos and data.
As the system has been developed to span a wide geographic area, remote
diagnostic capability of the hardware and software of all components of the
system is standard. The System Administrators are provided the necessary
utilities to monitor and in some cases reconfigure workstations from the
server system console. The remote diagnostic capability is used by the our
technical support personnel in diagnosing problems, as well as in upgrading
software releases and installing new features. To prevent unauthorized remote
access, modem password protection, call back features and port password
protection are all available as part of the system.
2.4.7 ARCHIVING/PURGING IMAGES
The system will purge and transfer onto tape or other storage media archived
photos based upon different historical parameters (not yet defined) and as
defined by the Department's present sealing process.
The system will maintain physical index of records purged and method for
reinstating these items along with appropriate audit trails.
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2.5 INTELLIGENCE SUBSYSTEM
The Intelligence Subsystem is designed to be used by the Intelligence
Division for the tracking and identification of known gang members and
organized crime figures. The Intelligence Subsystem will be capable of
additionally retrieving centrally stored electronic mug shot images and
storing them on a separate database with protected access. The Intelligence
Subsystem will provide the ability to extract electronic photo images by
known search criteria and create photo lineups from the resultant searches.
The Intelligence Subsystem Requirements document provides a more detailed
functional description of the Intelligence Subsystem.
The following equipment will be supplied as part of the Intelligence
Subsystem:
Two (2) video/freeze-frame capture stations (cameras): Canon RC-570
Still Video Cameras as described in Section 2.3.2.
Two (2) scanning devices: Hitachi HV-C20 3-chip cameras mounted on a
Kaiser copy stand described in Section 2.3.9.
Two (2) capture workstations as described in Section 2.3.7.
Two (2) display workstations as described in Section 2.3.8.
Two (2) color printers as described in Section 2.3.3.
One (1) LAN connection as denoted in Section 2.1.
2.5.1 PHOTOS
The system will have the ability to retrieve existing photos from the
digitized photo image database into the Intelligence subsystem and subsystem
database.
The system will have the ability to scan existing older Mug Shots and
surveillance photos into the database subsystem (see Section 2.3.9).
The system will use a freeze frame video camera to capture photos (see
Section 2.3.2).
Images stored in the ForceField system can be imported into other commercially
available graphics packages for the purposes of photo enhancement. (e.g.,.
Adobe Photoshop-TM- or Aldus Photostyler-TM-).
The system will allow searches by:
LAST NAME (phonetic or partial)
TENTATIVE LAST NAME
SEVERAL LAST NAMES
CASE NUMBER
PEDIGREE
DETAILS for Key Phrases
INVESTIGATOR
GANG AFFILIATIONS
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MODUS OPERANDI
CLOSED CASES by Last Name, Case #, Pedigree
AD-HOC
The System Administrators will not have the ability to create additional data
elements. Typically changes such as these can be quickly handled by our 24
hour/7 day week support center. This will ensure future compatibility with
upgrades provided to our software.
2.5.2 REPORTS
The system will be installed with a set of standard management reports
indicating usage and access to the system. Further, an advanced 4GL report
writer is part of the system, allowing the Department to modify and develop
new management report formats. The report generator has the ability to store
the ad-hoc search criteria as objects for future reuse.
2.5.3 SEALING/SECURITY
A sealing function is part of the system. In the sealing function, the text
records and images are selectively marked for pointer deletion, preventing
access to the information or image. If a record is to be purged (which is
different than sealing), text information is deleted and all pointers removed
to prevent access to the information or image.
2.5.4 SCANNING OF PHOTOS/NEGATIVES
To eliminate possible conflict of duplicate photo numbers between systems,
scanned photos/negatives will have a unique identifier capable of interacting
with the photo number in the digitized photo image database (incorporating
sealing procedures) and the scanned photo.
Requester information from the UF90 photo request form will be maintained
both for photo images scanned from existing photos and those created with the
photo image capture hardware. This will enable the routing of the digitized
photo to the requester and with be later used for the tracking of scanned
photos for sealing requirements.
2.5.5 SURVEILLANCE PHOTOS
The scanning subsystem is be able to scan photos and negatives that are
extremely old and of poor quality. The scanning subsystem will be equipped
with a remote control unit (RCU) which will allow the operator to adjust
white balance, gain and iris while the scan is taking place (see SECTION
2.3.9).
To eliminate possible conflict of duplicate photo numbers between systems,
scanned photos/negatives will have a unique identifier capable of interacting
with the photo number in the digitized photo image database (incorporating
sealing procedures) and the scanned photo.
2.5.6 CASE PORTFOLIO
Each case will be allowed a unique Case Number that will be assigned by the
Investigator. If a case is closed/archived the case number will not to be
reassigned.
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The system will allow for overlapping investigations involving Organized
Crime, Narcotics, Weapons and Terrorists etceteras, within the Intelligence
Unit.
The case portfolio concept will be portable to other Detective Units and
capable of being adapted to each units specialization.
Access control is implemented on both a machine, operator, and database
basis. An operator control table will list all authorized operators and the
specific functions each individual operator is authorized to perform. The
system will permit an operator at a workstation to perform only those
functions for which both the operator and the workstation are authorized.
Only the System Administrators or supervisory personnel will be able to
access and update the control tables themselves.
2.5.7 FUTURE CONSIDERATIONS
The system will provide automatic alert of gang association changes based
upon arrest information (OLBS) in gang affiliations. These hooks will be
available for future programming.
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Intelligence Subsystem
1. INTRODUCTION
The Intelligence Subsystem of the Photo Imaging System will be a COTS-based
package which supports the retention of electronic photographs/images and
reference data associated with intelligence information which can include
general intelligence, gangs, organized crime, threats, and other intelligence
sources. The Intelligence Subsystem is based on the COTS Photo Imaging
System, ForceField, which runs in a Unix environment.
The Intelligence Subsystem will support the maintenance of the
photographs/images and associated reference data and will provide ad-hoc
search capabilities against the reference data. The Intelligence Subsystem
will not replace current intelligence systems maintained by the Gang Unit,
Organized Crime Unit, or Threat Unit. Instead the Intelligence Subsystem will
act as a "catalogue" of all intelligence information and will retain the
photographs associated with the intelligence information. The different
intelligence units will provide the reference information along with the
photographs to the unit which maintains the Intelligence Subsystem. That unit
will be responsible for scanning the photographs into the system, analyzing
the reference information, and entering that reference information into the
Intelligence Subsystem. The Intelligence Subsystem will interface with the
Photo Imaging System to obtain existing arrest photographs.
The Seller's approach to developing the detailed specifications for the
Intelligence Subsystem will consist of working with the Department's
personnel to further define the following:
- the Concept of Operations and procedures necessary to make optimum
use of the new Intelligence Subsystem.
- the security constraints associated with the intelligence data and
the method for ensuring that these security constraints are met
- database fields associated with the reference data
- the data validation rules for each of the database fields
- the required user screens for adding, modifying, and deleting
photographs/images and associated reference data, and for initiating
ad-hoc searches
- the query response formats and print formats
The detailed specifications will be developed during the customization
definition phase, documented in the Intelligence Subsystem Customization
Specifications Document, and reviewed during the Customization Specifications
Review. Before starting the customization definition phase, the Seller will
check with the Buyer for any new system direction, asses the impact, and
provide the Buyer with any assessment of the change.
1.1 BACKGROUND
The current operating NYCPD organization and procedures has separated
intelligence gathering into multiple units: General Intelligence, Gangs,
Organized Crime, Threats, Narcotics, and others. Each of these organizational
units are responsible for analyzing and maintaining their intelligence
information. Each organizational unit has their own automated stand-alone
system for analyzing and maintaining the intelligence information related to
their area and there is no automated correlation/interface between the data
maintained by the different organizational units. For example, general
intelligence may have documents referencing an organized crime figure in
their database, while the Organized Crime Unit may have other information
about that same individual, and the
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Threat Unit could also have information about that same individual. Law
Enforcement personnel currently must talk to all intelligence units to obtain
all information about the person of interest. In addition, not all of the
systems correlate people, places, and things (vehicles) to their intelligence
information. Having the intelligence information separated into stand-alone
systems makes it difficult and a manually intensive process to correlate
information about people, places, and things (vehicles).
As part of the Seller's requirements analysis, we interviewed three groups of
users, the General Intelligence Unit, the Gang Unit, and the Threat Unit. A
brief description of their procedures and automated systems is provided below:
GENERAL INTELLIGENCE
Various sources of information, such as newspaper articles, field reports,
and investigation notes are submitted to the General Intelligence unit from
different sections of the Department. Intelligence Analysts review the
information and forward approximately 3% of all submitted reports to be
included in the General Intelligence Information system, a stand-alone Dbase
system. Approximately 12,000 pre-existing documents have been added to the
automated system on an annual basis. The intelligence information, in its
various formats, is defined as a "document", and given a unique key, the
accession number. Relevant "people/places" information is extracted from the
"document", along with an abstract and entered into the stand-alone DBase
automated system. This automated system links people and places to the
"document". On a query by person or place, a report is generated pointing to
all documents, via the accession number", that reference that person or
place. The physical "documents" are available for review by authorized
personnel. No copies of these documents are allowed. Documents may be
reviewed at the Intelligence Unit command and notes made.
THREAT UNIT
The Threat Unit handles threats made against police, public/elected
officials, or police and public/city property. (There exists other NYCPD
units to handle different types of threats.) Three information cards are
prepared containing the threat event, threatened person/property, and the
threatener person information. The cards contain raw data in free text
format. The intelligence officer enters the data into the automated system
from the cards. The automated system contains on the order of 200+ fields of
information in the database. The relevant data is extracted as part of the
data entry process. A PSM Number is generated and entered onto the cards.
Pictures of the threatener are filed along with the cards. Bulletins are
prepared and distributed to appropriate personnel.
GANG UNIT
The Gang unit handles gangs and gang member information. Basic gang
information is entered into a gang tracking system written in Smart. This
information includes gang names and profiles, gang member information
including descriptor information and a brief criminal history of the gang
member, and abstract/activity information about the whereabouts and
miscellaneous facts. A new gang tracking system has been developed in FoxPro
and is about to go operational.
1.2 CONCEPT OF OPERATION FOR INTELLIGENCE SUBSYSTEM
The new Intelligence Subsystem will not replace the current systems
maintained by the different intelligence units. Instead it will provide a
central repository for intelligence photographs, reference data about the
intelligence information, and the ability to cross-reference and correlate
the reference data. This will provide the Department with the
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capability to integrate and cross-reference all intelligence information. An
authorized analyst can query the system and get pointers to all intelligence
information about a given person, address, or vehicle. The Intelligence
Subsystem will be capable of holding reference data for general intelligence
information ("documents"), gang information, organized crime information, and
threats. The Department's procedures and policies will determine (1) how much
of this capability will be used, (2) what intelligence information will be
referenced in the new system, and (3) what reference data is entered into the
system. The Intelligence Subsystem will implement security rules based on
workstation ID, User ID and database so that the sensitivity and security of
the data is protected.
The new Intelligence Subsystem will be centrally located and will be
maintained by a single NYCPD organizational unit. This unit will be
responsible for entering the reference data and photographs into the
Intelligence Subsystem and querying the system on behalf of other
organizations. It is also possible, at the discretion of the Department, that
the queries can be initiated from other ForceField Display-only workstations.
The security constraints implemented for the Intelligence Subsystem will
allow the Department to protect the data based on User ID, workstation ID,
and database.
Other intelligence units will send the photographs and associated reference
information to the unit maintaining the Intelligence Subsystem. The reference
information will include key information about persons, places
(address/premise), and vehicles associated with that intelligence
information. The analysts at the unit maintaining the Intelligence Subsystem
will scan the photographs, analyze the reference data provided to create the
appropriate links, and enter the photographs, reference data, and links into
the Intelligence Subsystem. Upon request, the central unit personnel will
query the system to obtain a pointer to all intelligence information on a
given person, place, or vehicle. The results of the query can include
hardcopy photographs, a listing of all intelligence reports and corresponding
reference data based on the search criteria, and pointers to the source unit
of the data. If the requesting unit personnel needs more detailed
information, then he/she would contact the original source unit of the
intelligence information (i.e., Gang unit, Threat unit, etc.).
In order to maximize the usefulness of the cross-referencing capability, it
is recommended that indices/reference data to all intelligence information be
channeled through this Intelligence Subsystem. To achieve the integration of
all such reference data into the Intelligence Subsystem, a Common Data Format
for the data input is proposed. This would also provide for inclusion of
other intelligence information from other systems in the future that the
Department may want to have cross-referenced in the Intelligence Subsystem.
The Common Data Format (for electronic submission) and the associated
hardcopy forms (for manual data entry) will be developed jointly with the
Department during the customization definition phase and documented in the
Intel Subsystem Customization Specification document.
2. HIGH-LEVEL OVERVIEW
EXHIBIT 2-1 illustrates the external interfaces and manual user interfaces
required to support the Intelligence Subsystem. Reference data from different
intelligence sources will be entered into the Intelligence Subsystem and
associated photographs/images will be linked to that reference data.
Electronic photographs from the Photo Imaging System can be downloaded to the
Intelligence Subsystem. Paper photographs from different sources can be
scanned and associated with the intelligence reference data.
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[GRAPH]
Exhibit 2-1 High-Level Overview of Intelligence Subsystem
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INTELLIGENCE SUBSYSTEM
EXHIBIT 2-2 illustrates the logical data relationships between an
intelligence base record and "persons", "locations", and "vehicles" in the
Intelligence Subsystem. A Base Intel Record can be associated with multiple
"Person" records, "Location" records, and "Vehicle" records. A given
"person", "location", or "vehicle" record can be linked to one or more Base
Intel Records. An example of the type of reference data retained for person,
location, and vehicles is provided in EXHIBIT 2-2. There are four different
types of Base Intel Records corresponding to the four sources of intelligence
information: (1) "Document", (2) Gang, (3) Threats, and (4) Organized Crime.
The data contained in the Base Intel Record will vary depending on the type
of intelligence information. Person, location, and vehicle reference data
fields will be the same regardless of what type of Base Intel Record it is
linked to. EXHIBITS 2-3 through 2-6 illustrates how this architecture
supports each of the different types of intelligence data. Note, that a given
Person, Location, or Vehicle record can be associated with all four types of
intelligence information. This cross-referencing of intelligence information
across the different intelligence sources will provide a new capability that
the Department does not currently have.
The specifications for the Intelligence Subsystem has been separated into 8
functional areas:
- Base Intel Record File Maintenance
- Person File Maintenance
- Location File Maintenance
- Vehicle File Maintenance
- External Interface
- Data Validation
- Queries
- Response and Print Formats
The high-level requirements for each of these functional areas are described
in the following sections of this document. These high-level requirements will
be used as the starting point (i.e., baseline) for the customization
definition phase.
3. BASE INTEL RECORD FILE MAINTENANCE
The Intelligence Subsystem will support the creation, deletion, and
modification of the Base Intel Record associated with each of the
intelligence's sources. A Base Intel Record can have one or more electronic
photographs and can be linked to multiple person records, location records,
and vehicle records.
There will be four types of Base Intel Records which correspond to the four
different sources of information: (1) General Intelligence, (2) Gangs, (3)
Threats, and (4) Organized Crime.
The fields currently envisioned for the Base Intel Record are as follows:
Base Intel Record ID (unique key to Base Intel Record)
Type of Base Intel Record (i.e., General, Gang, Threat, Organized Crime
Family)
Source Unit's Unique Number (i.e., Accession Number, Gang Name, PSM,
Crime Family Name)
Date of Entry
Intelligence Subsystem: 5 Revision C
<PAGE>
[GRAPH]
Exhibit 2-2 Logical Relationship - Intelligence Subsystem
Intelligence Subsystem: 6
<PAGE>
[GRAPH]
Exhibit 2-3 Logical Relationship - Intelligence Subsystem: Intelligence
Record Management
Intelligence Subsystem: 7
<PAGE>
[GRAPH]
Exhibit 2-4 Logical Relationship - Intelligence Subsystem: Gang Management
Intelligence Subsystem: 8
<PAGE>
<TABLE>
<S> <C>
------------------
Threat Event 3 Threat Event # (PSM#)
------------------ Date of Entry
Threat Event 2 Pointer to info in other system
------------------ Threat Event base data
Threat Event 1 0 - many photographs
- ------------ -------------
Person 3 Vehicle 3
------------ -------------
Person 2 Vehicle 2 Type
------------ -------------- ------------- Make
Person 1 Location 3 Vehicle 1 Model, etc.
-------------- 0 - many Photos
NYSID # Location 2
Other IDs --------------
Name, AKAs Location 1
DOB
Race/Sex, etc. Address
0 - many Photos Premise, etc.
0 - many Photos
</TABLE>
A Threat Event can be linked to multiple Persons, Locations, Vehicles
A Person, Vehicle, Location can be linked to multiple Threat Events
Exhibit 2-5 Logical Relationship - Intelligence Subsystem: Threat Management
Intelligence Subsystem: 9
<PAGE>
<TABLE>
<S> <C>
------------------
Crime Family 3 Crime Family #
------------------ Date of Entry
Crime Family 2 Crime Family base data
------------------ 0 - many photographs
Crime Family 1
- ------------ -------------
Person 3 Vehicle 3
------------ -------------
Person 2 Vehicle 2 Type
------------ -------------- ------------- Make
Person 1 Location 3 Vehicle 1 Model, etc.
-------------- 0 - many Photos
NYSID # Location 2
Other IDs --------------
Name, AKAs Location 1
DOB
Race/Sex, etc. Address
0 - many Photos Premise, etc.
0 - many Photos
</TABLE>
A "Family" can be linked to multiple Persons, Locations, Vehicles
A Person, Vehicle, Location can be linked to multiple "Family" records
Exhibit 2-6 Logical Relationship - Intelligence Subsystem:
Organized Crime Management
Intelligence Subsystem: 10
<PAGE>
Attachment 1
Intelligence Subsystem
Abstract/Activity
Free-text Notes
Other source-specific fields (to be defined during customization phase)
4. Person File Maintenance
The Intelligence Subsystem will support the creation, deletion, and
modification of the basic person data and photograph(s) associated with a
"person". A Person can have one or more electronic photographs and can be
linked to one or more Base Intel Records.
The fields currently envisioned for the Person Data are as follows:
Person ID (unique key to person record)
NYSID
Other IDs
Name/AKAs
DOB
Race
Sex
Height
Weight
Hair
Eye
Scars/marks/tattoos
Free-text Notes
Other descriptor fields (to be defined during customization phase)
Links (links to one or more Base Intel Records)
5. Location File Maintenance
The Intelligence Subsystem will support the creation, deletion, and
modification of the reference data and photograph(s) associated with a
"location". A location can have one or more electronic photographs and can be
linked to one or more Base Intel Records.
The fields currently envisioned for the Location Data are as follows:
Location ID (unique key for vehicle record)
Storefront Name
Type of Premise
Address
Free-text Notes
Other fields (to be defined during customization phase)
Links (links to one or more Base Intel Records)
6. Vehicle File Maintenance
The Intelligence Subsystem will support the creation, deletion, and
modification of the reference data and photograph(s) associated with a
"vehicle". A vehicle can have one or more electronic photographs and can be
linked to one or more Base Intel Records.
Intelligence Subsystem: 11 Revision C
<PAGE>
Attachment 1
Intelligence Subsystem
The fields currently envisioned for the Vehicle Data are as follows:
Vehicle ID (unique key for vehicle record)
Type
Make
Model
Color
License Plate
Free-text Notes
Other fields (to be defined during customization phase)
Links (links to one or more Base Intel Records)
7. External Interfaces
External interfaces will exist to the Photo Imaging System and the Sealing
System. The External Interface function will initiate the Data Validation
function (see Section 8) to verify that the data received through the
external interface is valid. Any transaction which does not conform to the
data validation rules will be written to an exception file. Each of these
external interfaces are described in the following subsections.
7.1 Interface to the Photo Imaging System
The interface between the Photo Imaging System and the Intelligence Subsystem
provides for the transfer of arrest mugshots from the Photo Imaging System to
the Intelligence Subsystem. The Seller is responsible for the definition and
implementation of this interface. The transaction protocols and
content/format will be defined in the Interface Control Document (ICD).
7.2 Interface to the Sealing System
The interface between the Sealing System and the Intelligence Subsystem will
provide for (1) the notification of a seal/unseal event from the Sealing
System, and (2) the transfer of UF90 data (photograph dissemination audit
data) from the Intelligence Subsystem to the Sealing System. The Seller is
responsible for participating in the definition of this interface. The
transaction protocols and content/format will be defined in the Interface
Control Document (ICD). The Seller is responsible for implementing the
interface for the Intelligence Subsystem. The Buyer is responsible for
implementing the interface for the Sealing System.
8. Data Validation
Data validation will be done for both screen inputs and data received over
external interfaces. Data Validation includes validation of a request based
on the user's authorization and field validation of the fields within the
request (i.e., ensure that field values are legal).
9. Queries
The Intelligence Subsystem will support queries against the descriptor data
associated with the "Person", "Location", and "Vehicle" records. The queries
will return matching people,
Intelligence Subsystem: 12 Revision C
<PAGE>
Attachment 1
Intelligence Subsystem
locations, and vehicles based on the search criteria. In addition, the
Intelligence Subsystem will provide the capability to query the link
information. For example, a user can request a list of all Base Intel Records
associated with a given person, location, or vehicle.
10. Response and Print Formats
The Intelligence Subsystem will provide responses (screen or hardcopy) to (1)
the queries against the descriptor data associated with the "Person",
"Location", and "Vehicle" records, and (2) the queries against the link
information. These responses will include the photos of entities matching the
search criteria.
11. Migration Strategy
The Common Data Format can be used by the Department to upload pre-existing
data into the Intelligence Subsystem. There are no plans for the Seller to
convert the pre-existing data from the various current intelligence systems
for the Intelligence Subsystem.
Intelligence Subsystem: 13 Revision C
<PAGE>
Attachment 1
PHOTO IMAGING SYSTEM
2.6 MISSING PERSONS SUBSYSTEM
The Missing Persons Subsystem will function in a similar manner to the
previously described Intelligence subsystem. The purpose of this module is
to find Missing Persons and identify Dead On Arrival (DOAs). The module will
be capable of additionally retrieving centrally stored electronic mug shot
images and storing them on a separate database with protected access. The
Missing Persons Subsystem Requirements document provides a more detailed
functional description of the Missing Persons Subsystem.
The following equipment will be supplied as part of the Missing Persons
Module:
One (1) video/freeze-frame capture station (camera) for DOAs: Canon
RC-570 Still Video Cameras as described in SECTION 2.3.2.
One (1) scanning device: Hitachi HV-C20 3-chip camera mounted on a
Kaiser copy stand described in SECTION 2.3.9.
One (1) capture workstation as described in SECTION 2.3.7.
One (1) display workstation as described in SECTION 2.3.8.
One (1) color printer as described in SECTION 2.3.3.
One (1) LAN connection as denoted in SECTION 2.1.
2.6.1 SEALING/SECURITY
The sealing process is not applicable to this subsystem.
2.6.2 SCANNING OF PHOTOS/NEGATIVES
To eliminate possible conflict of duplicate photo numbers between systems,
scanned photos/negatives will have a unique identifier capable of interacting
with the photo number in the digitized photo image database and the scanned
photo.
Requester information will be maintained both for photo images scanned from
existing photos and those created with the photo image capture hardware.
2.7 WARRANT, DOCUMENT AND PHOTO IMAGE
- - RESIZING OF WARRANT IMAGE. The Warrant photo images can be enlarged to
the full printable area of the print media.
- - COMPRESSION TECHNOLOGY. Advanced techniques, based on the JPEG (Joint
Photography Experts Group) compression standards, are used to reduce the
image storage and transmission needs. Compression ratios of 10:1 to 15:1
ensure the image can be reconstructed with no degradation visible to the
human eye. It is the our intent to be remain compliant with the ANSI X3L2.8
compression standards. Given the size of the CAL-PHOTO mug images of
400,000 bytes uncompressed, a compression ratio of 15:1 may be used to yield
a compressed image size of 25,000 bytes.
Photo Imaging System: 34 Revision C
<PAGE>
Attachment 1
PHOTO IMAGING SYSTEM
- - FAMILY COURT AND SUPREME COURT INTEGRATION. Hooks and documentation will be
included for future use by the Department's programming personnel for the
subsequent integration and printing of digitized photo images related to
Family Court and Supreme Court warrant documents, whenever these courts are
integrated and interfaced into the system.
Photo Imaging System: 35 Revision C
<PAGE>
Attachment 1
MISSING PERSONS SUBSYSTEM
1. INTRODUCTION
The Missing Persons Subsystem of the Photo Imaging System will be a
COTS-based package which supports the retention of electronic photographs and
alpha-numeric data associated with missing persons, unidentified persons
(unidentified DOA and amnesia victims), and body-parts. The Missing Persons
subsystem is based on the COTS Photo Imaging System, ForceField, which runs
in a Unix environment.
The Missing Persons Subsystem will support the maintenance of the photographs
and associated descriptor data and will provide ad-hoc search capabilities
against the descriptor data retained for missing persons, unidentified
persons (unidentified DOA and Amnesia Victims), and body-parts. The Missing
Persons Subsystem will interface with the existing Missing Persons Case
Management system which is/will be a mainframe-based, CICS, COBOL II, and DB2
application. The DB2 Missing Persons Case Management System will be the
source of the descriptor and case management data and will provide a subset
of that data to the Missing Persons System.
The Seller's approach to developing the detailed specifications will consist
of working with the Buyer to further define the following:
- database fields associated with missing persons, unidentified persons,
and body-parts
- the data validation rules for each of the database fields
- the required user screens for adding and deleting photographs/images
and for initiating ad-hoc searches
- the query response formats and print formats
- the detailed interface specifications between the Missing Persons
Subsystem and the existing DB2 Missing Persons Case Management System
The detailed specifications will be developed during the customization
definition phase, documented in the Missing Persons Subsystem Customization
Specifications Document, and reviewed during the Customization Specifications
Review.
2. HIGH-LEVEL OVERVIEW
EXHIBIT 2-1 illustrates the external interfaces and manual user interfaces
required to support the Missing Persons Subsystem. Descriptor data will be
exchanged between the existing DB2 Missing Persons Case Management System and
the Missing Persons Subsystem. Electronic photographs from the Mugshot System
can be downloaded to the Missing Persons Subsystem. Paper photographs from
different sources can be scanned and associated with "missing persons",
"unidentified persons", or "body-parts".
EXHIBIT 2-2 illustrates the logical relationship between "missing persons",
"unidentified persons", and "body-parts" in the Missing Persons Subsystem. A
body-part can be a subset of the whole body (ie.: finger, hand, arm, etc.) or
the whole body. An "unidentified person" will consist of one or more
"body-parts". A "solved case" consists of a link between a "missing person"
entity and/or an "unidentified person" entity. In other words, a "missing
person" was matched with an "unidentified person", or a "missing person" case
was solved without a matching "unidentified person", or an "unidentified
person" case was solved without a matching "missing person".
Missing Persons Subsystem: 1 Revision C
<PAGE>
[DIAGRAM]
GOALS
- - tie pictures to missing persons, unidentified persons (DOA or Amnesia),
body-parts
- - provide link from a missing person to unidentified person or body-parts
- - provide search capability using descriptor information
EXHIBIT 2-1 High-Level Overview of Missing Persons Subsystem
Missing Persons Subsystem: 2
<PAGE>
[DIAGRAM]
An Unidentified Person represents a "Body" without a "name"
DOA
Amnesia Victim
1 to many Body-parts
A Body-part can be a subset of the body or the whole body
EXHIBIT 2-2 Logical Data Relationship for Missing Persons Subsystem
Missing Persons Subsystem: 3
<PAGE>
Attachment 1
MISSING PERSONS SUBSYSTEM
The specifications for the Missing Persons Subsystem has been separated into
8 functional areas:
- Missing Persons File Maintenance
- Unidentified Persons File Maintenance
- Body-Parts File Maintenance
- Case Management File Maintenance
- External Interface
- Data Validation
- Queries
- Response and Print Formats
The high-level requirements for each of these functional areas are described
in the following sections of this document. These high-level requirements
will be used as the starting point (i.e., baseline) for the customization
definition phase.
3. MISSING PERSONS FILE MAINTENANCE
The Missing Persons Subsystem will support the creation, deletion, and
modification of the basic person data associated with a "missing person". A
Missing Person can have one or more electronic photographs. For each
photograph, there can be descriptor data associated with that photograph
("Appearance Data"). The Missing Persons Subsystem will support the creation,
deletion, and modification of the "missing person" photograph(s) and
associated Appearance Data. The data-entry of the Person and Appearance
descriptor data will occur on the DB2 Missing Persons Case Management System.
This data will be downloaded to the Missing Persons System and associated
with the images retained by that system using the Missing Persons Case Number.
The Photo ID's for that missing person will be uploaded to the DB2 Missing
Persons Case Management System.
The fields currently envisioned for the Missing Persons "Person Data" are as
follows:
Missing Persons Case Number
Name - last, first, middle, suffix
Aliases - last, first, middle, suffix
DOB
Age
Race
Sex
Origin
Scars/marks/tattoos
Other descriptor fields (to be defined during customization phase)
The fields currently envisioned for the Appearance Data (there is one
Appearance Data for each photograph) are as follows:
Photograph Number
Descriptor fields (to be defined during customization phase)
Missing Persons Subsystem: 4 Revision C
<PAGE>
Attachment 1
MISSING PERSONS SUBSYSTEM
4. UNIDENTIFIED PERSONS FILE MAINTENANCE
The Missing Persons Subsystem will support the creation, deletion, and
modification of the basic person data and photographs(s) associated with an
"unidentified person" (unidentified DOA, amnesia victim, or composite person
from one or more body-parts). An Unidentified Person can have one or more
electronic photographs. The data-entry of the Unidentified Person descriptor
data will occur on the DB2 Missing Persons Case Management System. This data
will be downloaded to the Missing Persons System and associated with the
images retained by that system using the Unidentified Persons Case Number.
The Photo ID's for that unidentified person will be uploaded to the DB2
Missing Persons Case Management System.
The fields currently envisioned for the "Unidentified" Person Data are as
follows:
Unidentified Person Case Number
DOB
Age
Race
Sex
Height
Weight
Hair
Eye
Origin
Scars/marks/tattoos
Other descriptor fields (to be defined during customization phase)
5. BODY-PARTS FILE MAINTENANCE
The Missing Persons Subsystem will support the creation, deletion, and
modification of the descriptor data and photograph(s) associated with a
"body-part". A body-part can have one or more electronic photographs. The
data-entry of the body-parts descriptor data will occur on the DB2 Missing
Persons Case Management System. This data will be downloaded to the Missing
Persons System and associated with the images retained by that system using the
Body-parts Case Number. The Photo ID's for that body-part will be uploaded
to the DB2 Missing Persons Case Management System.
The fields associated with each type of body-part will vary depending on the
type of body-part. The fields associated with each type of body-part will be
defined during the requirements definition phase and will be documented in
the Customization Specifications Document.
6. SOLVED CASES FILE MANAGEMENT
The Missing Persons Subsystem will provide the capability to create an
"Unidentified Person" entity by linking multiple body-parts together and
creating a composite "person" description. The Missing Persons Subsystem
will provide the capability to create" a "solved case" by (1) linking a
"Missing Person" entity to an "Unidentified Person" entity, (2) marking a
Missing Person Case as solved (without a matching "unidentified person"), or
(3) marking an Unidentified Person Case as solved (without a matching
"missing person").
Missing Persons Subsystem: 5 Revision C
<PAGE>
Attachment 1
MISSING PERSONS SUBSYSTEM
7. EXTERNAL INTERFACES
External interfaces will exist to the DB2 Missing Persons Case Management
System and the Mugshot System. The External Interface function will initiate
the Data Validation function (see Section 8) to verify that the data received
through the external interface is valid. Any transaction which does not
conform to the data validation rules will be written to an exception file.
Each of these external interfaces are described in the following subsections.
7.1 INTERFACE TO DB2 MISSING PERSONS CASE MANAGEMENT SYSTEM
The interface between the DB2 Missing Persons Case Management System and the
Missing Persons System will provide for (1) the transfer of descriptor data
associated with missing persons, unidentified persons, and body-parts from
the DB2 Missing Persons Case Management System to the Missing Persons System;
(2) the transfer of Photo IDs from the Missing Persons System to the DB2
Missing Persons Case Management System, and (3) the transfer of case
resolution information from the DB2 Missing Persons Case Management System to
the Missing Persons System.
The DB2 Missing Persons Case Management System will send the following
transactions to the Missing Persons System.
- Missing Person File Maintenance Transaction
- Unidentified Person File Maintenance Transaction
- Body-parts File Maintenance Transaction
- Solved Case File Maintenance Transaction
The Missing Persons System will send the following transactions to the DB2
Missing Persons Case Management System.
- Link-Photo-IDs-to-Case Transaction
The Department is responsible for modifying the DB2 Missing Persons Case
Management system to send/receive these transactions. The transaction
protocol and transaction format/content will be defined in the Interface
Control Document (ICD) which will be jointly developed by the Buyer and the
Seller.
7.2 INTERFACE TO MUGSHOT SYSTEM
The interface between the Mugshot System and the Missing Persons System
provides for the transfer of arrest mugshots from the Mugshot System to the
Missing Persons System. The Seller is responsible for the definition and
implementation of this interface. The transaction protocols and
content/format will be defined in the Interface Control Document (ICD).
8. DATA VALIDATION
Data validation will be done for both screen inputs and data received over
external interfaces. Data Validation includes validation of a request based
on the user's
Missing Persons Subsystem: 6 Revision C
<PAGE>
Attachment 1
MISSING PERSONS SUBSYSTEM
authorization and field validation of the fields within the request (i.e.,
ensure that field values are legal).
9. QUERIES
The Missing Persons Subsystem will support queries against the descriptor
data associated with the "Missing Persons", "Unidentified Persons", and
"Body-parts" database.
10. RESPONSE AND PRINT FORMATS
The Missing Persons Subsystem will provide responses (screen or hardcopy) to
the queries against the descriptor data associated with the "Missing
Persons", "Unidentified Persons", and "Body-parts" database. These responses
will include the photos of entities matching that query criteria.
11. MIGRATION STRATEGY
There are no plans to convert pre-existing data for the Missing Persons
Subsystem. The data and photographs will be entered into the Missing Persons
Subsystem on a day-one-forward basis.
Missing Persons Subsystem: 7 Revision C
<PAGE>
Attachment 1
FEDERAL INTERFACE SUBSYSTEM SPECIFICATIONS
1. INTRODUCTION
The Federal Interface Subsystem will be a new external interface to the U.S.
Attorney's photo system. The purpose of the Federal Interface Subsystem is
to exchange electronic photos and related data between the U.S. Attorney's
system and the Department's Photo Imaging System. The electronic photographs
and related data already stored on the U.S. Attorney's System will be
pre-loaded onto the Department's Photo Imaging System. Any new NYCPD
bookings will be done on the Department's Photo Imaging System and the
electronic photos and data transmitted to the U.S. Attorney's System. In
addition, to quickly field this capability, so that the Department can
immediately take advantage of the new technology and continue to exchange
photos and related data with the U.S. Attorney's System, a subset of the
Photo Imaging System capabilities will be deployed early as part of the
Federal Interface Subsystem.
The Contractor will work with the Department to define the needed screens,
print formats, and external interfaces required to support the Federal
Interface Subsystem capabilities. This includes the following:
- database fields associated with the booking data
- the data validation rules for each of the database fields
- the required user screens for adding, modifying, and deleting
photographs/images and associated booking data
- the required print formats needed to support current procedures
- the interface to the OLBS
The Contractor will work with the U.S. Attorney's Office to define the
interface between the Department's Photo Imaging System and the U.S.
Attorney's System. This includes the following:
- sending electronic photographs and related data from NYCPD bookings
to the U.S. Attorney's system
- receiving electronic photographs and related data from federal
sources from the U.S. Attorney's system
- sending sealing notifications to the U.S. Attorney's system
2. CONCEPT OF OPERATION FOR FEDERAL INTERFACE SUBSYSTEM
The intent of the Federal Interface Subsystem is to start booking NYCPD
arrestees on the Department's new photo imaging system as soon as possible,
and send the electronic photos and related data to the U.S. Attorney's System.
On bringing the arrestee to the booking site, the procedures are as follows:
- The arrestee data will be manually entered into the Department's
On-Line Booking System (OLBS), which will generate the NYCPD Arrest
Number.
- The arrestee will be photographed using the Department's Photo
Imaging System and booked with the following minimum information:
Federal Interface Subsystem: 1 Revision D
<PAGE>
Attachment 1
FEDERAL INTERFACE SUBSYSTEM SPECIFICATIONS
- Name
- NYCPD Arrest Number
- Minimum Demographic information (TBD)
- The Department's Photo Imaging System will print a hardcopy of the
photo(s) with the NYCPD Arrest Number as a replacement for the
current photographs which become part of the arrestee's file.
- Based on fingerprint verification done as part of the Department's
standard procedures, a NYSID Number will be generated by DCJS and
sent to the Department.
- Once the NYSID number is available, the Department's Photo Imaging
System's booking record will then be retrieved using the NYCPD
Arrest Number, and the NYSID number would be added to the booking
record.
- Based on the NYCPD Arrest Number, the remaining booking data will be
retrieved from OLBS and added to the Department's Photo Imaging
System's database. (Note: if the NYSID number is contained in OLBS,
then we may not need to do the previous step.)
The Department's Photo Imaging System will send the electronic photo and
related data obtained from booking events to the U.S. Attorney's system. The
U.S. Attorney's System will send federal photos and related data to the
Department's Photo Imaging System. This exchange of electronic photos and
related data will occur in a batch mode multiple times in a day. In
addition, the U.S. Attorney's System will be electronically notified of any
Sealing requests against the Department's Photo Imaging System's database.
3. HIGH-LEVEL OVERVIEW
EXHIBIT 3-1 illustrates the hardware configuration for the Department's Photo
Imaging System which will be deployed early to support the Federal Interface
Subsystem. Central Headquarters will have a Sparc 5 with 34 GB RAID, to act
as the central image and data repository. Capture/Display Stations,
Display-Only Stations, and printers will be deployed to the locations as
shown in Exhibit 3-1.
In support of the Federal Interface Subsystem, a subset of the functional
capabilities of the Department's new Photo Imaging System will be deployed as
soon as possible. This subset is described in the following sections.
4. USER INTERFACE
The Department's Photo Imaging System will provide screens for capturing the
photographs, data entering the booking information, requesting hardcopy
outputs, and initiating queries.
Federal Interface Subsystem: 2 Revision D
<PAGE>
[Graphic]
Exhibit 4-3 Federal Interface Subsystem Block Diagram
<PAGE>
Attachment 1
FEDERAL INTERFACE SUBSYSTEM SPECIFICATIONS
5. BOOKING FILE MAINTENANCE
The Department's Photo Imaging System will support the creation, deletion,
and modification of the basic person data, the booking data associated with a
"person", the appearance data associated with a booking, and the photographs
associated with an appearance. A person can have one or more bookings. A
booking can have one or more appearances. An appearance can have one or more
types of photographs (front, profile, etc.).
The fields to be retained as the Person Data in the Department's Photo
Imaging System will be determined during the customization definition phase.
Only the minimum number of fields will be data entered into the Department's
Photo Imaging System. The rest of the fields will be populated via the
interface to OLBS. The possible fields for the Person Data are as follows:
Person ID (unique key to person record)
NYSID
Other IDs
Name/AKAs
DOB
Race
Sex
Scars/marks/tattoos
The fields to be retained as the Booking Data in the Department's Photo
Imaging System will be determined during the customization definition phase.
These fields will be populated via the interface to OLBS.
The fields to be retained as the Appearance Data in the Department's Photo
Imaging System will be determined during the customization phase. These
fields will be populated via the interface to OLBS where ever possible (i.e.,
OLBS may not retain all of the fields).
6. DATA VALIDATION
Data validation will be done for the manual data entry. Data Validation
includes verification of a request based on the user's authorization and
field validation of the fields within the request (i.e., ensure that field
values are legal).
7. QUERIES
The Department's Photo Imaging System will support, at a minimum, queries
using the ForceField ID, NYSID number, NYCPD Arrest Number, other unique Ids,
and/or name. In general, the system will allow queries using fields defined
during the customization definition phase. The queries will return the
matching person(s), booking information, appearance information, and
photographs.
8. PRINT FORMATS
Federal Interface Subsystem: 4 Revision D
<PAGE>
Attachment 1
FEDERAL INTERFACE SUBSYSTEM SPECIFICATIONS
The Department's Photo Imaging System will provide responses (screen or
hardcopy) to support the current procedures for the booking process which
will be determined during the customization definition phase.
9. EXTERNAL INTERFACES
9.1 OLBS Interface
Based on the NYCPD Arrest Number, the Department's Photo Imaging System via
the Federal Interface Subsystem will retrieve the Person Data, Booking Data,
and any Appearance Data associated with that Arrest Number from OLBS and load
that data into the Federal Interface Subsystem's database.
9.2 Interface to U.S. Attorney's System
The Department's Photo Imaging System via the Federal Interface Subsystem
will accept batch input of both the data and photographs from the U.S.
Attorney's System for initial population. The exact media and format will be
determined as part of the Customization phase and will be mutually agreeable
to both parties.
The Department's Photo Imaging System via the Federal Interface Subsystem
will send new photos and related data to the U.S. Attorney's System. The
Department's Photo Imaging System via the Federal Interface Subsystem will
accept federal photos and related data from the U.S. Attorney's System. This
exchange of data and photographs will occur periodically in a batch mode.
The Department's Photo Imaging System via the Federal Interface Subsystem
will electronically notify the U.S. Attorney's System of any sealing
requests. Because of the low volume of sealing initiated by the U.S.
Attorney's System, the U.S. Attorney's office will manually notify the
Department of sealing requests. These manual notifications will then be data
entered into the Department's Photo Imaging System by Department personnel.
Federal Interface Subsystem: 5 Revision D
<PAGE>
Attachment 2
PROJECT MILESTONES AND SCHEDULE
1. INTRODUCTION
The purpose of this attachment is to show the project schedule and the target
milestones for this subcontract. The completion criteria for these milestones
are described in Attachment 7 of this subcontract. EXHIBIT 1-1 shows the
overall system schedule with the target milestones. It is separated into three
areas corresponding to the Buyer/Seller milestones associated with (1) the Basic
Photo Imaging Systems, (2) Intelligence Subsystem, and (3) Missing Persons. The
fourth area represents the NYCPD/Buyer milestones. The Basic Photo Imaging
System will be incrementally deployed in blocks. EXHIBIT 1-2 identifies the
composition of each installation block.
Section 2 provides a brief description of each of the milestones for the Photo
Imaging Systems. Section 3 provides a brief description of each of the
milestones associated with the overall System Integration.
2. PHOTO IMAGING SYSTEM MILESTONES
CUSTOMIZATION SPECIFICATIONS REVIEW (CSR): A formal review held with the
Buyer after the customization definition phase to verify that the
specifications developed for the Photo Imaging Systems and documented in the
Customization Specifications Document (ie., screen formats, print formats,
database fields, data validation rules, code tables, and functions) meet
NYCPD's requirements, as specified in this subcontract. A separate CSR will be
held for the following Photo Imaging Systems:
- Basic Photo Imaging System
- Intelligence Subsystem
- Missing Persons Subsystem
CUSTOMIZATION DESIGN REVIEW (CDR): A formal review held with the Buyer after the
customization design phase to verify that the design developed for the Photo
Imaging Systems and documented in the Customization Design Document meets the
requirements as specified in the Customization Specifications Document. A
separate CDR will be held for the following Photo Imaging Systems:
- Basic Photo Imaging System
- Intelligence Subsystem
- Missing Persons Subsystem
CUSTOMIZATION DEMONSTRATION: A demonstration of the Basic Photo Imaging System
software to the Buyer prior to the pre-RSR tests for the purpose of verifying
that the functionality meets the requirements as specified in the Customization
Design Document. The Customization Demonstration does not require the final
hardware configuration. A separate Customization Demonstration will be held for
the following Photo Imaging Systems:
- Basic Photo Imaging System
PRE READY-TO-SHIP-REVIEW (PRE-RSR): A rehearsal of the RSR held with the
Buyer at the XImage facilities, after the Customization Demonstration or
implementation phase, in preparation for the RSR. The purpose is to
demonstrate that the functionality (both hardware and software) provided
meets the specifications as documented in the Customization Specification
Document. A separate pre-RSR will be held for the following Photo Imaging
Systems:
Attachment 2 - 1 Revision D
<PAGE>
<TABLE>
<CAPTION>
1 2 3 4 5 6 7 8 9 10 11
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Intelligence Subsystem CSR
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
Missing Persons Subsystem
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
Basic Photo Imaging System FIS
PRSR &
RSR
- ------------------------------------------------------------------------------------------------------------------------
FIS
AT
- ------------------------------------------------------------------------------------------------------------------------
CSR
- ------------------------------------------------------------------------------------------------------------------------
CDR
- ------------------------------------------------------------------------------------------------------------------------
BOHW
- ------------------------------------------------------------------------------------------------------------------------
CD
- ------------------------------------------------------------------------------------------------------------------------
B1HW
- ------------------------------------------------------------------------------------------------------------------------
BOPRSR
- ------------------------------------------------------------------------------------------------------------------------
B2HW
- ------------------------------------------------------------------------------------------------------------------------
BORSR
- ------------------------------------------------------------------------------------------------------------------------
B3HW
- ------------------------------------------------------------------------------------------------------------------------
BOIT
- ------------------------------------------------------------------------------------------------------------------------
BOAT
- ------------------------------------------------------------------------------------------------------------------------
B4HW
- ------------------------------------------------------------------------------------------------------------------------
BHT
- ------------------------------------------------------------------------------------------------------------------------
BIAT
- ------------------------------------------------------------------------------------------------------------------------
B5HW
- ------------------------------------------------------------------------------------------------------------------------
B2IT
- ------------------------------------------------------------------------------------------------------------------------
B2AT
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
NYCPD < - > SAIC Milestones FIS FIS Basic Basic Basic Basic
Funct. Block Basic Funct. BO B1 B2
Accept. Accept. CSR Accept. Accept. Accept. Accept.
- ------------------------------------------------------------------------------------------------------------------------
Intel
CSR
- ------------------------------------------------------------------------------------------------------------------------
CSR -- Customization Specification Review CDR -- Customization Design Review
OSST -- On-Site System Test Fis -- Federal Interface Subsystem
PRSR -- pre-Ready-to-Ship Review RSR -- Ready-to-Ship Review
xxAT -- xxxxx Acceptance Test CD -- Customization Demonstration
xxIT -- xxxxx Installation Test
Exhibit 1-1 XImage Milestones and Schedule
Revision D
<CAPTION>
12 13 14 15 16 17 18 19 20 21 22
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Intelligence Subsystem
- ---------------------------------------------------------------------------------------------------------------------
CDR
- ---------------------------------------------------------------------------------------------------------------------
PRSR
- ---------------------------------------------------------------------------------------------------------------------
RSR
- ---------------------------------------------------------------------------------------------------------------------
AT
- ---------------------------------------------------------------------------------------------------------------------
Missing Persons Subsystem CSR
- ---------------------------------------------------------------------------------------------------------------------
CDR
- ---------------------------------------------------------------------------------------------------------------------
PRSR
- ---------------------------------------------------------------------------------------------------------------------
RSR
- ---------------------------------------------------------------------------------------------------------------------
AT
- ---------------------------------------------------------------------------------------------------------------------
Basic Photo Imaging System
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
B6HW
- ---------------------------------------------------------------------------------------------------------------------
B3AT
- ---------------------------------------------------------------------------------------------------------------------
B7HW
- ---------------------------------------------------------------------------------------------------------------------
B4AT
- ---------------------------------------------------------------------------------------------------------------------
B8HW
- ---------------------------------------------------------------------------------------------------------------------
B5AT
- ---------------------------------------------------------------------------------------------------------------------
B6AT
- ---------------------------------------------------------------------------------------------------------------------
B7AT
- ---------------------------------------------------------------------------------------------------------------------
B8AT
- ---------------------------------------------------------------------------------------------------------------------
OSST
- ---------------------------------------------------------------------------------------------------------------------
Basic Start End
NYCPD < - > SAIC Milestones Basic Basic Basic Basic Basic B8& Final Final
B-3 B4 B5 B6 B7 Module System System
Accept. Accept. Accept. Accept. Accept. Accept. Accept. Accept.
- ---------------------------------------------------------------------------------------------------------------------
Intel Intel
Funct. Module
Accept. Accept.
- ---------------------------------------------------------------------------------------------------------------------
Missing Missing Missing
Persons Funct. Module
CSR Accept. Accept.
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
CSR -- Customization Specification Review CDR -- Customization Design Review
CD -- Customization Demonstration OSST -- On-Site System Test
FIS -- Federal Interface Subsystem PRSR -- pre-Ready-to-Ship Review
RSR -- Ready-to-Ship Review xxIT -- xxxxx Installation Test
xxAT -- xxxxx Acceptance Test
Exhibit 1-1 XImage Milestones and Schedule Revision D
<PAGE>
<TABLE>
<CAPTION>
TOTAL ECPS BLOCK 0 BLOCK 1 BLOCK 2 BLOCK 3 BLOCK 4 BLOCK 5 BLOCK 6 BLOCK 7 BLOCK 8
QTY QTY QTY QTY QTY QTY QTY QTY QTY QTY QTY
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
VIDEO CAMERA 11 11 11
CAPTURE 12 11 1 12
DISPLAY 91 14 8 8 12 12 12 12 12 1 91
SCANNER 1 1 1
COLOR PRINTER 12 6 1 2 2 1 12
SM. DYE-SUB PRINTER 8 1 7 8
B&W PRINTER 76 14 7 7 3 10 10 12 12 1 76
Sparc 20 Server 2 2 2
IMAGE STORAGE 2 2 2
BACKUP 1 1 1
FIS Sparc5 Server 1 1 1
IMAGING SW 1 1 1
24X7 MAINT 1 1 1
DOCUMENTATION 1 1 1
7 Pre 7 Pre 3 Pre 10 Pre 10 Pre 12 Pre 12 Pre 15 Pre
1 CMSN 1 Photo 7 Det 1 Fug
1 BW 2 CWU 1 BW 2 BW
Redeploy 2 Tek 4 Tek 6 B&W
6 Display
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
Exhibit 1-2 Configuration of each Installation Block of the Basic Photo Imaging
System
Revision C
<PAGE>
Attachment 2
PROJECT MILESTONES AND SCHEDULE
- Federal Interface Subsystem
- Basic Photo Imaging System
- Intelligence Subsystem
- Missing Persons Subsystem
READY-TO-SHIP-REVIEW (RSR) - FUNCTIONAL ACCEPTANCE: A formal review held with
the Buyer and NYCPD at the XImage facilities, after the implementation phase,
to test the functionality of the Photo Imaging Systems (i.e., screens,
database, print formats, and functions) before deployment to the NYCPD's
facilities. The purpose of this acceptance testing is to demonstrate that the
functionality provided (both hardware and software) meets the specifications
as documented in the Customization Specification Document. Deployment will
begin after receipt of written notification from the NYCPD of successful
completion of the Functional Acceptance testing. A separate RSR-Functional
Acceptance will be held for the following Photo Imaging Systems:
- Federal Interface Subsystem
- Basic Photo Imaging System
- Intelligence Subsystem
- Missing Persons Subsystem
BLOCK-INSTALLATION TESTING: Installation testing of each block conducted
with the Buyer after the block is installed in NYCPD's facilities. The
purpose of this testing is to ensure that the hardware and software
configuration is compliant with the specifications in Schedule C and that all
components for that block are installed and operational.
BLOCK ACCEPTANCE: Acceptance testing of each block conducted with the Buyer
and NYCPD after the block is installed in NYCPD's facilities. A subset of the
Functional Tests will be conducted against the block to prove that the block
was correctly installed, configured, and operational. The number of blocks
for the each of the Photo Imaging Systems is identified below and the
composition of each of the Basic Photo Imaging System blocks are identified
in Exhibit 1-2.
- Federal Interface Subsystem - 1 block
- Basic Photo Imaging System - 9 blocks
- Intelligence Subsystem - 1 block
- Missing Persons Subsystem - 1 block
MODULE ACCEPTANCE: Performance and availability acceptance testing of each
module conducted with the Buyer and NYCPD after all blocks for a module are
deployed. The purpose of this acceptance testing is to demonstrate that the
performance and availability requirements for each module, as defined in
Attachment 5 of this contract, are met. A separate Module Acceptance test
will be held for the following Photo Imaging Systems:
- Basic Photo Imaging System
- Intelligence Subsystem
- Missing Persons Subsystem
Attachment 2-4 Revision D
<PAGE>
Attachment 2
PROJECT MILESTONES AND SCHEDULE
3. SYSTEM INTEGRATION MILESTONES
The overall system integration testing will begin after installation and
acceptance of all of the Photo Imaging System is complete and after the
integration and testing of the Automated DB2 System is complete. The system
integration testing consists of the On-Site System Test and Final System
Acceptance Testing. The Seller is not responsible for conducting these tests
but is responsible for participating in and supporting the overall system
integration testing efforts.
ON-SITE SYSTEM TEST: Informal testing by the Buyer of the integrated system
after module acceptance of all Photo Imaging Systems are complete and after
the installation of the Automated DB2 System software is complete. The
purpose of this testing is to verify that the system performs as expected
prior to start of Final System Acceptance. The On-Site System Test is the
time allocated for the Buyer and Seller to conduct its own testing to verify
that the integrated system is ready for Final System Acceptance.
START FINAL SYSTEM ACCEPTANCE: formal system acceptance testing held with the
NYCPD after On-Site System Test is complete. During the Final System
Acceptance testing the following acceptance tests will be performed:
- FUNCTIONAL ACCEPTANCE OF AUTOMATED DB2 SYSTEMS - formal acceptance
testing of the Automated DB2 Systems to verify that the
functionality provided (i.e., screens, database, print formats,
and functions) meets the specifications as documented in the
Software Requirement Specification document.
- PERFORMANCE ACCEPTANCE OF AUTOMATED DB2 SYSTEMS - performance and
availability acceptance testing of the Automated DB2 Systems
after completion of the Automated DB2 Systems Functional
Acceptance tests. The purpose of this acceptance testing is to
demonstrate that the performance and availability requirements
for the Automated DB2 Systems, as defined in Attachment 5 of this
contract, are met
- FINAL SYSTEM INTEGRATION ACCEPTANCE - system integration tests
conducted to demonstrate and validate that all components are
integrated and that all interfaces to external systems are
functional and meet the interface specifications as documented in
the Interface Control Document.
END FINAL SYSTEM ACCEPTANCE: successful completion of the Final System
Acceptance testing. After Final System Acceptance is successfully completed,
the Warrant/Want/WOLF database will be converted to the new format for the
last time, and the new Automated DB2 Systems will go operational. (Note: that
the Photo Imaging Systems became operational in Block increments after
successful completion of each Block Acceptance test.)
Attachment 2-5 Revision D
<PAGE>
Attachment 3
CONTRACT DATA REQUIREMENTS LIST
1 CONTRACT DATA REQUIREMENTS LIST
EXHIBIT 1-1 lists the deliverable items for this subcontract along with the
submission time-frame, estimated number of pages, the number of copies to be
provided, and a pointer to the Statement of Work which discusses the
deliverable. The Seller shall provide the data items identified in EXHIBIT 1-1
in the Seller's format within the time frame shown in EXHIBIT 1-1. Some
of the data items are considered "living documents" and are identified as
such in EXHIBIT 1-1. The Seller shall provide updates to the "living
documents" at each formal engineering review following the initial submission
and a final "as-built" document at start of Final System Acceptance testing.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
First Due Review Living Approx # of SOW
Date Doc. Pages Copies Ref.
- ----------------------------------------------------------------------------------------------------------------------
PHOTO IMAGING SYSTEMS DELIVERABLE DOCUMENTS
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Basic Customization Specifications 2 WPR CSR 75 3 3.1.7
- ----------------------------------------------------------------------------------------------------------------------
Basic Customization Design Document 2 WPR CDR X 100 3 3.1.7
- ----------------------------------------------------------------------------------------------------------------------
Intel Subsystem Customization Specifications 2 WPR CSR 75 3 3.1.7
- ----------------------------------------------------------------------------------------------------------------------
Intel Subsystem Customization Design Document 2 WPR CDR 100 3 3.1.7
- ----------------------------------------------------------------------------------------------------------------------
Missing Persons Subsystem Customization Specifications 2 WPR CSR 75 3 3.1.7
- ----------------------------------------------------------------------------------------------------------------------
Missing Persons Subsystem Customization Design Document 2 WPR CDR X 100 3 3.1.7
- ----------------------------------------------------------------------------------------------------------------------
System Administration Manual 1 MPA 100 1 per SA 3.8
- ----------------------------------------------------------------------------------------------------------------------
User's Manual 1 MPA 100 1 per WS 3.8
- ----------------------------------------------------------------------------------------------------------------------
Utilities Guide 1 MPA 100 1 per SA 3.8
- ----------------------------------------------------------------------------------------------------------------------
Support Reference Card 1 MPA 1 1 per WS 3.8
- ----------------------------------------------------------------------------------------------------------------------
Training Material 1 MPT 50 1 per TP 3.7
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
SYSTEM ENGINEERING DELIVERABLE DOCUMENTS
- ----------------------------------------------------------------------------------------------------------------------
Interface Control Document (support only) 3 WPR CSR X 30 3 3.2
- ----------------------------------------------------------------------------------------------------------------------
Implementation Plan 3 MAC 50 3 3.6
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
PROGRAM REVIEW DELIVERABLE ITEMS
- ----------------------------------------------------------------------------------------------------------------------
Project Status Report monthly 2 1 3.1.0
- ----------------------------------------------------------------------------------------------------------------------
Risk Management Report monthly 2 1 3.1.4
- ----------------------------------------------------------------------------------------------------------------------
Program Management Review Minutes 1 WAR 3 1 3.1.1
- ----------------------------------------------------------------------------------------------------------------------
Program Engineering Review Minutes 1 WAR all 4 1 3.1.7
- ----------------------------------------------------------------------------------------------------------------------
CI Change Report monthly 2 1 3.1.3
- ----------------------------------------------------------------------------------------------------------------------
Plan of Correction WAA all 2 1 3.6
- ----------------------------------------------------------------------------------------------------------------------
WPR = Weeks Prior to Review WAR = Weeks after Review MAC = Months After Contract Execution
MPA = Months Prior to Acceptance (Block 1) MPT = Months Prior to Training WAA = Weeks After Acceptance Tests
TP = Trained Persons WS = Workstation SA = System Administrator
</TABLE>
EXHIBIT 1-1 DELIVERABLE DATA ITEMS
The document review cycle (one draft and one final submission) and completion
criteria is described in Attachment 7 of this subcontract. A brief
description of each of the deliverable items is provided in the following
sections.
2. PHOTO IMAGING SYSTEMS DELIVERABLE DOCUMENTS
A brief description of each of the deliverable documents for the Photo
Imaging Systems is provided below. The documentation provided for the Photo
Imaging Systems is based on the
Attachment 3-1 Revision C
<PAGE>
Attachment 3
CONTRACT DATA REQUIREMENTS LIST
standard documentation set provided with the ForceField COTS system which
will be customized to reflect the NYCPD-specific installation.
The CUSTOMIZATION SPECIFICATIONS shall consist of draft screen layouts, print
formats, operator procedures, code table definitions, validation rules,
NYCPD-specific database fields, specifications for any other NYCPD-specific
customization, and acceptance test procedures. There will be one
Customization Specification document for each of the Photo Imaging Systems:
(1) Basic Photo Imaging System, (2) Intelligence Subsystem, and (3) Missing
Persons Subsystem.
The CUSTOMIZATION DESIGN DOCUMENT shall consist of the high-level software
architecture, a description of each of the high-level software components,
the interfaces between those components, and the physical database design of
the Photo Imaging Systems. There will be one Customization Design document
for each of the Photo Imaging Systems: (1) Basic Photo Imaging System, (2)
Intelligence Subsystem, and (3) Missing Persons Subsystem.
The SYSTEM ADMINISTRATION MANUAL shall be designed as a reference manual for
NYCPD's designated System Administrators and shall include the procedures for
management of all of the Photo Imaging System's resources, both hardware and
software. This document provides the System Administrator with the specific
concepts and procedures necessary to manage daily operations including
answering operational questions, local trouble-shooting, database backup and
recovery, monitoring database integrity, system audits, and defining and
executing special management reports.
The USER'S MANUAL shall be designed as a reference manual for NYCPD's
end-users of the Photo Imaging Systems and shall include instructions and
operational procedures for capture, retrieval, and printing of images and
booking information.
The UTILITIES GUIDE shall describe the utilities provided with the system and
how and when to use these utilities.
The SUPPORT REFERENCE CARD shall be designed as a quick 2-sided reference
guide to be used in the event of Photo Imaging System problems and shall
include common problems and resolutions, along with the names and phone number
of the NYCPD's System Administrators.
The TRAINING MATERIAL shall consist of formal briefing charts to be used
during the User's Training classes and System Administrator's Training
classes. The User's Training Material shall provide instructions on the use
of and operational procedures for the capture, retrieval, and printing
functions of the Photo Imaging System. The System Administrator's Training
Material shall provide instructions on the concepts and procedures necessary
to manage the daily operations including answering operational questions,
local trouble-shooting, database backup and recovery, monitoring database
integrity, system audits, and defining and executing special management
reports.
3. SYSTEM ENGINEERING DELIVERABLE DOCUMENTS
A brief description of each of the deliverable documents associated with the
overall system engineering, integration, and installation is provided below.
The INTERFACE CONTROL DOCUMENT, which will be developed jointly by the Buyer
and Seller, shall define the interfaces between external systems and the
Automated DB2 Warrant and Digitized Photo Imaging System. The interface
definitions will include a description of the application-to-application
transaction protocol and the contents of each transaction message.
Attachment 3-2 Revision C
<PAGE>
Attachment 3
CONTRACT DATA REQUIREMENTS LIST
The IMPLEMENTATION PLAN shall provide a schedule for the site installations,
describe the required site preparations, and highlight any inadequacies in
the current facilities that need to be corrected prior to installation.
4. PROGRAM REVIEW DELIVERABLE DATA ITEMS
A brief description of each of the deliverable data items associated with the
overall program management and review is provided below.
The Monthly PROJECT STATUS REPORTS shall include status of work against
target schedule, installations completed or in progress during the reporting
period, work and installations planned for the next month, and problem
identification and planned resolution.
PROGRAM MANAGEMENT REVIEW MINUTES shall provide a summary of the results of
the Quarterly Program Management Reviews.
PROGRAM ENGINEERING REVIEW MINUTES shall provide a summary of the results of
the Formal Engineering Reviews including issues identified during the review
and agreed-upon action items.
The CI CHANGE REPORT shall list all authorized changes against the baseline
system and all "bug" fixes implemented during that reporting period.
The PLAN OF CORRECTION shall identify all deficiencies found during
acceptance testing, a planned correction date, and assigned person.
Attachment 3-3 Revision C
<PAGE>
Attachment 4
PAYMENT SCHEDULE
<TABLE>
<CAPTION>
<S> <C>
Basic Subcontract Agreement Value: $2,389,500
Withhold Value (Pending Acceptance): -$500,000
---------
Available Funds For Distribution: $1,889,500
Payment 01 ......... ......... ......... $250,000
Payment 02 ......... ......... ......... $125,000
Payment 03 ......... ......... ......... $250,000
Payment 04 ......... ......... ......... $125,000
Payment 05 ......... ......... ......... $250,000
Payment 06 ......... ......... ......... $125,000
Payment 07 ......... ......... ......... $125,000
Payment 08 ......... ......... ......... $100,000
Payment 09 ......... ......... ......... $100,000
Payment 10 ......... ......... ......... $100,000
Payment 11 ......... ......... ......... $100,000
Payment 12 ......... ......... ......... $100,000
Payment 13 ......... ......... ......... $100,000
Payment 14 ......... ......... ......... $39,500
</TABLE>
Page 1
<PAGE>
Attachment 5
TECHNICAL AND PERFORMANCE REQUIREMENTS
1. INTRODUCTION
This attachment provides the performance requirements for the Automated DB2
Warrant and Integrated Digitized Photo Imaging System. The performance
requirements include the workload requirements, response-time requirements,
storage requirements, and availability requirements. EXHIBIT 1-1 summarizes
the overall system workload and system parameters as specified in the
Automated DB2 Warrant and Integrated Digitized Photo Imaging System RFP.
2. PERFORMANCE REQUIREMENTS FOR PHOTO IMAGING SYSTEM
This section provides the performance requirements for the Photo Imaging
System, including the workload requirements, response-time requirements,
storage requirements, and availability requirements.
2.1 Workload/Response-Time/Storage Capacity Requirements
The expected workload and total number of photos stored for three years for
each borough is shown in EXHIBIT 1-1 and is based on the number of arrests
per borough per year, the percentages of felony and DAT arrests at that
borough, and the average number of photos taken for each felony and DAT
arrest. It is anticipated that DAT arrests will require three (3) photos. It
is anticipated that non-DAT arrests will require five (5). A three (3) year
on-line retention capacity before archiving on off-line storage is the
minimum. This is based upon the present 3 year rotating retention period
presently in use in the borough CATCH Units.
2.1.1 Storage Requirements
The Photo Imaging System shall provide on-line storage and an on-line mirror
copy (or functional equivalent) for 3 years of bookings/arrests based on the
workload. The Photo Imaging System shall support the addition of photos and
booking/arrest data and provide adequate storage for 3-years of photos and
booking/arrest data based on the workload shown in EXHIBIT 1-1. The Photo
Imaging System shall archive the photo after three years on off-line mass
storage devices.
The Photo Imaging System shall support a trigger-level methodology to
institute an orderly documented procedure for increasing storage capacity
without "shutting-down" the system. The Photo Imaging System shall allow for
continued capture of photo images while additional storage is being
allocated/installed.
2.1.2 Workload Requirements
The Photo Imaging System shall support a peak booking/arrest rate of 55
bookings/arrests per hour at the Central Manhattan Booking site (excluding
operator think time and data-entry time) using the workload mix of felony and
DAT arrests and average number of photos per felony and DAT booking/arrest
shown in EXHIBIT 1-1. The SAIC Team recommends three CaptureStations at the
Manhattan booking site to meet both the peak workload (55 booking/arrests per
hour) and availability requirements. The other central booking sites require
2 CaptureStations per site to meet availability requirements. If it is not
possible to place the recommended number of capture stations at each central
booking site because of space constraints or any other factors outside the
control of the SAIC Team, then the peak workload requirement and/or
availability requirements shall be prorated appropriately.
Attachment 5-1 Revision C
<PAGE>
ATTACHMENT 5
TECHNICAL AND PERFORMANCE REQUIREMENTS
BASIC PHOTO IMAGING SYSTEM
<TABLE>
<CAPTION>
Estimated # Of Arrests Estimated # Of Images
Yearly 3 Years of % non-DAT Felony DAT Total
Arrests Arrests Photographable (3 yrs) (3 yr) (3 yr)
<S> <C> <C> <C> <C> <C> <C>
Bronx 58,400 175,200 63% 110,376 64,824 746,352
Brooklyn 80,500 241,500 61% 147,315 94,185 1,019,130
Manhattan 122,500 367,500 40% 147,000 220,500 1,396,500
Queens 45,200 135,600 57% 77,292 58,308 561,384
Staten Island 8,900 26,700 45% 12,015 14,685 104,130
TOTAL 315,500 946,500 493,998 452,502 3,827,496
1-yr= 1,275,832
</TABLE>
Felony = 5 photos per arrest (frontal, profile, and 3 photos of distinguishing
characteristics)
DAT = 3 photos per arrest (frontal, profile, and 1 distinguishing
characteristic)
SEALINGS
<TABLE>
<CAPTION>
Arrest Photos Returned Sealing
Per Year Requests Per Year
-------- -----------------
<S> <C>
63,000 360,000
</TABLE>
CATCH REQUESTS PER BOROUGH (*FELONIES ONLY)
<TABLE>
<CAPTION>
Ave. Cases Viewed Ave. Viewers Ave. Storage % of
Per Year Per Year Capacity/Boro All Arrests
-------- -------- ------------- -----------
<S> <C> <C> <C>
1,000 1,300 140,000 64%
</TABLE>
MISSING PERSONS SUB-SYSTEM
<TABLE>
<CAPTION>
New Cases Per Year Cases Closed/Yr Cases Open Any Time Total Case Load
- ------------------ --------------- ------------------- ---------------
<S> <C> <C> <C>
10,000-15,000 27,000 5,000 35,000
</TABLE>
INTELLIGENCE SUB-SYSTEM
<TABLE>
<CAPTION>
Approx. Surveillance Ave. # Photos Initial Scanned
Groups Per Group Photos
------ --------- ------
<S> <C> <C>
400 100 40,000
</TABLE>
EXHIBIT 1-1 Automated DB2 Warrant and Integrated Digitized Photo Imaging
System Sizing Parameters
Attachment 5 - 2 Revision C
<PAGE>
ATTACHMENT 5
TECHNICAL AND PERFORMANCE REQUIREMENTS
The Photo Imaging System shall support a peak rate of 3 line-up/witness-mode
searches per hour per precinct with an average of 45 images retrieved and
displayed per search (excluding operator think time and data-entry time). The
Photo Imaging System shall support a peak retrieval rate of an additional 100
images per hour per precinct (excluding operator think time and data-entry
time).
2.1.3 Response-time Requirements
Under the peak workload specified in 2.1.2, the Photo Imaging System shall
display the first set of 6 postage-stamp images from a line-up/witness-mode
search within 30 seconds 50% of the time and within 45 seconds 98% of the
time when the workstation is on the same LAN as the image server without other
NYCPD communications traffic. This response-time assumes that on average 45
images are retrieved and downloaded to the workstation per search request.
Under the peak workload specified in 2.1.2, the Photo Imaging System shall
display the image from a unique-key image retrieval request within 6 seconds
50% of the time and within 8 seconds 98% of the time when the workstation is
on the same LAN as the image server without other NYCPD communications
traffic.
2.2 Availability Requirements
The Photo Imaging System shall be available 24 hours-a day, 7-days-a-week and
shall have an availability of 98% by the end of the first year of operation.
The Photo Imaging System is considered unavailable any time it is not fully
meeting the functional and performance requirements specified using the rules
below:
Availability calculations shall include down-time associated with:
- corrective hardware maintenance and software failures (Category 1 and
Category 2) associated with the Central Server configuration which cause
all workstations (Capture and Display-only) to not fully meet the
functional and performance requirements. In the event that only some
workstations are affected, then the downtime associated with each
workstation is applied in the availability calculation (see following
bullets).
applied downtime = Total downtime
- corrective hardware maintenance and software failures (Category 1 and
Category 2) which cause any central booking site to not support
the operational booking/arrest workload up to a maximum of 55
bookings/arrests per hour at Central Manhattan. The loss of a capture
station, in and of itself, is not included in the downtime unless it
prevents the booking site from handling its workload as specified above.
(Note that this requirement shall be relaxed if the recommended number
of Capture Stations per central booking site cannot be installed because
of space constraints or any other factors outside the control of the
SAIC Team.) The downtime calculation to be used in the event that a
given booking-site is not meeting requirements is as follows:
applied downtime = Booking-site downtime/total-number-of-booking-sites
- corrective hardware maintenance and software failures (Category 1 and
Category 2) which cause functionality of a display-only workstation to
be unavailable using the following calculation (Note: printers are not
included):
applied-downtime = WS down-time/total-number-of-WS
Attachment 5 - 3 Revision C
<PAGE>
ATTACHMENT 5
TECHNICAL AND PERFORMANCE REQUIREMENTS
NOTE: downtime because of communications failures or slow response-times
because of communications congestion shall not be included in the
availability calculations.
Attachment 5 - 4 Revision C
<PAGE>
ATTACHMENT 6
MAINTENANCE
1. INTRODUCTION
This attachment addresses the maintenance provision for the Automated DB2
Warrant and Integrated Digitized Photo Imaging System. The Department has
elected to purchase the 5-year maintenance package at contract award. The
5-year maintenance support package covers normal use of the delivered
hardware and software for its intended purpose. Any repairs outside of this
scope will be an additional charge.
2. OPERATIONS AND MAINTENANCE SUPPORT
The Seller's operations and maintenance support plan includes both one
full-time on-site NYCPD-dedicated employee and access to a 24-by-7 Help Desk.
Exhibit 2-1 illustrates the operations and maintenance support procedures for
handling user problems. The on-site NYCPD-dedicated employee is the front
line support for the Seller. The on-site NYCPD-dedicated employee will
interface with the System Administrators to analyze user problems and, in the
event that he/she cannot resolve the problem, interface with a 24-by-7 Help
Desk. In the event that the on-site NYCPD-dedicated employee is not
available, the System Administrator(s) designated by the Department will
interface with the Help Desk.
The Department is responsible for designating System Administrators who will
be trained by the Seller to manage and trouble-shoot the system (see Training
for detailed information about the training plan for System Administrators).
It should be noted that, in most cases, the role of System Administrator is
not a full-time activity and that the personnel designated as the System
Administrators may have other duties. The Seller is prepared to train up to
18 personnel as System Administrators to cover the central headquarters'
system, central booking sites, and precincts. This represents approximately
three (3) trained System Administrators for each borough and three (3)
trained System Administrators for the central site server configuration.
2.1 PROBLEM REPORTING PROCEDURE
Both hardware and software problems will use the same reporting procedure. As
depicted in Exhibit 2-1, the employee of the Department who experiences
problems will notify a Department employee designated as the System
Administrator. The System Administrator may be able to resolve the problem by
reviewing the troubleshooting guide. If the System Administrator cannot
resolve the problem, then the System Administrator will notify the on-site
NYCPD-dedicated employee of the problem. If the on-site NYCPD-dedicated
employee is unavailable, then the 24-by-7 Help-Line is contacted by the
System Administrator.
The Help-Line will consist of an 800-prefix telephone number. The Help Desk
respondent will either solve the problem or take down the information and
contact the appropriate Seller's response group depending on the time of day
and situation.
The Department's employee that placed the call will be called back and the
problem diagnosed and solved as quickly as possible. The problem will be
logged with an incident number. The incident number registers important data
about the severity of the call and the registration process consolidates the
name, location, and description of the problem reported to the Seller. A
periodic report on all incidents will be reviewed by the Seller and the
System Administrator to reduce problems and to identify undesirable trends in
system performance or use.
Attachment 6 - 1 Revision D
<PAGE>
<TABLE>
<S> <C> <C>
Department User
Problem Detected
Problem Resolved Not resolved AND
NYCPD-dedicated Employee not available
System Administrator
Not resolved
Problem Resolved
On-Site NYCPD-Dedicated Employee
24-by-7 Help Desk
Software Problem Hardware Problem
- Diagnose Problem - Hardware swap-out
- Establish Work-Around - Performed by On-Site NY-Dedicated
- Implement Permanent fix employee or contract service providers
- Download Work-Around and/or Permanent Fix - Coordinated by the Contractor
/ / Department Employee
/ / Contractor's Team
Report "Problem-Resolved" to Help Desk Report "Problem-Resolved" to Help Desk
</TABLE>
Exhibit 2-1 The Seller's Operations & Maintenance Approach
Attachment 6 - 2
<PAGE>
ATTACHMENT 6
MAINTENANCE
2.2 PROBLEM RESPONSE PROCEDURE
Following the receipt of a phone call to the Help Desk, the Seller's support
team member will respond by remotely logging on to the system and reviewing
the diagnostic/error log. From this initial review, a determination of the
cause of the problem will be made: i.e., hardware or software failure. As
shown in EXHIBIT 2-1, the Help Desk will initiate different procedures based
on this initial review of the problem. In the event that the problem is due
to a hardware failure, the on-site NYCPD-dedicated employee would be
responsible for going to the site and swapping out the failed hardware item
or coordinating the swap-out with pre-arranged contract service providers. It
is the Seller's responsibility to coordinate and manage the services of the
contract service providers and to coordinate this with the Department's
System Administrator. Spare hardware will be maintained in the Department's
facilities by the on-site NYCPD-dedicated employee. The contract service
providers will require access to the Department's spares.
In the event that the problem is a software error, the Seller will use the
remote log-in capability to further diagnose the problem and determine the
correction or work-around. The work-around and/or correction will be
downloaded via modem to the system after test and check-out.
2.3 RESPONSE TIME REQUIREMENTS AND CRITICAL EVENT DETERMINATION
The Seller's support requirement designates a two-hour response time limit.
This requires that the Seller respond to the problem during that period, but
does not mean that all of the problems can be completely solved in that time
period. It is important to note that the system architecture, as designed by
the Seller, is intended to be redundant and, as such, critical events that
restrict/prevent normal operations should be extremely limited. The central
server configuration includes dual system servers with automatic failover and
RAID technology for high-availability magnetic storage.
The Seller will respond as rapidly as possible to re-establish all operations
to normal. In the event of a hardware failure, a spare will be readily
available for the on-site NYCPD-dedicated employee or contract service
provider to use for swap-out, and the failed piece will not impair normal
operations due to the built-in redundancy of critical components of the
system (especially at the server and capture sites). For software problems, a
critical barrier to functioning is extremely rare and would be responded to
by all of the Seller's staff on an emergency basis. The typical software
problem is quickly solved by a work-around which can be developed within
hours and the lost time of operation is very short. The Seller will then
develop a strategic plan to solve the problem for the long term and implement
it following testing/simulation. The fix will then be downloaded by modem to
the Department's system.
2.4 MAINTENANCE SUPPORT FOR FEDERAL INTERFACE SUBSYSTEM
During operation of the Federal Interface Subsystem, which consists of six
(6) stand-alone capture sites, the Seller will provide the same level of
operations and maintenance support described above, except for the on-site
NYCPD-dedicated employee. This means that the designated System
Administrator(s) will interface with the Help Desk directly to resolve
problems that he/she cannot resolve.
Attachment 6 - 3 Revision D
<PAGE>
ATTACHMENT 7
ACCEPTANCE CRITERIA
1. INTRODUCTION
The purpose of this attachment is to define the completion criteria for
deliverable documents, engineering reviews, and acceptance testing for the
Automated DB2 Warrant and Integrated Digitized Photo Imaging System.
Section 2 defines the completion criteria for Deliverable Documents. Section
3 defines the completion criteria for Engineering Reviews, and Section 4
defines the completion criteria for Acceptance Testing.
2. DOCUMENT DELIVERABLE COMPLETION CRITERIA
This completion criteria applies to all deliverable documents for both the
Photo Imaging Systems and the DB2 Systems. The criteria for completion of the
document deliverables is as follows:
- The Seller will develop the documents in accordance with
Attachment 3 of this contract (estimated number of pages, content,
etc.).
- The Buyer has 3 weeks from the date of receipt to review the draft
document and make written comments which will be sent to the
Seller's contracts manager.
- Final document incorporating changes based on comments due back to
the Buyer two (2) weeks after comments received by the Seller's
contracts manager.
- Any comments not incorporated will be discussed with the Buyer and
documented in writing by the Seller.
- The Buyer will approve in writing the final documents within
two weeks of receipt by the Buyer's contract manager. This
constitutes the baseline for continuance of the next phase of
development/integration.
3. ENGINEERING REVIEW MILESTONE COMPLETION
This completion criteria applies to the engineering review milestones for the
Photo Imaging Systems.
The criteria for completion of all of the engineering reviews are as follows:
- All required documents associated with the milestones, as
specified in the SOW, are drafted or revised based on comments
received by the Seller prior to or during the review conduct (see
Section 2 Document Deliverables acceptance above).
- Milestone Review conducted in accordance with the review criteria
specified in the SOW. Action items shall be reviewed and agreed
upon before the review meeting concludes.
- Milestone Review Minutes delivered by the Seller - The review
minutes shall include issues and agreed upon action items.
- All issues identified during the review have either been resolved
or a plan of correction and due dates have been developed,
documented by the Seller, and accepted by the Buyer.
- The Buyer will approve the final minutes in writing within
1 week of receipt by the Buyer's contract manager - this constitutes
approval for continuance of the next phase of
development/integration.
3.1 CUSTOMIZATION DEMONSTRATION COMPLETION
Attachment 7 - 1 Revision C
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ATTACHMENT 7
ACCEPTANCE CRITERIA
In addition to the general engineering review completion criteria, the
completion criteria for the Customization Demonstration includes:
- Demonstration of each customization item (screens, print formats,
data entry and validation rules, etc.).
- Customization Demonstration Minutes delivered - documents any
missing, malfunctioning, or incorrect items.
- All problems identified during the demonstration have either been
corrected or a plan of correction and due dates has been developed,
documented by the Seller, and accepted by the Buyer.
3.2 PRE-RSR AND RSR COMPLETION
In addition to the general engineering review completion criteria, the
completion criteria for the Pre-RSR and RSR includes:
- Hardware Configuration Checklist (hardware compliant with
specifications as identified in Schedule C of this contract)
- COTS Software Configuration Checklist (software compliant with
specifications as identified in Schedule C of this contract)
- Execution of Functional Test Cases which will be used for Functional
Acceptance (see Section 4.1)
- For Pre-RSR, demonstrates "readiness" to conduct customer-witnessed
RSR with a high-probability-of-success
- For RSR, successful execution of all Functional Acceptance tests
(see Section 4.1)
- All problems identified during the review have either been resolved
or a plan of correction and due dates has been developed, documented
by the Seller, and accepted by the Buyer.
4. ACCEPTANCE TESTING COMPLETION
Because of the nature of this program and the difference in time of
deployment and operations between the different components of this system,
the Acceptance Testing has been separated into three main areas: (1) the
Photo Imaging Systems, (2) DB2 Systems, and (3) Final System Acceptance. The
purpose and content for each of the Acceptance Tests is summarized in Exhibit
4-1 and described in the following sections.
The Seller is responsible for conducting the Acceptance Testing for the Photo
Imaging Systems, as defined in Section 4.1. The Seller is responsible for
supporting and participating in the Final System Acceptance Test, as defined
in Section 4.2.
4.1 ACCEPTANCE TESTING - PHOTO IMAGING SYSTEMS
Because of the early start of deployment and the incremental deployment
schedule, the acceptance testing for the Photo Imaging Systems will consist
of three distinct elements: (1) Functional Acceptance Testing, (2) Block
Acceptance Testing, and (3) Module Acceptance Testing. The purpose and
scheduling of each acceptance testing element of the Photo Imaging Systems is
summarized in Exhibit 4.1 and described below:
Attachment 7 - 2 Revision C
<PAGE>
[GRAPH]
Exhibit 4-1 Acceptance Tests for the Automated DB2 Warrand and Integrated
Digitized PHoto Imaging System
Attachment 7 - 3
<PAGE>
Attachment 7
ACCEPTANCE CRITERIA
- FUNCTIONAL ACCEPTANCE - tests functionality of system (screens,
database, print formats, and functions) and is conducted at the
Ready-to-Ship Review (RSR) (see Section 4.1.1).
- BLOCK INSTALLATION ACCEPTANCE - Operational Acceptance of each
block as they are deployed to ensure that the components were
correctly installed and operational (see Section 4.1.2).
- MODULE ACCEPTANCE - Performance and
Reliability/Maintainability/Availability Acceptance testing of each
module (i.e.: Basic, Intelligence, Missing Persons) after all
blocks for a module are deployed (see Section 4.1.3).
The general criteria for completion/acceptance for all acceptance testing is:
- All required documents associated with the milestones, as specified
in the SOW, are completed and revised based on comments (see
Section 2 Document Deliverables acceptance above), and signed off
by the Buyer's contract manager.
- Successful execution of acceptance tests (functional, block,
module, and system level) as defined in the applicable
Customization Specification Document. (Note: that software "bugs"
encountered during acceptance testing does not necessarily
constitute failure. Acceptance Test will be considered successful,
if the software failure has been corrected and demonstrated to the
Buyer or a Plan of Correction has been developed, documented by the
Seller, and accepted by the Buyer.)
Guidelines for execution of each type of acceptance testing is provided in
the following subsections.
4.1.1 Functional Acceptance Testing - Photo Imaging Systems
The purpose of this acceptance testing is to demonstrate that the
functionality provided meets the specifications (screens, print formats,
database, and operational capabilities such as capture, retrieval, display,
line-ups, witness-mode, printing, etc.) as documented in the Customization
Specifications Document. Functional Acceptance Testing will be conducted at
the Ready-to-Ship Review (RSR) at the Seller's facilities, will be witnessed
by the Buyer and NYCPD, and requires the Buyer's formal acceptance by the
Buyer's contract manager before considered complete. The Buyer will not
consider Functional Acceptance complete until the Buyer receives formal
written acceptance from NYCPD. Deployment of the system to the NYCPD
facilities will not begin until the Buyer receives Functional Acceptance from
NYCPD.
The test procedures and test cases for Basic, Intelligence, and Missing
Persons will be documented in the applicable Customization Specification
Document and will meet these general guidelines:
- Hardware Configuration Checklist (hardware compliant with
specifications as identified in Schedule C of this contract)
- COTS Software Configuration Checklist (software compliant with
specifications as identified in Schedule C of this contract)
- General guidelines for Functional Acceptance Testing to be
conducted at RSR
Attachment 7 - 4 Revision C
<PAGE>
Attachment 7
ACCEPTANCE CRITERIA
- Each model of printer exercised within ForceField
application (using every print format associated
with each printer)
- Each model of scanner exercised within ForceField
application (using every applicable function
associated with scanner)
- All capture cameras exercised within ForceField
application
- All other peripherals exercised
(options-to-be-determined)
- Demonstration of Capture, Display, Retrieve, and
Print
- Demonstration of operational functionality
(line-ups, witness-mode, ad-hoc search, etc.)
- Simulation of all applicable external interfaces and
formats
4.1.2 Block Acceptance - Photo Imaging Systems
After installing each block of the Basic Photo Imaging System in NYCPD
facilities, a subset of the functional acceptance tests will be conducted
against the block to prove that the block was correctly installed and
operational. These tests will be witnessed by the Buyer and NYCPD and require
the Buyer's formal written acceptance by the Buyer's contract manager before
considered complete.
After installing Intelligence Subsystem, the functional acceptance tests will
be executed again to ensure that the subsystem was correctly installed and
operational. These tests will be witnessed by the Buyer and NYCPD and require
the Buyer's formal written acceptance by the Buyer's contract manager before
considered complete.
After installing Missing Persons Subsystem, the functional acceptance tests
will be executed again to ensure that the subsystem was correctly installed
and operational. These tests will be witnessed by the Buyer and NYCPD and
require the Buyer's formal written acceptance by the Buyer's contract manager
before considered complete.
The Block Acceptance Tests will meet these general guidelines:
- Hardware Configuration Checklist (hardware compliant with
specifications as identified in Schedule C of this contract)
- COTS Software Configuration Checklist (software compliant with
specifications as identified in Schedule C of this contract)
- The Seller will develop standard acceptance test procedures (which
will be a subset of the Functional Acceptance Tests) for each block
Central Servers Configuration
Capture Stations
Display Stations
Capture Devices (Cameras & Scanners)
Printer Devices
External Interfaces
4.1.3 Module Acceptance - Photo Imaging Systems
The purpose of this acceptance testing is to demonstrate that the performance
and availability requirements for each module (Basic, Intelligence, and
Missing Persons), as defined in Attachment 5 of this contract, are met. These
tests will be witnessed by the Buyer and NYCPD and require the Buyer's formal
written acceptance by the Buyer's
Attachment 7 - 5 Revision C
<PAGE>
Attachment 7
ACCEPTANCE CRITERIA
contract manager before considered complete. The Buyer will not consider
Module Acceptance complete until the Buyer receives formal written acceptance
from NYCPD.
After all blocks of the Basic Photo Imaging System have been installed and
accepted, a Module Acceptance Test will be conducted to demonstrate that all
performance and availability requirements are met. The test procedures and
test cases will have been previously documented in the Basic Customization
Specification Document.
After successful execution of the Block Acceptance Test for the Intelligence
Subsystem, a Module Acceptance Test will be conducted to demonstrate that all
performance and availability requirements are met. The test procedures and
test cases will have been previously documented in the Intelligence
Customization Specification Document.
After successful execution of the Block Acceptance Test for the Missing
Persons Subsystem, a Module Acceptance Test will be conducted to demonstrate
that all performance and availability requirements are met. The test
procedures and test cases will have been previously documented in the Missing
Persons Customization Specification Document.
4.2 FINAL SYSTEM ACCEPTANCE
The purpose of Final System Acceptance Testing is to demonstrate and validate
that all components (i.e.: Photo Imaging Systems, DB2 Systems, and
Communications Subsystem) are integrated and that all interfaces to external
systems are functional and meet the interface specifications as documented in
the Interface Control Document. The Final System Acceptance test will be
witnessed by the Buyer and NYCPD and requires the Buyer's formal written
acceptance before considered complete. The Buyer will not consider Final
System Acceptance complete until the Buyer receives formal written acceptance
from NYCPD. The Buyer shall provide best efforts in obtaining system
acceptance on the behalf of the Seller.
The test procedures and test cases for the Final System Acceptance Test will
be jointly developed by the Seller and the Buyer, and documented in the
Interface Control Document.
Attachment 7 - 6 Revision C
<PAGE>
Attachment 8
TRAINING
1. INTRODUCTION
This attachment describes the training plan for the Automated DB2 Warrant and
Integrated Digitized Photo Imaging System. Section 2 describes the training
plan for the Photo Imaging System.
2. TRAINING FOR THE PHOTO IMAGING SYSTEM
The Seller will provide instruction on the operation of the imaging
equipment, computer terminal and printers, the use of the computer software
to input the individual images and booking data, and retrieval of images
based on search criteria. Written materials concerning the use of the Photo
Imaging System's software and equipment will be provided. The Seller will
provide one copy of the User Documentation per workstation and one copy of the
full set of documentation for each of the System Administrators.
Additionally, a right to copy license and a master copy will be provided, on
request, to allow the Department to generate copies for internal use.
The Seller's Training Program for the Photo Imaging System addresses three
types of training: (1) Formal Classroom Training for System Administrators
and End-Users, (2) On-the-Job Training, and (3) Post Installation Training.
The Seller's Training Program for the Photo Imaging System is described in
the following sections.
2.1 FORMAL CLASSROOM TRAINING
The Seller will provide formal classroom training for both the End-User and
System Administrator personnel for the operation of all system hardware and
the ForceField software. After completion of the formal classroom training,
the trainees will receive a certificate verifying successful completion and
readiness to perform their role. The End-User Classroom Training will include
formal instructions on workstation operation, data entry and inquiries,
camera and lighting operation, and system support. The System Administrator
Classroom Training will include formal instruction in functional operations
so that they can support the end-users, and formal instruction on system
operations so that they can maintain the system (e.g., managing the central
site servers, database backup and recovery procedures, database integrity,
audit procedures, and defining and executing management reports). It is
expected that the personnel from the Department responsible for training
(supervisory or training staff) will take an active role in developing the
Formal Classroom Training curriculum.
2.1.1 System Administrator Classroom Training
The System Administrator's Classroom Training for the Photo Imaging System
consists of formal instruction for two types of system administrator, as
identified below:
1) System Administrator - Level 1: responsible for providing support
for the end-users, answer operational question, local
trouble-shooting, and filter operator-induced problems from system
problems.
2) System Administrator - Level 2: responsible for managing the
central site configuration, executing database backup and recovery,
monitoring database integrity, system audits, and defining and
executing special management reports.
The Seller will provide formal classroom instruction for the designated System
Attachment 8-1 Revision C
<PAGE>
Attachment 8
TRAINING
Administrators of the Photo Imaging System at XImage's facilities in San
Jose, CA, before the installation of the ForceField system. This one-time
training session will be conducted over a one-week time-span and will
accommodate up to 18 trainees. The Seller's Training plan for the System
Administrators of the Photo Imaging System includes three days of Level 1
training and two additional days of Level 2 training. The Seller recommends
that all System Administrators of the Photo Imaging System take the Level 1
training and the the System Administrator - Level 2 personnel receive 2-days
of additional training for managing the central site. All designated System
Administrators of the Photo Imaging System can take the full 1-week course,
at the discretion of the Department. The System Administrator course for the
Photo Imaging System is included as part of the contract, but travel and
expense costs for the Department's employees are the responsibility of the
Department.
2.1.2 End-User Classroom Training
After System Administrator training for the Photo Imaging System and
installation of the Central Site configuration, end-user training for the
Photo Imaging System will commence. End-User Classroom Training for the Photo
Imaging System consists of formal instruction for three types of end-users.
The training class sessions will be segregated so that they can be tailored
for each type of end-user, as identified below:
1) Booking/Capture - responsible for capturing photographs and
associated booking information during the booking procedure
2) Investigative - responsible for initiating witness-mode searches,
general searches, and creating line-ups
3) Records Management - responsible for maintaining the data and
images contained in the database
In the case of the Department, two alternative approaches to End-User
Training for the Photo Imaging System have been considered: (1) a centralized
approach where a central training center is set up for the initial training,
and (2) a decentralized approach where initial training is conducted at each
of the sites (precincts and booking sites).
The centralized approach would include the set-up of a central training
center at one of the Department's locations (a central location such as
Manhattan) with necessary equipment for hands-on-training (ImageStations,
printers, etc.). Eventually the equipment at the central training site will
be installed into precincts once training is complete. Depending on the size
of the training facility, the Seller expects to conduct up to fifty training
sessions of about two to three hours per session, depending on the end-user
training type. Based on the size of the central training facility and the
number of sessions conducted, the number of persons trained per session could
range from 10 to 25.
In the event that the centralized approach is not feasible based on the
Department's policies, procedures, or constraints, the second approach
(decentralized) would be to hold training sessions at the precincts. Precinct
level training would consist of one training session per precinct, and would
be limited to the facilities and equipment installed at that precinct.
To assure consistency with the Department's standards and needs, the approach
(centralized or decentralized) and schedule for Formal Classroom End-User
Training will be developed jointly with the Department after contract
execution.
Attachment 8-2 Revision C
<PAGE>
Attachment 8
TRAINING
2.2 ON-THE-JOB TRAINING MODE
In addition to the formal classroom training for the Photo Imaging System,
the Seller's solution includes an "on-the-job" training mode, with its own
"training" database, as a standard part of the Photo Imaging System. This
training mode is an extremely valuable tool both during the initial
installation and on-going training. A workstation in training mode will be
able to perform all the functions normally authorized to that workstation to
the maximum feasible extent. However, a workstation in training mode will not
be permitted to update "real" files. In this mode, the trainees will be able
to "modify" current sample records, enter new records, and initiate
witness-mode and line-up queries. Access tables for the training mode will be
separate from the production system access tables.
2.3 POST INSTALLATION TRAINING
The Seller and the Department will jointly develop a plan for follow-up
training for the Photo Imaging System after formal classroom training to be
accomplished by the Department. It is expected that the people from the
Department responsible for training (supervisory or training staff) will take
an active role in developing and delivering on-going training. Additionally,
the Seller's on-site support person will be available to the Department as a
training resource as needed.
2.4 TRAINING DOCUMENTATION
The Seller will provide training documentation, on-site classroom and
hands-on training for the Photo Imaging System. All manuals and Training
Material will be detailed and written in language that can be easily
understood by users who do not possess computer knowledge or skills.
Attachment 8-3 Revision C
<PAGE>
Attachment 9
DEFINITIONS & ACRONYMS
DEFINITIONS
Availability A measure used for identifying the percentage of
time that a system is available to the users and
meets both functional and performance (i.e.,
workload and response-time) requirements. The
availability requirements for this contract and
the method to be used for calculating the
availability for this contract is defined in
Attachment E, Technical Assumptions.
Basic Photo Imaging System A subsystem of the Photo Imaging System to
capture electronic images of mugshots and other
associated images during the booking process and
to provide the capability to create photo
line-ups, support the witness identification
process, and print photos in a variety of
formats.
Blocks A distinct increment of hardware and software to
be staged, shipped, installed, tested, and
accepted. The Basic Photo Imaging System
consists of 9 blocks. The Federal Interface
Subsystem consists of 1 block. The Missing
Persons and Intelligence Subsystems consists of
1 block each.
Boroughs Segregation of New York City region into five
geographic components: (1) Manhattan, (2)
Brooklyn, (3) Bronx, (4) Queens, (5) Staten
Island.
CAL-PHOTO California Law Enforcement's Electronic
Photographic Imaging System Standard which
defines a standard for electronic capture of
photographs to be used in the Law Enforcement
Community. This standard defines a format that
would aid in the inter-agency exchange of images
and also establishes the minimum acceptable
level of image quality.
Configuration Control Management control of hardware specifications,
software modifications and versions, and document
modifications and versions. This management
function ensures that changes to hardware,
software, and documentation is controlled and
tracked so that so that the configuration at any
single point in time and location is known.
DB2 Systems Software developed for NYCPD which will reside
on the NYCPD mainframe located at headquarters.
This software consists of three subsystems: (1)
Warrant System (combines the current Warrant/
Want/WOLF functionality into a single integrated
modernized system), (2) Name Search System, and
(3) Sealing System
Drug User Another name for "Target Narcotics Violators"
Attachment 9-1 Revision D
<PAGE>
Attachment 9
DEFINITIONS & ACRONYMS
Federal Interface Subsystem A small subset of the Basic Photo Imaging System
which will be deployed early so that the
Department can begin capturing photos before the
Basic Photo Imaging System is operational. This
subset consists of capture stations and printers.
Full Database Snapshot of NYCPD Warrant/Want/WOLF database
which will be converted into the new DB2 format.
Intelligence Subsystem A subsystem of the Photo Imaging System to
capture electronic images from photographs
and other forms which are associated with gang
members or organized crime figures.
Missing Persons Subsystem A subsystem of the Photo Imaging System to
capture electronic images from photographs
and other forms which are associated with Missing
Persons or Unidentified Persons.
Name Search System This DB2 System will perform phonetic name
searches against the warrants, want, recidivists,
and drug-users tables using the NYSIIS Name
Coding Technique.
Photo Imaging System System which utilizes photo/video imaging
technology to capture, store, retrieve, and print
"mugshots" and other associated images. The Photo
Imaging System consists of three components: (1)
the Basic Photo Imaging System, (2) the
Intelligence Subsystem, and (3) the Missing
Persons Subsystem.
Pilot The first installation of the Basic Photo Imaging
System which provides all operational
capabilities. The Pilot will consist of Block 0
(Central Servers configuration) and Block 1
(some number of capture workstations at a
central booking site and display-only
workstations and printers at a set of precincts).
Postage Stamp Strategy This approach uses a pre-reduced size of a
photograph or image for display of images in a
photo line-up or during witness mode. This
"postage-stamp" image can be used for these
purposes because the size of the image being
displayed on the screen in small and does not
require the high-resolution image. To maintain
the highest print quality, the full-sized stored
image will be used for printing. This approach
allows the system to send high-resolution images
only when needed in order to save on network
traffic.
Reconciliation of Property The activity where NYCPD personnel and contractor
personnel examine the hardware items delivered to
NYCPD facilities to establish what items have
been delivered to NYCPD facilities and for which
NYCPD is now responsible. Once this activity is
completed, NYCPD is liable for loss or
destruction of these items.
Attachment 9-2 Revision D
<PAGE>
Attachment 9
DEFINITIONS & ACRONYMS
Roll-out A term sometimes used when referring to the
incremental installation of the Photo Imaging
System via the "block" deployment approach.
Sealing System The DB2 Sealing System will replace the existing
PC-based sealing tracking system and automate and
streamline current manual procedures by
implementing electronic transfer of Sealing
information to/from external systems.
Software Failure Category A method used to categorize software errors based
on the impact of the software error on the
mission-critical functions and operational
environment.
Category 1-Prevents the accomplishment of an
operational or mission essential
capability specified by baseline
requirements and for which there is no
work-around (e.g.: system/application
crashes, hangs, or is generally not
available)
Category 2-Adversely affects the accomplishment of
an operational or mission essential
capability specified by baseline
requirements so as to degrade
performance and for which there is no
work-around (e.g.: a planned mission
essential capability is severely
limited).
Category 3-Adversely affects the accomplishment of
an operational or mission essential
capability specified by baseline
requirements so as to degrade
performance and for which there is a
work-around (e.g.: a planned mission
essential capability is severely
limited but there is a work-around).
Category 4-An operator inconvenience or annoyance
and which does not affect a required
operational or mission essential
capability.
Category 5-All other errors
Test Database Snapshot of a representative extract of current
Warrant/Want/WOLF records to be used for testing
of the database conversion software. The Test
Database can be the Full Database or an extract of
the Full Database at the discretion of NYCPD.
Warrant System This DB2 System will replace the current
Warrant/Want/WOLF software and will support the
maintenance of and access to the Warrants, Wants,
Recidivists, and Drug-User databases. The new
Warrant System will integrate the current Warrant
and WOLF into a single logical database and
functional system and will
Attachment 9 - 3 Revision D
<PAGE>
Attachment 9
DEFINITIONS & ACRONYMS
provide substantial enhancements in the area of
external interfaces and ad-hoc queries against
these databases.
Wide Area Network (WAN) WAN is defined, within the context of this
contract, as a distributed network internal to the
New York City Police Department, that connects
Novell LANs through a point-to-point T1 enterprise
NYNEX network with all communications processing
passing through MISD's mainframe (normally FEP).
Peer-to-peer communication is strategically
unsupported.
Attachment 9 - 4 Revision D
<PAGE>
Attachment 9
DEFINITIONS & ACRONYMS
ACRONYMS
AKA Also-Known-As (alias)
CDR Critical Design Review: conducted at end of detailed design phase
for DB2 Systems
CFM Customer Furnished Material
CFE Customer Furnished Equipment
CFS Customer Furnished Services
CICS Customer Information Control System
COTS Commercial-Off-The-Shelf
CRIMS Criminal Record Information and Management System
CSC Computer Software Component
CSCI Computer Software Configuration Item
CSR Customization Specification Review: conducted at end of
customization definition phase for the Photo Imaging Systems
DASD Direct Access Storage Device (commonly used name for mainframe
magnetic disk storage)
DAT Desk Appearance Ticket
DB2 DataBase 2
DCJS New York State Division of Criminal Justice Services
DOB Date-Of-Birth
FIS Federal Interface Subsystem
FEP Front-End Processor
ICD Interface Control Document
IOC Initial Operating Capability
LAN Local Area Network
JCL Job Control Language
MAC Months After Contract execution (months after receipt of "Notice To
Proceed")
MISD Management Information System Division
Attachment 9 - 5 Revision D
<PAGE>
Attachment 9
DEFINITIONS & ACRONYMS
MPA Months Prior to Acceptance (Block 1)
MPT Months Prior to Training
NYCPD New York City Police Department
NCIC National Crime Information Center
NYNEX New York, New England Exchange
NYSIIS New York State Identification and Intelligence System
NYSPIN New York Statewide Police Identification System
OCA Office of Court Administration
OLBS On-Line Booking System
OSST On-Site System Test
PDR Preliminary Design Review: conducted at end of preliminary design
phase for DB2 Systems
QA Quality Assurance
RFP Request For Proposal
RSR Ready-To-Ship Review: conducted at end of implementation phase for
the Photo Imaging Systems at XImage facilities in San Jose prior to
deployment to NYCPD facilities
SA System Administrator
SAIC Science Applications International Corporation
SDD Software Design Document
SOW Statement of Work
SRS Software Requirements Specification
SSR Software Specifications Review: conducted at end of software
requirements analysis phase for the DB2 systems
TP Trained Person
WAA Weeks After Acceptance Tests
WAN Wide Area Network
WAR Weeks After Review
WOLF Warrant On-Line File System
Attachment 9 - 6 Revision D
<PAGE>
Attachment 9
DEFINITIONS & ACRONYMS
WPR Weeks Prior to Review
WS Work Station
Attachment 9 - 7 Revision D
<PAGE>
[Modification #2 to original contract]
<PAGE>
[LOGO
Science Applications International Corporation
An Employee-Owned Company]
October 9, 1997
XImage Corporation
1050 North Fifth Street
San Jose, California 95112
Attention: Ken Fields
Subject: Subcontract Modification #02
Reference: 1) Subcontract #4500076043
2) NYCPD Contract
3) Meeting held 9/24/97 between SAIC and XImage Corporation
Dear Ken,
In accordance with the terms and conditions specified in the above reference
(1) subcontract, this modification #02 is issued to incorporate changes
discussed and agreed to during the reference (3) meeting. The changes
identified below are hereby incorporated into the reference (1) subcontract
and are effective immediately.
SUBCONTRACT AGREEMENT
SECTION 4.0 PAYMENTS
Attachment 4 "Payment Schedule" is modified to delete Payment #14 in the
amount of $39,500.00. This amount is transferred to the withold amount
identified in Section 5.2. Total funds for distribution under Attachment 4
are now as follows;
<TABLE>
<S> <C>
Previous Amount $1,889,500.00
Net Decrease ($ 39,500.00)
-------------
Revised Total $1,850,000.00
Basic Subcontract Agreement Value $2,389,500.00
Withhold Value(Pending Acceptance) ($ 539,500.00)
-------------
Available Funds for Distribution $1,850,000.00
</TABLE>
4.1 INCENTIVES
Should Seller complete each Milestone listed in Table 1 below satisfactorily,
and if the Seller completes the milestone on or before the Revised Baseline
Schedule data for that milestone, then Buyer agrees to release to Seller,
$10,000.00 for each milestone, from the monies withheld for Final System
Acceptance Completion under Section 5.2 below. Should Seller fail to meet the
requirements or said completion of a milestone, for any reason except a delay
at the Buyers request, the $10,000.00 for that milestone shall remain in the
amount withheld for Final System Acceptance under Section 5.2 below and will
be released after Final System Acceptance completion
<PAGE>
[LOGO
An Employee-Owned Company]
SCHEDULE
The following identifies the agreed to changes to the Schedule and
Attachments;
1) Final Basic RSR date is changed from 10/07/97 to 11/04/97
2) Release of Final Basic Software and upgrade to WS to be performed after
Block 8
3) Block Deployment- Blocks 5 through 8 shall be done at 1 Block per week.
<TABLE>
<CAPTION>
TABLE 1
- -----------------------------------------------------------------------
MILESTONES BASELINE SCHEDULE REVISED
- -----------------------------------------------------------------------
<S> <C>
Final Basic RSR 11/04/97 10K 97-500
- -----------------------------------------------------------------------
Final Basic Rollout Complete 12/17/97 10K 97-501
(Including Final Basic SW installed at all sites)
- -----------------------------------------------------------------------
Intel CSR 12/17/97
- -----------------------------------------------------------------------
Intel RSR 03/05/98
- -----------------------------------------------------------------------
Intel Module Acceptance 04/08/98
- -----------------------------------------------------------------------
Missing Persons CSR 02/24/98
- -----------------------------------------------------------------------
Missing Persons RSR 05/07/98
- -----------------------------------------------------------------------
</TABLE>
<PAGE>
[LOGO]
SECTION 5.0 LIQUIDATED DAMAGES
5.2 A sum equal to five hundred thirty nine thousand five hundred dollars
($539,500.00)(less any milestone payment released as part of 4.1 above) of
the Subcontract Agreement value shall be withheld without interest to
Seller, pending satisfactory completion of the ninety (90) day final
system acceptance period as stated in Attachment 7 -- "Acceptance Criteria"
Section 4.2 "Final System Acceptance".
5.5 Seller agrees to be liable for liquidated damages using the following
algorithm;
For each day of slippage passed the no-later-than date of a milestone
identified in Section 5.6, one thousand dollars ($1000.00) per day
(weekends and holidays included) from the withheld amount identified in 5.2
above, will be transferred into a Liquidated Damages set-aside up to a
maximum of $1,000.00 per day (weekends and holidays included). In the event
that the Final System Acceptance completion date of 06/19/98 is not met for
any reason, then the Buyer will receive $1,000.00 per day (weekends and
holidays included) from the Liquidated Damages set-aside for each day of
slippage. If money remains in the Liquidated Damages set aside after Final
System Acceptance completion, then that money will be returned to the
withhold amount and paid to Seller after Final System Acceptance
completion.
5.6 The following sets forth the milestones to be completed in support of 5.5
above:
<TABLE>
<CAPTION>
NO-LATER-THAN
MILESTONE COMPLETION DATE
- --------- ---------------
<S> <C>
- - Basic Module Acceptance 02/10/98
- Reference Attachment 7 "Acceptance Criteria" Section 4.1.3
- Includes Final Basic SW installed; all Basic Sites installed;
functional and performance specifications met, all interfaces
developed & tested by Seller
- - Missing Persons Module Acceptance 06/09/98
- Reference Attachment 7 "Acceptance Criteria" Section 4.1.3
- Includes SW installed; all sites installed; training completed;
functional and performance specifications met, all interfaces
developed & tested by Seller
- - Intel Module Acceptance 06/09/98
- Reference Attachment 7 "Acceptance Criteria" Section 4.1.3
- Includes SW installed; all sites installed; training completed;
functional and performance specifications met, all interfaces
developed & tested by Seller
</TABLE>
<PAGE>
[LOGO]
Unless amended in writing by mutual agreement of both parties, Seller is not
obligated to incur expenditures or make commitments in excess of the amount
stated, and Buyer is not obligated to compensate Seller beyond this amount.
ALL OTHER PROVISIONS OF THE ORIGINAL SUBCONTRACT AND SUBSEQUENT MODIFICATIONS
ISSUED REMAIN UNCHANGED.
In witness whereof, the duly authorized representative of Buyer and Seller have
executed the Subcontract modification on the dates shown below.
SELLER: BUYER:
XImage Corporation Science Applications International Corp.
- ---------------------------- ----------------------------------------
(COMPANY NAME) (COMPANY NAME)
By: /s/ Ken Fields 10 Oct 97 Name: /s/ Christopher C. Cobb 10/9/97
------------------------- -----------------------------------
(SIGNATURE DATE) (SIGNATURE DATE)
Name: Ken Fields Name: Christopher C. Cobb
----------------------- ----------------------------------
(TYPE OR PRINT) (TYPE OR PRINT)
Title: VP Title: Sector Subcontracts Manager
---------------------- ---------------------------------
Please signify your acceptance by signing as indicated and returning one (1)
original to the undersigned.
You can contact me @ (703) 556-7327 if you have any questions regarding this
matter. Fax #(703) 790-8463
Sincerely,
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
Christopher C. Cobb, C.P.M.
Sector Procurement and Subcontracts Manager
Information and Technology Systems Sector
<PAGE>
CONFIDENTIAL
[LETTERHEAD]
November 7, 1997
XImage Corporation
1050 North Fifth Street
San Jose, California 95112
Attention: Ken Fields
Subject: Subcontract Modification #03
Reference: 1) Subcontract #4500076043
2) NYCPD Contract
3) XImage Corporation proposal dated 10/10/97 (Housing Authority)
Dear Ken,
In accordance with the terms and conditions specified in the above reference
(1) subcontract, this modification #03 is issued to incorporate the effort to
be provided in support of the Housing Authority under the NYCPD Contract.
Subcontract Clause 12.4 "YEAR 2000 WARRANTY" is also incorporated as stated
below. This modification increases the total subcontract amount by
$482,400.00. Pricing set forth in this modification shall be as follows;
<TABLE>
<CAPTION>
QTY DESCRIPTION UNIT PRICE EXT PRICE
--- ----------- ---------- ---------
<S> <C> <C> <C>
31 Ea Display Only Station $ 6,500.00 $201,500.00
1 Lot Imagestation Installation $30,000.00 $ 30,000.00
31 Ea Color Printer 1 $ 9,500.00 $294,500.00
1 Lot Training/Support $10,000.00 $ 10,000.00
-----------
Subtotal $536,000.00
Less 10% Discount -$ 53,600.00
------------
TOTAL/NET INCREASE $482,400.00
</TABLE>
DELIVERY:
Hardware shall be delivered to the NYPD site ready to be installed within the
following timeframes:
31 Optra Cs 2 weeks after receipt of initial payment
31 Display-Only Stations 3 weeks after receipt of initial payment
XImage shall install, test, and conduct Block Acceptance for all 31 sites
within 90 days after Contract Amendment. The installation of these 31 sites
shall not impact the schedule as specified in the current contract. The 31
sites shall be deployed in three blocks:
<TABLE>
<S> <C>
Block 1 10 Sites
Block 2 10 Sites
Block 3 11 Sites
</TABLE>
<PAGE>
[LOGO]
PAYMENT TERMS:
1) SAIC shall release an initial payment of $152,400 at the start of the
Subcontract modification to be used exclusively for the purchase of the 31
ea. Color Printer 1 and 31 ea. Display-Only Station. XIMage shall submit
copies of the Purchase Order(s) and proof of payment for equipment to SAIC.
SAIC shall not release any additional money until proof of payment is
received by SAIC.
2) SAIC shall pay XImage $110,000 per block after the successful acceptance
of the block. The definition for Block Acceptance is specified in Attachment
7, Section 4.1.2 Block Acceptance-Photo Imaging Systems.
<TABLE>
<S> <C>
Initial Payment for Startup $152,400.00
Block Payment (3 @$110,000.00) $330.000.00
-----------
Total $482,400.00
</TABLE>
This modification incorporates/increases funding as follows;
TOTAL SUBCONTRACT FUNDING
<TABLE>
<S> <C>
Subcontract Agreement Value $2,389,500.00
Net Increase (Housing Authority) $ +482,400.00
-------------
Available Funds for Distribution $2,871,900.00
</TABLE>
12.4 YEAR 2000 WARRANTY:
All work performed and work product generated by XImage Corporation under this
Agreement supports Year 2000; it is capable of correctly processing,
providing and receiving date data, as well as properly exchanging accurate
date data with all products (e.g., hardware, software and firmware) with
which the work product is designed to be used.
OPTIONAL MAINTENANCE
Additional maintenance beyond the Warranty period shall be an option, which
is exercisable within one year of the date of installation. The warranty
period shall be 90 days for Hardware and 30 days for Software.
Buyer may elect to exercise the following option in support of hardware
identified above at the end of the warranty term. This option, if exercised,
will be by written modification from Buyer to Seller under the terms and
conditions of the subcontract. Monthly costs will be as stated below;
<TABLE>
<CAPTION>
QTY DESCRIPTION MONTHLY MAINT. COST
--- ----------- -------------------
<S> <C> <C>
31 Ea. Display Only Station $65.00/mo/ea.
31 Ea. Color Printer 1 $95.00/mo/ea.
</TABLE>
Should the warranty period expire prior to effective date of maintenance
coverage, it may be necessary for the hardware to be recertified by XImage.
<PAGE>
[LOGO]
Unless amended in writing by mutual agreement of both parties, Seller is not
obligated to incur expenditures or make commitments in excess of the amount
stated, and Buyer is not obligated to compensate Seller beyond this amount.
ALL OTHER PROVISIONS AND SCHEDULES OF THE ORIGINAL SUBCONTRACT AND SUBSEQUENT
MODIFICATIONS ISSUED REMAIN UNCHANGED.
In witness whereof, the duly authorized representative of Buyer and Seller
have executed the Subcontract modification on the dates shown below.
SELLER: BUYER:
XIMAGE CORPORATION SCIENCE APPLICATIONS INTERNATIONAL CORP.
- ---------------------------------- ----------------------------------------
(COMPANY NAME) (COMPANY NAME)
BY: /s/ Ken Fields 11 Nov 97 BY: /s/ Christopher C. Cobb 11/7/97
------------------------------- -------------------------------------
(SIGNATURE DATE) (SIGNATURE DATE)
NAME: KEN FIELDS NAME: CHRISTOPHER C. COBB
----------------------------- -----------------------------------
(TYPE OR PRINT) (TYPE OR PRINT)
TITLE: TITLE: SECTOR SUBCONTRACTS MANAGER
---------------------------- ----------------------------------
Please signify your acceptance by signing as indicated and returning one (1)
original to the undersigned.
You can contact me @ (703) 556-7327 if you have any questions regarding this
matter.
FAX#(703) 790-8463
Sincerely,
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
Christopher C. Cobb, C.P.M.
Sector Procurement and Subcontracts Manager
Information and Technology Systems Sector
<PAGE>
[LETTERHEAD]
31 March 1999 In Reply Refer
to Ltr no. KMH99-024
ImageWare Software, Inc.
10883 Thornmint
San Diego, California 92127
Attention: Ms. Carmen Errejon, Contracts Administrator
Subject: Modification No. 13 to SAIC/ImageWare Subcontract 4500076043
Ms. Errejon,
This Subcontract Modification No. 13 is issued as follows:
DESCRIPTION OF MODIFICATION
TO SCHEDULE A, ARTICLE 7.0 TECHNICAL AND CONTRACTUAL REPRESENTATIVES: REVISE
IN PART AS FOLLOWS:
Delete: Contractual: Christopher Cobb
Phone: 703/556-7327
Fax: 703/356-0066
Substitute: Contractual: Keith Hoffman
Phone: 703/448-7268
Fax: 703/356-0066
TO SCHEDULE A, ARTICLE 15.0 TECHNICAL DATA PACKAGE: DELETE AND REPLACE WITH:
"Seller represents and warrants to Buyer that it is owner of, and holder of
all rights in the Technical Data Package (TDP), and has the right to grant
Buyer the license rights to the TDP with Buyer pursuant to the terms of the
Subcontract Agreement and Schedule D, Software Deposit Agreement."
TO ARTICLE 15.1: DELETE AND REPLACE WITH:
"Seller represents and warrants to Buyer that the TDP deposited with Buyer
will at all times be the current release of the material(s) offered to Buyer
in support of this Subcontract Agreement."
<PAGE>
Page 2 of 3
Subj: Modification No. 13 to SAIC/ImageWare Subcontract 4500076043 [logo]
TO ARTICLE 15.3: MODIFY AS FOLLOWS AT LINE 4 OF PARAGRAPH 1:
"Seller shall immediately release to Buyer copies of the TCP pursuant to this
Subcontract Agreement and Schedule D, Software Deposit Agreement only upon
written notification from Buyer's Technical Representative identified in
Section 7 of the Subcontract Agreement."
TO ARTICLE 15.3: DELETE PARAGRAPH 2 AND REPLACE WITH:
"Seller shall arrange for Buyer to accept from Seller, and Seller agrees to
deposit with Buyer, within thirty (30) days of the effective date of the
Software Deposit Agreement with the copies of the TDP being current versions
of the subject data. For each deposit, Seller will issue a receipt to Buyer,
accompanied by a general list or description of the materials so deposited.
In the event that an update or series of updates supersede a prior version
of the TDP in their entirety, Seller may require Buyer to return or destroy
portions of the TDP representing such prior version(s) provided that SAIC is
able to retain a copy of all materials, including superceded elements of the
TDP, necessary to assure continuity of the Program.
TO ARTICLE 15.4: MODIFY AS FOLLOWS AT LINE 3:
....and Seller shall permit such inspections and testing promptly upon
request. Except as otherwise authorized by Seller, which shall not be
unreasonably withheld, such inspections and testing shall be conducted at
SAIC offices.
TO ARTICLE 15.6: DELETE IN ITS ENTIRETY
TO ARTICLE 36.0 ORDER OF PRECEDENCE: INCORPORATE THE SOFTWARE DEPOSIT
AGREEMENT DATED 20 JANUARY 1999 AS "SCHEDULE D" AND REVISE AS FOLLOWS:
Delete A. Schedule A: Specific Terms and Conditions
B. Schedule B: Statement of Work
C. Schedule C: CLIN List/Price Matrix
D. Referenced Documents as "Attachments"
Substitute: A. Schedule A: Specific Terms and COnditions
B. Schedule B: Statement of Work
C. Schedule C: CLIN List/Price Matrix
D. Schedule D: Software Deposit Agreement
E. Referenced Documents as "Attachments"
<PAGE>
Page 3 of 3
Subj: Modification No. 13 to SAIC/ImageWare Subcontract 4500076043 [logo]
Except as provided herein, all other provisions of the original order remain
the same and in full force and effect.
In witness whereof the duly authorized representatives of Buyer and Seller
have executed this Modification as shown below.
The Seller is required to sign this document and return the original.
IMAGEWARE SOFTWARE, INC. SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
BY: /s/: S. James Miller, Jr. BY: /s/: Keith M. Hoffman
NAME: S. James Miller, Jr. NAME: Keith M. Hoffman
TITLE: Chmn. and CEO TITLE: Regional Procurement Manager
DATE: April 12, 1999 DATE: 31 March 1999
<PAGE>
SOFTWARE DEPOSIT AGREEMENT
This Software Deposit Agreement is made and entered into as of 20
JANUARY 1999, by and among ImageWare Software, Inc. and/or its wholly-owned
subsidiaries ("XImage") and Science Applications International Corporation
("SAIC"). XImage and SAIC are sometimes individually referred to herein as a
"Party" or collectively as "Parties."
RECITALS
A. In 1996, SAIC entered into a contract with the City of New York
Police Department ("NYPD") pursuant to which SAIC agreed to provide certain
services and software programs to NYPD, including an Integrated Digitized
Photo Imaging Program, and to perform maintenance services with respect
thereto.
B. In September 1996, XImage entered into a Subcontract Agreement with
SAIC pursuant to which it agreed on behalf of SAIC to supply the Integrated
Digitized Photo Imaging Program to NYPD and to perform maintenance services
with respect thereto.
C. The Integrated Digitized Photo Imaging Program supplied to NYPD on
behalf of SAIC includes exploded bills of material which include manufacturer
and manufacturer part numbers, assembly drawings, inter-connect diagrams,
Software Source Code for Force-Field, other XImage software and applicable
peripheral drivers, duplication (Master) disks for all software and
documentation and process control/test plan documents, all of which are
herein referred to as the "Technical Data Package."
D. The Subcontract Agreement will be modified so that XImage will
deposit the Technical Data Package with SAIC so that it will be available to
SAIC in the event that XImage defaults under its contractual obligations as
defined in the Subcontract Agreement in accordance with section 27.0
"Default" or is otherwise unable to perform its contractual obligations.
E. This Software Deposit Agreement is created to hold the Technical
Data Package and to satisfy the obligation of XImage referred to in Recital D
above.
Now, Therefore, the Parties agree as follows:
1. XImage shall transfer and deliver to, and deposit with, SAIC the
Technical Data Package, including a General List or Description of Materials
included in such Technical Data Package. XImage represents and warrants to
SAIC that such Technical Data Package consists of the current version of all
data included in the Technical Data Package. XImage further represents and
warrants to SAIC that such Technical Data Package and the General List or
Description of Materials shall be updated and kept current if and when XImage
updates any items in the Technical Data Package for the NYPD. Any time any
material that is subject to this Agreement is updated or modified by XImage,
XImage shall provide the updated version to SAIC as described in SAIC
Subcontract Agreement No. 4500076043.
1
<PAGE>
2. XImage shall provide SAIC with a copy of the General List or
Description of Materials included in the Technical Data Package.
3. In the event that an update or series of updates of items included
in the Technical Data Package supersede a prior version of the Technical Data
Package in its entirety, then XImage may require SAIC to return or destroy
portions of the Technical Data Package representing such prior version(s)
provided that SAIC is able to retain a copy of all materials, including
superceded elements of the TDP, necessary to assure continuity of the
Program. SAIC agrees to protect all such outdated versions of the TDP so
retained in accordance with the procedures used to protect its own
restricted, proprietary or confidential information from release and XImage
is in no way responsible for control of superceded TDP elements. SAIC's
Technical Representative shall have the right to inspect, compile, test and
review the Technical Data Package (subject to appropriate undertakings of
confidentiality and restrictions on subsequent use or disclosure) upon
written request to XImage at any time. Such inspections and testing shall be
conducted at SAIC's offices unless XImage authorizes SAIC in writing to
permit the testing to be done at another location, such authorization to not
unreasonably be withheld.
4. In the event that XImage defaults under its contractual obligations
as defined in the Subcontract Agreement in accordance with section 27.0
"Default" or is otherwise unable to perform its contractual obligations, then
SAIC, upon written notification to XImage, shall have the right to use such
Technical Data Package in performing its contractual obligations to NYPD.
Such use shall not be construed as a waiver of any default in performance by
XImage, but shall solely be a mitigation of any damages suffered by SAIC by
reason of nonperformance by XImage.
5. SAIC represents and warrants that upon receipt of the Technical
Data Package, SAIC shall maintain the Technical Data Package in strict
confidence, shall use and disclose it only as reasonably appropriate to
exercise such Buyer rights in the Technical Data Package and shall use the
same degree of care it provides for its own data identified as restricted,
proprietary and confidential.
6. This Software Deposit Agreement shall terminate at the termination
of the Subcontract Agreement, or with the completion of required performance
by XImage, whichever comes later, and, upon termination or completion of
performance, SAIC shall return the Technical Data Package to XImage.
7. The laws of the State of California shall govern this Software
Deposit Agreement.
8. This Software Deposit Agreement shall be binding upon and inure to
the benefit of the successors or assigns of the Parties.
9. This Software Deposit Agreement may be changed only by an amendment
signed by the Parties to be bound by such amendment.
2
<PAGE>
10. Any and all notices or other communications required or permitted to be
given under any of the provisions of this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered or two days
following (a) deposit with a private courier, (b) transmission by fax (followed
by a hard copy mailed by first class mail), or (c) mailed by first class
certified mail, return receipt requested, addressed to the parties at the
addresses set forth on the Execution Page of this Software Deposit Agreement (or
at such other address as any party may specify by notice to the other parties
given as aforesaid).
11. The following General Provision shall apply to this Agreement:
XImage agrees to indemnify and hold SAIC harmless against any and all
losses, claims, damages, liabilities and expenses that may be incurred by SAIC
in connection with the performance of its duties under Software Deposit
Agreement except for those losses, claims, damages, liabilities and expenses
caused by the gross negligence or willful misconduct of SAIC.
12. This Agreement may be executed in one or more counterparts, all of
which together shall be deemed an original.
In Witness Whereof, the parties hereto, each intending to be legally bound
by this writing, have caused these Instructions to be executed the day and year
first above written.
IMAGEWARE SOFTWARE, INC.
By: /s/ S. James Miller
-------------------------------------------
S. James Miller, Jr., President
10883 Thornmint
San Diego, California 92127
Facsimile: (619) 673-0291
Confirmation: (619) 673-8600
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
By: /s/ Keith M. Hoffman
-------------------------------------------
Keith M. Hoffman, Regional Procurement Mgr.
8301 Greensboro Drive
McLean, Virginia 22102
Contact Persons: Keith Hoffman (Contact)
Robin Briceno (Technical)
Facsimile: (703) 356-0066
Confirmation: (703) 556-7268
3
<PAGE>
[LETTERHEAD]
03 May 1999
In Reply Refer
to Ltr no. KMH99-028
ImageWare Software, Inc.
10883 Thornmint
San Diego, California 92127
Attention: Ms. Carmen Errejon, Contracts Administrator
Subject: Modification No. 14
Reference: (a) SAIC Prime Contract: NYCPD
(b) SAIC/ImageWare Subcontract 4500076043
Attachments: (1) Narcotics Initiative Bill of Material
(2) Staten Island CATCH/CARS Unit Bill of Material
Ms. Errejon,
The Subcontract is Modification No. 14 is issued to reflect the following:
DESCRIPTION OF MODIFICATION
TO PARAGRAPH 3.0 FIRM FIXED PRICE:
The Subcontract Agreement as currently configured never accounted properly for
the Mass Print activity, effort which has been performed satisfactorily,
invoiced and paid. In order to update the Subcontract Agreement such that all
future modifications will be priced and accumulated accurately, please note the
following administrative Modification:
Delete (reference Modification No. 03 dated 07 November 1997):
<TABLE>
<S> <C>
Subcontract Agreement Value: $2,389,500.00
Net Increase (Housing Authority): $ 482,200.00
Available Funds for Distribution: $2,871,900.00
</TABLE>
<PAGE>
Page 2 of 3
Subj: Modification No. 14 to SAIC/ImageWare Subcontract 4500076043
Substitute:
<TABLE>
<S> <C>
(Base Contract)
Services & Deliverables: $2,389,500.00
Housing Authority: $ 482,400.00
Mass Print: $ 35,000.00
Revised Ceiling Not-To-Exceed
(Excluding Maintenance): $2,906,900.00
Maintenance: $ 464,046.00*
</TABLE>
*Funded on a month-to-month basis in accordance with the requirements of
Subcontract Attachment 6 entitled "Maintenance" at the unit prices negotiated in
Subcontract Schedule C. This figure represents Maintenance funds paid by Buyer
to Seller through the issue date of this Modification.
NEW REQUIREMENTS
In accordance with the terms, conditions and provisions of the subject
Subcontract Agreement, this Modification No. 14 adds efforts to be provided in
support of the Staten Island CATCH/CARS Unit and the Narcotics Initiative under
the NYPD Prime Contract. Attachments (1) and (2) to this Subcontract
Modification provide the description and quantity of hardware and software to be
provided. SELLER SHALL, WITHIN 5 BUSINESS DAYS OF THE DATE OF THIS MODIFICATION,
NOTIFY BUYER AS TO THE PRECISE HARDWARE CONFIGURATION TO BE PROVIDED RESULTING
FROM ADVANCES IN TECHNOLOGY SINCE THE AWARD OF THE BASE SUBCONTRACT AND THE
DEFINITION OF SCHEDULES AND ATTACHMENTS THERETO.
Delivery Schedule: Seller shall install, test and conduct acceptance for each
site within 50 days of the date of this Modification. A site consists of one (1)
Display-Only Station and one (1) Color Printer.
Payment Term: Seller shall be paid $15,500 per site after written acceptance of
that site.
Optional Maintenance: Additional maintenance for the Staten Island CATCH/CARS
Unit and the Narcotics Initiative hardware beyond the warranty period shall be
an option exercisable within one (1) year of the date of installation. The
warranty period shall be ninety (90) days and shall commence on the day written
acceptance is received. Buyer may elect to exercise the maintenance option at
the end of the warranty term and any such option will be a written modification
to this Subcontract and subject to the terms, conditions and provisions thereto.
Monthly costs for maintenance are indicated in
<PAGE>
Page 3 of 3
Subj: Modification No. 14 to SAIC/ImageWare Subcontract 4500076043
Attachments (1) and (2).
The total price for the new requirements added under this Subcontract
Modification is $46,500.
<TABLE>
<S> <C>
(Base Contract)
Services & Deliverables: $2,389,500.00
Housing Authority: $ 482,400.00
Mass Print: $ 35,000.00
Narcotics Initiative: $ 31,000.00
Staten Island CATCH/CARS $ 15,500.00
Revised Ceiling Not-To-Exceed
(Excluding Maintenance): $2,953,400.00
</TABLE>
EXCEPT AS PROVIDED HEREIN, ALL PRICES, TERMS AND CONDITIONS REMAIN UNCHANGED AND
IN FULL EFFECT.
The Seller is requested to sign both enclosed documents and return one (1) to
the undersigned.
ImageWare Software, Inc. Science Applications International Corp.
By: /s/ Wayne Wetherell By: /s/ Keith M. Hoffman
--------------------- -----------------------------
Name: Wayne Wetherell Name: Keith M. Hoffman
Title: VP & CEO Title: Regional Procurement Manager
Date: 5/25/99 Date: 03 May 1999
<PAGE>
NARCOTICS INITIATIVE -- NYPD 06-5100-35-5012-961
VENDOR: SCIENCE APPLICATION INTERNATIONAL CORPORATION
<TABLE>
<CAPTION>
MONTHLY
MAINT. UNIT
ITEM DESCRIPTION QUANTITY UNIT PRICE TOTAL PRICE PRICE
- ---- ----------- -------- ---------- ----------- -----------
<S> <C> <C> <C> <C> <C>
DISPLAY-ONLY
STATION FF2 Display-Only Station 2 $6,500 $13,000 $65
-- 333 MHz Pentium Processor
-- 32 MByte RAM; 4.2 GByte disk
-- Token ring adaptor; Keyboard & Mouse
-- SVGA 15" color monitor
1024x768 display
-- Unix; Sybase Client SW
-- ForceField Display-Only SW
COLOR PRINTER Lexmark Optra SC 2 $9,000 $18,000 $90
-- Resolution 300DPI/600DPI
-- ForceField network printer driver
-- Postscript; cables
-- Pages/Minute; 4 color, 12 B&W
-------------------------------------------------------------
TOTALS $31,000
</TABLE>
Page 1
<PAGE>
STATEN ISLAND CATCH/CARS UNIT -- NYPD 06-5100-35-5012-962
VENDOR: SCIENCE APPLICATION INTERNATIONAL CORPORATION
<TABLE>
<CAPTION>
MONTHLY UNIT
MAINT.
ITEM DESCRIPTION QUANTITY UNIT PRICE TOTAL PRICE COST
- ---- ----------- -------- ---------- ----------- -----------
<S> <C> <C> <C> <C> <C>
DISPLAY-ONLY
STATION FF2 Display-Only Station 1 $6,500 $6,500 $65
-- 333 MHz Pentium Processor
-- 32 MByte RAM; 4.2 GByte disk
-- Token ring adaptor; Keyboard & Mouse
-- SVGA 15" color monitor
1024x768 display
-- Unix; Sybase Client SW
-- ForceField Display-Only SW
COLOR PRINTER Lexmark Optra SC 2 $9,000 $9,000 $90
-- Resolution 300DPI/600DPI
-- ForceField network printer driver
-- Postscript; cables
-- Pages/Minute; 4 color, 12 B&W
-------------------------------------------------------------
TOTALS $15,500
</TABLE>
Page 1
<PAGE>
CONFIDENTIAL
[LOGO]
16 June 1999 In Reply Refer
to Ltr no. KMH99-038
ImageWare Software, Inc.
10883 Thornmint
San Diego, California 92127
Attention: Ms. Carmen Errejon, Contracts Administrator
Subject: Modification No. 16
Reference: (a) SAIC Prime Contract: NYCPD
(b) SAIC/ImageWare Subcontract 4500076043
Attachments: (1) Transit Division Bill of Material
(2) District Attorney's Office of New York Bill of Material
Ms. Errejon,
The Subcontract is Modification No. 16 is issued to reflect the following:
DESCRIPTION OF MODIFICATION
TO PARAGRAPH 3.0 FIRM FIXED PRICE:
<TABLE>
<S> <C>
Delete:
(Base Contract)
Services & Deliverables: $2,389,500.00
Housing Authority: $ 482,400.00
Mass Print: $ 35,000.00
Narcotics Initiative: $ 31,000.00
State Island CATCH/CARS $ 15,500.00
Revised Ceiling Not-To-Exceed
(Excluding Maintenance): $2,953,400.00
</TABLE>
<PAGE>
CONFIDENTIAL
[LOGO]
Page 2 of 3
Subj: Modification No. 16 to SAIC/ImageWare Subcontract 4500076043
Substitute
<TABLE>
<S> <C>
(Base Contract)
Services & Deliverables: $2,389,500.00
Housing Authority: $ 482,400.00
Mass Print: $ 35,000.00
Narcotics Initiative: $ 31,000.00
State Island CATCH/CARS $ 15,500.00
Transit Division $ 31,000.00
District Attorney's Office $ 15,500.00
Revised Ceiling Not-To-Exceed
(Excluding Maintenance): $2,999,900.00
</TABLE>
NEW REQUIREMENTS
In accordance with the terms, conditions and provisions of the subject
Subcontract Agreement, this Modification No. 16 adds efforts to be provided
in support of the Transit Division and the District Attorney's Office of New
York (DANY) under the NYPD Prime Contract. Attachments (1) and (2) to this
Subcontract Modification provide the description and quantity of hardware and
software to be provided.
Delivery Schedule: SELLER SHALL DELIVER ALL MATERIALS NO LATER THAN 29 JUNE
1999. Seller shall complete installation, testing and conduct acceptance for
each site within 50 days of the date of this Modification. A site consists of
one (1) Display-Only Station and one (1) Color Printer.
Payment Term: Seller shall be paid $15,500 per site after written acceptance
of that site.
Optional Maintenance: Additional maintenance for the Transit Authority and
the District Attorney's Office of New York (DANY) hardware beyond the
warranty period shall be an option exercisable within one (1) year of the
date of installation. The warranty period shall be ninety (90) days and shall
commence on the day written acceptance is received. Buyer may elect to
exercise the maintenance option at the end of the warranty term and any such
option will be a written modification to this Subcontract and subject to the
terms, conditions and provisions thereto. Monthly costs for maintenance are
indicated in Attachments (1) and (2).
The total price for the new requirements added under this Subcontract
Modification is $46,500.
<PAGE>
[LOGO]
Page 3 of 3
Subj: Modification No. 16 to SAIC/ImageWare Subcontract 4500076043
EXCEPT AS PROVIDED HEREIN, ALL PRICES, TERMS AND CONDITIONS REMAIN UNCHANGED
AND IN FULL EFFECT.
The Seller is requested to sign both enclosed documents and return one (1)
to the undersigned.
ImageWare Software, Inc. Science Applications International Corp.
By: /s/ [ILLEGIBLE] By: /s/ Keith M. Hoffman
----------------------------- -------------------------------------
Name: Name: Keith M. Hoffman
---------------------------- Title: Regional Procurement Manager
Title: Date: 16 June 1999
--------------------------
Date:
---------------------------
<PAGE>
TRANSIT DIVISION - NYPD 06-5100-35-5012-963
- -------------------------------------------
VENDOR: SCIENCE APPLICATION INTERNATIONAL CORPORATION
<TABLE>
<CAPTION>
MONTHLY
MAINT.
UNIT UNIT
ITEM DESCRIPTION QUANTITY PRICE TOTAL PRICE PRICE
- ---- ----------- -------- ----- ----------- -----
<S> <C> <C> <C> <C> <C>
DISPLAY-ONLY FF2 Display-Only Station 2 $6,500 $13,000 $65
STATION
* 333 MHz Pentium Processor
* 32 MByte RAM; 4.2 GByte disk
* Token ring adaptor; Keyboard
& Mouse
* Sony 15" color monitor
1024x768 display
* Unix; Sybase Client SW
* ForceField Display-Only SW
COLOR PRINTER Lexmark Optra SC 2 $9,000 $18,000 $90
* Resolution 300DPI/600DPI
* ForceField network printer
driver
* Postscript; cables
* Pages/Minute: 4 color, 12 B&W
------------------------------------
------------------------------------
TOTALS $31,000
</TABLE>
Page 1
<PAGE>
DISTRICT ATTORNEY'S OFFICE OF NEW YORK (DANY) - NYPD 06-5100-35-5012-964
- ------------------------------------------------------------------------
VENDOR: SCIENCE APPLICATION INTERNATIONAL CORPORATION
<TABLE>
<CAPTION>
MONTHLY
MAINT.
UNIT UNIT
ITEM DESCRIPTION QUANTITY PRICE TOTAL PRICE PRICE
- ---- ----------- -------- ----- ----------- -----
<S> <C> <C> <C> <C> <C>
DISPLAY-ONLY FF2 Display-Only Station 1 $6,500 $6,500 $65
STATION
* 333 MHz Pentium Processor
* 32 MByte RAM; 4.2 GByte disk
* Token ring adaptor; Keyboard
& Mouse
* Sony 15" color monitor
1024x768 display
* Unix; Sybase Client SW
* ForceField Display-Only SW
COLOR PRINTER Lexmark Optra SC 1 $9,000 $9,000 $90
* Resolution 300DPI/600DPI
* ForceField network printer
driver
* Postscript; cables
* Pages/Minute: 4 color, 12 B&W
------------------------------------
------------------------------------
TOTALS $15,500
</TABLE>
Page 1
<PAGE>
CONFIDENTIAL
[LETTERHEAD]
22 June 1999
In Reply Refer
to Ltr no. KMH99-045
ImageWare Software, Inc.
10883 Thornmint
San Diego, California 92127
Attention: Ms. Carmen Errejon, Contracts Administrator
Subject: Modification No. 17
Reference: (a) SAIC Prime Contract: NYCPD
(b) SAIC/ImageWare Subcontract 4500076043
Attachments: (1) Department of Probation Bill of Material
Ms. Errejon,
The Subcontract is Modification No. 17 is issued to reflect the following:
DESCRIPTION OF MODIFICATION
TO PARAGRAPH 3.0 FIRM FIXED PRICE:
Delete:
<TABLE>
<S> <C>
(Base Contract)
Services & Deliverables: $2,389,500.00
Housing Authority: $ 482,400.00
Mass Print: $ 35,000.00
Narcotics Initiative: $ 31,000.00
Staten Island CATCH/CARS $ 15,500.00
Transit Division $ 31,000.00
District Attorney's Office $ 15,500.00
Revised Ceiling Not-To-Exceed
(Excluding Maintenance): $2,999,900.00
</TABLE>
<PAGE>
CONFIDENTIAL
[LOGO]
Page 2 of 3
Subj: Modification No. 17 to SAIC/ImageWare Subcontract 4500076043
Substitute:
<TABLE>
<S> <C>
(Base Contract)
Services & Deliverables: $2,389,500.00
Housing Authority: $ 482,400.00
Mass Print: $ 35,000.00
Narcotics Initiative: $ 31,000.00
Staten Island CATCH/CARS $ 15,500.00
Transit Division $ 31,000.00
District Attorney's Office $ 15,500.00
Department of Probation: $ 21,000.00
Revised Ceiling Not-To-Exceed
(Excluding Maintenance): $3,020,900.00
</TABLE>
NEW REQUIREMENTS
In accordance with the terms, conditions and provisions of the subject
Subcontract Agreement, this Modification No. 17 adds efforts to be provided
in support of the Department of Probation. Attachment (1) to this Subcontract
Modification provides the description and quantity of hardware and software
to be provided.
Delivery Schedule: SELLER SHALL DELIVER ALL MATERIALS NO LATER THAN 29 JUNE
1999. Seller shall complete installation, testing and conduct acceptance for
the site within 50 days of the date of this Modification.
Payment Term: Seller shall be paid $21,000 after written acceptance of the
site.
Optional Maintenance: Additional maintenance for the Department of Probation
hardware beyond the warranty period shall be an option exercisable within one
(1) year of the date of installation. The warranty period shall be ninety
(90) days and shall commence on the day written acceptance is received. Buyer
may elect to exercise the maintenance option at the end of the warranty term
and any such option will be a written modification to this Subcontract and
subject to the terms, conditions and provisions thereto. Monthly costs for
maintenance are indicated in Attachments (1).
The total price for the new requirements added under this Subcontract
Modification is $21,000.
<PAGE>
[LOGO]
Page 3 of 3
Subj: Modification No. 17 to SAIC/ImageWare Subcontract 4500076043
EXCEPT AS PROVIDED HEREIN, ALL PRICES, TERMS AND CONDITIONS REMAIN UNCHANGED
AND IN FULL EFFECT.
The Seller is requested to sign both enclosed documents and return one (1)
to the undersigned.
ImageWare Software, Inc. Science Applications International Corp.
By: /s/ [ILLEGIBLE] By: /s/ Keith M. Hoffman
----------------------------- -------------------------------------
Name: Name: Keith M. Hoffman
---------------------------- Title: Regional Procurement Manager
Title: Date: 22 June 1999
--------------------------
Date:
---------------------------
<PAGE>
ATTACHMENT A
DEPARTMENT OF PROBATION
- -----------------------
VENDOR: SCIENCE APPLICATION INTERNATIONAL CORPORATION
<TABLE>
<CAPTION>
MONTHLY
MAINT.
UNIT UNIT
ITEM DESCRIPTION QUANTITY PRICE TOTAL PRICE PRICE
- ---- ----------- -------- ----- ----------- -----
<S> <C> <C> <C> <C> <C>
DISPLAY-ONLY FF2 Display-Only Station 1 $6,500 $6,500 $65
STATION
* 333 MHz Pentium Processor
* 32 MByte RAM; 4.2 GByte disk
* Token ring adaptor; Keyboard
& Mouse
* Sony 15" color monitor
1024x768 display
* Unix; Sybase Client SW
* ForceField Display-Only SW
B&W PRINTER FF2 Lexmark Optra R + B&W Laser 1 $2,250 $2,250 $23
* Resolution 600/1200 DPI
* Postscript; cables
* ForceField network printer
driver
* Pages/Minute: 12
SMALL FORMAT Mitsubishi CP 700D dye
DYE-SUB PRINTER diffussion t 1 $3,250 $3,250 $33
* Resolution 260DPI
* Postscript Cables
* FF network printer driver
* Pages/Minute: 2
COLOR PRINTER Lexmark Optra SC 1 $9,000 $9,000 $90
* Resolution 300DPI/600DPI
* ForceField network printer
driver
* Postscript; cables
* Pages/Minute: 4 color, 12 B&W
------------------------------------
------------------------------------
TOTALS $21,000
</TABLE>
Page 1
<PAGE>
AGREEMENT
THIS AGREEMENT, made this 1st day of November, 1999, by and between King County,
Washington, (hereinafter "County") and ImageWare Software, Inc., a California
corporation with its principal place of business at 10883 Thornmint, San Diego,
California (hereinafter "Contractor").
WITNESSETH:
WHEREAS, the County has caused Contract Documents for:
CONTRACT NUMBER: T00874T
WAIVER NUMBER: 999787
CONTRACT TITLE: "KING COUNTY CRIME CAPTURE SYSTEM"
to be prepared for certain work as described therein; and
WHEREAS, the Contractor has assured the County that it has the specialized
expertise and experience necessary to properly perform the work in a timely
manner and that its Proposal includes all of the functions and features required
for the work; and
WHEREAS, the County has accepted the Contractor's offer to perform the work in
accordance with the contract's terms, Specifications and Proposal documents;
WHEREAS, by executing this Agreement, the Contractor represents that the waiver
of the Contractor's immunity under industrial insurance, Title 51 RCW, as set
forth in the Contract Documents was mutually negotiated by the parties;
NOW THEREFORE, in consideration of the mutual covenants and agreements of the
parties herein contained and to be performed, the Contractor hereby agrees to
complete the work at the price and on the terms and conditions herein contained,
and to assume and perform all of the covenants and conditions herein required of
the Contractor, and the County agrees to pay the Contractor the Contract Price
provided herein for the fulfillment of the work and the performance of the
covenants set forth herein.
THE FURTHER TERMS, CONDITIONS AND COVENANTS of the contract are set forth in
the following exhibit parts each of which is attached hereto and by this
reference made a part hereof: the Contract Document which includes:
Definition of Words and Terms, Introduction Overview, Standard Contractual
Terms and Conditions, Specific Contractual Terms and Conditions, Insurance
Requirements, Scope of Work and Attachments, A (Waiver from Standard
Procurement Procedures), B (Payment Schedule), C (Personnel Inventory
Report), D (Acceptance Testing Criteria), E (Affidavit and Certificate of
Compliance), F (Statement of Compliance), G (Current or Former King County
Employee Disclosure Form), H (Source Code Escrow Agreement, Exhibit A, I
(Software Licensing Agreement, J (Software and Equipment Maintenance
Agreement, Exhibit A), K (Consultant Disclosure Form), L (ADA/504
Self-Evaluation Questionnaire); M (Final Affidavit of Amounts Paid), N
(Evidence of Insurance); O Contractors Proposal; P Contractors Product
Description.
ImageWare Software, Inc. KNG COUNTY
- ------------------------------------
ACCEPTED BY: /s/ Wayne Wetherell APPROVED BY: /s/ Steve Thompson
- ------------------------------------ ----------------------------------------
Signature Signature
Wayne Wetherell CFO Steve Thompson - Interim Director
- ------------------------------------ ----------------------------------------
Name and Title (Print or Type) Name and Title (Print or Type)
Date Accepted: 9/29/99 Date Accepted: 11/1/99
--------------------- -------------------------
Approved as to form only:
--------
- --------------------------------------------------------------------------------
Page 1
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
I. DEFINITION OF WORDS AND TERMS . . . . . . . . . . . . . . . . . . . . . 5
II. INTRODUCTION OVERVIEW. . . . . . . . . . . . . . . . . . . . . . . . . 8
III. STANDARD CONTRACTUAL TERMS AND CONDITIONS . . . . . . . . . . . . . . 9
A. Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
B. Change Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. Termination for Convenience/Default/Non-Appropriation. . . . . . . . 9
D. Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . . . . .10
E. Payment Procedures . . . . . . . . . . . . . . . . . . . . . . . . .11
F. Work and Materials Omitted . . . . . . . . . . . . . . . . . . . . .11
G. Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
H. Washington State Sales Tax . . . . . . . . . . . . . . . . . . . . .11
I. Taxes, Licenses, and Certificate Requirements. . . . . . . . . . . .12
J. Price Warranty . . . . . . . . . . . . . . . . . . . . . . . . . . .12
K. No Waiver of Warranties and Contract Rights. . . . . . . . . . . . .12
L. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
M. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . .12
N. Applicable Law and Forum . . . . . . . . . . . . . . . . . . . . . .13
O. Affirmative Action Requirements (Equal Employment Opportunity) . . .13
P. Conflicts of Interest and Noncompetitive Practices . . . . . . . . .15
Q. Disputes, Claims and Appeals . . . . . . . . . . . . . . . . . . . .16
R. Mediation and Arbitration. . . . . . . . . . . . . . . . . . . . . .16
S. Retention of Records, Audit Access and Proof of Compliance with
Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
T. Other Public Agency Orders . . . . . . . . . . . . . . . . . . . . .18
U. Recycled Products Policy . . . . . . . . . . . . . . . . . . . . . .18
V. Public Disclosure of Contracts . . . . . . . . . . . . . . . . . . .18
IV. SPECIFIC CONTRACTUAL TERMS AND CONDITIONS. . . . . . . . . . . . . .19
A. Contract Documents and Precedence. . . . . . . . . . . . . . . . . .19
B. Shipping Charges . . . . . . . . . . . . . . . . . . . . . . . . . .19
C. Guarantee/Warranty . . . . . . . . . . . . . . . . . . . . . . . . .19
D. Defective Work, Materials or Services. . . . . . . . . . . . . . . .20
E. Express Warranties . . . . . . . . . . . . . . . . . . . . . . . . .20
- --------------------------------------------------------------------------------
Page 2
<PAGE>
F. Industrial and Hazardous Waste . . . . . . . . . . . . . . . . . . .21
G. Prohibition on Asbestos-Containing Products. . . . . . . . . . . . .21
H. Patents, Copyrights and Rights in Data . . . . . . . . . . . . . . .22
I. Y2K Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . .22
J. Direct Costs Related to Change Orders. . . . . . . . . . . . . . . .23
K. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
L. Bug Status Reports . . . . . . . . . . . . . . . . . . . . . . . . .23
M. New Versions of Software . . . . . . . . . . . . . . . . . . . . . .24
N. Nondisclosure of Data. . . . . . . . . . . . . . . . . . . . . . . .24
O. Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Q. System Enhancements, Upgrades, and Replacements. . . . . . . . . . .24
R. Liquidated Damages . . . . . . . . . . . . . . . . . . . . . . . . .24
S. Contract Term. . . . . . . . . . . . . . . . . . . . . . . . . . . .25
T. Serverability. . . . . . . . . . . . . . . . . . . . . . . . . . . .25
V. SECTION 5 - INSURANCE REQUIREMENTS. . . . . . . . . . . . . . . . . .26
VI. SECTION 6 - SCOPE OF WORK. . . . . . . . . . . . . . . . . . . . . .29
ATTACHMENT A - WAIVER FROM STANDARD PROCUREMENT PROCEDURES . . . . . . . . .35
ATTACHMENT B - PAYMENT SCHEDULE. . . . . . . . . . . . . . . . . . . . . . .38
ATTACHMENT C - PERSONNEL INVENTORY REPORT. . . . . . . . . . . . . . . . . .39
ATTACHMENT D - ACCEPTANCE TESTING CRITERIA . . . . . . . . . . . . . . . . .40
ATTACHMENT E - AFFIDAVIT AND CERTIFICATE OF COMPLIANCE . . . . . . . . . . .52
ATTACHMENT F - STATEMENT OF COMPLIANCE . . . . . . . . . . . . . . . . . . .53
ATTACHMENT G - CURRENT OR FORMER KING COUNTY EMPLOYEE DISCLOSURE FORM. . . .54
ATTACHMENT H - SOURCE CODE ESCROW AGREEMENT. . . . . . . . . . . . . . . . .55
ATTACHMENT I - SOFTWARE LICENSING AGREEMENT. . . . . . . . . . . . . . . . .56
Exhibit A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
ATTACHMENT J - SOFTWARE AND EQUIPMENT MAINTENANCE AGREEMENT. . . . . . . . .58
Exhibit A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65
- --------------------------------------------------------------------------------
Page 3
<PAGE>
Exhibit B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66
ATTACHMENT K - CONSULTANT DISCLOSURE FORM. . . . . . . . . . . . . . . . . .67
ATTACHMENT M - FINAL AFFIDAVIT OF AMOUNTS PAID . . . . . . . . . . . . . . .69
ATTACHMENT N - EVIDENCE OF INSURANCE . . . . . . . . . . . . . . . . . . . .70
ATTACHMENT O - CONTRACTORS PROPOSAL. . . . . . . . . . . . . . . . . . . . .71
ATTACHMENT P - CONTRACTORS PRODUCT DESCRIPTION . . . . . . . . . . . . . . .72
</TABLE>
- --------------------------------------------------------------------------------
Page 4
<PAGE>
I. DEFINITION OF WORDS AND TERMS
Words and terms shall be given their ordinary and usual meanings. Where
capitalized in the Contract Documents, the following words and terms shall
have the meanings indicated. The meanings shall be applicable to the
singular, plural, masculine, feminine and neuter of the words and terms.
ACCEPTANCE: Formal action of the County in determining that the Contractor's
work has been completed in accordance with the contract.
ADDENDA: Written additions, deletions, clarification, interpretations,
modifications or corrections to the Contract Documents issued by the County
during the Proposal period and prior to the date and time established for
submittal of Proposals.
BENCH MARK: Predetermined milestone at which time the system installed will
be compared to the original plan.
CHANGE ORDER: Written order issued by the County and accepted by the
Contractor, with or without notice to sureties, making changes in the work
within the scope of this contract.
CONTRACT OR CONTRACT DOCUMENTS: The writings and drawings embodying the
legally binding obligations between the County and the Contractor for
completion of the services or work under the Contract.
CONTRACT ADMINISTRATOR: The individual designated by the County to represent
the County for the purpose of administration of the contract. This person may
be the Project Manager.
CONTRACT PRICE: Amount payable to the Contractor under the terms and
conditions of the contract for the satisfactory performance of the services
under the contract.
CONTRACT PERIOD: The period and time during which the Contractor shall
perform the services or work under the contract, including the Maintenance
Agreement.
CONTRACTOR: The individual, association, partnership, firm, company,
corporation, or combination thereof, including joint ventures, contracting
with the County for the performance of services or work under the contract.
DAY: Calendar day.
DOCUMENTATION: A printed bound copy of the technical publications relating to
the use of the Software, such as reference, user, installation, systems
administration and technical guides, delivered by the Contractor to King
County.
EQUIPMENT: Equipment means the Equipment described in Section 6 of Contract
No. T00874T.
ERROR: An unanticipated Software problem resulting in program behavior not
following the Software's logical design and/or Contractor's Documentation.
EXECUTIVE: King County Executive.
FINAL ACCEPTANCE: Contractor demonstrates and King County acknowledges that
Software and system meets or exceeds the requirements as set forth in this
agreement with respect to performance, Functionality and integrated systems.
FIX: The repair or replacement of source or object or executable code
versions of the Software to remedy an Error.
FUNCTIONALITY: The configuration as specified in the Contract Documents; i.e.
Software updates, hardware and services shall operate together efficiently.
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"GO LIVE DATE": The day scheduled in the scope of work document, Section 6 of
Contract No. T00874T that the Crime Capture System will become the active
King County system.
MONTH: The period commencing on the first day of a calendar month and ending
on the first day of the next succeeding calendar month.
MUG PHOTO IMAGES: The images taken by capture stations of an inmate or staff.
PARALLEL TESTING: A test that introduces "live data" to the new Crime Capture
system for testing but does on affect the current production
JEMS/ForceField/ID2000 system.
PER DIEM: The Per Diem rate as identified in the Scope of Work. Rate shall
include the following: all transportation costs to the work site in Seattle,
WA regardless of begin point, travel time, meals, hotel, parking and all
taxes associated with the above.
PERSON: Includes individuals, associations, firms, companies, partnerships,
and joint ventures.
PROJECT MANAGER: The individual designated by the County who may manage the
project on a daily basis and may represent the County for contract
administration.
PROVIDE: Furnish without additional charge.
RCW: Revised Code of Washington.
REFERENCE DOCUMENTS: Reports, Specifications, and drawings which are
available to Proposers for information and reference in preparing Proposals
but not as part of this contract.
SERVER: A single database or file Server that may be accessed by a network of
personal computers.
SERVICES: Services means the services to be performed by the Contractor as
described in Section 6 of Contract No. T00874T
SHALL or WILL: Whenever used to stipulate anything, shall or will means
mandatory by either the Contractor or the County, as applicable, and means
that the Contractor or the County, as applicable, has thereby entered into a
covenant with the other party to do or perform the same.
SOFTWARE: All or any portion of the then commercially available version(s) of
the binary computer Software programs and enhancements thereto, including (if
delivered to the County) source code, localized versions of the binary
computer Software programs and enhancements thereto, including (if delivered
to the County) source code, and Documentation delivered by Contractor to King
County. Software includes (a) Contractor-owned Software that is licensed to
King County under the Software Licensing Agreement in the form of ATTACHMENT
I or is licensed directly to King County by the third party owner. King
County's right to access the source code to the Contractor-owned Software is
set forth in the Source Code Escrow Agreement in the form of ATTACHMENT H.
SPECIFICATIONS or TECHNICAL SPECIFICATIONS: A Section of the contract
consisting of written descriptions of services to be performed or of the
technical requirements to be fulfilled under this contract.
SUBCONTRACTOR: The individual, association, partnership, firm, company,
corporation, or joint venture entering into an agreement with the Contractor
to perform any portion of the work covered by this contract.
UPDATE: All published revisions to the Documentation and one (1) copy of the
new release of the Software that are not designated by Contractor as new
products.
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VIRUS: Software code that is intentionally and specifically constructed for
the purpose of destroying, interrupting or otherwise adversely impacting
other code or data in a computer, such as replicating itself or another
program many times without any useful purpose.
WORKAROUND: A change in the procedures followed or data supplied to avoid an
Error without significantly impairing performance of the Software.
WORK: Everything to be done and provided for the fulfillment of the contract.
Y2K COMPLIANT: An information system is "Y2K Compliant" when the system is
able to accurately process date data--including, but not limited to,
calculating, comparing, and sequencing--from, into, and between the
nineteenth, twentieth and twenty-first centuries, including leap year
calculations.
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II. INTRODUCTION OVERVIEW
KING COUNTY CRIME CAPTURE SYSTEM
A. The purpose of the KING COUNTY Crime Capture System (as described
in the Scope of Work, Section 6 of Contract No. T00874T) is to:
1. Upgrade the JEMS/ForceField/ID2000 system currently
installed in King County to year 2000 compliance.
2. Enhance the efficiency and effectiveness of the County's
electronic imaging, and identification systems by upgrading
its hardware and software.
3. Provide a reliable, secure, open database compliant
(promoting integration possibilities) image and data storage,
and archive system.
4. Document provisions for the continued hardware and software
maintenance as well as 7 day a week, 24 hour a day, 365 day
per year service level agreement.
B. This is a fixed price contract for the amount identified for each
phase as described in ATTACHMENT B.
C. Contingencies shall not be viewed as automatic increases to the
contract amount. Instead the contingency amount is considered by
the Parties as budgeted but not allocated. Any changes to amounts
authorized for payment which are different than the amounts
identified in ATTACHMENT B shall be by Change Order.
D. This Introduction Overview generally describes goals of the Crime
Capture System project and is subject to the detailed Scope of
Work, Section 6 of Contract No. T00874T. The Scope of Work will
control over any inconsistency with this Introduction Overview,
which is not intended to expand on the Scope of Work.
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III. STANDARD CONTRACTUAL TERMS AND CONDITIONS
A. Administration
This contract is between the County and the Contractor who will be
responsible for providing the goods and performing the services
described herein. The County is not a party to defining the division of
work between the Contractor and its subcontractors, if any, and the
Specifications have not been written with this intent. However, King
County reserves the right to approve or disapprove of any substitutes
of subcontractors.
The Contractor represents that it has or will obtain all personnel and
Equipment required to perform hereunder. Such personnel shall not be
current employees of the County or former employees of the County. Any
current or former County employees or former Metro employees who are
involved, or become involved, in the performance of the contract must
be disclosed according to Attachment G; and the County will determine
whether conflicts of interest or ethical violations exist under the
circumstances.
The Contractor's performance under this contract may be monitored and
reviewed by a Contract Administrator appointed by the County. Reports
and data required to be provided by the Contractor shall be delivered
to the Contract Administrator. Questions by the Contractor regarding
interpretation of the terms, provisions and requirements of this
contract shall be addressed to the Contract Administrator for response.
This contract is for official use only by the County. No other use of
this contract and/or the terms and conditions thereof, is authorized.
B. Change Orders
The County may, at any time, with approval of Contractor, make any
change in the work within the scope of this contract. No oral order or
conduct will constitute a Change Order unless confirmed in writing by
the parties to this agreement.
If any Change Order causes an increase or decrease in the cost of, or
the time required for, performance of any part of the work under this
contract, the parties to this agreement shall make an equitable
adjustment in the Contract Price, the delivery schedule, or both, and
shall amend the contract in writing.
The Contractor must assert its right to an adjustment under this clause
within thirty (30) calendar days after receipt of a written Change
Order from the County. Upon request from the Contractor, the County may
extend the thirty (30) day period. The request for equitable adjustment
must be in writing and state the general nature and monetary extent of
the claim. The County may require additional supporting documents and
analysis to determine the validity of the claim. No claim by the
Contractor for an equitable adjustment hereunder will be allowed if
asserted after Final payment under this contract. No claim will be
allowed for any costs incurred more than thirty (30) days before the
Contractor gives written notice, as required in this section.
C. Termination for Convenience/Default/Non-Appropriation
1. Termination for Convenience
The County for its convenience may terminate this contract, in
whole or in part, at any time by written notice sent certified
mail, return receipt requested, to the Contractor. After receipt
of a Notice of Termination, and except as directed by the Contract
Administrator, the Contractor shall immediately stop work. The
Contractor shall be paid its costs, including necessary and
reasonable contract close- out costs and profit on that portion of
the work satisfactorily performed up to the date of termination as
specified in the Notice. The Contractor shall promptly submit its
request for the termination payment, together with detailed
supporting Documentation. If the Contractor has
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any property in its possession belonging to the County, the
Contractor will account for the same and dispose of it in the
manner the County directs.
If this contract is terminated, the rights, duties, and
obligations of the parties, including compensation to the
Contractor, shall be determined in accordance with Part 49 of the
Federal Acquisition Regulation in effect on the date of this
contract. The termination of this contract for convenience shall
terminate Contractor's obligations under this contract as of the
termination date.
2. Termination for Default
In addition to termination for convenience, if the Contractor does
not deliver supplies in accordance with the contract delivery
schedule, or if the contract is for services and the Contractor
fails to perform in the manner called for in the contract, or if
the Contractor fails to comply with any other material provisions
of the contract, the County may terminate this contract, in whole
or in part, for default. Termination shall be effected by serving a
Notice of Termination by certified mail, return receipt requested,
on the Contractor setting forth the manner in which the Contractor
is in default and the effective date of termination; provided,
that Contractor shall have forty-five (45) calendar days to cure
the default. The Contractor will only be paid for goods delivered
and accepted, or services performed in accordance with the manner
of performance set forth in the contract less any damages to the
County caused by such default.
3. Termination for Non-Appropriation
If expected or actual funding is withdrawn, reduced or limited in
any way prior to the termination date set forth in this contract
or in any amendment hereto, the County may, upon written notice to
the Contractor, terminate this Contract in whole or in part. Such
termination shall be in addition to the County's rights to
terminate for convenience or default.
In accordance with K.C.C. 4.04.040 B.6, payment shall not exceed
the appropriation for the year in which termination is effected. If
the Contract is terminated for non-appropriation:
a) The County will be liable only for payment in accordance
with the terms of this contract for services accepted
prior to the effective date of termination; and
b) The Contractor shall be released from any obligation to
provide further services pursuant to the contract as are
affected by the termination.
Funding for this Contract beyond the currect appropriation year is
conditional upon appropriation by the King County Council of
sufficient funds to support the activities described in this
Contract. Should such an appropriation not be approved, the Contract
will terminate at the close of the current appropriation year. The
appropriation year ends on December 31 of each year.
D. Force Majeure
The term "force majeure" shall include, without limitation by the
following enumeration: acts of Nature, acts of civil or military
authorities, fire, accidents, shutdowns for purpose of emergency
repairs, strikes and any other industrial, civil or public disturbance,
that are not reasonably within the control of a party, causing the
inability to perform the requirements of this Contract. If any party is
rendered unable, wholly or in part, by a force majeure, to perform or
comply with any obligation or condition of this contract then, upon
giving three (3) days notice and reasonably full particulars to the
other party, such obligation or condition shall be suspended only for
the time and to the extent reasonably necessary to allow for
performance and compliance and restore normal operations. In the event
a Contractor ceases to be excused pursuant to this provision, then King
County shall be entitled to exercise any remedies otherwise provided
for in this Contract, including termination for default.
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Contractor is not responsible for failure to fulfill its obligations
under this Contract due to the unavailability of materials, Equipment,
programs or labor due to failure of third parties to timely provide
Software or Equipment contemplated herein. Contractor will notify
County in writing of any such delay, and the time for Contractor's
performance will be extended for a period corresponding to the delay
caused by the third party. Contractor and County will determine
alternative procedures to minimize project delays.
E. Payment Procedures
1. Invoices with supporting Documentation as appropriate will be
submitted by the Contractor for material and/or services
provided to:
Tim Longley
Information System Manager
King County
Department of Adult Detention
500 Fifth Avenue
(M/S-1B)
Seattle, WA 98104
IMPORTANT - The County requires one invoice when completion
of each Benchmark is accepted by the County. All invoices
must include the following information: contract number,
requester's name and phone number, date of invoice, invoice
number and total price for invoice. For each item purchased
indicate quantity, description, part number, model and
serial number; list price, item price and total price for the
item,. Invoices must indicate Benchmark completed or for
additional work tasks completed. Failure to comply with these
requirements may delay payment.
2. Within thirty (30) calendar days after receipt of an invoice
for accepted work, on the basis set forth in Attachment B,
the County will pay the Contractor for authorized materials
and/or services satisfactorily delivered or performed.
Acceptance of such payment by the Contractor shall constitute
full compensation for all supervision, labor, supplies,
materials, work, Equipment and the use thereof, and for all
other necessary expenses, incurred by the Contractor.
F. Work and Materials Omitted
The Contractor shall, when ordered in writing by the County, omit goods
and/or services to be furnished under this contract, and the value of
the omitted work and material will be deducted from the purchase price.
The value of omitted work, services and material will be a lump sum or
unit price, mutually agreed upon in writing by the Contractor and the
County.
Contractor will not be responsible for decreased performance of the
Equipment, Software or integrated system to the extent caused by goods
and/or services omitted by King County, provided that Contractor advises
County in writing that decreased performance will occur.
G. Charges
Charges which are the obligation of (a) party under the terms of the
Contract shall be paid other on demand. Such charges may be deducted
from any money due or to become due to the owing party under the
Contract.
H. Washington State Sales Tax
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The County will make payment directly to the State for all applicable
State sales taxes in case the Contractor is not registered for payment
of sales taxes in the State of Washington. If the Contractor is so
registered, it shall add the sales tax to each invoice and upon receipt
of payment from the County, promptly remit appropriate amounts to the
State of Washington.
I. Taxes, Licenses, and Certificate Requirements
This contract and any of the services or supplies provided hereunder
are contingent and expressly conditioned upon the ability of the
Contractor to provide the specified service or supplies consistent with
federal, state and local law and regulations. If, for any reason, the
Contractor's required licenses or certificates are terminated,
suspended, revoked or in any manner modified from their status at the
time this contract becomes effective, the Contractor shall notify the
County immediately of such condition in writing.
The Contractor shall maintain and be liable for all taxes, except sales
tax, fees, licenses and costs as may be required by federal, state and
local laws and regulations for the conduct of business by the
Contractor and any subcontractors and shall secure and maintain such
licenses and permits as may be required to provide the services or
supplies under this contract.
J. Price Warranty
The Contractor warrants that the prices charged the County do not
exceed the prices charged by the Contractor to any other customer
purchasing the same product or services in like or similar quantities,
and under similar terms, conditions and circumstances.
K. No Waiver of Warranties and Contract Rights
Conducting of tests and inspections, review of Specifications or plans,
payment for goods or services or Acceptance of a product or service by
the County shall not constitute a waiver, modificication or exclusion of
any express or implied warranty or any right under this contract or in
law.
L. Assignment
The Contractor shall not assign any interest, obligation or benefit
under or in this contract or transfer any interest in the same, whether
by assignment or novation, without prior written consent of the County.
Any request for assignment of this contract must contain, at a minimum,
information regarding the potential assignee's technical and financial
ability to perform this agreement, including the maintenance agreement
for future years and a notarized statement that the proposed assignee
will comply with this agreement, the King county Code and all
applicable laws. If assignment is approved this contract shall be
binding upon and inure to the benefit of the successors of the parties.
M. Indemnification
1. Limitation of Liability
a) Patent and Copyright Indemnity
Contractor agrees to defend, indemnify and hold harmless
County from any infringement claim, so long as County
gives Contractor prompt notice of any infringement claim
brought against County regarding the Software and King
County gives Contractor information, reasonable
assistance, and sole authority to defend or settle any
infringement claim, then, in the defense or settlement of
an infringement claim, Contractor shall, in its
reasonable judgment and at its option and expense: (i)
obtain for King County the right to continue using the
Software; (ii) replace or modify the Software so that it
becomes noninfringing while giving equivalent
performance; or (iii) if Contractor cannot obtain the
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remedies in (i) or (ii), the parties may proceed to a
court of competent jurisdiction to determine the amount
of fees that must be returned to Licensee. Contractor
shall have no liability to indemnify or defend King
County to the extent the alleged infringement is based
on: (i) a modification of the Software the County or
others authorized by the County; or (ii) use of the
Software other than in accordance with the Documentation.
Notwithstanding this section, King County retains the
right and ability to defend itself against any claims
that the Licensed Software infringes any patent or
copyright. If King County chooses to defend itself or
enter into a settlement agreement without Contractor's
prior knowledge, consent, and specific agreement to pay
costs, King County understands that Contractor will not
indemnify King County for its costs and expenses.
a) INDEMNIFICATION FOR ALL OTHER ACTIONS
Each party shall protect, defend, indemnify and save
harmless the other party, its officers, employees and
agents from any and all costs, claims, judgments, and/or
awards of damages for injuries to persons and/or damage
to tangible property, arising out of or in any way
resulting from each party's own acts or omissions to the
extent each party is liable for such acts or omissions.
In the event the indemnified party incurs any costs
including attorneys fees to enforce the provisions of
this paragraph, all such costs and fees shall be
recoverable from the Indemnitor.
a) WORKER'S COMPENSATION LIABILITY.
Contractor's indemnification obligation shall
include but is not limited to, all claims against King
County by an employee or former employee of the
Contractor or its subcontractors, and the Contractor
expressly waives by mutual negotiation, with respect to
the County only, all immunity and limitation on liability
under any industrial insurance act, including Title 51
RCW, other worker's compensation act, disability benefit
act, or other employee benefit act of any jurisidiction
which would otherwise be applicable in the case of such
claim. In the event of litigation between the parties to
enforce the rights under this paragraph, reasonable
attorney fees shall be allowed to the prevailing party.
b) LIMITATION OF LIABILITY
Except for King County's intentional and willful
violations of Contractor's intellectual or proprietary
rights, which can be attributed to King County
management, neither party will be liable for any indirect,
incidental, special or consequential damages, including
but not limited to lost data or profits, however arising,
even if it has been advised of the possibility of such
damages. Excluding damages incurred under the paragraphs
entitled "Patent and Copyright Indemnity" and
"Indemnification for all other Actions" either party's
liability for damages to the other under this Agreement
shall be limited to the $185,000 received under this
agreement. The parties agree to the allocation of
liability of risk set forth in this section.
N. Applicable Law and Forum
Except as hereinafter specifically provided, this contract shall be
governed by and construed according to the laws of the State of
Washington, including, but not limited to, the Uniform Commercial Code,
Title 62A RCW. Any suit arising herefrom shall be brought in U.S.
District Court for the Western District of Washington, in Seattle.
Washington which shall have sole and exclusive jurisdiction and venue.
The Contractor and King County shall comply with all local, state and
federal laws and regulations applicable to this contract and applicable
to the goods and services provided under this contract.
O. Affirmative Action Requirements (Equal Employment Opportunity)
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1. Nondiscrimination - General
a) King County Code Chapters 12.16 and 12.18 are incorporated by
reference as if fully set forth herein and such requirements
apply to this Contract. Failure by the Contractor to comply
with any requirements of these Chapters shall be a material
breach of contract.
b) No Contractor, Subcontractor, or union doing business with the
County or a County Contractor who furnishes workers or
services in connection therewith, shall discriminate against
any Person on the basis of race, color, creed, religion, sex,
age, nationality, marital status, sexual orientation, or the
presence of any sensory, mental or physical disability in an
otherwise qualified disabled Person in employment, and no such
Contractor, Subcontractor, or union shall violate the terms of
RCW Chapter 49.60, Title VII of the Civil Rights Act of 1964,
or any other applicable federal, state or local law or
regulation regarding nondiscrimination in employment. These
provisions shall apply to all contractors, subcontractors, or
unions doing business with or furnishing workers or services
to the county, except other governments.
2. Employment Practices
a) During performance of this Contract, the Contractor agrees that
it will not engage in unfair employment practices as defined
by King County Code, Chapter 12.18. The Contractor agrees
that it shall not discriminate against, nor tolerate
harassment of, any employee or applicant for employment
because of race, color, creed, religion, sex, age,
nationality, marital status, sexual orientation, or the
presence of any sensory, mental or physical disability in an
otherwise qualified disabled Person. The Contractor will take
affirmative action to ensure that applicants and employees are
treated without regard to their race, color, creed, religion,
sex, age, nationality, marital status, sexual orientation or the
presence of any sensory, mental or physical disability in an
otherwise qualified disabled Person. Such affirmative action
shall include, but not be limited to the following:
employment, upgrading, demotion or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay
or other forms of compensation; and, selection for training,
including apprenticeship. The Contractor agrees to post in
conspicuous places, available to employees and applicants for
employment, notices setting forth the provision of this
nondiscrimination clause.
b) The Contractor will, prior to commencement and during the term
of this Contract, furnish the County, upon request and on such
forms as may be provided by the County, a report of the
affirmative action taken by the Contractor in implementing the
terms of this provision, and will permit access by the County
to the Contractor's records of employment, employment
advertisements, application forms, other pertinent data and
records for the purpose of monitoring and investigation to
determine compliance with this contract.
c) The Contractor will implement and carry out the obligation
contained in its Affidavit and Certificate of Compliance,
Attachment E, submitted as part of its commitment to perform
the work under this Contract. Failure to implement and carry
out such obligations in good faith may be considered by the
County a material breach of this Contract and may be grounds
for cancellation, termination, or suspension of the Contract,
withholding payment, or invoking the
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enforcement provisions of King County Code Chapter 12.16 which
provides for penalties, liquidated damages, or other remedies.
The Contractor shall require that Affidavits in the form of
those required by the County from the Contractor be submitted
by its subcontractors and that substantially the foregoing
provisions be contained in all such subcontracts.
3. Compliance with Section 504 of the Rehabilitation Act of 1973, and
the Americans with Disabilities Act
a) As required by King County Code Chapter 12.16, all contractors
(except those directly selling goods) entering into contracts
with King County shall provide the County with assurance of
their compliance with the provisions of Section 504 of the
Federal Rehabilitation Act of 1973, as amended, and the
Americans with Disabilities Act of 1990. The Contractor shall
complete and maintain in its office a Section 504 self
evaluation and corrective action plan. An Assurance of
Compliance contained in the corrective action plan
(Attachment M), must be signed, notarized and submitted to the
County before the Contract will be signed by the County.
b) In addition to the general prohibition against discrimination
stated above, the following nondiscrimination provisions
relating to employment of persons with disabilities shall
apply to contractors, subcontractors, or unions doing business
with or furnishing workers or services to the County:
(1) Reasonable accommodation
(a) The Contractor shall make reasonable accommodation
to the known physical or mental limitations of an
otherwise qualified disabled applicant or employee
unless the Contractor can demonstrate that the
accommodation would impair or cause undue hardship
on the operation of the Contractor's business.
(2) Pre-employment inquiries
(a) The Contractor may not conduct a pre-employment
medical examination or make a pre-employment inquiry
as to whether an applicant is a disabled Person or
as to the nature or severity of a disability. The
Contractor may, however, make pre-employment inquiry
into an applicant's ability to perform job-related
functions. Nothing in this section shall prohibit
the Contractor from conditioning an offer of
employment on the results of a medical examination
prior to initiation of the employment, if all
entering employees are subjected to such an
examination regardless of disability.
P. Conflicts of Interest and Noncompetitive Practices
1. Conflict of Interest
The Contractor, by entering into this contract with the County to perform
or provide work, services or materials, has thereby covenanted that it
has no direct or indirect pecuniary or proprietary interest, and that it
shall not acquire any interest, which conflicts in any manner or degree
with the work, services or materials required to be performed and/or
provided under this contract and that it shall not employ any Person or
agent having any such interests. In the event that the Contractor or
its agents, employees or representatives hereafter acquires such a
conflict of interest, it shall
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immediately disclose such interest to the County and take action
immediately to eliminate the conflict or to withdraw from this contract,
as the County may require.
2. Contingent Fees and Gratuities
The Contractor, by entering into this contract with the County to
perform or provide work, services or materials, has thereby covenanted
that:
a) No Person or selling agency except bona fide employees or
designated agents or representatives of the Contractor has
been employed or retained to solicit or secure this contract
with an agreement or understanding that a commission,
percentage, brokerage, or contingent fee would be paid; and
b) No gratuities, in the form of entertainment, gifts or
otherwise, were offered or given by the Contractor or any of
its agents, employees or representatives, to any official,
member or employee of the County or other governmental agency
with a view toward securing this contract or securing
favorable treatment with respect to the awarding or amending,
or the making of any determination with respect to the
performance of this contract.
Q. Disputes, Claims and Appeals
The Contractor shall address questions or claims regarding the meaning and
intent of the Contract in writing to the Contract Administrator, within
thirty (30) calendar days of the date in which the Contractor knows or should
have known about the claim or question.
Each party shall address questions or claims arising from this Contract in
writing to the other within one (1) year from the date in which the party
knows or should have known about the claim or question.
The Contract Administrator will ordinarily respond to the Contractor in
writing with a decision, but absent such written response, the question or
claim shall be deemed denied upon the tenth (10th) day following receipt by
the Contract Administrator.
All claims, counterclaims, disputes and other matters in question between the
County and the Contractor that are not resolved between the Contract
Administrator and the Contractor or through alternative dispute resolution
will be decided in the U.S. District Court for the Western District of
Washington, in Seattle, which shall have exclusive jurisdiction and venue
over all matters in question between the County and the Contractor.
Mediation or arbitration are not mandatory prerequisites to filing a lawsuit.
Pending final decision of a dispute hereunder, the Contractor shall proceed
diligently with the performance of the contract work, including the disputed
requirements, unless the disputed requirement materially prevents continued
performance of the contract work. Failure to comply precisely with the time
deadlines under this paragraph as to any claim shall operate as a waiver and
release of that claim and an acknowledgment of prejudice to the non-claiming
party.
R. Mediation and Arbitration
Nothing in this paragraph precludes any party from seeking relief from U.S.
District Court for the Western District of Washington, in Seattle. If a
dispute arises out of or relates to this Contract, or the breach thereof, and
if said dispute cannot be settled through direct discussions, the parties
agree to first endeavor to settle the dispute in an amicable manner by
mediation. Thereafter, any unresolved controversy or claim arising out of or
relating to this contract, or breach thereof, may be settled by arbitration,
and judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof. The parties to this Contract may seek to
resolve disputes pursuant to mediation or arbitration, but are not required
to do so.
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S. Retention of Records, Audit Access and Proof of Compliance with Contract
1. Retention of Records
a) The Contractor shall maintain books, records and documents of
its performance under this contract in accordance with
generally accepted accounting principles. The Contractor
shall maintain and retain for a period of not less than six
years after the date of Final Acceptance of contract work, all
financial information, data and records (e.g., estimating
sheets, take-offs, calculations, designs, etc.) used to
prepare and support the Contractor's final Proposal for this
contract and all records pertaining to the performance of the
work under this contract, including the work performed under
Change Orders, and contracts and agreements with
subcontractors and suppliers.
b) The Contractor shall attempt to ensure that its subcontractors
maintain and retain for no less than three years all records
pertaining to the performance by the subcontractors and
suppliers of their portions of the work under this contract.
2. Audit Access
a) The County and its authorized representatives and designees
shall have access to all records maintained and retained by
the Contractor and its subcontractors with respect to this
Contract for the purpose of inspection, cost/price analysis,
audit or other purposes related to this contract. The County
and its representatives and designees shall have access to
such records and be able to copy such records during the
Contractor's normal business hours. The Contractor shall
provide proper facilities for such access, inspection and
copying. To the extent permitted by the public disclosure
laws, County will maintain the confidentiality of all such
records and information. County's inspection and copying will
be at County's expense.
b) Audits may be conducted during Contractor's normal business
hours or after the Contract Period for purposes of evaluating
claims by or payments to the Contractor and for any other
reason reasonably deemed appropriate and necessary by the
County. Audits will be conducted by auditors selected and paid
for by the County. Audits shall be conducted in accordance
with generally accepted auditing standards and/or audit
procedure and guidelines of the County. The Contractor shall
fully cooperate with the County or its auditor(s) during
audits and inspections, and provide all requested
documentation. Audits will be conducted at the County's
expense. To the extent permitted by the public disclosure
laws, County will maintain the confidentiality of all such
records and information. County's inspection and copying will
be at County's expense.
c) The County will give at least a forty-eight (48) hours notice
to the Contractor of the date on which the audit will begin,
if the County is notified in advance.
3. Proof of Compliance with Contract
The Contractor shall, at any time when requested, submit to the County
properly authenticated documents or other satisfactory proof as to the
Contractor's compliance with contract requirements.
In addition, the Contractor will permit the County, and if federally
funded, the FTA and the Comptroller General of the United States, or a
duly authorized representative, to inspect all work, materials, payrolls
and other data and records involving the contract.
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T. Other Public Agency Orders
Other public agencies may utilize the terms and conditions established by
this contract if the Contractor agrees. The County does not accept any
responsibility or involvement in the purchase orders or contracts issued
by other public agencies.
U. Recycled Products Policy
The County promotes the purchase and utilization of recycled material and
products where available. Recycled material means material and byproducts
which have been recovered or diverted from solid waste disposal for the
purpose of recycling. It does not include those materials and byproducts
generated from, and commonly reused within, an original manufacturing
process. In the event of similar pricing, availability and other factors
affecting the solicitation, preference may be given to products
containing recycled material.
The Contractor shall, when requested by the Contract Administrator,
provide Documentation indicating the recycled materials used and their
proportion of the total value of the end product and upon request, where
recycled materials were available but non-recycled materials were
actually used, in whole or in part, the Contractor shall furnish the
content by price/volume of recycled and non-recycled material used, and
shall furnish an explanation of the reason that recycled materials were
not used.
V. Public Disclosure of Contracts
This Contract shall be considered a public document and will be
available for inspection and copying by the public.
If the Contractor considers any portion of the items delivered to
King County to be protected under the law, the Contractor shall
clearly identify each such portion with words such as "CONFIDENTIAL,"
"PROPRIETARY" or "BUSINESS SECRET." If a request is made for
disclosure of such portion, the County will determine whether the
material should be made available under the law. If the material is
not exempt from public disclosure law, the County will notify the
Contractor of the request and allow the Contractor twenty (20) days
to take whatever action it deems necessary to protect its interests.
If the Contractor fails or neglects to take such action within said
period, the County will release the portions of the Proposal deemed
subject to disclosure. By submitting a Contract, the Contractor
assents to the procedure outlined in this paragraph and shall have no
claim against the County on account of actions taken under such
procedure. Contractor's failure to specifically identify items as
"CONFIDENTIAL," "PROPRIETARY" or "BUSINESS SECRET" will not diminish
Contractor's proprietary rights in its trade secrets and other
confidential information identified in this Contract (including all
Attachments and Exhibits), or otherwise identified, as trade secrets
and/or confidential information; provided, if Contractor fails to
specifically label protected items, King County will not be liable to
Contractor for inadvertently releasing such items pursuant to a
disclosure request.
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IV. SPECIFIC CONTRACTUAL TERMS AND CONDITIONS
A. Contract Documents and Precedence
The documents constituting the Contract between the County and the
Contractor are intended to be complementary so that what is required by
any one of them shall be as binding as if called for by all of them. In
the event of any conflicting provisions or requirements within the
several parts of the Contract Documents, they shall take precedence
from highest precedence (listed first) to lowest precedence (listed
last) as identified on the Agreement which is the first page of this
document.
B. Shipping Charges
All prices shall include freight to FOB destination. Requests for
additional compensation for freight charges will be rejected by the
County.
C. Guarantee/Warranty
The Contractor warrants the Equipment and Services furnished under this
Contract No. T00874T when delivered, and for the twelve month period
after Final Acceptance (the "Limited Warranty Period") will be free
from defects in material and workmanship, and will conform with all
requirements of this contract. The Contractor is responsible for all
costs of replacement, including shipping charges, for Equipment or
Services found defective regardless of who actually corrects the defect.
The County shall give written notice of any defect to the Contractor.
If the Contractor has not diligently undertaken to correct the defect
within thirty (30) calendar days after receiving the written notice,
the County, in its sole discretion, may correct the defect itself. In
the case of an emergency, the County may waive the written notice and
correct the defect itself, if the County believes delay could cause
serious injury, loss or damage.
Upon receipt of notice of defective Equipment or Services from the
County, Contractor will (a) coordinate the repair or replacement of
defective Equipment with the Equipment manufacturer or Equipment
maintenance provider, or (b) commence to fix defective Services. The
warranties provided by Equipment suppliers/manufacturers are described
in the Scope of Work and will control the extent and terms of warranty
service with respect to Equipment.
The Contractor shall ensure that the warranty requirements of this
Contract enforceable through and against the Contractor's suppliers,
vendors, distributors and subcontractors. The Contractor is responsible
for liability and expense caused by any inconsistencies or differences
between the warranties extended to the County by the Contractor and
those extended to the Contractor by its suppliers, vendors,
distributors and subcontractors. Such inconsistency or difference will
not excuse the Contractor's full compliance with its obligations under
this contract. The actions set forth in this paragraph are the full
extent of Contractor's responsibility under this warranty.
The Contractor, upon notice of award of the contract, shall promptly
provide to the County complete copies of all written warranties or
guarantees and/or Documentation of any other arrangement relating to
such warranties or guarantees extended to the Contractor by the
Contractor's suppliers, vendors, distributors and subcontractors
covering parts, components, sub-components and systems procured through
this contract. The Contractor shall cooperate with the County in
facilitating warranty related work by such suppliers, vendors,
distributors and subcontractors.
The termination of this Contract shall not relieve the Contractor from
its warranty/guarantee responsibility with respect to warranty problems
incurred prior to termination.
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Any Equipment or Services corrected shall be subject to this clause to the
same extent as the Equipment or Services initially provided.
The warranties in this Contract No. T00874T are void if the defect or
failure is caused by any of the following excluded causes (the
"excluded causes"): causes other than defects, errors or malfunctions
in the Equipment, Software or Services provided by Contractor;
de-installation, reinstallation or relocation of any item of Equipment
without Contractor's direction or written authorization; use of
Software not supplied or authorized by Contractor; use of equipment not
authorized by Contractor; County's failure to follow operational
instructions; repair, maintenance, modification or alteration of the
Software by King County or third parties without Contractor's direction
or written authorization; intentional acts or omissions by King County
management; power failure, surges or electrical damage, fire or water
damage, air conditioning failure, humidity control failure, or
corrosive atmosphere harmful to electronic circuitry; or failure to
maintain proper site specifications and environmental conditions.
This warranty shall be in addition to any other express warranties or
remedies provided by this Contract, and in addition to any other rights
or remedies available to the County under this Contract. Contractor
shall be liable for all defects, failures, non-performance or failures
to meet Contract requirements except as to excluded causes.
The warranty period begins upon Final Acceptance and continues for
twelve (12) months, except the Y2K Compliant Warranty in Section I
which shall expire June 30, 2002. The Software and Equipment
Maintenance Agreement Attachment J to Contract No. T00874T commences
upon Final Acceptance of the Software pursuant to this contract.
Maintenance fees shall be charged in one year increments using the date
of Final Acceptance.
D. Defective Work, Materials or Services
Prior to Final Acceptance hereunder, when and as often as the
County reasonably determines that the work, materials or services
furnished under the Contract are not fully and completely in
accordance with any requirement of the contract, it may give notice
and description of such non-compliance to the Contractor. Within
thirty (30) calendar days of receiving such written notification,
the Contractor must supply the County with a written detailed plan
which indicates the time and methods needed to bring the work,
materials or services within acceptable limits of the
Specifications. The County may reject or accept this plan at its
reasonable discretion. In the event this plan is rejected, the
work, materials or services will be deemed not accepted and
returned to the Contractor at the Contractor's expense. This
procedure to remedy defects is not intended to limit or preclude
any other remedies available to the County by law, including those
available under the Uniform Commercial Code, Title 62A RCW.
E. Express Warranties
1. Software - Contractor warrants that on the date of Final
Acceptance, the Contractor-owned Software supplied as part
of the System furnished hereunder shall be free from
significant programming errors and when used in
accordance with user manuals and Scope of Work and shall
operate and conform to the performance capabilities,
Specifications, functions and other descriptions and
standards as identified in this Contract.
2. Services - Contractor warrants that the Services shall be
performed in a timely and professional manner by
qualified professional personnel.
3. Contractor warrants that it has full power and authority
to license or sublicense the Software to the County
without the consent of any other Person.
4. Contractor warrants that use of the Software and Services
as permitted by this contract, including copying, will
not in any way constitute an infringement or other
violation of any
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copyright, trade secret, trademark, patent, invention,
proprietary information, nondisclosure or other right of
any third party.
5. Contractor warrants that the Software, its License to the
County, and the performance by Contractor of the Services,
shall be in compliance with all applicable laws, rules and
regulations.
6. If at any time during the twelve (12) month period
immediately following the Acceptance Date, Contractor or the
County shall discover one or more defects or errors in the
Contractor-owned Software or any other aspect in which the
Contractor-owned Software fails to meet the provisions of the
warranty requirements herein, or the Scope of Work,
Contractor shall, at its own expense and within thirty (30)
days of notification of the defect by the County, correct the
defect, Error or nonconformity by, among other things, making
additions, modifications or adjustments to the
Contractor-owned Software as may be necessary to keep the
Contractor-owned Software in operating order in conformity
with the warranties herein. See also Attachment J, paragraph 4.
7. Contractor warrants the tapes, diskettes or other media
delivered to the County to be free of defects in materials
and workmanship under normal use for thirty (30) days from
the date of receipt by the County. During the thirty (30) day
period, the County may return defective media to Contractor
and it will be replaced without charge to the County.
8. Contractor warrants that the Contractor-owned Software
provided is free from intentional viruses, other intentional
programming defects or intentional programming defects
intended to coerce County to perform this agreement.
9. Contractor warrants that future maintenance or Software
releases provided within one (1) year after the date of Final
Acceptance shall not degrade the Software, cause a breach of
any other warranty or require the County to purchase new or
additional hardware or Software for continued operation of
the Software.
10. The Contract warrants Functionality as described in the Scope
of Work and represents that the unmodified configuration
identified in the Contract document has been specifically
selected and designed for the County as being an
operationally efficient integration of hardware, Software and
services.
11. THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS SECTION 4
ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
F. Industrial and Hazardous Waste
The Contractor shall comply with all applicable local ordinances, state
and federal statutes, and supporting rules and regulations governing
the discharge of industrial waste to a public sewer, private sewer, or
side sewer tributary to the metropolitan sewage system.
Contractor shall handle and dispose of all hazardous wastes in
compliance with the Resource Conservation and Recovery Act, the
Washington Hazardous Waste Management Act, and applicable rules and
regulations of the Environmental Protection Agency and the Department
of Ecology governing the generation, storage, treatment, transportation
or disposal of hazardous wastes.
G. Prohibition on Asbestos-Containing Products
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Asbestos-containing products shall not be provided to the County under this
contract, unless no practicable alternative for the asbestos-containing
product exists and the Contractor obtains the written consent of the County.
The Contractor shall notify the County in writing at least thirty (30) days
before it plans to supply the County with an asbestos-containing product. The
County shall respond to such notification within ten (10) days of receipt.
The Contractor shall comply with applicable state, federal and local labeling
and other laws, regulations and ordinances pertaining to asbestos-containing
products, including, but not limited to, the State of Washington Industrial
Safety and Health, Act and the federal Occupational Safety and Health Act.
H. Patents, Copyrights and Rights in Data
Any patentable, copyrightable or trademarkable result or materials suitable
for patent, copyright or trademark arising out of this Contract shall be
owned and retained by the Contractor.
The Contractor agrees that, except with respect to Software, the ownership of
any plans, drawing, designs, specifications, technical reports, notes and
other work specific to County submitted or which is specified to be
delivered under this contract, whether or not complete (referred to in this
subsection as "Subject Data") shall be vested in the County.
All such Subject Data furnished by the Contractor pursuant to this contract,
other than documents exclusively for internal use by the County, shall carry
such notations on the front cover or a title page (or in such case of maps,
in the name block) as may be requested by the County. The Contractor shall
also place its endorsement on all Contractor-furnished Subject Data. All such
identification details shall be subject to approval by the County prior to
printing.
The Contractor shall ensure that substantially the foregoing paragraphs are
included in each subcontract for the work under this contract.
I. Y2K Compliance
The Contractor represents and warrants that the Software is Y2K Compliant as
defined as in the Definition of Words and Terms. Without waiving the
definition of Y2K Compliant, the Contractor represents and warrants that 1)
The Software when used in accordance with the Documentation supplied by
Contractor will function without Error or interruption related to the date
data, including errors or interruptions from functions which may involve date
data from more than one century; 2) The Software requires that all date data,
whether received from users, systems, applications or other sources, include
and indicate a century; 3) The computer Equipment, Software and systems, as
furnished and modified by Contractor individually and in combination, shall
be Y2K Compliant, when used in accordance with the Documentation supplied by
the Contractor; and 4) any upgrades, modifications, customizations or new
versions of the Equipment, Software and systems, provided by Contractor,
individually and in combination, shall be Y2K Compliant, when used in
accordance with the Documentation supplied by the Contractor.
In addition to all legal and equitable remedies available to the County for
breach of this paragraph, the Contractor shall allow County employees or
authorized representatives of the County to repair, remove or alter computer
Equipment, Software and systems which are not Y2K Compliant, if Contractor
does not repair, remove or fix the non-compliant Equipment, Software and
systems as provided under the other provisions of this Contract.
The warranty described herein does not apply (a) to County designed date
field definitions and related calculations, (b) if non-compliance is caused
by modifications to the Equipment, systems or Software that are not made,
directed or authorized in writing by Contractor, or (c) if non-compliance is
caused, by equipment, software and/or data interacting with the Equipment,
Software and systems, and not furnished by the Contractor, failing to be Y2K
Compliant.
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J. Direct Costs Related to Change Orders
With respect to Change Orders, unless Change Orders are for a fixed price,
reimbursement of Contractor travel, lodging and meal expenses are limited to
the eligible costs based on the rates and criteria established in King County
Code, chapter 3.24.
1. The mileage rate allowed by King County shall not exceed
the current Internal Revenue Services (IRS) rates per mile as
allowed for business related travel. The IRS mileage rate will be
paid for the operation, maintenance and depreciation of company or
individually owned vehicles for that portion of time they are used
for project work. Parking shall be the actual cost. When rental
vehicles are authorized, government rates shall be requested. If a
Person does not request government rates, he/she may be personally
responsible for the difference.
2. Reimbursement for meals shall be limited to the Per Diem
rates established by Federal travel requisitions for the host city
in the code of Federal Regulations, 41 CFR Section 301, App. A.
3. Accommodation rates shall not exceed the Federal lodging
limit plus host city taxes. The Contractor must always
request government rates.
4. The direct costs contained in 1, 2 and 3 above will only
be authorized by the King County Project Manager for
Contractor staff living beyond commuting distance,
normally considered to be for the travel beyond 100 miles
of 500 5th Ave, Seattle, WA. 98014.
5. Air travel shall be by coach class at the lowest price
available.
6. Cost for Equipment, materials and supplies, such as
approved Equipment rental; telephone, telegraph and cable
expenses; reproduction costs including blueprinting,
photographing, telecopying, mimeographing, photocopying
and printing; express charges; commercial printing,
binding, art work and models; and, computer programming
and keypunching costs shall be billed without markup.
7. Authorized sub-contract services; provided that the
limitations set forth in the above paragraphs shall be
applicable to such subcontract services.
8. Other direct costs, not listed above, may be be billed if
the County has given prior approval.
9. Receipts required for purchases $10. and over, not
including meals.
K. Disclosure
King County Code 3.04.120 requires that anyone entering into a Contract with
a value of more than $2,500 must file a disclosure statement with the Board
of Ethics and the King County Executive. The selected consultant agrees to
the conditions of King County Code 3.04.120 and shall provide a completed
Consultant Disclosure Form attached hereto as Attachment K. In addition, the
Contractor shall complete a Current or Former Employee Disclosure Form,
attached hereto as Attachment G.
L. Bug Status Reports
The Contractor shall provide to the County, Bug Status Reports specifying all
known outstanding bugs which are applicable to County in the current version
of the Software and their status for correction. The initial Bug Status
Report for known bugs applicable to County shall accompany the Software when
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delivered. Subsequent reports will be provided monthly or as agreed to by the
King County Project Manager.
M. New Versions of Software
As long as the County continues payments under the Maintenance Agreement for
the Software, the Contractor shall notify the County of the availability of
newer versions, releases and upgrades of the Software. Contractor and County
will review Software enhancements on a periodic basis, preferably during the
annual users conference. During the annual review, Contractor shall identify
new versions, releases and upgrades and the applicability of the new
releases, versions and upgrades for County.
N. Nondisclosure of Data
Data provided by King County either before or after Contract award shall
only be used for its intended purpose. Contractor and subcontractors shall
not utilize nor distribute the King County data in any form without the
express approval of King County.
O. Implementation
Installation and implementation of all system components, hardware, Software
and system configuration and prototyping is the primary responsibility of the
Contractor. The core system shall be configured, prototyped, refined, tested,
updated and documented by the Contractor. King County shall accept the system
for roll out only after a successful user Acceptance test is performed.
P. Movement of Equipment
1. To permit continuity of provision of the Services under this
Agreement, the County shall give Contractor at least thirty (30)
days prior written notice of its intent to move the Equipment from
the site of installation to another location.
2. Contractor's personnel shall supervise the dismantling and
packing/unpacking of the Equipment and shall inspect and reinstall
the Equipment at the new location, and charge the County for all
such labor and materials provided at its then current rates and
terms.
3. Contractor shall be under no obligation to continue the Services
under the Agreement if, without prior written approval of
Contractor, the Equipment is moved from its location of initial
installation and/or reinstalled.
Q. System Enhancements, Upgrades, and Replacements
The Contractor agrees to provide to King County, at no cost prior to and
during installation of the system, any Software/firmware enhancements which
the Contractor initiates or generates. If the Contractor develops Software
updates and bug fixes for the system, the Contractor agrees to provide such
system updates and bug fixes at no additional cost to King County as long
as King County pays for annual Software maintenance.
R. Liquidated Damages
The Contractors failure to comply with certain provisions of the contract
will result in injury to the County, and because it will be difficult to
estimate the extent of such injury, the County and Contractor agree to the
following Liquidated Damages.
1. For each calendar day, up to a total of sixty (60) days, after
scheduled `go live date' that the system is not ready to `go live'
and where the delay was caused by the Contractor's wrongful acts or
omissions of failure to properly allocate appropriate
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resources at its disposal, the Contractor shall pay the County the
sum of $500.00 per day fixed and agreed, liquidated damages, but
not as a penalty; provided, (a) Contractor will not be required to
pay for more than sixty total days of Liquidated Damages (that is,
$60,000 of Liquidated Damages), and (b) if the system is ready to
"go live" within 45 days after the scheduled "go live date", then
all Liquidated Damages will be waived by County and County shall
provide Contractor with a written notice of such waiver.
2. The Contractor authorizes the County to deduct such liquidated
damages from the amount due, or to become due, under the contract.
The Contractor further agrees that any such deduction shall not in
any degree release the Contractor from further obligation and
liabilities in regard to the fulfillment of the entire contract.
3. Time is of the essence on each and every portion of the contract.
In the Contract a definite and certain length of time will be
fixed for the performance of the Contract; this Contract time will
only be changed via Change Order.
4. Liquidation damage or any excess costs shall not be charged when
the delay in completion of the work is due to a delay described in
the Force Majeure clause Section III.D.
S. Contract Term
This contract shall commence upon the signature of an authorized
representative of each party. The Work shall be performed as described in the
Scope of Work. The Warranty Period begins at Final Acceptance for a period of
twelve (12) months. The Maintenance Agreement begins at Final Acceptance and
runs from year to year unless terminated as described in this Contract.
T. Severability
Whenever possible, each provision of this Agreement will be interpreted to be
effective and valid under applicable law. If any provision is found to be
invalid, illegal or unenforceable, then such provision or portion thereof
will be modified to the extent necessary to render it legal, valid and
enforceable and have the intent and economic effect as close as possible to
the invalid, illegal and unenforceable provision. If it is not possible to
modify the provision to render it legal, valid and enforceable, then the
provision will be severed from the rest of this Agreement and ignored. The
invalidity, illegality or unenforceability of any provision will not affect
the validity, legality or enforceability of any other provision of this
Agreement, which will remain valid and binding.
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V. SECTION 5 - INSURANCE REQUIREMENTS
A. Evidence and Cancellation of Insurance
1. Prior to execution of the Contract, the Contractor shall file
with the County certificates of insurance and endorsements
from the insurer(s) certifying to the coverage of all
insurance required herein. All evidence of insurance must be
certified by a properly authorized officer, agent, general
agent or qualified representative of the insurer(s) and shall
certify the name of the insured, the type and amount of
insurance, the location and operations to which the insurance
applies, the expiration date, and that King County receives
notice at least 45 days prior to the effective date of any
cancellation, lapse or material change in the policy.
2. The Contractor shall, upon demand of King County, deliver to
King County all such policies of insurance, and all
endorsements and riders, and the receipts for payment of
premiums thereon.
3. Failure to provide such insurance in a time-frame acceptable
to King County shall enable King County to suspend or
terminate the Contractor's work hereunder in accordance with
Contract provisions regarding "Termination for
Convenience/Default/Non-appropriation." Suspension or
termination of this Contract shall not relieve the Contractor
from its insurance obligations hereunder.
B. Insurance Requirements
1. The Contractor shall obtain and maintain the minimum insurance
set forth below. By requiring such minimum insurance, King
County shall not be deemed or construed to have assessed the
risks that may be applicable to the Contractor under this
Contract. The Contractor shall assess its own risks and, if it
deems appropriate and/or prudent, maintain greater limits
and/or broader coverage.
2. For all coverages:
Each insurance policy shall be written on an "occurrence" form;
excepting that insurance for professional liability, errors and
omissions when required, may be acceptable on a claims made" form.
a) If coverage is approved and purchased on a "claims made"
basis, the Contractor warrants continuation of coverage,
either through policy renewals or the purchase of an
extended discovery period, if such extended coverage is
available, for not less than three (3) years from the
date of completion of the work which is the subject of this
Contract.
C. Minimum Scope of Insurance
a) Coverage shall be at least as broad as:
(1) General Liability
Insurance Services Office form number (CG 00 01 Ed.
10-93) covering COMMERCIAL GENERAL LIABILITY.
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(2) Automobile Liability
Insurance Services Office form number (CA 00 01 Ed. 07-97)
covering BUSINESS AUTO COVERAGE, symbol 1 "any auto"; or
the combination of symbols 2, 8 and 9.
(3) Workers' Compensation
Workers' Compensation coverage, as required by the
Industrial Insurance Act of the State of Washington, as
well as any similar coverage required for this work by
applicable federal or "Other States" State Law.
(4) Employers Liability or "Stop Gap"
The protection provided by the Workers Compensation
policy Part 2 (Employers Liability) or, in states with
monopolistic state funds, the protection provided by the
"Stop Gap" endorsement to the general Liability policy.
D. Minimum Limits of Insurance
The Contractor shall maintain limits no less than, for:
1. General Liability: $1,000,000 combined single limit per
occurrence for bodily injury, personal injury and property
damage, and for those policies with aggregate limits, a
$2,000,000 aggregate limit.
2. Automobile Liability: $1,000,000 combined single limit per
accident for bodily injury and property damage.
3. Workers' Compensation: Statutory requirements of the State of
residency.
4. Employers Liability Stop Gap: $500,000 with a minimum $2,000,000
umbrella.
E. Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to, and
approved by, the County. The deductible and/or self-insured retention of
the policies shall not limit or apply to the Contractor's liability to
the County and shall be the sole responsibility of the Contractor.
F. Other Insurance Provisions
The insurance policies required in this Contract are to contain, or be
endorsed to contain coverage consistent with the following provisions:
1. General Liability Policy:
a) The County, its officers, officials, employees and agents
are to be covered as additional insureds as respects
liability arising out of activities performed by or on
behalf of the Contractor in connection with this Contract.
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b) To the extent of the Contractor's negligence, the
Contractor's insurance coverage shall be primary
insurance as respects the County, its officers,
officials, employees and agents. Any insurance and/or
self-insurance maintained by the County, its officers,
officials, employees or agents shall not contribute with
the insurance or benefit the Contractor in any way.
c) The Contractor's insurance shall apply separately to each
insured against whom a claim is made and/or lawsuit is
brought, except with respect to the limits of the
insurer's liability.
G. Acceptability of Insurers
Unless otherwise approved by the County:
Insurance is to be placed with insurers with a Bests' rating of no less
than A:VIII, or, if not rated with Bests', with minimum surpluses the
equivalent of Bests' surplus size VIII.
If at any time one of the foregoing policies shall be or become
unsatisfactory to the County,as to form or substance, or if a company
issuing any such policy shall be or become unsatisfactory to the County,
the Contractor shall, upon notice to that effect from the County,
promptly obtain a new policy, and shall submit the same to the County,
with the appropriate certificates and endorsements, for approval.
H. Subcontractors
The Contractor shall include all subcontractors as insureds under its
policies, or shall furnish separate certificates of insurance and policy
endorsements for each Subcontractor. Insurance coverages provided by
subcontractors as evidence of compliance with the insurance requirements
of this Contract shall be subject to all of the requirements stated
herein.
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VI. SECTION 6 - SCOPE OF WORK
This document identifies the products to be delivered, "scope of work" to be
performed by the Contractor during the upgrade of the current county
installed ForceField System, and tasks that are the responsibility of the
County.
TECHNICAL OVERVIEW
The Crime Capture System upgrade will provide the County a digital image and
data capturing solution that replaces the currently installed SUN/SCO/SYBASE
ForceField product with a Microsoft NT Server based digital "mugshot"
management system. Upon completion of the installation, the new system will
meet all NIST standards, will be certified Y2K compliant, and will capture
images to a standard ".jpg" format.
A. WORK TO BE COMPLETED BY THE CONTRACTOR:
1. Server configuration and installation
2. Installation of capture hardware and software
3. Installation of printers
4. Installation of wristband making subsystems
5. Conversion of current images and data to .jpg format
6. Development of interconnects
7. Training
B. HARDWARE/SOFTWARE:
1. Contractor will provide all software for the upgrade in
accordance with Section 6, Equipment List:
a) Capture Station PC's
b) Microsoft NT Server
c) Camera Subsystems
d) Pan and Tilt devices
e) Mugbook, Investigative and Capture software licenses
f) Printers
g) Scanner
h) Microsoft SQL and NT licenses
C. INTEGRATION AND TEST:
1. The Contractor will configure, integrate, install and test all
hardware and software prior to System Acceptance and Testing.
D. DATA CONVERSION:
1. All data and images currently stored in the ForceField system
will be converted, then transferred to the Crime Capture system.
E. INTERCONNECTS:
1. Contractor will be responsible for porting over to the Crime
Capture System any interconnects that currently exist on the
ForceField System.
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<PAGE>
F. TRAINING:
1. Contractor will provide training per Section 6, TRAINING AND
EDUCATION.
G. DOCUMENTATION:
1. Contractor will provide one manual for each capture and
investigative.
H. RESPONSIBILITIES OF THE COUNTY:
1. 10BaseT Network connections
2. Sites must be clean and ready for installation (power,
network presentation)
3. Space and tables for computers and printers
4. Appropriate technology staff available for technical questions
5. Provide specifications on interconnects
6. Provide dedicated IP addresses
7. Installation of investigative software
SYSTEM DETAILS
---------------------------------------------------------------------------
NO. DESCRIPTION
---------------------------------------------------------------------------
GENERAL SYSTEM REQUIREMENTS
---------------------------------------------------------------------------
System shall be Y2K (Year 2000) Compliant.
---------------------------------------------------------------------------
System shall be developed to interface with the King County
Heritage system, currently housed on an IBM mainframe. Data
upload shall be developed that is compatible with Subject In
Process (SIP) system.
System will need modification to meet this Functionality
requirement. ImageWare will modify its database batch processor
in cooperation with King County ITS programmers. King County will
create any programs necessary on King County's side. ImageWare and
King County will use IBM's MQ Series for the interface. King
County will be responsible for all necessary licenses for MQ
Series.
---------------------------------------------------------------------------
System shall be developed such that modems will not be required
for remote system access in favor of using TCP/IP. King County
will provide the necessary IP tunnel through its firewall for
7 X 24 X 365 access to the system (server and capture stations).
---------------------------------------------------------------------------
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<PAGE>
---------------------------------------------------------------------------
EQUIPMENT LIST
---------------------------------------------------------------------------
- NETFINITY SERVER (RAID LEVEL 5) (DUAL PROCESSORS) (1 NEW SYSTEM)
- Netfinity 5500
- IBM Netfinity 5500 Pentium II 450MHz/512KB L2,256MB
ECC,OPEN,32X,PCI/ISA
- (Std) 10/100 PCI Ethernet
- (Std) 2-Drop 16-bit SCSI Internal Cable
- (Std) 32X Max IDE CD-ROM Drive
- (Std) 450/100 MHz Pentium II Processor with 512KB ECC
L2 Cache
- (Std) IBM 1.44MB 3.5-inch Diskette Drive
- (Std) IBM 104-key Keyboard (Stealth Grey)
- (Std) Integrated IDE Controller
- (Std) Integrated PCI Ultra SCSI RAID Controller-dual channel
- (Std) Mouse Stealth Grey
- (Std) Netfinity 400W Hot-Swap Power Supply
- (Std) Netfinity NetBAY3
- (Std) Processor Complex Card
- (Std) S3 Trio64V2 Graphics - 1MB SGRAM
- (Std) Systems Management Processor
- IBM 20/40GB DLT Internal SCSI Tape Drive (FH)
- IBM Netfinity 256MB SDRAM ECC RDIMM (Registered)
- Netfinity 18.2GB Wide Ultra SCSI SCA-2 SL HDD (RAID)
- 450/100MHz Pentium II Processor with 512KB ECC L2 Cache
- G74 - 17(15.9) in. Color Monitor, 69 KHz, Stealth Gray
- Smart-UPS 1400-17 Min Runtime
---------------------------------------------------------------------------
CAPTURE HARDWARE (8 NEW SYSTEMS, TRANSIT'S PC WILL BE EXCHANGED),
- IBM PC 300PL 6862 (4x4) 2
- PC 300PL Pentium II 400MHz MMX/512KB,64MB,6.4GB,4MB,32X,16bit
Audio,Win98,PCI/ISA
- (Std) IBM 6.4GB EIDE Hard Drive
- (Std) 10/100 PCI Ethernet WOL
- (Std) 16-bit ISA Crystal Audio Integrated
- (Std) 400/100MHz MMX Pentium II Processor with 512KB
Pipeline B
- (Std) 4MB Integrated SGRAM Video Memory
- (Std) 64MB 60ns NP SDRAM DIMM
- (Std) CD-ROM Drive Internal 32X Max (Variable Speed)
- (Std) IBM 1.44MB 3.5-inch Diskette Drive
- (Std) IBM 104-key Rubber Dome Keyboard
- (Std) Integrated IDE Controller
- (Std) S3 Trio3D AGP Graphics Integrated
- G74 - 17(15.9) in. Color Monitor, 69 kHz, Stealth Gray
---------------------------------------------------------------------------
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<PAGE>
---------------------------------------------------------------------------
CAMERA SUB-SYSTEMS (8 REUSED SYSTEMS)
- Hitachi HV-C20 Camera, NIST standards (3 chip)
- Cosmicar/Pentax H15ZME Zoom Lens
- 3 point Lighting system
- Pan and Tilt Camera mount (8 new)
- Reflective Pedestal
- Cable bundle
- NIST compliance capture software
- Capture Card MVPro (8 new)
- Power Supply (Three Chip)
---------------------------------------------------------------------------
PRINTERS
- Fargo ID Card Printer, 2 sided (4 Reused)
- HP Laserjet B&W, 4 (2 Reused)
- Lexmark Optra R B/W Laser Printer (8 Reused)
- Lexmark Optra C Color Laser Printer/SC (1 Reused, 1
Replaced with Lexmark SC)
- Mitsubishi CP 700 (1 reused and 2 replaced)
---------------------------------------------------------------------------
SCANNERS (1 NEW SYSTEM)
- Epson 800 Executive Scanner w/SCSI card
---------------------------------------------------------------------------
SOFTWARE LIST
---------------------------------------------------------------------------
LICENSES
- Microsoft SQL License (32 user Licenses)
- Microsoft SQL License (16 user Licenses)
- NT Server 4.0 License (1 New license)
- CCS Capture Station software (8 New Licenses)
---------------------------------------------------------------------------
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<PAGE>
---------------------------------------------------------------------------
MAINTENANCE
---------------------------------------------------------------------------
IMAGEWARE SOFTWARE INC. AGREES TO PROVIDE 7 DAY A WEEK, 24 HOUR A
DAY, 365 DAY A YEAR TELEPHONE SUPPORT.
CONTRACTOR shall provide to COUNTY maintenance service with respect
to the System consisting of
A. PREVENTIVE MAINTENANCE. Maintenance service for the
purpose of maintaining the System in good working order.
Preventive Maintenance, which shall require quarterly,
semi annual, and annual maintenance work and shall be
performed by CONTRACTOR personnel on normal working days
between the hours of 8:00 a.m. and 4:30 p.m. or as
otherwise arranged.
B. REMEDIAL MAINTENANCE. Maintenance service for the
purpose of correcting a System Failure.
In the event of any software failure, CONTRACTOR upon
notification by County shall thereafter make a good faith
effort to cause the appropriate software support person
to respond to the COUNTY within 30 minutes of the
notification with an update as to cause and/or possible
solutions. Software support shall be available 24 hours
per day 7 days each week including holidays regardless of
the severity of the software failure.
In the event of any hardware failure, CONTRACTOR upon
notification by County shall thereafter make a good faith
effort to cause an authorized representative of
CONTRACTOR to arrive at the location where the System is
installed no later than 5 (5) days following CONTRACTOR'S
receipt of such notification. Hardware support shall be
available 7 days per week 24 hours per day for critical
items, and during normal work days and hours for non
critical items.
C. EXTRA SERVICES shall consist of any maintenance services
with respect to the System, other than Preventive
Maintenance and Remedial Maintenance, including without
limitation, Excluded Services.
D. EXCLUDED SERVICES: Maintenance services necessary or
appropriate in order to correct any System Failure, or
potential failure, attributable in whole or in part to
any of the factors described in the Maintenance Agreement.
---------------------------------------------------------------------------
SYSTEM ADMINISTRATION
---------------------------------------------------------------------------
The system shall require passwords to access an application.
---------------------------------------------------------------------------
The system shall allow the King County System Administrator the
ability to change the users' passwords.
---------------------------------------------------------------------------
The system shall be able to perform unattended backups,
incremental backups, and recovery of system and remote
administration.
---------------------------------------------------------------------------
The system shall include an audit trail of user activities that
can be displayed to the screen or print it to local printer upon
request.
---------------------------------------------------------------------------
If system business rules are not modifiable by the System
Administrator they will be modified by ImageWare and covered under
the maintenance agreement.
---------------------------------------------------------------------------
The system shall allow the export of photos to write-able "disks".
---------------------------------------------------------------------------
The system shall provide the ability to seal, or delete images by
the system administrator, or authorized ImageWare representative
presented proper documentation generated by King County.
---------------------------------------------------------------------------
ImageWare SHALL PROVIDE release notes with each release of the
Software and coordinate installation with the King County System
Administrator.
---------------------------------------------------------------------------
The system shall include scheduled database (file/table)
reorganization routines.
---------------------------------------------------------------------------
Page 33
<PAGE>
System shall support SQL and ODBC products.
All keyboard and mouse input shall conform to standard Microsoft Windows 95
and 98 conventions (i.e., cut and paste, copy, insert, delete, format).
ImageWare shall provide printed technical system Documentation.
The system shall provide backup and fault tolerance for redundancy, to
ensure that images and data are not lost (i.e. RAID 5).
TRAINING AND EDUCATION
Training will be conducted on site, utilizing the actual hardware and
Software to be installed and accepted by the County.
ImageWare shall offer 3 days of training for the "staff trainers" and
System Administrators.
ImageWare shall provide a detailed description of all education and
training required for the successful implementation of this project.
ImageWare shall provide training prior to implementation to orient
management and operations personnel with an overview of the system, the
general operational functions of the system, and all specific instructions
required in using the system.
MISCELLANEOUS REQUIREMENTS
ImageWare shall convert existing ForceFiled/ID2000 data, and images to JPEG
format.
ImageWare shall be responsible, in cooperation with King County's ITS
programmers, to move the Software to the production environment upon
successful user Acceptance.
System Software shall be designed to accommodate scalability to support an
increase in data and recorded and images stored.
The proposed system shall be simple to use, functional, fast and reliable.
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<PAGE>
[LOGO]
KING COUNTY
DEPARTMENT OF ADULT DETENTION
TIMOTHY P. LONGLEY
INFORMATION SYSTEMS MANAGER
500 Fifth Avenue
Seattle, Washington 98104
(206) 296-1454 FAX (206) 296-0570
[email protected]
ATTACHMENT A - WAIVER FROM STANDARD PROCUREMENT PROCEDURES
DATE: June 17, 1999
TO: Brad Duerr, Director, Department of Finance
VIA: Arthur Wallenstein, Director, Department of Adult Detention
FROM: Tim Longley, Information Systems Manager, Department of Adult
Detention
SUBJECT: Waiver from Standard Procurement Procedures
Contract No. T00874T
The Department of Adult Detention, acting as an agent for King County Law Safety
and Justice agencies, is seeking a waiver from standard procurement procedures
in order to procure hardware and software upgrade services for the
JEMS/ForceField/ID2000 system to make them year 2000 (Y2K) compliant. Pursuant
to King County Code 4.16.040, we request a sole source waiver due to emergency
and marketing conditions.
PROBLEM STATEMENT:
Contrary to the initial vendor's assertions of compliance, the current
JEMS/ForceField/ID2000 system is NOT Y2K compliant (XIMAGE was the original
record of contract holder but was merged into IMAGEWARE SOFTWARE INC. in
February, 1998).
WHAT IS JEMS?
JEMS (Jail Electronic Mugshot System) is a PC (client/server) based digital
imaging applications, which focuses on the storage and warehousing of law
enforcement images and data.
The images, taken at the time of booking are updated via electronic interface to
the Heritage system, with data collected from the inmate interview process. The
data is retrieved and processed by a collection of display and capture stations
located at the KCCF and RJC, the King County Sheriff's office, and the Seattle
Police department.
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<PAGE>
The images and data are used for a variety of identification and investigative
processes. King County Jail, for example, uses the stored images in the form of
picture ID wristbands with bar codes. Images of sex offenders and volunteers are
also managed. As of 1998, the ID 2000 module was added to collect images of King
County employees for a countywide ID card, entry access, licensing, and bus pass
project.
OPTIONS:
The options to address this problem that were presented to the King County,
Law, Safety, and Justice Business Area Committee, including the Technical
committee, are as follows:
1. do nothing with the system - leave it the way it is,
2. upgrade to "Band-Aide" Y2K solution - which involved the
installation of multiple software patches and some obsolete
equipment upgrading, or
3. upgrade to the Y2K certified ImageWare Crime Capture system.
CONSIDERATIONS/IMPLICATIONS:
1. DO NOTHING - LEAVE THE SYSTEM THE WAY IT IS: not a viable option
as this would require a complete shutdown of the system on
December 31, 1999 and return to manual data and image collection
process.
2. UPGRADE TO A "BAND-AIDE" Y2K SOLUTION: the effective life span of
this option is only 1 year. Failed hardware is not replaceable.
This option forces an RFP - and the loss of an estimated $250,000
one-time discount as reported by the system vendor.
3. UPGRADE TO THE Y2K CERTIFIED IMAGEWARE CRIME CAPTURE SYSTEM: Cost
- $185,000.
RECOMMENDATION:
The King County, Law, Safety, and Justice Business Area Committee concluded that
Option 3. "Upgrade to the Y2K certified ImageWare Crime Capture system" as it
presented a permanent, cost effective, low risk solution.
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<PAGE>
JUSTIFICATION:
UPGRADING TO THE Y2K CERTIFIED IMAGEWARE CRIME CAPTURE SYSTEM; WE
1. ensure Y2K compliance,
2. create a new high performance imaging system that will INTEGRATE with many
current law enforcement applications, and
3. support the Executive's, as well as the County's commitment to develop a
"regional system" that may be utilized by law enforcement agencies from all
interested cities and agencies (SeaTac, Burien, Kent, City of Edmonds, DYS,
DCFM etc.)
MARKET CONDITIONS:
A serious effort to find other system providers was made early 1999 in the
interest of developing an emergency request for proposal but only two vendors
("INTELLINETICS" and "IMAGEWARE SOFTWARE INC.") were found to fit the County's
two most urgent business needs; Y2K, and preservation of our 7 years of archived
images. "Intellinetics" WAS able to convert our images into their database, but
lacked the functionality and operability required to meet our needs without
considerable, and lengthy system modification. ImageWare Software Inc., on the
other hand, was able to provide the functionality and operability required prior
to the Y2K deadline.
Accordingly, DAD is requesting that you approve of this emergency sole source
waiver and expedite this request [RUSH] due to the Y2K compliance issue. If you
need additional information, please contact:
TIMOTHY P. LONGLEY
INFORMATION SYSTEMS MANAGER
- ------------------------------
King County
DEPARTMENT OF ADULT DETENTION
500 Fifth Avenue
Seattle, WA 98104
(206) 296-1454 FAX (206) 296-0570
[email protected]
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<PAGE>
ATTACHMENT B - PAYMENT SCHEDULE
Contract Price for Contract No. T00874T will be $185,000 plus Annual License and
Maintenance fees as described in Section 6 of Contract No. T00874T.
Payment shall be according to the following schedule and be made within 30 days
of receipt of Contractor's invoice and notice of the listed event:
<TABLE>
<CAPTION>
EVENT PERCENTAGE DUE
<S> <C>
1 Presentation of a signed purchase order for hardware all new hardware listed 40% or $74,000
in Contractors quote with King County as the recipient.
2 Receipt of hardware purchased in item 1 above to King County locations, 20% or $37,000
installation of Systems, and training completed.
3 System fully functional, and accepted (via acceptance criteria) by County 40% or $74,000
</TABLE>
Annual License/Maintenance fees shall be as stated in the Software Licensing
Agreement, Attachment I hereto, and Software Maintenance Agreement, Attachment
J hereto.
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<PAGE>
ATTACHMENT C - PERSONNEL INVENTORY REPORT
- --------------------------------------------------------------------------------
Page 39
<PAGE>
PERSONNEL INVENTORY REPORT
[LOGO]
Legal name of business IMAGEWARE SOFTWARE INC. Telephone No: (858) 673-8600
----------------------- --------------
dba (if applicable) N/A
-------------------------------------------------------
Street address 10883 Thornmint City San Diego State CA Zip Code 92127
--------------- --------- -- -----
Submitted by: Anne Hoversten Title: Corporate Secretary Date: 10/22/99
-------------- ------------------- --------
IRS Employer Identification Number: 33-0224167
----------------------------------------
DO YOU HAVE ANY EMPLOYEES? NO YES X
--- ---
IF YES, list on the Employment Data Chart below the total number of employees
for all businesses located in (1) King County. If none, list the total number of
employees for all businesses located in (2) Washington State. If none, list the
total number of employees for all businesses located in the (3) United States.
Indicate which locale (1,2,3) report covers _____. This report covers Business
Location(s) in (circle one): [King County, Washington State, Other States] for
the Payroll Period ending (Month/Day/Year): 10/31/99.
-------------------------
DO ANY OF YOUR EMPLOYEES BELONG TO A UNION AND/OR DO YOU USE AN EMPLOYEE
REFERRAL AGENCY? NO X YES
--- ---
IF YES, list the unions and/or employee referral agencies with whom you
agreements:____________________________________________________________________.
If you expect to do more than $10,000 worth of public work (construction) or,
more than $25,000 worth of business with King County, the unions or employee
referral agencies must submit a statement of compliance with King County Code
Chapter 12.16.
<TABLE>
<CAPTION>
African Native Minority Disabled
Job Categories Whites Americans Asians Americans Hispanics Disabled Subtotal Subtotal
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
M F M F M F M F M F M F M F M F
- ------------------------------------------------------------------------------------------------------------
Managerial 7 3 0 1 0 0 0 0 0 0 0 0 1
Professional 1 1 2 3
Technical 24 1 1
Clerical 2
Sales 4
Service
Labor
On-Job
Apprentice
Skilled Craft*
Subtotal
</TABLE>
*Journey worker: List by classification on reverse, e.g., carpenter, plumber,
etc.
Total number of employees report above: 46 If no employees, write "0."
<PAGE>
SUPPLEMENTAL FORM
Use this form as necessary to report the total work force.
Legal Name of Business Telephone
- --------------------------------------------------------------------------------
Submitted by: Title Date
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
African Native Minority Disabled
Job Categories Whites Americans Asians Americans Hispanics Disabled Subtotal Subtotal
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
M F M F M F M F M F M F M F M F
- ------------------------------------------------------------------------------------------------------------
Managerial
Professional
Technical
Clerical
Sales
Service
Labor
On-Job Trainees
Apprentice
Skilled Craft*
Subtotal
</TABLE>
Contact the King County Procurement Services Division at (206) 296-4210 or the
King County M/WBE and Contract Compliance Division (206) 684-1330 if you have
any questions concerning completion of this form.
<PAGE>
ATTACHMENT D - ACCEPTANCE TESTING CRITERIA
PROCEDURES
Section I: Acceptance of Plan
This plan has been mutually agreed upon by both King County
Washington and ImageWare Software Inc. Project Managers as to
it's content, format, procedures, and terms.
Section II: Adherence to Plan
It is imperative that King County Washington and ImageWare
Software Inc. Information Services closely adhere to this plan to
test the system fully. Extensions to the test period will be
granted to King County Washington only if the tests are
inconclusive, through no fault of the County.
Section III: Responsibility for Testing
King County Washington will perform all testing prescribed herein
with ImageWare Software Inc.'s assistance, if necessary.
ImageWare Software Inc. representatives will monitor all tests.
Section IV: Testing Procedure
Contained in Attachment D are Acceptance Criteria for each of the
system components that will be tested for Acceptance. Each such
system component will be tested for Acceptance as the
installation of that component is completed. ImageWare Software
Inc. will notify King County Washington in writing that the
applicable system component is ready for Acceptance testing. King
County Washington will have three (3) business days in which to
initiate the applicable Acceptance test for such component, if
the County has been adequately trained and the County's Project
Managers and ImageWare Software Inc.'s Project Manager agree that
all criteria needed for testing are complete.
When a test is completed successfully, King County Washington's Project Managers
will sign and date the Acceptance Criteria form and return it promptly to
ImageWare Software Inc.. In the event that a test is not successful, King County
Washington will complete a notice of Acceptance Test Failure ("Notice") and
deliver such notice to ImageWare Software Inc. within 48 hours of the failure.
The Notice shall identify each and every failure of the test. ImageWare Software
Inc. will then remedy the condition and notify King County Washington of the
availability of the system component for re-test, thereupon Acceptance tests
will be deemed to the completed successfully within seven (7) days of initiation
of said test, unless ImageWare Software Inc. has received a notice within said
period.
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<PAGE>
NOTICE NUMBER:_______________
NOTICE OF ACCEPTANCE TEST FAILURES
Identify By:___________________ Date:_________________________
This notice refers to the _______________ Acceptance Criteria.
Failures noted in testing the above:
1. __________________________________________________________________________
2. __________________________________________________________________________
3. __________________________________________________________________________
4. __________________________________________________________________________
5. __________________________________________________________________________
6. __________________________________________________________________________
7. __________________________________________________________________________
8. __________________________________________________________________________
9. __________________________________________________________________________
10. _________________________________________________________________________
11. _________________________________________________________________________
12. _________________________________________________________________________
13. _________________________________________________________________________
14. _________________________________________________________________________
15. _________________________________________________________________________
All supporting Documentation evidencing the above are attached.
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<PAGE>
SERVER INSTALLATION
ACCEPTANCE CRITERIA
1 0F 11
Description: These measurements will verify that the Server, RAID
array, and Microsoft SQL database engine has been
installed and is operating properly.
Objective The Server, RAID array, and Microsoft SQL database
engine has been installed and is operating normally.
Measurements The Server can be powered up.
The operating system is installed.
Users can log on the Server and execute programs.
RAID array is attached to Server and images can be
copied to the drives.
The application can connect from a PC to the MICROSOFT
SQL Database on the Server.
Personnel County Staff member from MIS and ImageWare Software
Inc. Personnel
- -----------------------------------------------------------------------------
Accepted By (King County):_________________________________Date:_____________
Accepted By (ImageWare Software Inc.):_____________________Date:_____________
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<PAGE>
SOFTWARE - Crime Capture System
ACCEPTANCE CRITERIA
2 0F 11
Description: These measurements will verify that the Crime Capture
System Software has been installed and is operating
properly.
Objective Images and data can be stored and retrieved from the
Crime Capture System server. Images can be stored and
retrieved from magnetic media. Through a PC
workstation the Crime Capture System and Investigative
Software can be executed and all available functions
can be executed.
Measurements A user should be able to access Crime Capture System
Software from a PC workstation.
A user should be able to access Crime Investigative
Software from a PC workstation.
Images should be create-able and storable on the Crime
Capture System server.
Images, data, and print formats, can be displayed,
copied, and printed.
The Crime Capture System Administrator panel can be
executed. All administrative functions available from
the utility can be executed.
The Crime Capture System server can be brought up and
shut down without error.
Crime Capture System server parameters can be set and
updated.
Personnel County Staff member from MIS and ImageWare Software
Inc. Personnel
- -----------------------------------------------------------------------------
Accepted By (King County):_________________________________Date:_____________
Accepted By (ImageWare Software Inc.):_____________________Date:_____________
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<PAGE>
LASER PRINTER
ACCEPTANCE CRITERIA
3 0F 11
Description: These measurements will verify that the laser printers
have been installed and are operating properly.
Objective The laser printers can print text, image files, and
print formats.
Measurements All laser printers are properly set-up and configured.
Each laser printer is identified with a print queue.
Personnel County Staff member from MIS and ImageWare Software
Inc. Personnel
- -----------------------------------------------------------------------------
Accepted By (King County):_________________________________Date:_____________
Accepted By (ImageWare Software Inc.):_____________________Date:_____________
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Page 44
<PAGE>
Crime Capture System
WORK STATION INSTALLATION
ACCEPTANCE CRITERIA
4 0F 11
Description: These measurements will verify that the Crime Capture
System workstations have been installed and are
operating properly.
Objective Capture stations should perform all functions
correctly and without significant errors or failures.
The capture stations should be able to log-on to the
Crime Capture System Server. The capture stations
should be able to display or save an image to the
Crime Capture System Server.
Measurements A PC should begin the boot process when powered on,
including memory checking and OS loading. The process
should complete with Microsoft Windows 95 workstation
program manager displayed.
The capture station can access the Server and perform
normal Crime Capture System functions.
Personnel County Staff member from MIS and ImageWare Software
Inc. Personnel
- -----------------------------------------------------------------------------
Accepted By (King County):_________________________________Date:_____________
Accepted By (ImageWare Software Inc.):_____________________Date:_____________
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Page 45
<PAGE>
Crime Capture System
Investigative Application Functionality
ACCEPTANCE CRITERIA
5 0F 11
Contractor will only install the 9 original display stations with the
Investigate product. King County must install the remaining.
Description: These measurements will verify that the Crime Capture
System Investigative Application (MugBook II
replacement) are operating properly.
Objective PC's with Crime Investigative Software installed
should perform all functions of the XImage ForceField
display stations correctly without significant errors
or failures. The PC's with Crime Investigative
Software installed should be able to log-on to the
Crime Capture System Server. PC's with Crime
Investigative Software installed should be able to
display images and data.
Measurements The investigative application should be able to
access, display, print, or copy images and data from
the following converted (from ForceField) databases:
this is based upon user rights to the different
databases.
1. Adult,
2. dad_empl,
3. dad_vol,
4. so_empl
5. dcfm
6. lisc
7. juvenile
8. so (sex offender)
Personnel County Staff member from MIS and ImageWare Software
Inc. Personnel
- -----------------------------------------------------------------------------
Accepted By (King County):_________________________________Date:_____________
Accepted By (ImageWare Software Inc.):_____________________Date:_____________
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Page 46
<PAGE>
SCANNING
ACCEPTANCE CRITERIA
6 0F 11
Description: These measurements will verify that the Crime Capture
System scanner for the Seattle Police Department is
installed and operating properly.
Objective To be able to scan photographs and store the image and
entered data on Crime Capture System server. The
scanner should allow for variations in scanning
parameters to achieve the clearest possible image scan.
Measurements Images can be stored on Crime Capture System server.
Images may be scanned at different compression ratios
(Group 3 or Group 4 FAX compression) and at different
resolutions (200, 300, or 400 dpi).
Image quality can be controlled by varying lightness,
darkness and photo mode.
Personnel County Staff member from the Seattle Police Department,
ID unit, and ImageWare Software Inc. Personnel
- -----------------------------------------------------------------------------
Accepted By (King County):_________________________________Date:_____________
Accepted By (ImageWare Software Inc.):_____________________Date:_____________
- ------------------------------------------------------------------------------
Page 47
<PAGE>
ID2000 (or its replacement)
ACCEPTANCE CRITERIA
7 0F 11
Description: These measurements will verify that the ID2000 module
of the Crime Capture System performs properly.
Objective The ID2000 System will collect images and data
(specifically staff and licensing) from a portable
capture system and successfully upload them to the
Crime Capture System server. The new system will
print ID cards using print formats converted from the
previous ID2000 System.
Measurements Demonstrate portable system can collect images
and data, store them, then upload to the Crime Capture
System server.
Retrieve images and data from the Crime Capture System
server.
Print ID Cards using the converted print formats.
Test the ability to search the database for specific,
configurable search criteria.
Personnel County Staff member from DCFM, and ImageWare Software
Inc. Personnel
- -----------------------------------------------------------------------------
Accepted By (King County):_________________________________Date:_____________
Accepted By (ImageWare Software Inc.):_____________________Date:_____________
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Page 48
<PAGE>
TRAINING
ACCEPTANCE CRITERIA
8 0F 11
Description: These measurements will verify that training has been
completed.
Objective All the staff trainers and System administrator are
trained and ready to train all personnel.
Measurements
All data and images are stored on the Crime Capture
System Server.
M&Q Interface is functioning with the Crime Capture
System Server.
Personnel County Staff member from the County MIS Office and
ImageWare Software Inc. Personnel
- -----------------------------------------------------------------------------
Accepted By (King County):_________________________________Date:_____________
Accepted By (ImageWare Software Inc.):_____________________Date:_____________
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Page 49
<PAGE>
SCOPE OF WORK
ACCEPTANCE CRITERIA
9 0F 11
Description: These measurements will verify that the system is
installed and operational as stated in the scope of work.
Objective The system performs all of the functions outlined in the
scope of work.
Measurements All items in the scope of work have been reviewed and
accepted by King County staff.
Personnel County Staff member from Adult Detention, King County
Sheriffs Office, Seattle Police Department,
Facilities Management, ITS and ImageWare Software Inc.
Personnel
- -----------------------------------------------------------------------------
Accepted By (King County):_________________________________Date:_____________
Accepted By (ImageWare Software Inc.):_____________________Date:_____________
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Page 50
<PAGE>
FINAL ACCEPTANCE
10 0F 11
Description: This verifies that all the Software and hardware has
been tested and accepted.
Objective The Software and hardware will be fully operational
during normal business hours with no significant
disruptions.
Measurements Final Acceptance will be deemed to have occurred if
none of the Acceptance criteria are outstanding at the
completion of the installation.
- -----------------------------------------------------------------------------
Accepted By (King County):_________________________________Date:_____________
Accepted By (King County):_________________________________Date:_____________
Accepted By (ImageWare Software Inc.):_____________________Date:_____________
Accepted By (ImageWare Software Inc.):_____________________Date:_____________
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Page 51
<PAGE>
ATTACHMENT E - AFFIDAVIT AND CERTIFICATE OF COMPLIANCE
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Page 52
<PAGE>
AFFIDAVIT AND CERTIFICATE OF COMPLIANCE
With King County Code Chapter 12,16, Discrimination and Affirmative
Action in Employment by Contractors, Subcontractors and Vendors
The undersigned, being first duly sworn, on oath states, s/he is authorized
by the Contractor, and on the Contractor's behalf, affirms and certifies as
follows:
Definition: "Contractor" shall mean any contractor, vendor or consultant who
supplies goods and/or services. "Contract" shall mean any contract, purchase
order or agreement with King County Government, hereinafter called the County.
A. Contractor recognizes that discrimination in employment is prohibited by
federal, state and local laws. Contractor recognizes that in addition to
refraining from discrimination, affirmative action is required to provide
equal employment opportunity. Contractor further recognizes that this
affidavit establishes minimum requirements for affirmative action and fair
employment practices and implements the basic nondiscriminating provisions of
the general contract specifications as applied to service, consultant and
Contractor contracts exceeding $25,000, or public work contracts exceeding
$10,000. Contractor herein agrees that this affidavit is incorporated as an
addendum to its general contract, and recognizes that failure to comply with
these requirements may constitute grounds for application of sanctions as set
forth in the general specifications. King County Code Chapter 12.16 and this
affidavit, PROVIDED FURTHER, that in lieu of the affidavit, the Executive may
accept a statement pledging adherence to an existing contractor affirmative
action plan where the provisions of the plan are found by the Executive to
substantially fulfill the requirements of this chapter.
B. Contractor shall give notice to their supervisors and employees of the
requirements for affirmative action to be undertaken prior to the
commencement of work.
C. This person has been designated to represent the Contractor and to be
responsible for securing compliance with and for reporting on the affirmative
actions taken. AUTHORIZED AFFIRMATIVE ACTION REPRESENTATIVE
NAME: Paul Devermann
--------------
D. Contractor will cooperate fully with the M/WBE and Contract Compliance
Division and appropriate County agents while making every reasonable "good
faith" effort to comply with the affirmative action and nondiscrimination
requirements set forth in this sworn statement and in King County Code
Chapter 12.16.
E. Reports. The Contractor agrees to complete and submit with this affidavit
such additional reports and records that may be necessary to determine
compliance with the affidavit and to confer with the MWBE and Contract
Compliance Division staff at such times as the County shall deem necessary.
The information required by this chapter includes but is not limited to the
following reports and records:
1. Personnel Inventory Report: This report shall include a breakdown of the
employer's workforce showing race, gender, and disability status.
2. Monthly Utilization Report: This report shall apply to construction
contractors and subcontractors and shall provide the number of hours of
employment for minority, women and disabled employees by craft and category.
3. Self-assessment and Test Validation: Review of all employment policies and
procedures, including tests, recruitment, hiring and training practices and
policies, performance evaluations, seniority policies and practices, job
classifications and job assignments to assure that they do not discriminate
against, or have a discriminatory impact on, minorities, women and persons
with disabilities and validate all tests and other selection requirements
where there is an obligation to do so under state or federal law.
4. Record of Referrals: Maintain a current file of applications of each
minority, women and persons with disabilities who are applicants or referrals
for employment indicating what action was taken with respect to each such
individual and the reasons therefore. Contact these people when an opening
exists for which they may be qualified. Names may be removed from the file
after twelve months have clasped from their last application or referral.
5. Notice to Unions: Provide notice to labor unions of the contractor's
nondiscrimination and affirmative action obligations pursuant to King County
Code Chapter 12.16. Contractors shall also notify the M/WBE and Contract
Compliance Division if labor unions fail to comply with the nondiscrimination
or affirmative provisions.
6. Supervisors: Ensure that all supervisory personnel understand and are
directed to adhere to and implement the nondiscrimination and affirmative
action obligations of the contractor under King County Code Chapter 12.16.
Such direction shall include but not be limited to, adherence to, and
achievement of, affirmative action policies in performance appraisals of
supervisory personnel.
7. Employee Training: When reasonable, develop on-the-job training
opportunities which expressly include minorities, women, and persons with
disabilities and sponsor and/or utilize, training/educational opportunities
for the advancement of women, minorities, and person with disabilities
employed by the contractor, subject to acceptance by the County.
8. Responsible Person: Designate an employee who shall have the
responsibility for implementation of the Contractor's affirmative action
measures.
9. Progress Reporting: Prepare as part of the affirmative action plan an
analysis and report on the progress made toward eliminating the
underrepresentation of women, minorities and persons with disabilities in the
contractor's work-force on an annual basis.
<PAGE>
3. Statement from Union or Worker Referral Agency: This statement affirms
that the signee's organization has no practices and policies which
discriminate on the basis of race, color, creed, religion, sex, age, marital
status, sexual orientation, nationality or the presence of any sensory,
mental or physical disability.
The information required in this section shall be submitted on forms provided
by the County unless otherwise specified.
F. Subcontractors: For public work projects and contracts over $10,000, prime
contractor shall be required to submit to the County along with qualifying
documents under the Chapter, employment profiles, Affidavits Certificates of
Compliance Reports and Union Statements from subcontractors in the same
manner as these are required of the prime contractor. Reporting requirements
of the prime contractor during the contract period apply equally to all
subcontractors.
G. Employment Goals for Minorities, Women and Persons with Disabilities:
specific levels of utilization of minorities and women in the workforce of
Contractor shall be required, and the Contractor is not required to grant
preferential treatment on the basis of race, sex, color, ethnicity or
national origin in its employment practices. Notwithstanding the foregoing,
any affirmative action requirements set forth in any federal regulations,
statutes or rules included or referenced in the contract documents shall
continue to apply.
H. Affirmative Action Measures: Contractor agrees to implement and maintain
reasonable good faith efforts to comply with King County Code Chapter 12.16.
The evaluation of a contractor's compliance with the Chapter shall be based
upon the contractor's effort to achieve maximum results from affirmative
action measures. The Contractor shall document these efforts and shall
implement affirmative action steps at least as extensive as the following:
1. Policy Dissemination: Internal and external dissemination of the
contractors equal employment opportunity policy;posting of nondiscrimination
policies and of the requirements of this Chapter on bulletin boards clearly
visible to employees; notification to each subcontractor, labor union
representative workers with which there is a collective bargaining agreement
or other contract, subcontract, or understanding of the contractor's
commitments under Chapter. Inclusion of the equal opportunity policy in
advertising in the news media and elsewhere.
2. Recruiting: Adoption and implementation of recruitment procedures designed
to increase the representation of women, minorities and persons with
disabilities in the pool of applicants for employment, including, but not
limited to establishing and maintaining a current list of minority, women and
disabled recruitment sources, providing these sources written notification of
employment opportunities and advertising vacant positions in newspapers and
periodicals which have minority, female and/or disabled readership.
I. During the performance of the Contract, neither the Contractor nor a party
subcontracting under the authority of the Contract shall discriminate nor
tolerate harassment on the basis of race, color, sex, religion, nationality,
creed, marital status, sexual orientation, age, or the presence of any
sensory, mental or physical disability in the employment or application for
employment or in the administration or delivery services or any other
benefits under this Contract.
J. Contractor agrees to provide reasonable access upon request to the premise
of all places of business and employment, relative to work undertaken in the
Contract, and to records, files, information and employees in connection
therewith, the the M/WBE and Contract Compliance Division or agent in
purposes of reviewing compliance with the provisions of this Affidavit agrees
to cooperate in any compliance review.
K. Should the M/WBE and Contract Compliance Division find a complaint,
investigation or review, the Contractor not be in good compliance with the
provisions contained in the Affidavit, it shall notify County and Contractor
in writing of the finding fully describing the basic noncompliance.
Contractor may request withdrawal of such notice of noncompliance at such
time as the compliance office has notified in writing the Contractor and the
County that the noncompliance has been resolved.
L. The contractor agrees that any violation of any term of this Affidavit
including reporting requirements, shall be deemed a violation of King County
Code Chapter 12.16. Any such violation shall be further deemed a breach
material provision of the contract between the County and the Contractor.
Such a breach shall be grounds for implementation of any sanctions provided
for in the chapter, including but not limited to, cancellation, termination
or suspension in whole or in part, of the Contractor by the County;
liquidated damages; disqualification of the contractor PROVIDED, that the
implementation of sanctions is subject to the notice and hearing provisions
of King County Code Chapter 12.16.110.
CONTRACTOR: ImageWare Software Inc. 10883 Thornmint Rd. San Diego, CA 92127
---------------------------------------------------------------
Company Name Address City State Zip
I have read and understood the foregoing; and am authorized on behalf of the
Contractor to agree to the terms and conditions of this and Affidavit and
Certificate of Compliance and therefore, execute the same.
Authorized Signer: Paul Devermann VP of Sales and Business Development
---------------------------------------------------
Title
\s\: Paul Devermann Phone:(858)673-8600
----------------------------------------------------
Signature Phone
VALID ONLY IF NOTARIZED
SUBSCRIBED AND SWORN TO BEFORE ME THIS 22nd DAY OF October 1999 Paul Devermann
---- ------- -- --------------
\s\: Anne M. Hoversten
- ----------------------
Notary Public in and for the State of California
-----------
residing at San Diego CA 92127
------------------
<PAGE>
ATTACHMENT F -- STATEMENT OF COMPLIANCE
- ------------------------------------------------------------------------------
Page 53
<PAGE>
504/ADA DISABILITY ASSURANCE OF COMPLIANCE
Complying with Section 504 of the Rehabilitation Act of 1973, as amended, and
the Americans With Disabilities Act of 1990, two federal laws which prohibit
discrimination against qualified people with disabilities.
I understand that federal and state laws prohibit discrimination in public
accommodation and employment based solely on disability. In addition, I
recognize that Section 504 requires recipients of federal funds (either
directly or through contracting with a governmental entity receiving federal
funds) to make their programs, services, and activities, when viewed in their
entirety, accessible to qualified and/or eligible people with disabilities. I
agree to comply with, and to require that all subcontractors comply with, the
504/ADA requirements. I understand that reasonable accommodation is required
in both program services and employment, except where to do so would cause an
undue hardship or burden.
I agree to cooperate in any compliance review and to provide reasonable
access to the premises of all places of business and employment and to
records, files, information, and employees therein to King County for
reviewing compliance with Section 504 and ADA requirements.
I agree that any violation of the specific provisions and terms of the
504/ADA Disability Assurance of Compliance and/or Corrective Action Plan
required herein and Section 504 and the ADA, shall be deemed a breach of a
material provision of the Contract between the County and the Contractor.
Such a breach shall be grounds for cancellation, termination, or suspension,
in whole or in part, of this Contract by the County.
ACCORDING TO THE RESPONSES TO THE QUESTIONS IN THE 504/ADA
SELF-EVALUATION QUESTIONNAIRE, (COMPANY
NAME) IMAGEWARE SOFTWARE INC. IS IN COMPLIANCE WITH
-----------------------
504/ADA.
YES NO
/x/ / /
IF THE ABOVE RESPONSE IS NO, THE FOLLOWING CORRECTIVE ACTIONS WILL BE TAKEN:
CORRECTIVE ACTION PLAN
The following Corrective Action Plan is submitted to comply with Section 504
and ADA requirements.
General Requirements
COMPLETION DATE
ACTIONS TO BE TAKEN
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
5
<PAGE>
504/ADA DISABILITY ASSURANCE OF COMPLIANCE (contgd.)
Program Access
COMPLETION DATE
ACTIONS TO BE TAKEN
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
Employment and Reasonable Accommodation
COMPLETION DATE
ACTIONS TO BE TAKEN
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
Physical Accessibility
COMPLETION DATE
ACTIONS TO BE TAKEN
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF WASHINGTON
THAT THE FOREGOING IS TRUE AND CORRECT.
Contractor: IMAGEWARE SOFTWARE 10883 THORMINT RD. SAN DIEGO CA 92127
------------------------------------------------------------------
Company Name Street Address City State
Authorized Signer: PAUL DEVERMANN VP OF SALES AND BUSINESS DEVELOPMENT
-----------------------------------------------------------
Name (type or print) Title
Signature: /s/ Paul Devermann
--------------------------------------------------------------------
- ---------------
6
<PAGE>
ATTACHMENT G - CURRENT OR FORMER KING COUNTY
EMPLOYEE DISCLOSURE FORM
CONTRACT NO: T00874T
(SUBMIT TO KING COUNTY ONLY WHEN APPLICABLE)
1. Identify current or former employees of the County involved in the
preparation of this Proposal or the anticipated performance of the
work or services to be provided on this Contract.
Name of current or former Employee: N/A
---------------------------------
Date of Last Employment with the County:
----------------------------
2. The Contractor is responsible for notifying the County's Project
Manager of current or former County employees who become involved in
the Contract any time during the term of the Contract.
Name of Firm:
---------------------------------------------------
Authorized Signature:
--------------------------------------------
Printed Name:
----------------------------------------------------
Title:
-----------------------------------------------------------
Date:
-----------------------------------------------------------
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Page 54
<PAGE>
ATTACHMENT H - SOURCE CODE ESCROW AGREEMENT
- ------------------------------------------------------------------------------
Page 55
<PAGE>
Agreement No: IWS99001
SOFTWARE ESCROW AGREEMENT
MULTI USER PLAN
This Agreement is effective ______________, 19 ____ among Lincoln-Parry
SoftEscrow, Inc., (hereinafter known as "Trustee"), a company with principal
offices located at 400 Inverness Drive, Suite 200, Englewood, CO 80112,
ImageWare Software Incorporated (hereinafter known as "Licensor"), a
Corporation, with principal offices located at 10883 Thornmint, San Diego, CA
92127 and any additional party, (hereinafter known as "Licensee"), signing
the Acceptance Form attached to this Agreement, reference herein as
"Attachment 1" and incorporated herein by this reference.
WHEREAS the Licensor carries on the business of licensing computer
software and is desirous of making available severally to certain of its
customers, each herein called the Licensee the benefits contemplated by this
agreement, and;
WHEREAS the Licensor has granted or shall grant to the Licensee the right
to use certain computer programs in object form and has agreed or shall agree
to support the programs but wishes to maintain their confidentiality as trade
secrets, and;
WHEREAS the Licensee is desirous of being assured that the source code,
documentation and related materials for such programs will be made available
to it for the purposes of self support if certain events named herein occur;
THEREFORE the parties agree as follows:
1. ESCROW MATERIALS
Depositor shall deliver to the Trustee a sealed package
containing magnetic tapes, disks, disk packs, or other forms of media, in
machine readable form, and the written documentation prepared in connection
therewith, and any subsequent updates or changes thereto (the "Deposit
Materials") for the computer software products (the "System(s)"), all as
identified from time to time on Exhibit A hereto. Deposit Materials shall
consist of the source code magnetically or optically stored, and such
supporting documentation and related materials as are necessary for a
reasonably competent programmer to routinely maintain and modify such code.
2. BENEFICIARIES
All Licensees of the System shall separately become a
beneficiary hereunder upon the signing by the Licensee and Licensor of
the Acceptance Form attached to this Agreement. Amendments introduced in
the Acceptance Form by the agreement of Licensor and Licensee will
supersede any provisions of this Software Escrow Agreement, providing
that said amendments do not modify the rights of the Trustee.
<PAGE>
Agreement No: IWS99001
3. DELIVERY AND CERTIFICATION
The following procedure shall be adopted for the presentation and
certification of the Deposit Materials into escrow.
(a) Within 10 days after the signing of this agreement by both
parties, the Trustee shall supply to the Licensor an appropriate sized
container which is capable of being sealed and in which the Deposit
Materials shall be stored.
(b) The Licensor shall thereupon deposit the Deposit Materials into
the said container, identifying it by name and release number, and shall
certify as to the authenticity of the contents in the sealed container on
the form supplied by the Trustee.
(c) The Licensor shall seal the container and shall deliver it to
the Trustee to hold in accordance with the terms of this agreement.
(d) The Licensor will deposit new releases into escrow, and the
Trustee shall retain the latest such deposits and shall return earlier
deposits to the Licensor.
(e) The Trustee shall hold the container in its sealed state and
shall not open, cause or permit it to be opened under any circumstances
whatsoever except as may be permitted under this agreement or amendments
thereto.
4. EVENTS CAUSING RELEASE
The Deposit Materials shall be held in escrow by the Trustee until
the earliest of the following events:
(a) A cessation of the use of the System by the Licensee and the
termination or expiration of its program license agreement with the
Licensor, or the termination or expiration caused or permitted by the
Licensee of the System maintenance and support services portion of the
said program license agreement.
(b) A termination of this agreement by consent of the Licensor and
Licensee, or the Licensee alone.
(c) The occurrence of any of the following events, and provided in
all events that the Licensor has not made suitable alternate arrangements
for the continued supplying of maintenance of the System:
(1) A petition in bankruptcy, or an assignment for the benefit of
creditors of the Licensor is filed by the Licensor, or a third party
against the Licensor and is not dismissed within 30 days of its filing;
(2) A cessation of normal business operations by the Licensor
during the term of this agreement;
(3) A failure or refusal by the Licensor to provide the System
maintenance and support services required of it under its program license
agreement with the Licensee, which failure has been preceded by a notice in
writing to the Licensor that its continued default would cause the Licensee
to invoke its rights under this agreement fifteen (15) days after the date
of the said notice;
<PAGE>
Agreement No: IWS99001
5. RETURN TO LICENSOR
The Trustee shall deliver the Deposit Materials back to the Licensor
if any of the events named in paragraph 4(a) or 4(b) occurs before any
of the events named in paragraph 4(c), provided that a Termination Notice
in the form set out in Schedule A and signed by the Licensor and the
Licensee has been delivered to the Trustee along with the balance of any
fees and charges that are due, and further provided that no other Licensee
is a beneficiary under this agreement at the time.
6. DELIVERY TO LICENSEE
The Trustee shall deliver a copy of the Deposit Materials to the
Licensee if any of the events named in paragraph 4(c) occur before any
of the events named in paragraphs 4(a) or 4(b), provided that the procedure
set out below has been followed and the conditions met.
(a) The Licensee has delivered to the Trustee a written request for
the release of the Deposit Materials, accompanied by a sworn affidavit in
a form satisfactory to the Trustee from a senior officer of the Licensee
stating the particulars of the reasons for its request.
(b) A copy of the request and affidavit have been delivered by the
Trustee to the Licensor, and the Licensor has received at least the notice
period named in paragraph 4(c)(3).
(c) No dispute in writing has been received from the Licensor by
the Trustee within ten (10) days of the Licensor's receipt of the
Licensee's request and affidavit.
(d) The Licensee has signed a non disclosure covenant in the form
set out in Exhibit B and delivered it to the Trustee.
(e) All outstanding charges under this agreement have been paid to
the Trustee, and the Licensee has paid copying and delivering costs
incurred by the Trustee.
7. DISPUTES AND ARBITRATION
If the Licensor enters a dispute as contemplated by paragraph 6(c)
then the procedure set out below shall be followed before the Deposit
Materials is delivered to the Licensee.
(a) The Licensor and Licensee shall within ten (10) days after the
entering of a dispute name an arbitrator to decide whether the Licensee is
entitled to receive the Deposit Materials. If they are unable to agree
upon the selection of an arbitrator then the Trustee shall make the said
selection.
(b) The arbitration shall otherwise be conducted in San Diego,
California in accordance with the Rules of the American Arbitration
Association and the Trustee shall immediately upon the expiry of any
appeal period carry out the decision of the arbitration.
8. VERIFICATION PROCEDURE
In order to verify the authenticity of the contents of any container
deposited by the
<PAGE>
Agreement No: IWS99001
Licensor and being held in escrow the Licensee may at any time call for its
inspection in the manner and subject to the conditions below.
(a) The Licensee shall notify the Licensor and the Trustee in
writing of its demand to inspect the contents of a container, and such
notification shall be made at least 30 days in advance of the date
appointed for such inspection.
(b) The Trustee shall appoint the location for such inspection.
(c) The Trustee shall attend at the appointed time and place and
shall thereat produce the sealed container in question.
(d) The contents of the container shall be removed and inspected by
the Licensee and a determination made as to whether they are as purported
by the Licensor on its certificate.
(e) If the contents are determined to be as purported, they will be
resealed and returned to the Trustee to continue to hold in escrow. The
Licensee shall pay all costs associated with the inspection, including
machine time, operating personnel, travel, food, lodging and a reasonable
per diem fee for the attendance of all the parties attending at the
inspection.
(f) If the contents of the container are determined not to be as
purported, then Licensor shall pay all of the costs named in
sub paragraph (e) and shall also forthwith deliver to the Trustee a copy
of the authentic software as purported on the Licensor's certification,
and the Licensee may first verify that the same are authentic.
9. DUTIES OF TRUSTEE
(a) The Trustee shall store the sealed containers in a safe and
secure location of its own choosing.
(b) The Licensor may direct the Trustee to store the sealed
containers in a location selected by the Licensor, in which event the
Trustee shall comply with such direction provided that access to the
location is under the Trustee's control and that any additional costs
incurred by the Trustee using the site are paid by the Licensor.
(c) The Licensor represents that Deposit Materials do not require
any storage conditions other than office environment conditions.
(d) The Trustee shall exercise reasonable judgment in the handling
of the Deposit Materials in the event of a dispute and shall not be liable
to either party except for grossly or deliberately negligent conduct.
10. FEES, CHARGES AND TERM
The Licensor shall pay to the Trustee the following fees and charges:
(a) An annual fee of $500.00 US payable upon execution by the
Licensor of this Agreement and on each anniversary date thereafter
unless earlier terminated by either party.
(b) This agreement shall continue thereafter on a yearly basis
unless terminated by either party by giving the other at least ninety (90)
days written notice prior to any anniversary date, and provided that all
named beneficiaries have either ceased to hold a use license for the System
or have consented to the termination of this agreement by signing the
Termination Notice attached to this Agreement, reference herein as
"Attachment 2" and incorporated herein by this reference.
<PAGE>
Agreement No: IWS99001
(c) A fee of $50.00 US per container per year or part year for each
container in excess of one being held by the Trustee at any given time
payable on the anniversary date of this agreement.
(d) A fee of $25.00 US per written notice delivered by the Trustee
under paragraph 6(b).
(e) A charge representing all expenses incurred by the Trustee for
media, copying, shipping, delivery, and special storage requested by the
Licensor payable on receipt of account.
(f) The term of this agreement shall continue so long as any
beneficiary has rights under it.
11. DEFAULT IN PAYMENT
In the event of non-payment of any fees invoiced by the Trustee, the
Trustee shall give notice of non-payment of any fee due and payable
hereunder to the Licensor and, in such an event, the Licensor shall
have the right to pay the unpaid fee within ninety (90) days after
receipt of notice from the Trustee. If Licensor fails to pay in full all
fees due during such ninety (90) day period, the Trustee shall give
notice of non-payment of any fee due and payable hereunder to the
Licensee and, in such event, the Licensee shall have the right to pay
the unpaid fee within ten (10) days of receipt of such notice from the
Trustee. Upon payment of the unpaid fee by either the Licensor or
Licensee, as the case may be, this Agreement shall continue in full force
and effect until the end of the applicable term. Failure to pay the
unpaid fee by both Licensor and Licensee shall result in termination of
this Agreement. In such event the Trustee shall return the Deposit
Materials to the Licensor.
The remedies above do not exclude any other remedies that are
otherwise available to the Trustee.
12. INSPECTION
For the purpose of insuring that any sealed container delivered to
and heldy the Trustee under this agreement remains in a sealed state,
either the Licensor or the Licensee may at any time demand to inspect such
container at the offices of the Trustee, and the Trustee shall produce
such container on a timely basis for inspection.
13. NOTICES.
Any notice required to be given in writing under this agreement shall
be given by prepaid certified or registered post, return receipt
requested, to the respective addresses above first mentioned or to such
other addresses as the parties may from time to time direct.
14. TITLE
Title to the Deposit Materials shall remain in the Licensor either in
its own right or as agent for the owner. The Trustee shall have title to
the physical storage medium but not to the Deposit Materials residing on
it.
<PAGE>
Agreement No: IWS99001
15. GOVERNING LAW
This agreement shall be governed in accordance with the laws of the
State of California without giving effect to its conflict of laws
provisions.
16. ENUREMENT
This agreement shall be binding upon and inure to the benefit of
parties and the beneficiaries named by the Licensor and the assignees of
each of them. This agreement may not be assigned by the Trustee without
the prior written consent of the Licensor.
17. ENTIRE AGREEMENT
This Agreement, which includes the Acceptance Form and the Exhibits
described herein, embodies the entire understanding among all of the
parties with respect to its subject matter and supersedes all previous
communications, representations or understandings, either oral or written.
The Trustee is not a party to the License Agreement between Licensor and
Licensee and has no knowledge of any of the terms or provisions of any
such License Agreement. Trustee's only obligations to Licensor or Licensee
are as set forth in this Agreement. No amendment or modification of this
Agreement shall be valid or binding unless signed by all the parties
hereto.
IN WITNESS WHEREOF the parties have by their representatives so
authorized executed this agreement to go into force on the date below
first mentioned.
______________________________ _________________________________
Lincoln-Parry SoftEscrow, Inc. ImageWare Software, Inc.
By: _________________________ By: ______________________________
Title: ______________________ Title: ___________________________
Date: _______________________ Date: ____________________________
<PAGE>
Agreement No: IWS99001
EXHIBIT A - LIST OF ESCROW MATERIALS
A1. PRODUCT NAME:
Version #:
Prepared/Confirmed by: ________________________________________________________
Title: _________________________________________ Date: ________________________
Signature: ____________________________
Type of deposit:
_____ Initial Deposit
_____ Update Deposit to replace current deposits
<TABLE>
<CAPTION>
ITEMS DEPOSITED:
_______________________________________________________________________________
Label Media Type Description of Material Operating Hardware
System Platform
_______________________________________________________________________________
<S> <C> <C> <C> <C>
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
</TABLE>
A2. PRODUCT NAME:
Prepared/Confirmed by: ________________________________________________________
Title: ____________________________________________ Date: _____________________
Signature: ___________________________________
Type of deposit:
___ Initial Deposit
___ Update Deposit to replace current deposits
<TABLE>
<CAPTION>
ITEMS DEPOSITED:
_______________________________________________________________________________
Label Media Type Description of Material Operating Hardware
System Platform
_______________________________________________________________________________
<S> <C> <C> <C> <C>
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
</TABLE>
Exhibit A: 1
<PAGE>
Agreement No: IWS99001/001
ATTACHMENT 1 - ACCEPTANCE FORM
Image Ware Software Inc. and Lincoln-Parry SoftEscrow Inc., hereby acknowledge
that _____________ is a Beneficiary referred to in the Software Escrow
Agreement number _____________, effective ________________, 19__ with
Lincoln-Parry SoftEscrow as the Trustee and ImageWare Software Incorporated
as the Licensor. Licensee hereby agrees to be bound by all provisions of
such Agreement.
The Licensee's rights under this Agreement shall relate to the Deposit
Materials in those container(s) held by the Trustee for which the Licensee
has a valid license agreement that is not in arrears or otherwise in default,
at such time as those rights are exercised.
Programs of the software licensed by the Licensee:
1.
Notices and communications to Licensee Company Name: _______________________
should be addressed to: Address: ____________________________
____________________________
____________________________
Designated Contact: _________________
Telephone: __________________________
Facsimile: __________________________
In Witness Whereof, the Licensor and Licensee, have by their representatives
so authorized executed this agreement to go into force on the date first
below written.
_____________________________________ ______________________________________
Licensee Licensor
By: _________________________________ By: __________________________________
Name: _______________________________ Name: ________________________________
Title: ______________________________ Title: _______________________________
Date: _______________________________ Date: ________________________________
Attachment 1: 1
<PAGE>
Agreement No: IWS99001/001
Received by Lincoln-Parry, SoftEscrow, Inc.
___________________________________________
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Date: _____________________________________
Attachment 1: 2
<PAGE>
Agreement No: IWS99001/001
EXHIBIT B - NON DISCLOSURE COVENANT
TO: ImageWare Software Inc. Date:
(Licensor)
WHEREAS the Licensor and the Licensee are parties to a Software Escrow
Agreement bearing No. and date
pursuant to which the Deposit Materials therein shall be released to the
Licensee by the Trustee, and;
WHEREAS a prior condition of such release is set out in paragraph 6(d)
of the said agreement, namely that the Licensee must first execute this form
of non disclosure covenant and deliver it to the Trustee;
THEREFORE the Licensee covenants as follows for the benefit of the
Licensor:
1. To hold the Deposit Materials in the strictest of confidence, recognizing
that it is a valuable trade secret of the Licensor and that its improper
disclosure will cause substantial and irreparable injury to the Licensor.
2. To restrict the use of the Deposit Materials solely and exclusively for
the purpose of supporting and developing the Licensee's own installation and
for no other purpose whatsoever.
3. To restrict disclosure of the Deposit Materials or any part thereof to
only those of the Licensee's employees or agents who have a bona fide need to
know, and who have received written notice of the confidential nature of the
Deposit Materials and have agreed to abide by these restrictions.
4. Not to make any copy (other than for back up), derivation, translation
or imitation of the Deposit Materials, or to use any of its algorithms,
designs or architecture in producing another program.
5. To fully observe and perform all other obligations which may bind the
Licensee under any other agreement which exist between it and the Licensor.
______________________________
Licensee
Exhibit B: 1
<PAGE>
Agreement No: IWS99001/001
ATTACHMENT 2 - TERMINATION NOTICE
TO: Lincoln-Parry SoftEscrow, Inc. Date:
400 Inverness Drive South
Suite 200
Englewood, CO 80112
TAKE NOTICE THAT the Licensor and the Licensee being parties to a
Software Escrow Agreement bearing No. and date do hereby
terminate the said agreement as of the date of this notice and direct you to
deliver the Deposit Materials thereunder held by you to the Licensor
forthwith.
__________________________ _________________________________
Licensor Licensee
Attachment 2:1
<PAGE>
ATTACHMENT 1 - SOFTWARE LICENSING AGREEMENT
TERMS AND CONDITIONS
A. ENTIRE AGREEMENT. This agreement, as an attachment to Contract
T00874T together with the following Exhibits referenced herein,
constitutes the agreement between Contractor and the County with
respect to the license of Contractor-owned Software to the County.
B. LICENSE.
1. Contractor hereby grants the County a nonexclusive,
nontransferable and perpetual license to use the
ImageWare Software Inc. Crime Capture System (hereinafter
"Software") as described in Exhibit A, including related
documentation under each program element. The licensed
Software shall include in its meaning, in addition to
the description contained in Exhibit A, any
improvements, additions, or modifications of the version
or versions of the Software which Contractor licensed to
the County to use and materials related thereto and all
materials, documentation and technical information
provided to the County in written form and identified in
Exhibit A for use in connection with the Software.
2. The County may utilize the object code version of the
Software as required by King County on hardware owned or
leased by the County.
3. The County may use and copy documentation pertaining to
the Software as supplied by Contractor (hereinafter
"Documentation") as required to exercise the license
granted herein.
4. The County shall be permitted to make back up copies of
the Software and Documentation in accord with the back
up procedures followed by the County. The County may
copy, reproduce, modify, adapt or translate the
Documentation as it deems necessary provided that such
copies are used in accord with the License granted
herein and any such copies of the Documentation are
utilized solely by King County.
C. DELIVERY AND INSTALLATION: MODIFICATION OF SOFTWARE AND SOURCE
CODE. Contractor shall deliver the Software at the time, place
and order of delivery as described in Exhibit A. Contractor shall
install the software and provide necessary support services,
including training, at no additional charge. Contractor shall
notify the County that the program is ready for acceptance
testing no later than the date set forth in Exhibit A. Contractor
shall improve, add to, or otherwise modify the software and the
source code prior to or at the same time any modifications of the
same are available to any of Contractor's customers.
D. SOURCE CODE. Concurrent with delivery of the Software hereunder,
Contractor shall place a copy of the source code for the Software
into escrow pursuant to the Escrow Agreement executed with this
Software License Agreement. Contractor shall improve, add to, or
otherwise modify the source code prior to or at the time any
modifications are available to Contractor's customers.
E. ACCEPTANCE TESTING. The Acceptance procedures described in
Attachment D of this Contract No. T00874T shall be applicable to
this License Agreement.
F. PAYMENT. In consideration of the License granted to the County by
this Agreement, the County shall pay to Contractor the License
Fee as identified in Attachment B to Contract T00874T. Payment
invoicing shall be in accordance with the Payment Procedures
identified in Contract # T00874T.
G. IMPROVEMENTS AND OTHER MODIFICATIONS. See Attachment J, this
Contract T00874T.
H. TERMINATION. The termination provisions of Contract # T00874T
shall be applicable to the termination of this License Agreement.
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Page 56
<PAGE>
I. WARRANTIES. The warranty provisions of Contract # T00874T shall
be applicable to the warranties of this License Agreement.
J. YEAR 2000 COMPLIANCE. The Year 2000 Compliance requirements
contained in Contract T00874T shall apply to this License.
K. INDEMNIFICATION. The indemnification provisions of Contract #
T00874T apply to this License Agreement.
L. MISCELLANEOUS. The terms and conditions of Contract # T00874T
shall have precedence and control over any term and condition of
this License Agreement which may be in conflict with Contract #
T00874T To the extent that this License Agreement is silent with
respect to terms and conditions in Contract # T00874T the terms
and conditions in Contract # T00874T shall control.
M. SEVERABILITY. Any invalidity, in whole or in part, of any
provision of this License Agreement shall not affect the validity
of any other of its provisions, or the provisions of Contract
#T00874T.
N. CONFIDENTIAL INFORMATION. By virtue of this Licensing Agreement,
the parties may have access to information that is confidential
to one another (hereinafter "Confidential Information"). Such
information is subject to the Public Disclosure laws of the State
of Washington and the public disclosure section of Contract #
T00874T. Confidential information shall be conspicuously marked
as such and limited to the Software, Documentation and
information related thereto as well as all information marked
confidential. Confidential Information shall not include
information which a) is or becomes a part of the public domain
through no act or omission of the other party; or b) was in the
other party's lawful possession prior to the disclosure and had
not been obtained by the other party either directly or
indirectly from the disclosing party; or c) is lawfully disclosed
to the other party by a third party without restriction on
disclosure; or d) is independently developed by the other party.
O. ASSIGNMENT TO OTHER PUBLIC ENTITIES. King County shall have the
right to assign its rights and obligations under this Licensing
Agreement to any other public entity, provided that any permitted
assignment or transfer of rights shall bind the assignee public
agency to the terms and conditions of this License Agreement.
IN WITNESS WHEREOF, the parties have caused this Licensing Agreement to be
executed and do each hereby warrant and represent that their respective
signatory who signature appears below has been and is on the date of this
License Agreement duly authorized by all necessary and appropriate corporate
action to execute this Agreement.
CONTRACTOR: KING COUNTY
By: /s/ [Illegible] By:
------------------------------- ---------------------------------
Its Its:
------------------------------ -------------------------------
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Page 57
<PAGE>
ATTACHMENT I
Exhibit A
SOFTWARE LICENSE AGREEMENT
1. DELIVERY:
Installation shall commence on November 16, 1999, and time is of the
essence.
2. DESCRIPTION OF SOFTWARE:
3. An Internet Advertisement provided by Contractor to describe the
Software, characteristics, and capabilities is attached to Contract #
T00874T as Attachment P and is incorporated by reference to the Software
Licensing Agreement as if fully stated herein.
4. DESCRIPTION OF SERVICES:
5. Installation, support and other services shall be provided by Contractor
to King County as detailed in Section 6 of Contract T00874T. Such
services shall be in addition to the installation and support service
necessary for the delivery and installation of the Software and enable
the County to conduct the acceptance tests, which services shall be
furnished free of charge.
6. ACCEPTANCE TESTS:
7. Contractor shall have the Software installed and ready for testing, and
shall complete such training or King County's personnel as is necessary
for the conduct of such testing, no later than December 10, 1999.
8. The acceptance tests required by Section E of the License Agreement
shall be as described in Attachment D of Contract T00874T:
ATTACHMENT J - SOFTWARE AND EQUIPMENT MAINTENANCE
AGREEMENT
A. This Agreement commences upon Final Acceptance of the
Crime Capture System pursuant to Contract No. T00874T.
Maintenance fees shall be as described in Attachment B of
Contract T00874T.
1. Initial Term.
The initial term of this Agreement shall commence
on the date of Acceptance and shall extend for
five (5) years unless terminated according to the
termination provisions of Contract T00874T or
section 2 of Exhibit A.
2. Entire Agreement
This Attachment, including Exhibit A and all
documents referenced herein, constitutes the
entire agreement between Contractor and County
with respect to the maintenance of
hardware/software purchased by King County
pursuant to Contract No. T00874T and supersedes
all proposals, oral and written, between the
parties on this subject.
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Page 58
<PAGE>
3. Services
In consideration of the payments to be made to the Contractor, the
Contractor agrees to provide the services described in this Agreement,
including Exhibit A or in any attachment hereto, with respect to the
Software and Equipment. The location(s) at which the services shall be
performed shall be as set forth in Exhibit A.
4. Maintenance Service to be provided
a) GENERAL. Contractor shall provide to County maintenance service
with respect to the System consisting of (I) Preventive Maintenance
as described in paragraph 5.2, (II) Remedial Maintenance as
described in paragraph 5.3, and (III) Extra Services as described
in paragraph 5.4, all in accordance with and subject to the terms
and conditions of this Agreement.
b) PREVENTIVE MAINTENANCE. Preventive Maintenance shall consist of all
maintenance service, other than Excluded Services as defined in
paragraph 5.5, performed by Contractor in accordance with a
predetermined schedule and independently of any System Failure, for
the purpose of maintaining the System in good working order.
Preventive Maintenance, which shall require quarterly, semi annual,
and annual maintenance work and shall be performed by Contractor
during normal working days between the hours of 8:00 a.m. and 5:00
p.m. or as otherwise arranged.
(1) QUARTERLY MAINTENANCE shall include Contractor performing a
quality control check of the system to ensure County that the
system is performing at the prescribe standards for System
functionality.
(2) SEMI ANNUAL MAINTENANCE shall include, in addition to the
Quarterly Maintenance a general cleaning of the system.
(3) ANNUAL MAINTENANCE shall include in addition to the quarterly
and Semi Annual Maintenance, a thorough inspection, cleaning,
hardware alignment, and general system check to preserve image
quality and system performance.
c) REMEDIAL MAINTENANCE. Remedial Maintenance shall mean all
maintenance, other than Excluded Services, reasonably required as a
result of, and for the purpose of correcting, a System Failure. For
purposes of this Agreement, System Failure shall mean any malfunction
in the System that prevents or materially interferes with, any or all
of the System designed functionality. Following any identification of
any System Failure by County, and County's completion of the
diagnostic checklist and procedures recommended by Contractor,
County shall provide notification thereof to Contractor.
In the event of any software failure, Contractor shall thereafter
make a good faith effort to cause the appropriate software support
person to respond to the County within thirty minutes of the
notification with an update as to cause and/or possible solutions.
In the event of any hardware failure, Contractor shall thereafter
make a good faith effort to cause an authorized representative of
Contractor to arrive at the location where the System is installed
no later than five (5) days following Contractor's receipt of such
notification. Hardware support shall be available 7
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Page 59
<PAGE>
days per week 24 hours per day for critical items as defined in
paragraph A, 4, C, (1), and during normal work days and hours for
non critical items as defined in paragraph 5.3.5.
(1) CRITICAL ITEMS: All Contractor supplied hardware associated
with the Server, Contractor supplied interfaces, and Capture
Stations that are required to the County to perform its day to
day duties associated with the capture and storage of "mug"
photo images shall be considered as Critical Items. The only
hardware exception to this paragraph will be the printers.
(2) NON CRITICAL ITEMS: All Contractor supplied hardware items not
mentioned in paragraph 5.3.1 will be considered non critical
items and shall be repaired during the Contractor's normal work
hours. This will include the printers associated with any
capture station and display stations.
d) EXTRA SERVICES. Extra Services shall consist of any maintenance
services with respect to the System, other than Preventive
Maintenance and Remedial Maintenance, including without limitation,
Excluded Services. Contractor shall be under no firm obligation to
perform any Extra Service but undertakes to make a good faith effort
to render such services to the extent that it is capable of doing so
without substantially interfering with its other obligations under
this Agreement or its obligations to other customers. If so requested
by County, Contractor shall provide a written estimate of extra
charges likely to be incurred or accrued as a result of the
performance of such services, to the extent such services can be
reasonably ascertained in advance.
e) EXCLUDED SERVICES. For the purpose of this Agreement, Excluded
Services shall be defined as; Any maintenance services necessary or
appropriate in order to correct any System Failure, or potential
failure, attributable in whole or in part to any of the following
factors or any combination thereof.
(1) 5.5.1 Failure by County to provide or maintain a suitable
installation environment as the System Site in accordance with
minimum prescribed standards, and any other reasonable
requirements thereafter communicated in writing by Contractor
to County, including without limitation, any electrical power,
air conditioning, or humidity control failure or changes to the
environment of the System Site.
(2) Use of supplies or materials not approved by Contractor, or by
the equipment manufacture.
(3) Use or attempted use of the System or any component thereof
for any purpose other than that for which it was installed by
Contractor.
(4) Alterations to the System (other than alterations installed by
Contractor or authorized in writing by Contractor).
(5) Connection of the System by mechanical or electrical means to
any other machine, equipment or device (other than those
installed by Contractor or authorized in writing by Contractor)
other than normal network connections.
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Page 60
<PAGE>
(6) Removal, transportation or relocation of the System by any
person other than Contractor, unless authorized by Contractor
in writing.
(7) Neglect or misuse of the System by County or any third party
employed by the County.
(8) Any other intentional or negligent damage to the System by the
County or third party employed by the County.
(9) Any other failure by County to comply with its obligations
under this Agreement or the purchase and license agreement.
(10) Any repair of damage caused by other than normal operating
conditions or events, including without limitation, accident,
transportation, neglect, misuse, lightning, failure or
fluctuation of electrical power, temperature or humidity
changes, telephone equipment or line failure, failure of
foreign interconnect equipment, act of God. [ISII].
(11) Repair or replacement of hardware required by age, duty cicle,
obsolescence or excessive use.
(12) Changes to the County's systems which affect the functionality
of the maintained Crime Capture System.
(13) Any maintenance services to be performed on any software,
hardware or other item not furnished by Contractor to County
or any other work external to the System by anyone other than
Contractor.
(14) Rates: See Attachment J, Exhibit B
f) Replacement or Repair. In performing Preventive Maintenance and
Remedial Maintenance, Contractor shall be entitled to exercise
reasonable discretion in determining whether to replace or repair
any malfunctioning item, provided, however, that any such
replacement shall be of equal or better quality and, in the event
of a malfunction of key circuit boards, to be specified by
Contractor, a replacement board will be provided pending completion
of repairs on the defective board.
g) DIAGNOSTIC SOFTWARE. In order to facilitate rapid analysis of
System Failure involving software, Contractor will provide a
trained staff, at their company location, capable of handling all
software failures in an expedient manner. In addition they will
have diagnostic software for the purpose of identifying the cause
of any System Failure, temporarily patching around the problem if
necessary or temporarily disabling the use of that software module
so that the System can be returned to use for all other activities
with only a minor degradation in operation.
h) OFF-SITE MAINTENANCE: Any maintenance services required to be
performed under this Agreement which cannot, in Contractor's
reasonable judgment, be performed effectively at or near the System
Site shall be performed at such other location(s) as Contractor may
determine, at no extra cost to Customer. However, a loaned part(s)
from Contractor's warehouse must be installed prior to the shipping
of the item(s) being removed for maintenance.
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Page 61
<PAGE>
B. Responsibilities of the County
1. The County shall notify the Contractor immediately following the
discovery of any Error, defect or nonconformity in the Software
and Equipment. The period within which Contractor is obligated
herein to provide telephonic off-site support shall not commence
until such time as the Contractor receives the County's
notification of the Error, defect or nonconformity.
2. The County, upon detection of any Error, defect or nonconformity
in the Software and Equipment, shall, if requested to do so by the
Contractor submit to the Contractor a listing of output and any
such other data which Contractor reasonably may request in order
to reproduce operating conditions similar to those present when
the Error occurred or the defect or nonconformity was discovered,
as the case may be.
3. Network connections: Although Contractor will provide some
guidance and direction, Contractor is not responsible for
resolving problems relating to networks. It is the County's
responsibility to keep adequate back-ups. Contractor is not
responsible for loss of data.
C. Charges; Annual License/Maintenance Fee
1. Computation
County shall pay Contractor an Annual Maintenance Fee as stated in
Exhibit A. The Annual Maintenance Fee is a fee that includes the
continued maintenance of hardware and software installed by this
agreement, and 7 day a week, 24 hour per day, 365 days per year
customer support.
2. Price Protection
The charges set forth herein for the services shall not be
increased to exceed the Application Maintenance Fees in the
Section 6, Scope of Work during a period of two (2) years after
the date of this Maintenance Agreement. Thereafter, such prices
only may be increased on an annual basis and no more than five
percent (5%) of the previous year's maintenance fee.
D. Warranties
The warranty provisions of Contract No. T00874T shall be applicable to
the warranty provided under this attachment J.
E. Termination
The termination provisions of Contract No. T00874T shall be applicable
to the termination provisions of this Software and Equipment Maintenance
Agreement.
If County or any third party modifies, enhances or otherwise alters the
Software or Equipment, without the direction or authorization in writing
or as otherwise provided in the Contract #T00874T Contractor will have
the right to terminate its obligation to provide maintenance. Contractor
may also terminate its obligation to provide maintenance at any time
after the expiration of 12 months after offering County updates to the
Software that County has not accepted; provided that Contractor shall
provide County with sixty (60) day notice that Contractor will no longer
provide maintenance support for the Software or a program within the
Software. If
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<PAGE>
County has reasonable cause for not accepting updates (such as,
additional significant equipment costs would be incurred to implement
the updates), then at any time prior to Contractor's termination of
maintenance support, County may request an extension of Contractor's
maintenance support. Such extension may be for up to twelve (12) months
beginning with the date of County's request. Contractor will not
unreasonably withhold its consent to the requested extension. After the
end of the extended maintenance period, Contractor may at any time
terminate its maintenance support obligation if County has not then
accepted the most recent update offered by Contractor.
Contractor may elect to cease providing maintenance of the
Contractor-owned Software and, if Contractor elects to do so, may
terminate its obligation to provide County with maintenance of the
Contractor-owned Software by providing County with at least thirty (30)
days written notice of such termination. If Contractor terminates its
obligation to provide Contractor-owned Software maintenance as provided
in the previous sentence, County will be entitled to access the Source
Code under the Source Code Escrow Agreement (Attachment H to Contract
T00874T), unless the Maintenance Agreement has been assumed by a third
party with County's written consent, which will not be unreasonably
withheld. Contractor may elect to cease providing maintenance of the
third-party owned Software and, if Contractor elects to do so, may
terminate its obligation to provide County with maintenance of the third
party-owned Software by providing County with at least ninety days written
notice of such termination. If Contractor terminates its obligation to
provide third party-owned Software maintenance as provided in the previous
sentence, County may pay the license fees payable to the third party
licensor (of such third party-owned Software) directly to the third
party licensor, and the maintenance fees payable to Contractor under this
Maintenance Agreement will be reduced by such amount.
F. Indemnification
The Indemnification provisions of Contract No. T00874T shall be
applicable to the indemnification provisions of this Software and
Equipment Maintenance Agreement.
G. Assignment
Neither party may assign or subcontract all or any part of this
Agreement without the written consent of the other party, which consent
will not be unreasonably withheld.
H. Miscellaneous
1. Insurance
Contractor shall maintain in effect at all times during the term
hereof, insurance as described in Contract No. T00874T between King
County and the Contractor.
2. Cumulation of Remedies
All remedies available to either party for breach of this Agreement
are cumulative and may be exercised concurrently or separately, and
the exercise of any one remedy shall not be deemed an election of
such remedy to the exclusion of other remedies.
3. Severability
Any invalidity, in whole or in part, of any provision of this
Agreement shall not affect the validity of any other of its
provisions.
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<PAGE>
4. Notices
Any notice or other communication hereunder shall be in writing and
in accordance with Contract No. T00874T between King County and
Contractor.
5. Waiver
No term or provision hereof shall be deemed waived and no breach
excused unless such waiver or consent shall be in writing and signed
by the party claimed to have waived or consented.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
do each hereby warrant and represent that their respective signatory whose
signature appears below has been and is on the date of this Agreement duly
authorized by all necessary and appropriate corporate action to execute this
Agreement.
ImageWare Software, Inc.: KING COUNTY:
By: /s/ [Illegible] By:
__________________________ ________________________
Its: CFO Its:
_________________________ ________________________
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Page 64
<PAGE>
ATTACHMENT J
EXHIBIT A
Software and Equipment Maintenance Agreement
1. Location of Services
The Maintenance Services to be performed by the Contractor shall be
conducted at the following locations:
King County Adult Detention
500 5th Avenue
Seattle, WA 98104
And, other King County satellite sites. These office will be within the
boundaries of King County, Washington.
2. Term
The Services will begin upon Final Acceptance and terminate upon the
termination of the Software License Agreement, unless earlier terminated
as provided by Contract No. T00847T.
3. Annual Maintenance Fee
The initial Maintenance Fee is $58,156, payable on the date of Final
Acceptance. The next Annual Maintenance Fee is $58,156, payable on the
first anniversary of the date of Final Acceptance. Thereafter Maintenance
Fees will be due and payable on each anniversary of Final Acceptance.
Annual License/Maintenance Fees may be increased by Contractor subject to
the limitations set forth in Attachment J., Section C. 2. herein. NOTE:
Payments described shall be consistent with Contract No. T00874T between
King County and the Contractor.
Contractor may terminate this Agreement if County does not pay the
Annual License/Maintenance Fees within forty-five (45) days after
Contractor has given County written notice that payment has not been
received.
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<PAGE>
ATTACHMENT J
[LOGO]
ImageWare Software Exhibit B
TIME & MATERIALS PRICING
<TABLE>
<CAPTION>
DESCRIPTION COST
- ----------- ----
<S> <C> <C>
Software Engineer 0800 thru 1700 weekdays........... $150 per hour
1700 thru 0800 weekdays........... $200 per hour
Anytime on weekends............... $275 per hour
Anytime on national holiday....... $375 per hour
Production Support Engineer 0800 thru 1700 weekdays........... $125 per hour
1700 thru 0800 weekdays........... $175 per hour
Anytime on weekends............... $225 per hour
Anytime on national holiday....... $300 per hour
Repair Technician 0800 thru 1700 weekdays........... $125 per hour
1700 thru 0800 weekdays........... $175 per hour
Anytime on weekends............... $225 per hour
Anytime on national holiday....... $300 per hour
Travel Time (all categories) 0800 thru 1700 weekdays........... $50 per hour
1700 thru 0800 weekdays........... $50 per hour
Anytime on weekends............... $50 per hour
Anytime on national holiday....... $100 per hour
Support Desk Call Anytime $40 per call minimum. Price per
minute to be determined.
Freight......................................................... published rate for service
Equipment replaced or repaired................................... list price
Travel by air/train to customer site............................ actual cost
Travel by car to customer site.................................. $0.32 per mile
Meals, lodging and local transportation at customer site........ $200 per day
MINIMUM CHARGES:
Support Time.................................................... 1.0 hours per incident
Travel Time..................................................... 1.0 hours per on-site call
</TABLE>
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<PAGE>
KING COUNTY CONSULTANT DISCLOSURE FORM
[SEAL]
King County Pursuant to 3.04.120, this form is to be completed by
Board of Ethics private consultant firms or individuals entering into
contracts with King County to perform studies costing in
excess of $2500. IMPORTANT NOTE: NO PAYMENT SHALL BE MADE
ON ANY CONTRACT WITH ANY PRIVATE CONSULTANT FIRM AND/OR
INDIVIDUAL UNTIL FIVE DAYS AFTER RECEIPT OF THIS FORM BY
THE BOARD OF ETHICS, 900 FOURTH AVENUE, BANK OF CALIFORNIA
BUILDING, SUITE 860, SEATTLE, WA., 98164, MS-BOC 0860;
(206) 296-1586; FAX (206) 205-0725. BOTH CONSULTANT AND
CONTRACTING DEPARTMENT ARE RESPONSIBLE FOR ENSURING
COMPLIANCE WITH THIS REQUIREMENT.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------
PLEASE TYPE OR PRINT ALL INFORMATION - ALL QUESTIONS MUST BE ANSWERED fYESg fNOg OR N.A.g
- -----------------------------------------------------------------------------------------------
<S><C>
Todaygs Date: 9/20/99 Contract Number: T00874T Amount of Contract: $185,000
----------- ------------------ ----------
Consultantgs Name: ImageWare Software Inc. Phone Number: (858) 673 8600
-------------------------------------------- ---------------
Address: 10883 Thornmint Road Duration: 5 Years
------------------------------------------------------ -------------------
Type of Services Contracted: Installation of software and hardware
------------------------------------------------------------------
Contracting King County Department King County Adult Detention Division: Information Systems
--------------------------- --------------------
County Contact Person: Tim Longley Phone: (206) 296 1454
---------------------------------------- ------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------
1. LIST THE NAME OF ANY OFFICE OR DIRECTORSHIP IN THE FIRM PRESENTLY HELD BY FORMER KING COUNTY
EMPLOYEES WHOSE EMPLOYMENT WITH THE COUNTY TERMINATED WITHIN THE PAST TWO YEARS:
- -----------------------------------------------------------------------------------------------
<S><C>
Name: N.A. Office/Directorship:
----------------------------------------- ----------------------
Former County Department: Date Terminated:
--------------------- --------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------
2. LIST ANY OFFICE OR DIRECTORSHIP IN THE FIRM HELD BY ANY CURRENT KING COUNTY EMPLOYEE:
- -----------------------------------------------------------------------------------------------
<S><C>
Name: N.A. Office/Directorship:
----------------------------------------- ----------------------
County Department:
-----------------------------------------------------------------------------
Name: Office/Directorship:
----------------------------------------- ----------------------
County Department:
-----------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------
3. LIST NAME OF CURRENT KING COUNTY EMPLOYEEGS SPOUSE OR IMMEDIATE FAMILY MEMBER HOLDING
AN OFFICE OR DIRECTORSHIP IN THE FIRM:
- -----------------------------------------------------------------------------------------------
<S><C>
Name: N.A. Office/Directorship:
----------------------------------------- ----------------------
Name of County Employee: County Department:
---------------------- ------------------------
Relationship to Employee (spouse, sister, brother, etc.):
--------------------------------------
Name: N.A. Office/Directorship:
----------------------------------------- ----------------------
Name of County Employee: County Department:
---------------------- ------------------------
Relationship to Employee (spouse, sister, brother, etc.):
--------------------------------------
(PLEASE COMPLETE REVERSE SIDE)
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
Page 67
<PAGE>
<CAPTION>
- -----------------------------------------------------------------------------------------------
4. INDICATE LEVEL OF FINANCIAL INTEREST IN THE FIRM BY KING COUNTY EMPLOYEE, HIS/HER SPOUSE OR
IMMEDIATE FAMILY MEMBERS:
- -----------------------------------------------------------------------------------------------
<S><C>
Name: N.A. Office/Directorship:
----------------------------------------- ----------------------
Percentage of Stock (if more than 5%): Salary:
-------- ------------------------
Other form of interest in firm (please specify):
-----------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------
5. INDICATE WHETHER AN OFFICER OR DIRECTOR IN THE FIRM (WHETHER SALARIED OR UNSALARIED) IS A
MEMBER OF A KING COUNTY BOARD OR COMMISSION:
- -----------------------------------------------------------------------------------------------
<S><C>
Name: N.A. Office/Directorship:
----------------------------------------- ----------------------
County Board or Commission:
--------------------------------------------------------------------
Name: N.A. Office/Directorship:
----------------------------------------- ----------------------
County Board or Commission:
--------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------
6. LIST ALL OTHER CONTRACTS YOU OR YOUR FIRM HAVE HAD WITH KING COUNTY DURING THE PAST FIVE
YEARS, INCLUDING THE AMOUNT OF THE CONTRACT. ATTACH A SEPARATE SHEET IF NECESSARY:
- -----------------------------------------------------------------------------------------------
<S><C>
Type of work or service provided: Software, hardware and maintenance
--------------------------------------------------------------
Contract Amount(s): $243,240 plus annual maintenance
----------------------------------------------------------------------------
Duration of Contract(s): 1996 - 1999
-----------------------------------------------------------------------
Contracting Department AND Division: King County adult detention, Information systems
-----------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------
7. ARE THERE ANY POTENTIAL CONFLICTS OF INTEREST THAT NEED TO BE DISCLOSED? IF SO, PLEASE
EXPLAIN:
- -----------------------------------------------------------------------------------------------
<S><C>
N.A.
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
continue on-an additional sheet if necessary.
<CAPTION>
- -----------------------------------------------------------------------------------------------
ATTESTATION:
- -----------------------------------------------------------------------------------------------
<S><C>
I, Wayne Wetherell, certify under penalty of perjury that this statement is
--------------------------
(PRINT NAME)
true, accurate, and complete.
/s/ Wayne Wetherell CFO
- -----------------------------------------------------------------------------------------------
(SIGNATURE) (TITLE)
Signed this 29 day of Sept. , 1999.
------------------------------------ ------------------
REVISED 5/99 N KING COUNTY BOARD OF ETHICS N BANK OF CALIFORNIA BUILDING N 900 FOURTH AVENUE,
SUITE 860 N SEATTLE, WA 98164
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
</TABLE>
Page 68
<PAGE>
ATTACHMENT M - FINAL AFFIDAVIT OF AMOUNTS PAID
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
Page 69
<PAGE>
ATTACHMENT N - EVIDENCE OF INSURANCE
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
Page 70
<PAGE>
<TABLE>
<S><C>
ACORD. CERTIFICATE OF INSURANCE ISSUE DATE (MM/DD/YY)
PRODUCER PRA26090 No 59727 07/16/99
-------------------------------------------------------
Barney & Barney, LLC-CA Lic0C03950 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Barney & Barney, Inc-CA Lic0C24310 ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.
P.O. Box 85638 THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE
San Diego, CA 92186-5638 COVERAGE AFFORDED BY THE POLICIES BELOW.
(858) 457-3414 -------------------------------------------------------
Mst#: 3646 COMPANIES AFFORDING COVERAGE
-------------------------------------------------------
COMPANY ATLANTIC-ATLANTIC MUTUAL INSURANCE CO.
- --------------------------------------------------------------------------- LETTER A
INSURED IMAGEWARE SOFTWARE, INC. -------------------------------------------------------
COMPANY NO COVERAGE ON THIS DOCUMENT
LETTER B
10883 THORNMINT ROAD -------------------------------------------------------
SAN DIEGO CA 92127 COMPANY NO COVERAGE ON THIS DOCUMENT
LETTER C
-------------------------------------------------------
COMPANY NO COVERAGE ON THIS DOCUMENT
LETTER D
-------------------------------------------------------
COMPANY NO COVERAGE ON THIS DOCUMENT
LETTER E
- -----------------------------------------------------------------------------------------------------------------------------------
COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH
THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE
TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
- -----------------------------------------------------------------------------------------------------------------------------------
CO
LTR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS
DATE (MM/DD/YY) DATE (MM/DD/YY)
- -----------------------------------------------------------------------------------------------------------------------------------
GENERAL LIABILITY GENERAL AGGREGATE $*2,000,000
/X/ COMMERCIAL GENERAL LIABILITY PRODUCTS-COMP/OP AGG. $*2,000,000
A / / / / CLAIMS MADE /X/ OCCUR. 486 305151 07/10/99 07/10/00 PERSONAL & ADV. INJURY $*1,000,000
/ / OWNER'S & CONTRACTOR'S PROT. EACH OCCURRENCE $*1,000,000
/ / ____________________________ FIRE DAMAGE (Any one fire) $INCLUDED
MED. EXPENSE (Any one person) $****10,000
- -----------------------------------------------------------------------------------------------------------------------------------
AUTOMOBILE LIABILITY COMBINED SINGLE $*1,000,000
/ / ANY AUTO LIMIT
/ / ALL OWNED AUTOS BODILY INJURY
/ / SCHEDULED AUTOS 486-305151 07/10/99 07/10/00 (Per person) $*********0
A /X/ HIRED AUTOS BODILY INJURY
/X/ NON-OWNED AUTOS (Per accident) $*********0
/ / GARAGE LIABILITY PROPERTY DAMAGE $*********0
- -----------------------------------------------------------------------------------------------------------------------------------
EXCESS LIABILITY EACH OCCURRENCE $*2,000,000
A /X/ UMBRELLA FORM AGGREGATE $*2,000,000
/ / OTHER THAN UMBRELLA FORM 486-305151 07/10/99 07/10/00
- -----------------------------------------------------------------------------------------------------------------------------------
WORKER'S COMPENSATION / / STATUTORY LIMITS
A AND 400 716814 07/14/99 07/14/00 EACH ACCIDENT $*1,000,000
EMPLOYERS' LIABILITY DISEASE-POLICY LIMIT $*1,000,000
DISEASE-EACH EMPLOYEE $*1,000,000
- -----------------------------------------------------------------------------------------------------------------------------------
OTHER
NO COVERAGE
- -----------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
RE: FORCEFIELD 2000 PROJECT
- -----------------------------------------------------------------------------------------------------------------------------------
CERTIFICATE HOLDER CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE
KING COUNTY DEPT. OF DETENTION THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE
CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE
ATTN: F. FLEETHAM, CORRECT. ADMIN. NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES.
500 FIFTH AVENUE ------------------------------------------------------------------------------------------
SEATTLE WA 98104 AUTHORIZED REPRESENTATIVE
/s/ Lynn [ILLEGIBLE]
ACORD 25-S (7/90) -C-ACORD CORPORATION 1990
- -----------------------------------------------------------------------------------------------------------------------------------
THE CERTIFICATE HOLDER IS NAMED AS ADDITIONAL INSURED PER THE ATTACHED ENDORSEMENT.
</TABLE>
<PAGE>
POLICY NUMBER: 486 305151 COMMERCIAL GENERAL
Effective Date: 07/10/99 LIABILITY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - DESIGNATED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART.
SCHEDULE
NAME OF PERSON OR ORGANIZATION:
KING COUNTY DEPT. OF DETENTION
ATTN: F. FLEETHAM, CORRECT. ADMIN.
500 FIFTH AVENUE
SEATTLE WA 98104
(If no entry appears above, information required to complete this endorsement
will be shown in the Declarations as applicable to this endorsement.)
WHO IS AN INSURED (Section II) is amended to include as an insured the person
or organization shown in the Schedule as an insured but only with respect to
liability arising out of your operations or premises owned by or rented to
you.
CG 20 26 11 85
Acord#: *727 Master#: 3646 Client IDPRA26090 Typeac25s
<PAGE>
ATTACHMENT O - CONTRACTORS PROPOSAL
- --------------------------------------------------------------------------------
Page 71
<PAGE>
CONFIDENTIAL
JEMS FORCEFIELD UPGRADE
FEBRUARY 18, 1999
REVISED APRIL 28, 1999
<TABLE>
<CAPTION>
DESCRIPTION QTY UNIT EXT TOTAL DISCOUNT
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
NETFINITY SERVER (RAID Level 5) (Dual Processors)
Netfinity 5500
IBM Netfinity 5500 Pentium II 450MHz/512KB L2,256MB ECC, OPEN, 32X, P 1 $7,138.80 $7,138.80
(Std) 10/100 PCI Ethernet
(Std) 2-Drop 16-bit SCSI Internal Cable
(Std) 32X Max IDE CD-ROM Drive
(Std) 450/100 MHz Pentium II Processor with 512KB ECC l2 Cache
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Keyboard (Stealth Grey)
(Std) Integrated IDE Controller
(Std) Integrated PCI Ultra SCSI RAID Controller-dual channel
(Std) Mouse Stealth Grey
(Std) Netfinity 400W Hot-Swap Power Supply
(Std) Netfinity NetBAY3
(Std) Processor Complex Card
(Std) S3 Trio64V2 Graphics - 1MB SGRAM
(Std) Systems Management Processor
IBM 20/40GB DLT Internal SCSI Tape Drive (FH) 1 $2,820.00 $2,820.00
IBM Netfinity 256MB SDRAM ECC RDIMM (Registered) 1 $1,140.00 $1,140.00
Netfinity 18.2GB Wide Ultra SCSI SCA-2 SL HDD (RAID) 5 $1,798.80 $8,994.00
450/100MHz Pentium II Processor with 512KB ECC L2 Cache 1 $1,438.80 $1,438.80
G74 - 17(15.9) in. Color Monitor, 69 KHz, Stealth Gray 1 $445.20 $445.20
Smart-UPS 1400-17 Min Runtime 1 $705.60 $705.60
SUBTOTAL $22,682.40
- ----------------------------------------------------------------------------------------------------------------------------------
CAPTURE HARDWARE
IBM PC 300PL 6862 (4x4)2
PC 300PL Pentium II 400MHz MMX/512KB, 64MB, 6.4GB, 4MB, 32X, 16bit Aud 8 $1,758.00 $14,064.00 12%
(Std) IBM 6.4GB EIDE Hard Drive
(Std) 10/100 PCI Ethernet WOL
(Std) 16-bit ISA Crystal Audio Integrated
(Std) 400/100MHz MMX Pentium II Processor with 512KB Pipeline B
(Std) 4MB Integrated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internal 32X Max (Variable Speed)
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
G74 - 17(15.9)in. Color Monitor, 69 KHz, Stealth Gray 8 $445.20 $3,561.60 12%
SUBTOTAL $17,625.60
- ----------------------------------------------------------------------------------------------------------------------------------
CAMERA SUB-SYSTEMS
Hitachi HV-C20 Camera, NIST standards (3 chip) 8 $4,342.80 $34,742.40 100%
Cosmicar/Pentax H15ZME Zoom Lens 8 $1,341.60 $10,732.80 100%
3 point Lighting system 8 $1,194.00 $9,552.00 100%
Pan and Tilt Camera mount 8 $1,440.00 $11,520.00
Reflective Pedestal 8 $822.00 $6,576.00 100%
Cable bundle 8 $180.00 $1,440.00 100%
NIST compliance capture software 8 $1,500.00 $12,000.00 100%
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
DESCRIPTION DISCOUNTED REMARKS
PRICE
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
$0.00
NETFINITY SERVER (RAID Level 5) (Dual Processors)
Netfinity 5500
IBM Netfinity 5500 Pentium II 450MHz/512KB L2,256MB ECC, OPEN, 32X, P $7,138.80
(Std) 10/100 PCI Ethernet
(Std) 2-Drop 16-bit SCSI Internal Cable
(std) 32X Max IDE CD-ROM Drive
(Std) 450/100 MHz Pentium II Processor with 512KB ECC l2 Cache
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Keyboard (Stealth Grey)
(Std) Integrated IDE Controller
(Std) Integrated PCI Ultra SCSI RAID Controller-dual channel
(Std) Mouse Stealth Grey
(Std) Netfinity 400W Hot-Swap Power Supply
(Std) Netfinity NetBAY3
(Std) Processor Complex Card
(Std) S3 Trio64V2 Graphics - 1MB SGRAM
(Std) Systems Management Processor
IBM 20/40GB DLT Internal SCSI Tape Drive (FH) $2,820.00
IBM Netfinity 256MB SDRAM ECC RDIMM (Registered) $1,140.00
Netfinity 18.2GB Wide Ultra SCSI SCA-2 SL HDD (RAID) $8,994.00
450/100MHz Pentium II Processor with 512KB ECC L2 Cache $1,438.80
G74 - 17(15.9) in. Color Monitor, 69 KHz, Stealth Gray $445.20
Smart-UPS 1400-17 Min Runtime $705.60
SUBTOTAL
- ----------------------------------------------------------------------------------------------------------------------------------
CAPTURE HARDWARE
IBM PC 300PL 6862 (4x4)2
PC 300PL Pentium II 400MHz MMX/512KB, 64MB, 6.4GB, 4MB, 32X, 16bit Aud $12,376.32 Transit will not need to be replaced.
(Std) IBM 6.4GB EIDE Hard Drive
(Std) 10/100 PCI Ethernet WOL
(Std) 16-bit ISA Crystal Audio Integrated
(Std) 400/100MHz MMX Pentium II Processor with 512KB Pipeline B
(Std) 4MB Integrated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internal 32X Max (Variable Speed)
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
G74 - 17(15.9)in. Color Monitor, 69 KHz, Stealth Gray $3,134.21 Transit will not need to be replaced.
SUBTOTAL
- ----------------------------------------------------------------------------------------------------------------------------------
CAMERA SUB-SYSTEMS
Hitachi HV-C20 Camera, NIST standards (3 chip) $0.00
Cosmicar/Pentax H15ZME Zoom Lens $0.00
3 point Lighting system $0.00
Pan and Tilt Camera mount $11,520.00 Replacing all but transit.
Reflective Pedestal $0.00
Cable bundle $0.00
NIST compliance capture software $0.00
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
ImageWare Software, Inc.
10883 Thornmint Road 619-673-8600
San Diego, CA 92127 Page 1 FAX 619-673-1770
<PAGE>
CONFIDENTIAL
JEMS FORCEFIELD UPGRADE
FEBRUARY 18, 1999
REVISED APRIL 28, 1999
<TABLE>
<CAPTION>
DESCRIPTION QTY UNIT EXT TOTAL DISCOUNT
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Capture Card MVPro 8 $804.00 $6,432.00
Power Supply (Three Chip) 8 $180.00 $1,440.00 100%
SUBTOTAL $94,435.20
- ----------------------------------------------------------------------------------------------------------------------------------
SOFTWARE
CCS Investigative Display Software (Full) 100 $500.00 $50,000.00 100%
CCS Capture Station software 8 $10,000.00 $80,000.00 12%
SUBTOTAL $130,000.00
- ----------------------------------------------------------------------------------------------------------------------------------
PRINTERS
Fargo ID Card Printer, 2 sided 4 $9,500.00 $38,000.00 100%
HP Laserjet B&W, 4 2 $1,026.00 $2,052.00 100%
Lexmark Optra R B/W Laser Printer 8 $1,474.20 $11,793.60 100%
Lexmark Optra C Color Laser Printer/SC 2 $2,826.90 $5,653.80 50%
Mitsubishi CP 50/700 3 $3,375.00 $10,125.00 33%
SUBTOTAL $57,499.40
- ----------------------------------------------------------------------------------------------------------------------------------
SCANNERS
Epson 636 Executive Scanner w/SCSI card 1 $846.45 $846.45
SUBTOTAL $846.45
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION> DISCOUNTED REMARKS
PRICE
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Capture Card MVPro $6,432.00
Power Supply (Three Chip) $0.00
- ----------------------------------------------------------------------------------------------------------------------------------
SOFTWARE
CCS Investigative Display Software (Full) $0.00 Already purchased.
CCS Capture Station software $70,400.00 Transit already purchased
- ----------------------------------------------------------------------------------------------------------------------------------
PRINTERS
Fargo ID Card Printer, 2 sided $0.00 These will need to be upgraded in one
year.
HP Laserjet B&W, 4 $0.00 These will need to be upgraded in one
year.
Lexmark Optra R B/W Laser Printer $0.00 These will need to be upgraded in one
year.
Lexmark Optra C Color Laser Printer/SC $2,826.90 The Canon CLC will be replaced.
Mitsubishi CP 50/700 $6,783.75 The CP 50 and the Kodak will be
replaced.
- ----------------------------------------------------------------------------------------------------------------------------------
SCANNERS
Epson 636 Executive Scanner w/SCSI card $846.45
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
DESCRIPTION QTY UNIT EXT TOTAL DISCOUNT DISCOUNTED
PRICE
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
TOTAL HARDWARE/SOFTWARE $323,089.05 $137,002.03
LICENSES
Sybase License 5.5 (32 user) 1 $3,298.90 $3,298.90 $3,298.90
Sybase License 5.5 (16 user) 1 $1,868.90 $1,868.90 $1,868.90
NT Server 4.0 License 1 $365.12 $365.12 $365.12
SUBTOTAL $5,532.92
PROJECT SUBTOTAL $328,621.97 $142,534.95
FORCEFIELD UPGRADE DISCOUNT $186,087.02
SUBTOTAL PROJECT $142,534.95
SHIPPING/HANDLING/INSTALLATION/TRAINING $38,770.69
TOTAL PROPOSAL $181,305.63
1st Year Support $58,156.03
</TABLE>
ImageWare Software, Inc.
10883 Thornmint Road 619-673-8600
San Diego, CA 92127 Page 2 FAX 619-673-1770
<PAGE>
ATTACHMENT P - CONTRACTORS PRODUCT DESCRIPTION
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
Page 72
<PAGE>
SPANISH VERSION
CRIME CAPTURE SYSTEM -TM-
DIGITAL BOOKING SOFTWARE
[GRAPHICS]
The Crime Capture System is a flexible,
easy-to-use digital booking, identification, and
retrieval system.
The Crime Capture System allows agencies to
increase crime resolution and efficiency while
significantly reducing costs.
The system utilizes off-the-shelf hardware that
complies with open industry standards and can be
interfaced with an agency's records management,
livescan fingerprint and AFIS system (Automatic
Fingerprint Identification System).
Utilizing client/server architecture, the Crime
Capture System can operate on an array of
systems ranging from a stand-alone PC to a wide
area network.
"THE MOST SOPHISTICATED SYSTEM I
HAVE SEEN.
IT'S FAST, USER-FRIENDLY AND EFFICIENT."
- Commander M.J. White -
Daytona Beach, FL Police
SYSTEM OVERVIEW
BOOKING
- Allows the capture, retrieval and storage of an unlimited number of
images for a single record
- Booking photos, including scars, marks, tattoos or weapons, can be
captured using any TWAIN compliant device
- Instantly freeze the live booking image, ensure the quality, and save or
retake the image if necessary
- Unlimited zoom capabilities
- Reduce input errors through customizable data entry pick lists and
intelligent auto-fill fields
- To minimize duplicated efforts, data entry functions can be shared with
computerized systems already in place
- Additional user defined fields are available and searchable
- Completely searchable text comments field capable of holding over 20
pages of notes
INVESTIGATION AND IDENTIFICATION
- Automatically searches for booking records that most closely resemble
that of the arrestee
- Easily drag and drop photos in or out of photo line-ups
- Instantly access booking information of photo line-up candidates
- Enhance the investigative process by easily searching for similarities
between suspects, such as tattoos, gang affiliations, etc.
<PAGE>
ADDITIONAL FEATURES
- Modular architecture allows for easy expansion from a booking system to a
full confinement facility system
- Seamlessly integrates with modules of the C.R.I.M.E.S.-Registered
Trademark- suite of law enforcement imaging products such as:
Face ID-TM- - Facial recognition
Crime Lab-Registered Trademark- - Image editing and enhancement
Suspect ID-Registered Trademark- - Computerized suspect composites
Vehicle ID-TM- - Vehicle Identification
- Customize and generate reports
- Easily set thresholds for automatic generation of reports and
notification
FOR A DEMONSTRATION OF THE CRIME CAPTURE SYSTEM OR ANY OTHER MODULE IN THE
C.R.I.M.E.S. suite of law enforcement products, contact ImageWare Software at
1-800-842-4199
[LOGO]
- ------------------------------------------------------------------------------
HOME | SUSPECT ID | CRIME LAB | VEHICLE ID | FACE ID | CRIME CAPTURE SYSTEM
IMAGEWARE | FAQ | USER SUPPORT | HOW TO ORDER | GRANTS | SUCCESS |
- ------------------------------------------------------------------------------
E-MAIL Copyright-C- 1998 ImageWare Software, Inc. We look forward to your
comments and suggestions. Please send them to [email protected].
<PAGE>
EXHIBIT 10.30
CONTRACT NO. 2740A3
THIS AGREEMENT, Made as of this 23rd day of November, 1993, by and
between XIMAGE CORPORATION, a corporation organized and existing under the
laws of the State of California, hereinafter referred to as the Contractor,
and the COUNTY OF HENNEPIN, a political subdivision of the State of Minnesota,
hereinafter referred to as the County;
WITNESSETH, That the Contractor, in consideration of the agreements
hereinafter made on behalf of the County, agrees to sell, furnish, deliver,
install, and place into proper operation a COMPUTERIZED IMAGE DATABASE for
Hennepin County Sheriff Department, in the amount of Five Hundred Thirty-Six
Thousand Five Hundred Fifty-Four and 35/100 Dollars ($536,554.35), all in
accordance with the Specifications/Invitation to Bid (and the documents
attached thereto and listed therein) and the Proposal of the Contractor,
which documents are incorporated herein by reference and made a part of this
contract as though fully set forth herein.
NOW THEREFORE, It is mutually agreed that subject to and in accordance
with the provisions contained and incorporated herein, the County shall
purchase from said Contractor and the Contractor shall sell, furnish and
deliver to the County, all of the aforementioned items.
The said Contractor further agrees to furnish on a form provided by the
County a satisfactory performance bond at or before the signing of this
contract in the amount of $536,554.35, conditioned as required by law upon
the faithful performance of this agreement.
It is understood and agreed that the Contractor will provide the Edicon
printer set forth in its Proposal.
The Contractor agrees to carry full coverage of the insurance outlined
in the specifications.
IN WITNESS WHEREOF, The parties hereto have executed this agreement.
XIMAGE CORPORATION
By /s/ Daniel W. McGaw
---------------------------------
Its Vice President
And /s/ Jagdich Narasimhan
--------------------------------
Its Secretary
COUNTY OF HENNEPIN
By /s/ Emily Anne Staples
-------------------------------------
Vice-Chair of Its County Board
And /s/ James M. Borney
-----------------------------------
County Administrator
ATTEST: /s/ Judith A. Chumley
--------------------------------
Deputy/Clerk of the County Board
Page 1 of 2 Pages
<PAGE>
Upon proper execution, this agreement
will be legally valid and binding.
/s/ Le Roy W. Jackson
- ----------------------------------
Assistant County Attorney
Date: 11-23-93
-----------------------------
Approved as to execution:
/s/ Le Roy W. Jackson
- ----------------------------------
Assistant County Attorney
Date: 12-9-93
-----------------------------
-----------------------------
State of California
----------------------------)
)
County of Santa Clara )
----------------------------)
On this 3 day of December, A.D. 1993, before me appeared Daniel W.
McGaw and Jagdich Narasimhan to me personally known, who, being each by me duly
sworn did say, that they are each respectively the vice president and the
Secretary of the XImage - the corporation named in the foregoing instrument,
and that the said instrument was signed and sealed in behalf of said
corporation by authority of its Board of Directors and said person(s)
acknowledged said instrument to be the free act and deed of said corporation.
/s/ Viola K. Henry
------------------------------
[SEAL] Notary Public
My commission expires: 9-17-97
------------------------------
Page 2 of 2 Pages
<PAGE>
VENDOR DECLARATION OF ELIGIBILITY
FOR EXEMPTION BASED ON WORKFORCE OF 20 OR FEWER EMPLOYEES
Under Hennepin County Board of Commissioners' Resolution 89-6-447, the County
may grant exemptions from Hennepin County Contract Compliance requirements to
firms that (1) submit Non-construction bids, proposals or negotiated contracts
(excluding human service provider contracts) for contracts over $50,000; and
(2) have 20 or fewer full-time employees at all times during the twelve (12)
months preceding said submission. Consideration for this exemption is based
on the number of full-time employees in the ENTIRE WORKFORCE OF THE PARENT
COMPANY AND ITS SUB-DIVISIONS. The approved exempt status is valid for the
life of the contract, contingent upon the company's workforce remaining at
20 or fewer employees during the period. Exemptions are approved by the
Hennepin County Department of Compliance and Diversity.
DECLARATION OF ELIGIBILITY
In accordance with the exemption requirements stated above, I
Daniel W. McGaw, as an officer of XImage Corporation
- -------------------- ----------------------
(Name of Individual) (Name of Company/Firm)
(hereafter referred to the "Company") do hereby affirm that the entire
workforce of the Company, INCLUDING THE PARENT COMPANY AND ITS SUB-DIVISIONS,
has not exceeded 20 full-time employees at all times during the twelve (12)
months preceding submission of the bid, proposal or negotiated
non-construction contract, Contract No. 2740A3 (over $50,000), which this
document accompanies.
The Company understands that its exempt status will be valid for the
life of the contract, contingent upon its workforce remaining at 20 or fewer
full-time employees during the approval period. If the number of full time
employees increases to 21 or more employees at any time during said period,
the Company agrees to inform the Hennepin County Department of Compliance and
Diversity Director in writing within ten (10) calendar days of such change or
be subject to sanctions imposed by Hennepin County.
/s/ Daniel W. McGaw Vice President/CFO
- ---------------------------------- ----------------------------
(Signature) (Title)
9/22/94
- ----------------------------------
(Date)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
FOR OFFICE USE ONLY
Hennepin County Approval:
Department of Compliance -------------------------------
and Diversity Director
Date:
-------------------------------
CC428 8/93
<PAGE>
[LETTERHEAD]
October 25, 1993
Attn: Mr. Patrick Johnson ----------------
XImage Corporation Certified Mail-
1050 North 5th Street Return Receipt
San Jose CA 95112
AWARD OF CONTRACT
Contract No: 2740A3
For: Computerized Image Database for Hennepin County Sheriff
Award: $536,554.35
Period: 11/1/93 through 10/31/94
Buyer: Michael A. Scanlan - 612-348-4469
Your bid on the above contract has been accepted. Required documents must be
completed and returned to the Purchasing Division within 15 days from the
date of this letter.
( ) Have the enclosed copies of the CONTRACT signed by two AUTHORIZED
OFFICERS* and notarized.
(X) Have the enclosed PERFORMANCE BOND signed by two AUTHORIZED OFFICERS,*
have the ACKNOWLEDGMENT BY PRINCIPAL (corporate or individual) completed
and notarized, and have your bonding company execute the bond and
complete and notarize the ACKNOWLEDGMENT OF SURETY.
*If the power to sign official papers has been delegated to an individual
other than the company president, vice-president, secretary, or treasurer,
attach to the contract and/or bond a certified copy of your corporate
board's authorization for such person(s) to sign. THE BOND WILL NOT BE
APPROVED BY THE COUNTY WITHOUT THIS ATTACHMENT.
( ) Have the enclosed CERTIFICATE OF INSURANCE completed by your insurance
company or agent in accordance with the contract specifications. We
require an original signature by an authorized individual. If you have
any questions regarding insurance for this contract, contact the Risk
Management Division at 348-8694.
( ) HIGHWAY PROJECTS: Execute the enclosed documents as provided by Article
1306 of the specifications.
( ) CONSTRUCTION/REMODELING PROJECTS: Property Management will issue a
NOTICE TO PROCEED with the work.
( ) We will send you a copy of the executed contract which will serve as
authorization to commence performance.
( ) PURCHASE RELEASE(S) AND/OR NOTICE TO PROCEED will be issued by the
appropriate public entity.
( ) Please proceed under the terms of the specifications.
We look forward to doing business with your company. Contact the buyer if you
have any questions.
Sincerely,
/s/ William E. Binger
- --------------------------
William E. Binger
Purchasing Manager
<PAGE>
[LETTERHEAD]
September 15, 1994
Attn: Patrick Johnson
Ximage Corporation
1050 North 5th Street
San Jose CA 95112
CONTRACT EXTENSION INQUIRY
Contract No: 2740A3
For: Computerized Image Database for Hennepin County Sheriff
Department
Period: 11/1/94 through 10/31/95
Buyer: Michael Scanlan - 612-348-4469
The above-referenced contract will expire soon. Please indicate below whether
your firm would extend this contract, provide any required documents, and
return it by October 5, 1994. Once I have this information I will
determine whether to extend this contract, if you so agree, or to obtain new
bids.
( ) If this box is checked, contractors must submit Affirmative Action
Plans for contracts and contract extensions that exceed $50,000 (sample
plan enclosed).
*
( ) If this box is checked, contractors with approved plans must fill out
and submit the enclosed addendum.
Call me if you have any questions.
Sincerely, *firms with fewer than 20 employees
must complete the enclosed exemption.
/s/ Michael A. Scanlan
MC
Michael A. Scanlan
Senior Buyer
( ) Our firm is willing to extend the contract for:
(X) one (1) year.
( ) the period through .
------------------- ----------------
The price will:
(X) remain the same.
( ) decrease. A list of new prices is attached.
( ) increase (if allowed in the contract). Justification for the
increase is attached along with a list of new prices.
( ) Our firm will not extend this contract, but please keep our firm on the
bidders list for future solicitations.
Authorized
Signature /s/ Daniel W. McGaw Date 9/23/94
-------------------------------------- --------------------
Name (typed) Daniel W. McGaw Phone 408-1288
----------------------------------- -------------------
<PAGE>
[LETTERHEAD]
September 28, 1994
Daniel W. McGaw
XImage Corporation
1050 N. 5th St.
San Jose CA 95112
CONTRACT EXTENSION
Contract No: 2740A4
For: Computerized Image Database for Hennepin County Sheriff
Dept.
Award: Renewal
Extension Period: 11/1/94 through 10/31/95
Buyer: Michael A. Scanlan
612-348-4469
The above-referenced contract has been extended for the period indicated:
(X) in accordance with your original bid received on 8/17/93 .
----------------
( ) in accordance with your new prices received on .
----------------
(X) Please proceed under the terms of the contract.
Required documents checked below must be completed and returned to the buyer
within 15 days from the date of this letter.
( ) Enclosed is the required PERFORMANCE BOND. Have it signed by an
AUTHORIZED OFFICER(S), have the ACKNOWLEDGMENT BY PRINCIPAL (corporate or
individual, as appropriate) completed and notarized, and HAVE YOUR BONDING
COMPANY execute the bond and complete and notarize the ACKNOWLEDGMENT OF
SURETY. Signatures of the corporation's officers are preferable. If the
power to sign has been delegated to others in the corporation, a current
certified copy of the corporate board's action authorizing them to sign
must be attached to the bond.
( ) Enclosed is the required CERTIFICATE OF INSURANCE. Have it completed by
your insurance company or agent in accordance with the contract
specifications regarding insurance. We require an original signature BY AN
AUTHORIZED INDIVIDUAL. If you have any questions regarding insurance for
this contract, contact Risk Management at 348-4674.
We look forward to continuing business with your company. Contact the buyer
if you have any questions about this extended contract.
Sincerely,
/s/ William E. Binger
- ---------------------------
William E. Binger
Purchasing Manager
<PAGE>
XImage Corporation
Proposal
TABLE OF CONTENTS
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17 August 1993 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
<TABLE>
<CAPTION>
TABLE OF CONTENTS
-----------------
<S> <C>
1. COVER LETTER AND PROPOSAL
2. TABLE OF CONTENTS
3. FORCEFIELD SYSTEM FUNCTIONAL DESCRIPTION
-> Why Choose XImage?
-> Our Approach to Imaging
4. HENNEPIN RFP RESPONSE (SECTIONS 3-13)
3 Terms and Conditions 7
4 General Requirements 18
5 System Functions 23
6 Mechanical and Electrical Requirements 45
7 Hardware Specifications 48
8 Software Specifications 81
9 Network 99
10 Security 102
11 Support/Warranty/Maintenance 104
12 Training 109
13 Future Plan Statement 113
5. HENNEPIN APPENDICES
APPENDIX A Current Installations
B CAL-PHOTO Requirements
C General Hardware Configuration
D Recommended System Pricing Sheets
E Optional Items & Upgrades
F Documentation Listing Sheet
G Quality Rating Scale
6. XIMAGE APPENDICES
-> Installation Schedule
-> Customer References
-> Recent Bid Awards
-> XImage System Installation Team
7. AGREEMENTS
-> Software Maintenance Agreement
-> Hardware Maintenance Agreement
-> Installation Agreement
-> License Agreement
8. TECHNICAL PRODUCT INFORMATION
9. FORCEFIELD SAMPLE ENTRY SCREENS
10. FORCEFIELD PRINT SAMPLES
</TABLE>
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17 August 1993 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
FORCEFIELD SYSTEM
FUNCTIONAL DESCRIPTION
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17 August 1993 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
WHY CHOOSE XIMAGE?
The ForceField Computerized Image Database Management System is an
integrated imaging solution of sophisticated hardware and software components
specifically designed to accommodate the capture, storage, and retrieval of
high-quality images in large databases. Designed exclusively for law
enforcement and jail management, the modular design of the ForceField system
allows XImage to customize the hardware and software to meet the specific
needs of each user. The key characteristics of this product are MULTI-USER
CAPABILITY, HIGH CAPACITY DATABASE FACILITIES, AND EASE OF OPERATION.
ADDITIONALLY, THE SYSTEM PROVIDES THE FOLLOWING:
- Full compliance with the California Law Enforcement Electronic
Photographic Imaging System Standards (Cal Photo)
- Full backup capability concurrent with system operation
- Multiple layers of independent security
- Turnkey installation
- Audit trails
- Management reports
- Inter-system networking capability
- True multi-tasking operating system
- Multiple simultaneous database update & retrieval
- Ease of expansion, coupled with capability for growth
- Support facility available 24-hours/day -- 7 days/week
- Capability to enter information on scars, marks, and tattoos
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17 August 1993 4 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
OUR APPROACH TO IMAGING
XImage Corporation is a privately held California corporation. Our business
philosophy is to provide high performance imaging systems exclusively for law
enforcement agencies. Providing these systems since 1987, XImage has over 20
years of combined system operation. The ForceField system is currently
operational at 25 sites, 24 hours a day, 365 days a year. It is responsible
for over 500,000 bookings per year, or over 1,300 per day. During this time
we have compiled an impressive "Who's Who of Law Enforcement Agencies"
worldwide.
In addition to our many installations within the United States, we also have
installations in progress in Montreal, Canada as well as the Country of
Kuwait. The system in Kuwait will be able to store and retrieve 2 million
images.
In installations where there is a need for more than one display terminal,
multiple ImageStations will be networked to the ImageBank, providing access
to data and images from all locations. We also have the ability to direct
printing to other printers on the network. This important enhancement allows
agencies to have much more flexibility with their printer configurations,
while at the same time decreases hardware and maintenance costs. This feature
is a ForceField exclusive.
One of the strengths of the ForceField system is its powerful software that
incorporates the latest in image processing technology and ease of use
features. The ForceField software consists of three major components - the
database management system, the image management system, and the user
interface system.
The database structure and access software were designed to address two major
issues: retrieval speed and multi-user support. The database structure was
specifically designed for efficient organization of data, enabling rapid
search and retrieval. The image management software controlled by the
ImageBank, interacts with the optical or magnetic disks to store and retrieve
images.
Since speed is a necessity in the use of the system, each ImageStation is
configured with processing capabilities to provide rapid response time to the
user allowing the ImageBank to efficiently manage the database. The
ImageStation's processing facility is used for the screen interface, printer
control, image review and compression.
One of the key objectives in the design of the ForceField system was that the
system be user friendly. All functions are menu-driven and incorporate both
pull-down and pop-up windows. In addition, the single monitor non-interlaced
screen produces a "flicker-free" display which reduces operator fatigue and
eye strain. Furthermore, operation of the system is accomplished through
either keyboard commands or the use of an optical mouse. This enables people
who are unfamiliar with computers to find themselves at ease with a "point
and click" method of operation.
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17 August 1993 5 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
XImage Corporation stands behind their systems with a comprehensive program
for system support and maintenance. We believe our commitment begins prior to
system installation. We provide a thorough system specification session where
the agency will be able to customize screen layouts and print formats. XImage
Corporation takes special pride in our quality print formats. Please take the
time to view examples of our work in Section J of this proposal and compare
them to the competition. We can handle any of the special print format needs
of Hennepin County.
Before final acceptance of the system, XImage will train all users in the
operation of their new ForceField system. Our job is not done until all
personnel are fully trained in system function and operation.
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17 August 1993 6 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
HENNEPIN RFP RESPONSE
(SECTIONS 3-13)
- ------------------------------------------------------------------------------
17 August 1993 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
COMPUTERIZED IMAGE DATABASE
3 TERMS AND CONDITIONS
*******************************************************************************
The following information within this section has been reviewed and
understood. Except as noted, XImage Corporation is in full compliance with
the following terms and conditions set by Hennepin County. Please refer to
the individual sections for applicable exceptions.
*******************************************************************************
3.1 COMPLETION OF PRICING SHEETS: THE BIDDER SHALL COMPLETE ALL
PRICING SHEETS IN ACCORDANCE WITH WRITTEN INSTRUCTIONS ON EACH
SECTION.
3.2 BIDDERS CONFERENCE AND CONTACT PERSONS:
FOR THE PURPOSE OF CLARIFYING TERMS, CONDITIONS OR REQUIREMENTS OF
THESE SPECIFICATIONS, A PRE-BID CONFERENCE WILL BE HELD. IT IS THE
BIDDER'S RESPONSIBILITY TO SECURE AND THOROUGHLY REVIEW ALL ASPECTS OF
THE BIDDING DOCUMENT PRIOR TO THE CONFERENCE. BIDDERS' REQUESTS FOR
CLARIFICATION OR INTERPRETATION OF THE BIDDING DOCUMENTS SHALL BE MADE
IN WRITING AND RECEIVED BY THE COUNTY NO LATER THAN EIGHT CALENDAR
DAYS PRIOR TO THE CONFERENCE. LETTERS SHALL STATE CLEARLY AND IN
DETAIL THE BASIS FOR SUCH REQUESTS AND SHALL BE SENT BY CERTIFIED OR
REGISTERED MAIL OR PERSONALLY DELIVERED TO:
MR. MIKE SCANLON (PURCHASING CONTACT)
HENNEPIN COUNTY PURCHASING DEPARTMENT
A2205 HENNEPIN COUNTY GOVERNMENT CENTER
MINNEAPOLIS, MINNESOTA 55487-0225
WITH A COPY TO:
LT. CHERYL LOOSE (PROJECT CONTACT)
HENNEPIN COUNTY SHERIFF'S DEPARTMENT
350 SOUTH 5TH STREET, COURTHOUSE ROOM 36
MINNEAPOLIS, MINNESOTA 55415
A BIDDER'S CONFERENCE WILL BE HELD. REFER TO THE COVER SHEET FOR
SPECIFIC DATE, TIME AND LOCATION. NO SUBSTITUTE DATE WILL BE ALLOWED.
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17 August 1993 7 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
3 TERMS AND CONDITIONS
3.3 REVISIONS: IF IT SHOULD BE FOUND NECESSARY TO REVISE ANY PART OF
THESE SPECIFICATIONS, A WRITTEN ADDENDUM WILL BE PREPARED AND SENT TO
ALL BIDDERS WHO RECEIVED THE ORIGINAL BID DOCUMENT.
3.4 ERRORS OR OMISSIONS: THE BIDDER WILL NOT BE ALLOWED TO TAKE
ADVANTAGE OF ERRORS OR OMISSIONS IN THE SPECIFICATIONS. WHERE ERRORS
OR OMISSIONS APPEAR IN THE SPECIFICATIONS, THE BIDDER WILL PROMPTLY
NOTIFY PERSONS NAMED IN THE CONTACT PERSONS SECTION, OF SUCH ERROR OR
OMISSION NO LATER THAN SEVEN DAYS PRIOR TO BID OPENING DATE.
3.5 CONTRACT PERIOD: THE CONTRACT PERIOD SHALL COMMENCE ON THE DAY
FOLLOWING THE DATE OF THE COUNTY ATTORNEY'S APPROVAL OF CONTRACTOR'S
CONTRACT EXECUTION AND TERMINATE TWELVE (12) MONTHS THEREAFTER. AN
IMPORTANT PURPOSE OF THE CONTRACT PERIOD IS TO ESTABLISH A TIME PERIOD
DURING WHICH THE SOFTWARE AND HARDWARE PROPOSED IN THE BID, SOFTWARE
SUPPORT/CONSULTING, HARDWARE MAINTENANCE, WARRANTY, UPGRADES AND
FEATURES TO ANY SUCH SOFTWARE OR ADDITIONAL HARDWARE AS IS
CONTEMPLATED IN THE SPECIFICATIONS OF THE TYPE AND MODELS PROPOSED MAY
BE ORDERED IN ACCORDANCE WITH THESE SPECIFICATIONS, AND AT THE PRICES
QUOTED ON THE BID PROPOSAL FORM, EXCEPT INSOFAR AS PRICES MAY BE
INCREASED OR DECREASED AS ALLOWED IN THESE SPECIFICATIONS AS DESCRIBED
IN THE "PRICE CHANGES" SECTION 3.8.
THE CONTRACT PERIOD MAY BE EXTENDED FOR UP TO SIX (6) ADDITIONAL
TWELVE (12) MONTH PERIODS WITH THE CONSENT OF BOTH THE COUNTY AND THE
CONTRACTOR DURING WHICH TIME ADDITIONAL HARDWARE AND SOFTWARE OF THE
TYPE AND MODELS PROPOSED, UPGRADES AND FEATURES MAY BE ORDERED. IF
THE COUNTY DESIRES TO SO EXTEND, THE PURCHASING MANAGER WILL SO
ADVISE THE CONTRACTOR PRIOR TO EXPIRATION OF THE CONTRACT OR
RELEVANT EXTENSION PERIOD. IF EXTENDED, THE ORIGINAL TERMS AND
CONDITIONS, EXCEPT THE TIME AND PRICES (EXCEPT INSOFAR AS SUCH PRICES
MAY BE CHANGED AS ALLOWED IN THE SPECIFICATIONS) SHALL REMAIN IN
EFFECT. MAINTENANCE CONTRACTS ARE SEPARATE AND WILL BE HANDLED AS
DESCRIBED IN SECTION 11 OF THIS DOCUMENT.
3.6 FUTURE CONTINUITY: FOR THE PURPOSES OF OBTAINING THE BIDDERS BEST
BID QUOTATIONS, AND ASSURING THAT THE CONTRACTOR WILL ASSIST IN THE
SYSTEM'S FUTURE COMPLETENESS AND CONTINUITY AS WELL AS INFORM THE
BIDDER COMMUNITY OF THE COUNTY'S FUTURE NEEDS, IT IS ADVISED THAT THE
COUNTY ANTICIPATES ADDITION OF PHOTO IMAGE APPLICATIONS AND
WORKSTATIONS WITHIN THE COUNTY SHERIFF'S DEPARTMENT. THE BIDDER IS
FURTHER ADVISED THAT OTHER COUNTY DEPARTMENTS AND LAW ENFORCEMENT
AGENCIES WITHIN MINNESOTA MAY BE ADDED TO THE SYSTEM FOR CONTINUED
ACCESS TO SYSTEM RECORDS AND STORAGE OF
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17 August 1993 8 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
3. TERMS AND CONDITIONS
3.6 FUTURE CONTINUITY: (CONTINUED)
THEIR OWN RECORDS. THE BIDDER SHALL CLEARLY INDICATE THAT BIDS
SUBMITTED AND PRICES QUOTED ARE EXTENDED TO THESE ADDITIONAL USERS,
SHOULD THEY JOIN THE SYSTEM.
ANY COSTS FOR THE PURCHASE OF HARDWARE OR SOFTWARE, WARRANTY,
MAINTENANCE FOR ADDITIONAL USERS WILL BE THE RESPONSIBILITY OF THE
USER AND WILL REQUIRE AN AGREEMENT BETWEEN THE USER AND THE
CONTRACTOR, FOLLOWING WRITTEN AGREEMENT AND NOTICE FROM THE COUNTY
AND THE USER. THE COUNTY OR OTHER LAW ENFORCEMENT AGENCIES WITHIN
MINNESOTA WILL IN NO MANNER BE REQUIRED TO ORDER OR PURCHASE ANY OR
ALL OF THE AFORESAID ADDITIONAL ITEMS NOR SHALL IT IN ANY MANNER BE
LIABLE FOR NOT SO ORDERING OR PURCHASING.
3.7 CONTRACT INCREASES, DECREASES AND DELETES: THE COUNTY MAY DESIRE
TO INCREASE, DECREASE OR DELETE THE QUANTITIY OF ANY BID ITEM OR
PURCHASE ANY DELETED OR OPTIONAL ITEM AT A FUTURE DATE. SUCH
CHANGES SHALL IN NO WAY INVALIDATE THE CONTRACT. THE APPROXIMATE
QUANTITIES OF INITIAL HARDWARE TO BE PURCHASED UNDER THIS
PROCUREMENT ARE SHOWN IN THE HARDWARE SECTION OF THIS DOCUMENT.
FOR THE PURPOSE OF QUOTING PRICES, A BID "ITEM" SUCH AS A
WORKSTATION INCLUDES BOTH HARDWARE AND SOFTWARE. THE COUNTY WILL
NOT, FOR EXAMPLE, ELECT TO PURCHASE ONLY THE SOFTWARE PORTION OF A
BID. THE COUNTY MAY ELECT TO PURCHASE MORE OR LESS OF AN "ITEM"
SUCH AS WORKSTATIONS WITH SOFTWARE OR PRINTERS.
FURTHER, PAYMENT FOR PURCHASES NOT IN THE INITIAL PURCHASE OF
ADDTIONAL HARDWARE, SOFTWARE, SERVICES, SOFTWARE SUPPORT AND
CONSULTING, UPGRADES, FEATURES, EXTENDED WARRANTY OR MAINTENANCE
SHALL BE MADE WITHIN THIRTY DAYS AFTER RECEIPT OF INVOICE OR
ACCEPTANCE OF ANY SUCH ITEM, WHICHEVER IS LATER.
3.8 PRICE CHANGES: THE ORIGINAL BID PRICES SHALL REMAIN IN EFFECT FOR
A PERIOD OF TWELVE (12) MONTHS. THEREAFTER PRICE CHANGES SHALL BE
ALLOWED ONLY IN ACCORDANCE WITH THIS SECTION. IF THE CONTRACT IS
EXTENDED, (NOTE: THE BID PRICE IS THEN HELD FIRM FOR AN ADDITIONIAL
TWELVE (12) MONTHS, AFTER WHICH TIME, THE PRICE MAY BE ADJUSTED
AGAIN FOLLOWING THE SAME PROCEDURE AND THEREAFTER THROUGHOUT THE
CONTRACT PERIOD.) PRICE INCREASES SHALL BE LIMITED TO THE LESSER
OF THE FOLLOWING:
1. SEVEN PERCENT (7%) PER EACH RELEVANT TWELVE (12) MONTH PERIOD;
OR
2. THE PERCENTAGE CHANGE - AS APPLIED TO THE RELEVANT TWELVE
MONTH PERIOD - IN THE "IMPLICIT PRICE DEFLATOR FOR GOVERNMENT
PURCHASES OF GOODS AND SERVICES BY TYPE" FOR DURABLE GOODS
AND/OR
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17 August 1993 9 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
3 TERMS AND CONDITIONS
3.8 PRICE CHANGES: (CONTINUED)
SERVICES AS PUBLISHED IN THE SURVEY OF CURRENT BUSINESS BY THE
UNITED STATES DEPARTMENT OF COMMERCE/BUREAU OF ECONOMIC
ANALYSIS, AS ESTABLISHED BY COMPUTING THE DIFFERENCE BETWEEN
THE INDEX VALUE OF THE QUARTER NEAREST TO THE LAST MONTH OF
THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE
RELEVANT TWELVE (12) MONTH PERIOD.
THE COUNTY SHALL RECEIVE AT LEAST THIRTY (30) DAYS WRITTEN NOTICE,
PRIOR TO THE END OF THE CURRENT CONTRACT, A NEW PRICE LIST FOR
CONTRACT EXTENSION. ADDITIONALLY, EACH ITEM AVAILABLE FROM THE
SUCCESSFUL CONTRACTOR SHALL BE INCLUDED ON ANY NOTIFICATION
REGARDLESS OF WHETHER OR NOT THERE IS ANY PRICE CHANGE FOR ANY SUCH
ITEM.
NOTHING IN THE ABOVE IS TO BE CONSTRUED AS LIMITING THE BIDDER FROM
CHARGING A LESSER PRICE THAN THE CURRENT BID PRICE AT ANY TIME
AFTER AWARD.
IN THE EVENT THE NEW PRICE FOR A GIVEN ITEM IS CONSIDERED BY THE
COUNTY TO BE EXCESSIVE, THE COUNTY AT ITS OPTION MAY REBID OR
PURCHASE FROM EXISTING CONTRACTS FOR THE SAME ITEM.
3.9 LIQUIDATED DAMAGES, DELAYS AND EXTENSIONS OF TIME:
TIME BEING AN ESSENTIAL ELEMENT OF THE CONTRACT HEREUNDER IT IS
HEREBY AGREED THAT THE COUNTY WILL BE ENTITLED TO DAMAGES FOR
FAILURE ON THE PART OF THE CONTRACTOR TO COMPLETE ITS OBLIGATIONS
WITHIN THE DATE(S) OR TIME(S) SPECIFIED IN THE SPECIFICATIONS IF
THE COUNTY DETERMINES THAT AN EXTENSION IS NOT JUSTIFIED; AND WHERE
UNDER THE CONTRACT AN ADDITIONAL TIME IS ALLOWED FOR THE
PERFORMANCE OR COMPLETION OF ANY WORK OR OBLIGATION, THE NEW TIME
LIMIT FIXES BY SUCH EXTENSION SHALL ALSO BE OF THE ESSENCE OF THE
CONTRACT. IN VIEW OF THE IMPRACTICALITY AND EXTREME DIFFICULTY OF
FIXING AND ASCERTAINING THE ACTUAL DAMAGES THE COUNTY WOULD SUSTAIN
IN SUCH EVENT, THE COUNTY SHALL BE ENTITLED TO $100 PER DAY FOR
EACH AND EVERY CALENDAR DAY BEYOND THE DATE(S) OR TIME(S)
STIPULATED IN THESE SPECIFICATIONS FOR ANY DELIVERY, INSTALLATION,
TURNOVER, UPGRADE/RUN, TRAINING, OR ANY OTHER ACT OR PERFORMANCE
REQUIRED OF CONTRACTOR. (FOR WARRANTY AND MAINTENANCE CALL
RESPONSE DELAYS FOR CRITICAL COMPONENTS, DEFINED AS ALL COMPONENTS
LISTED IN THE HARDWARE SECTION UNDER FILE SERVER AND THE TAPE
BACKUP UNIT, THE SUM SHALL BE $50 PER HOUR. REFER ALSO TO ITEM
11.5) THE AFORESAID SPECIFIED AMOUNT(S) SHALL NOT BE CONSTRUED AS
A PENALTY BUT AS LIQUIDATED DAMAGES FOR ANY SUCH FAILURE ON THE
PART OF THE CONTRACTOR. IN ANY SUIT INVOLVING ASSESSMENT OR
RECOVERY OF LIQUIDATED DAMAGES, THE REASONABLENESS OF THE DAILY OR
HOURLY CHARGES SHALL BE PRESUMED, AND THE
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17 August 1993 10 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
3 TERMS AND CONDITIONS
3.9 LIQUIDATED DAMAGES, DELAYS AND EXTENSIONS OF TIME:
AMOUNT ASSESSED, AS WELL AS THE CANCELLATION RIGHT REFERENCED IN
SECTION 3.10, WILL BE IN ADDITION TO EVERY OTHER RIGHT OR REMEDY
NOW OR HEREINAFTER ENFORCEABLE AT LAW, IN EQUITY, BY STATUTE, OR
UNDER THE CONTRACT. ANY SUCH CHARGE AGINST THE CONTRACTOR MAY BE
DEDUCTED FROM MONIES DUE OR COMING DUE TO CONTRACTOR. IF SUCH
MONIES ARE NOT SUFFICIENT TO COVER THE TOTAL AMOUNT ASSESSED,
CONTRACTOR, AFTER ITS RECEIPT OF BILLING THEREFORE FROM THE COUNTY,
SHALL PROMPTLY PAY THE COUNTY THE AMOUNT STATED IN SAID BILLING.
THE COUNTY MAY WAIVE IN WRITING ALL OR ANY PORTION OF THE
LIQUIDATED DAMAGE ASSESSMENT AFTER THE DATE SERVICES OR OBLIGATIONS
ARE COMPLETED BY THE CONTRACTOR AND ACCEPTED BY THE COUNTY.
PERMITTING THE CONTRACTOR TO CONTINUE AND COMPLETE THE SERVICES OR
OBLIGATIONS OR ANY PART OF THEM AFTER THE STIPULATED TIMES
THEREFORE SHALL NOT IN ANY WAY OPERATE AS A WAIVER ON THE PART OF
THE COUNTY OF ITS RIGHTS HEREUNDER. NO ACT BY THE COUNTY IN
PURSUING OR EFFECTING ITS RIGHT HEREUNDER SHALL CONSTITUTE A
FORFEITURE OF THE COUNTY'S RIGHT TO RECOVER LIQUIDATED DAMAGES FROM
THE CONTRACTOR AND/OR ITS SURETY.
3.9.1 EXCEPTIONS: THE CONTRACTOR SHALL NOT BE CHARGED WITH
LIQUIDATED DAMAGES WHEN ANY SUCH DELAYS OR FAILURE ARE DUE
TO: ANY ACT OR NEGLECT OF THE COUNTY, OR BY ANY OF THE
COUNTY'S EMPLOYEES, WRITTEN OR MUTUALLY AGREED TO CHANGES IN
THE CONTRACT, LABOR DISPUTES, FIRE, UNUSUAL DELAY IN
TRANSPORTATION, ADVERSE WEATHER CONDITIONS NOT REASONABLY
ANTICIPATED, UNAVOIDABLE CASUALTIES, OR ANY OTHER CAUSES
BEYOND THE CONTRACTOR'S REASONABLE CONTROL AND WITHOUT FAULT
OR NEGLIGENCE OF THE CONTRACTOR. CONTRACT TIME OR
PERFORMANCE DATES OR TIMES MAY BE EXTENDED FOR SUCH
REASONABLE TIME AS THE COUNTY'S PURCHASING MANAGER MAY
DETERMINE. A CLAIM FOR EXTENSION SHALL NOT BE ALLOWED
UNLESS CONTRACTOR, NOT LATER THAN THE END OF THE FIRST
COUNTY BUSINESS DAY FOLLOWING THE DAY ON WHICH SAID CLAIM
FIRST AROSE, SHALL HAVE TELEPHONED AND INFORMED EITHER OF
THE FOLLOWING PERSONS ABOUT THE FULL DETAILS OF THE CAUSE(S)
NECESSITATING SUCH A CLAIM: LT. CHERYL LOOSE
(612/348-9648), OR MR. MICHAEL SCANLON AT (612/348-4469).
WITHIN SIX (6) CALENDAR DAYS FOLLOWING ANY SUCH PHONE CALL,
CONTRACTOR ALSO SHALL SEND TO EACH OF THE COUNTY'S ADDRESSES
REFERENCED IN SECTION 3.2 ABOVE A COMMUNICATION SPECIFYING
IN DETAIL THE CAUSE(S) OF THE DELAY.
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17 August 1993 11 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
3 TERMS AND CONDITIONS
3.9.2 NOT VALID EXCEPTIONS: THE CIRCUMSTANCES OR CONDITIONS WHICH
SHALL NOT BE CONSIDERED VALID REASONS FOR THE GRANTING OF TIME
EXTENSIONS INCLUDE BUT ARE NOT IN ANY MANNER WHATSOEVER LIMITED
TO THE FOLLOWING:
1. ANY PLEA BY THE CONTRACTOR THAT INSUFFICIENT TIME WAS
ALLOWED IN THE CONTRACT AWARDED.
2. DELAYS CAUSED BY CONDITIONS THAT COULD BE FORESEEN OR
ANTICIPATED PRIOR TO BIDDING.
3. UNREASONABLE DELAYS DUE TO SLOW DELIVERY OF MATERIAL FROM
THE SUPPLIER OR FABRICATOR RESULTING FROM LATE ORDERING,
UNRELIABLE SOURCE SELECTION, REASONS OF PRIORITY, FINANCIAL
CONSIDERATION, OR OTHER CAUSES WITHIN THE POWER OF THE
CONTRACTOR OR SUPPLIERS TO OVERCOME, WHEN THE MATERIAL IS
AVAILABLE IN WAREHOUSE STOCK AT ANY REALISTIC SOURCE.
4. DELAYS DUE TO THE CONTRACTOR'S FAILURE TO PROVIDE SUFFICIENT
FORCES TO MAINTAIN SATISFACTORY PROGRESS IN COMPLETING THE
CONTROLLED ITEMS OF WORK.
3.9.3 PERFORMANCE: FINAL ACCEPTANCE SHALL BE COMPLETED WITHIN ONE
HUNDRED EIGHTY (180) DAYS AFTER THE DATE SPECIFIED IN THE
NOTICE TO PROCEED. THE COUNTY'S PROJECT MANAGER WILL, AT NO
COST OR ANY OTHER LIABILITY TO THE COUNTY, HAVE THE RIGHT TO
DIRECT IN WRITING THAT THE CONTRACTOR DELAY THE ACTUAL
COMMENCEMENT OF THE WORK TO BE PERFORMED OR SUSPEND OR DELAY
WORK BEING PERFORMED IN THE EVENT ANY OF THE FOLLOWING OCCUR:
WRITTEN OR MUTUALLY AGREED TO CHANGES IN THE CONTRACT, LABOR
DISPUTES, FIRE, UNUSUAL DELAY IN TRANSPORTATION, ADVERSE
WEATHER CONDITIONS NOT REASONABLY ANTICIPATED, UNAVOIDABLE
CASUALTIES, OR ANY OTHER CAUSES BEYOND THE COUNTY'S REASONABLE
CONTROL. THE CONTRACTOR SHALL BE GRANTED AN EXTENSION OF THE
COMPLETION TIME EQUAL TO THE NUMBER OF WORKING DAYS DELAYED
DUE TO COMPLIANCE WITH THE DIRECTION TO DELAY OR SUSPEND.
3.10 RIGHT OF CONTRACT CANCELLATION: IF DURING SAID PERIOD THE CONTRACTOR
FAILS TO CURE SUCH DELAY OR FAILURE IN PERFORMANCE, THE PROVISIONS OF
THIS SECTION SHALL NOT PRECLUDE THE COUNTY FROM CANCELING OR
TERMINATING THE CONTRACT REGARDLESS OF ANY ACT OR EVENT BEYOND
CONTRACTOR'S REASONABLE CONTROL, AS AFORESAID, PROVIDED THAT THE
COUNTY SHALL HAVE GIVEN THE CONTRACTOR THIRTY (30) DAYS PRIOR WRITTEN
NOTICE OF THE COUNTY'S INTENTION TO SO CANCEL OR TERMINATE.
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17 August 1993 12 Hennepin County Sheriff's Department
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<PAGE>
XImage Corporation
Proposal
3 TERMS AND CONDITIONS
3.11 PERFORMANCE BONDING: A PERFORMANCE BOND SHALL BE REQUIRED. THE BOND
SHALL BE FOR THE AMOUNT OF THE ACCEPTED BID, AND IT SHALL BE
MAINTAINED THROUGH WRITTEN FINAL ACCEPTANCE OF THE SYSTEM.
3.12 DESIGNATED CONTRACTOR'S PROJECT MANAGER: CONTRACTOR SHALL DESIGNATE
FROM THE CONTRACTOR'S COMPANY A CONTRACTOR PROJECT MANAGER WHO SHALL
BE ACCOUNTABLE AND DIRECTLY ACCESSIBLE TO THE COUNTY REGARDING THE
PERFORMANCE, PROGRESS AND COMPLETION OF ALL PHASES OF WORK THROUGH
FINAL ACCEPTANCE AND WARRANTY PERIOD. SPECIFICALLY, THE CONTRACTOR'S
PROJECT MANAGER SHALL OVERSEE THE PROJECT ON BEHALF OF THE CONTRACTOR
FOR THE FOLLOWING PROJECT RESPONSIBILITIES: IMPLEMENTATION SCHEDULES,
THE QUALITY OF WORKMANSHIP IN INSTALLATION, THE PERFORMANCE AND
QUALITY OF ALL HARDWARE AND SOFTWARE, TRAINING, SERVICES AND MATERIALS
WITHIN THE SYSTEM, AND RECEIVING ON BEHALF OF THE CONTRACTOR WRITTEN
DIRECTIONS AND/OR INSTRUCTION FROM THE COUNTY'S PROJECT MANAGER.
3.13 SECURITY CLEARANCE: HENNEPIN COUNTY SHERIFF'S OFFICE SECURITY
CLEARANCE IS REQUIRED FOR ALL PERSONS ACCESSING SYSTEM DATA,
PERFORMING SYSTEM INSTALLATION AND/OR MAINTENANCE. NO PERSONAL
APPEARANCE WILL BE REQUIRED PROVIDED A PHOTO AND FINGERPRINTS CAN BE
OBTAINED VIA ANOTHER LAW ENFORCEMENT AGENCY.
3.14 TECHNICAL ASSISTANCE: THE CONTRACTOR SHALL PROVIDE NECESSARY
ENGINEERING OR FACTORY TECHNICAL ASSISTANCE REQUIRED BY THE COUNTY FOR
PROPER OPERATION OF THE CONTRACTOR'S HARDWARE AND SOFTWARE DURING THE
INSTALLATION, TRAINING, ACCEPTANCE, AND WARRANTY PERIODS SPECIFIED IN
THE DOCUMENT, ANY MAINTENANCE PERIODS, AND FUTURE PROJECTS CONTRACTED.
3.15 RESOLUTION OF QUESTIONS AND ISSUES: EXCEPT AS OTHERWISE PROVIDED IN
THIS DOCUMENT OR THE CONTRACT, THE COUNTY'S PROJECT MANAGER SHALL BE
RESPONSIBLE FOR DECIDING ALL QUESTIONS AND ISSUES WHICH ARISE WITH
RESPECT TO INTERPRETATION OF SYSTEM REQUIREMENTS AND DOCUMENTATION.
RESOLUTION OF SUCH QUESTIONS AND ISSUES SHALL BE FINAL AND SHALL BE
FURNISHED TO THE CONTRACTOR IN WRITING. THE CONTRACTOR SHALL PROCEED
WITH OF NON-AFFECTED TASKS PENDING THE PROJECT MANAGER'S DECISION.
3.16 PROJECT REPORTING: THE CONTRACTOR SHALL SUBMIT BIMONTHLY PROGRESS
REPORTS IN WRITING TO THE COUNTY PROJECT MANAGER ON THE STATUS AND
PROGRESS OF THE PROJECT. THE REPORTS SHALL INCLUDE THE FOLLOWING AS A
MINIMUM: WORK COMPLETED TO DATE, PROBLEMS ENCOUNTERED ALONG WITH
PROPOSED SOLUTIONS, WORK ESTIMATED TO BE ACCOMPLISHED DURING THE
COMING PERIOD, AND OTHER POINTS CONCERNING THE SCHEDULING OF THE
PROJECT. PROJECT IMPLEMENTATION COORDINATION MEETINGS SHALL BE
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17 August 1993 13 Hennepin County Sheriff's Department
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<PAGE>
XImage Corporation
Proposal
3 TERMS AND CONDITIONS
3.16 PROJECT REPORTING: (CONTINUED)
HELD, AS REQUESTED BY THE COUNTY PROJECT MANAGER, WITH THE
CONTRACTOR'S PROJECT MANAGER AND OTHER NECESSARY CONTRACTOR'S STAFF AS
IS DEEMED APPROPRIATE BY THE COUNTY.
3.17 SUBCONTRACTING: THE CONTRACTOR SHALL NOT ASSIGN, SUBLET, TRANSFER OR
PLEDGE THIS CONTRACT AND/OR THE SERVICES TO BE PERFORMED HEREUNDER,
WHETHER IN WHOLE OR IN PART, WITHOUT THE PRIOR WRITTEN CONSENT OF THE
COUNTY. THE CONTRACTOR SHALL BE FULLY RESPONSIBLE FOR THE ACTS,
OMISSIONS, AND FAILURES OF HIS/HER SUBCONTRACTORS TO PERFORM ITS
SERVICES IN ACCORDANCE WITH THIS CONTRACT. CONTRACTS BETWEEN THE
CONTRACTOR AND THE SUBCONTRACTOR SHALL BE IN ACCORDANCE WITH THE TERMS
AND CONDITIONS OF THIS CONTRACT. THE COUNTY SHALL ASSUME NO
CONTRACTUAL RELATIONSHIP WITH SUBCONTRACTORS.
3.18 RISK OF LOSS: THE COUNTY SHALL BE RELIEVED FROM ALL RISKS OF LOSS OR
DAMAGE TO THE EQUIPMENT AND SOFTWARE DURING PERIODS OF
TRANSPORTATION/SHIPPING AND INSURANCE, INSTALLATION, TESTING AND
TRAINING AND DURING THE ENTIRE TIME THE EQUIPMENT AND SOFTWARE ARE IN
THE POSSESSION OF THE COUNTY UNTIL FINAL ACCEPTANCE OF THE SYSTEM BY
THE COUNTY. AT SUCH TIME THE RISK OF LOSS OR DAMAGE TO SAID EQUIPMENT
AND SOFTWARE SHALL PASS TO THE COUNTY.
THE CONTRACTOR SHALL NOT BE RESPONSIBLE FOR DAMAGE TO THE EQUIPMENT
AND SOFTWARE OCCASIONED BY NEGLIGENCE OF THE COUNTY OR ITS EMPLOYEES
OR THEFT FROM COUNTY PREMISES.
3.19 DELETED PER HENNEPIN COUNTY ADDENDUM NO. 1 DATED 7/21/93.
3.20 DELIVERY AND INSTALLATION:
3.20.1 THE EQUIPMENT INCLUDED IN THESE SPECIFICATIONS (EXCEPT FOR
POWER, TELEPHONES, NETWORK, AND HEATING/COOLING) SHALL BE
COMPLETELY INSTALLED BY THE CONTRACTOR SO THAT A FULLY
OPERATIONAL SYSTEM IS PROVIDED. ALL INSTALLATION SERVICES,
LABOR, ENGINEERING AND SUPERVISION SHALL BE PROVIDED BY THE
CONTRACTOR AND/OR SUBCONTRACTOR.
3.20.2 ALL INSTALLATION PRACTICES SHALL BE IN ACCORDANCE WITH, BUT NOT
LIMITED TO, THE SPECIFICATIONS AND DRAWINGS AND SHALL BE
APPROVED IN ADVANCE BY THE COUNTY PRIOR TO BEGINNING WORK.
INSTALLATION SHALL BE PERFORMED IN ACCORDANCE WITH LOCAL
STANDARDS
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17 August 1993 14 Hennepin County Sheriff's Department
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<PAGE>
XImage Corporation
Proposal
3 TERMS AND CONDITIONS
3.20.2 (CONTINUED)
AND CODES. IN ADDITION, APPARATUS, LINES, AND EQUIPMENT
INSTALLATION INVOLVING TELEPHONE SYSTEMS SHALL CONFORM TO THE
APPLICABLE REQUIREMENTS OF THE LOCAL TELEPHONE COMPANY INCLUDING
AUDIO LEVELS IMPRESSED ON ANY TELEPHONE LINES.
3.20.3 THE INITIAL SYSTEM SHALL BE DELIVERED AND INSTALLED WITHIN 180
(ONE HUNDRED EIGHTY) DAYS OF NOTICE TO PROCEED. ALL SYSTEM
REQUIREMENTS IN THESE SPECIFICATIONS SHALL BE COMPLETED PRIOR
TO FINAL SYSTEM TESTING. SYSTEM TESTING FOR FINAL ACCEPTANCE
SHALL COMMENCE NO LATER THAT THE 180TH DAY, EXCEPT WHERE
EXTENSIONS OF TIME HAVE BEEN GRANTED PURSUANT TO THESE
SPECIFICATIONS.
SUBSEQUENT PURCHASES SHALL BE DELIVERED AND INSTALLED WITHIN 60
(SIXTY) DAYS OF PLACING ORDERS.
3.20.4 DELIVERIES SHALL BE MADE TO: HENNEPIN COUNTY SHERIFF'S
DEPARTMENT, ROOM 36 CITY HALL, 350 SOUTH 5TH STREET, MINNEAPOLIS,
MINN. 55415. A 3 DAY NOTICE SHALL BE MADE TO THE COUNTY PROJECT
MANAGER OF THE DATES OF DELIVERY.
3.20.5 EQUIPMENT SHALL NOT BE DELIVERED TO THE COUNTY MORE THAN 30
DAYS BEFORE SCHEDULED INSTALLATION. THE JAIL DOES NOT HAVE
STORAGE SPACE FOR LARGE SHIPMENTS. STORAGE OF EQUIPMENT PRIOR TO
ACCEPTANCE OF DELIVERY (SITE LOCATION AND COSTS) SHALL BE THE
CONTRACTOR'S EXPENSE.
3.20.6 PRELIMINARY INSPECTION: ALL HARDWARE SHALL BE VISUALLY
INSPECTED BY THE COUNTY PROJECT MANAGER OR HIS/HER DESIGNEE'S
UPON RECEIPT TO DETERMINE OBVIOUS DAMAGE.
3.20.7 DESIGN/MANUFACTURE: ALL HARDWARE AND SOFTWARE SHALL BE NEW AND
THE MANUFACTURER'S LATEST DESIGN OF THE MODEL PRESENTLY IN
PRODUCTION. EQUIPMENT AND MATERIALS FURNISHED BY THE BIDDER
HAVING DEFECTS, CORROSION OR SCRATCHES WHICH TEND TO PRESENT AN
"OTHER THAN NEW" APPEARANCE OR WHICH DO NOT COMPLY WITH CONTRACT
SPECIFICATIONS SHALL BE PROMPTLY REPLACED OR SUCH DEFECTS
PROMPTLY CORRECTED BY THE BIDDER AT NO COST TO THE COUNTY.
IF UPON INITIAL INSPECTION OF THE HARDWARE SUPPLIED, MORE THAN
TEN PERCENT (10%) OF THE TOTAL QUANTITY OF ANY BID ITEM IS FOUND
TO BE DEFECTIVE AND/OR DAMAGED, THE COUNTY RESERVES
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17 August 1993 15 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
3 TERMS AND CONDITIONS
3.20.7 DESIGN/MANUFACTURE: (CONTINUED)
THE RIGHT TO REJECT THE ENTIRE SHIPMENT OF THE ITEM TO THE
CONTRACTOR AT THE CONTRACTOR'S SOLE EXPENSE.
NOTWITHSTANDING THE FOREGOING, THE COUNTY MAY REJECT ANY
COMPONENT OR ITEM IT DETERMINES TO BE DEFECTIVE. ALSO, THE COUNTY
SHALL NOT BE DEEMED TO HAVE ACCEPTED ANY COMPONENT OR ITEM OF
HARDWARE OR SOFTWARE UNTIL IT HAS MET THE COUNTY'S PERFORMANCE
TEST PURSUANT TO THESE SPECIFICATIONS, PROVIDED THAT THE COUNTY
MAY REVOKE ACCEPTANCE FOR ANY COMPONENT OR ITEM THE COUNTY
SUBSEQUENTLY DETERMINES TO BE DEFECTIVE AS SPECIFIED IN SECTIONS
11.15.
3.21 PAYMENT:
PAYMENTS TO THE CONTRACTOR FOR THE GOODS AND SERVICES HEREUNDER SHALL
BE MADE BASED ON SUCCESSFUL COMPLETION OF THE STATE OF
DEVELOPMENT/SERVICES SET FORTH IN THE FOLLOWING SCHEDULE. THE
CONTRACTOR SHALL INVOICE THE COUNTY AN AMOUNT EQUAL TO THE PERCENTAGE,
AS SET FORTH BELOW.
(1) SYSTEM DESIGN DOCUMENT 20%
A PAYMENT OF TWENTY PERCENT WILL BE PAID THIRTY DAYS AFTER THE
COMPLETION AND ACCEPTANCE OF THE SYSTEM DESIGN DOCUMENT OR UPON
RECEIPT OF AN APPROPRIATE INVOICE THEREFORE, WHICHEVER IS LATER.
SYSTEM DESIGN DOCUMENT INCLUDES, BUT IS NOT LIMITED TO, COMPLETED
IMPLEMENTATION PLAN, LOGICAL NETWORK DESIGN, DATABASE DESIGNS,
SCREEN/MENU DESIGNS, REPORT DESIGNS AND SECURITY PLAN.
(2) SYSTEM DELIVERY 40%
A PAYMENT OF FORTY PERCENT WILL BE MADE WITHIN THIRTY DAYS AFTER
EITHER DELIVERY OF ALL ITEMS OR THE RECEIPT OF AN APPROPRIATE
INVOICE THEREFORE, WHICHEVER IS LATER.
(3) COUNTY ACCEPTANCE OF SYSTEM FUNCTIONS 20%
AN ADDITIONAL TWENTY PERCENT WILL BE PAID WITHIN THIRTY DAYS
AFTER THE COMPLETION OF ACCEPTANCE OF SYSTEM FUNCTIONS ARE
ACCEPTED OR UPON RECEIPT OF AN APPROPRIATE INVOICE THEREFORE,
WHICHEVER IS LATER.
SYSTEM FUNCTION TESTS INCLUDE, BUT ARE NOT LIMITED TO, LOAD
TESTING AND DEMONSTRATING THE
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17 August 1993 16 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
3 TERMS AND CONDITIONS
3.21 PAYMENT: (CONTINUED)
ABILITY TO PERFORM ALL SPECIFIED FUNCTIONS AND PRODUCE IMAGES AND
PRINTED FORMS OF THE SAME QUALITY AS SUBMITTED WITH THE BID IN
THE INSTALLED ENVIRONMENT. THE COUNTY'S PROJECT MANAGER WILL SEND
WRITTEN NOTICE TO THE CONTRACTOR OF ACCEPTANCE OF SYSTEM
FUNCTIONS.
(4) FINAL ACCEPTANCE OF SYSTEM 20%
THE REMAINING TWENTY PERCENT WILL BE PAID WITHIN THIRTY DAYS
AFTER EITHER THE COUNTY'S ACCEPTANCE OF THE SYSTEM, OR THE
RECEIPT OF AN APPROPRIATE INVOICE, WHICHEVER IS LATER.
FINAL COUNTY ACCEPTANCE WILL BE DEPENDENT UPON THE SYSTEM
RESPONSE TEST THAT WILL BE CONDUCTED FOR A PERIOD OF 30 DAYS
COMMENCING THE DATE THE SYSTEM IS IN PRODUCTION. THE SYSTEM WILL
BE EVALUATED FOR EASE OF USE, ASSOCIATED DOCUMENTATION AND VENDOR
SUPPORT. THE SYSTEM SHALL PROVIDE 30 DAYS OF NORMAL ACTIVITY WITH
NO FAILURES. FINAL ACCEPTANCE WILL BE BASED UPON SATISFACTORY
PERFORMANCE IN THE PRODUCTION ENVIRONMENT. IN THE EVENT THE
SYSTEM FAILS TO PASS ANY OF THE ACCEPTANCE TESTS, THE CONTRACTOR
WILL HAVE 3 CALENDAR DAYS IMMEDIATELY THEREAFTER IN WHICH TO
CORRECT THE DEFECTS. IN THE EVENT THE DEFECTS ARE NOT CORRECTED,
THE COUNTY MAY ELECT TO CANCEL THIS AGREEMENT AND TAKE OTHER
ACTIONS AS MAY BE APPROPRIATE.
ALL TRAINING, OPERATIONAL AND EQUIPMENT MANUALS SHALL REFLECT THE
CURRENT SYSTEM AS INSTALLED AND BE FREE OF ERRORS BEFORE THIS
LAST PAYMENT WILL BE MADE.
ALL TRAINING REQUIREMENTS SHALL BE MET PRIOR TO FINAL ACCEPTANCE
OF THE SYSTEM.
UPON SUCCESSFUL COMPLETION OF EVERY ELEMENT OF THE ACCEPTANCE
TEST, THE COUNTY WILL PROVIDE A WRITTEN NOTICE OF FINAL
ACCEPTANCE OF THE SYSTEM.
*****************************************************************
Because of the size and complexity of the system proposed for
Hennepin County we request that Hennepin County allow for minor
disturbances within the system hardware and software. Our systems
have impressed our clients with an up time of over 99% on
average.
*****************************************************************
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17 August 1993 17 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
4 GENERAL REQUIREMENTS
4.1 MINIMUM BIDDER QUALIFICATIONS: THE BIDDER MUST HAVE ENGAGED IN
BUSINESS FOR A PERIOD OF NO LESS THAN 3 YEARS AND MUST HAVE A
MINIMUM OF 4 PHOTO IMAGE SYSTEMS FOR LAW ENFORCEMENT THAT HAVE BEEN
IN PRODUCTION FOR A PERIOD OF AT LEAST 1 YEAR ON THE DAY OF THE BID
OPENING. THE BIDDER SHOULD ALSO HAVE AT LEAST ONE OPERATIONAL
SYSTEM WITH A TWO WAY DATA EXCHANGE TO AN IBM MAINFRAME. THE BIDDER
MUST PROVIDE A LIST OF THEIR SYSTEMS PRESENTLY IN OPERATION AND
BEING INSTALLED AND DESCRIBE THE GENERAL CONFIGURATION, SIZE, AND,
WHERE IT APPLIES, THE INTERFACE OF THE SYSTEMS ON APPENDIX "A".
XImage Corporation has over 20 years of combined system operation.
The ForceField system is currently operational at 25 sites, 24
hours a day 365 days a year. We have installations pending at 4
additional agencies. These systems are responsible for over 500,000
criminal bookings per year, or over 1,300 per day. During this time
we have compiled an impressive "Who's Who of Law Enforcement
Agencies" worldwide. In addition to our many installations within
the United States, we also have installations in progress in
Montreal, Canada as well as the Country of Kuwait. The system in
Kuwait, used for population registration, will be able to store and
retrieve 2 million images.
XImage Corporation has 14 photo image systems for law enforcement
that have been operational for over 1 year. Our first installation
in Orange County, Florida has been operational for four and
one-half years. Our system installed at the Indianapolis Police
Department has two way data exchange between their ForceField
system and IBM 3090 mainframe. Please see our complete reference
list in appendix "A".
4.2 THE SUCCESSFUL BIDDER MUST SUBMIT A CURRENT ANNUAL REPORT AND
FINANCIAL STATEMENT. IF THE BIDDER DESIRES THAT THE ENTIRETY OF
SUCH DOCUMENTS BE KEPT CONFIDENTIAL, IT SHALL CLEARLY STATE ON THE
COVER OR FIRST PAGE OF EACH DOCUMENT THE WORDS "TRADE SECRET
INFORMATION". IF, HOWEVER, DATA IN ANY SUCH DOCUMENT IS CUSTOMARILY
TREATED AS OR LEGALLY REQUIRED TO BE PUBLIC INFORMATION, BIDDER
SHALL DESIGNATE AS TRADE SECRET ONLY SUCH DATA WHICH ARE NOT
CUSTOMARILY TREATED AS OR LEGALLY REQUIRED TO BE PUBLIC.
XImage Corporation has provided a current financial statement for
review by the Hennepin County Purchasing Department ONLY. As XImage
Corporation is a privately held corporation we wish that this
document be kept in strict confidence and have marked it as such.
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17 August 1993 18 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
4 GENERAL REQUIREMENTS
4.3 CALPHOTO STANDARD: ANY SYSTEM QUOTED MUST MEET OR EXCEED CALPHOTO
STANDARDS. SEE APPENDIX "B". WHERE COUNTY SPECIFICATIONS EXCEED
CALPHOTO, THE COUNTY SPECIFICATION MUST BE MET.
- > The system proposed by XImage Corporation EXCEEDS the CAL-PHOTO
standards as set forth in Appendix "B". Where the County's
specifications exceed CAL-PHOTO specification, the County's
specifications have been MET or EXCEEDED.
4.4 RELIABILITY: THE SYSTEM WILL BE VITAL TO THE IDENTIFICATION OF
ARRESTEES AND SUSPECTS. IT WILL BE SUBJECTED TO CONTINUOUS HEAVY-DUTY
USE 24 HOURS EVERY DAY. IT SHALL THEREFORE BE DESIGNED TO VERY HIGH
STANDARDS OF RELIABILITY AND AVAILABILITY.
CONTINGENT UPON FULL POWER AND NETWORK AVAILABILITY, THE GENERAL
QUANTITATIVE REQUIREMENT IS THAT THE SYSTEM MUST BE AVAILABLE 99%
OF THE TIME. THE SYSTEM WILL BE CONSIDERED "AVAILABLE" ONLY WHEN
SUPPORTING ALL OF ITS MAJOR FUNCTIONS IN FULLY AUTOMATIC MODE AND
MEETING ALL OF ITS RESPONSE TIME AND THROUGHPUT REQUIREMENTS.
"MAJOR FUNCTIONS" INCLUDE IMAGE CAPTURE AND UPDATING, HISTORY FILE
UPDATING, IMAGE RETRIEVAL, SEARCHING, PRINTING, LINEUPS, ACTIVITY
LOGGING, AND PERFORMANCE MONITORING.
THE EQUIPMENT CONFIGURATION SHOULD UTILIZE ENOUGH REDUNDANCY TO
ENSURE THAT NO SINGLE DEVICE OR COMPONENT FAILURE OR OUTAGE WILL
DISABLE THE ENTIRE SYSTEM OR THE FOLLOWING FUNCTIONS: DATA CAPTURE,
IMAGE CAPTURE AT BOOKING WORKSTATIONS, 3270 EMULATION AND PRINTING
OF INITIAL BOOKING FORMS, WHICH ARE THE PROPERTY SHEET, MEDICAL
SCREENING FORM, STRIP-SEARCH AUTHORIZATION, CLASSIFICATION FORM AND
PHOTO CARDS. FOR EXAMPLE, IF THE FILE SERVER IS INOPERABLE, THE
WORKSTATIONS SHALL BE ABLE TO CONTINUE CAPTURING IMAGES AND BOOKING
DATA.
THE SYSTEM MUST BE CAPABLE OF CONTINUED OPERATION IN DEGRADED MODES.
Based on actual performance statistics of our current sites XImage
Corporation feels the system, contingent upon full power and
network availability, WILL be available 99% of the time. In
addition, the system WILL be capable of continued operation in
degraded modes.
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17 August 1993 19 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
4 GENERAL REQUIREMENTS
4.5 THE BIDDER MUST QUOTE THE PRICE FOR A COMPLETE INSTALLATION OF A
TURNKEY PHOTO IMAGING SYSTEM, RUNNING ON THE COUNTY SUPPLIED IBM
TOKEN RING LAN IN A "WINDOWED" TRUE MULTITASKING ENVIRONMENT.
XImage Corporation has quoted the price for a complete installation
of a turnkey photo imaging system, running on the County supplied
IBM token ring LAN in a "windowed" true multitasking environment.
Please see our itemized pricing schedules in the appendix of this
document.
4.6 BIDDERS MUST QUOTE A SYSTEM WHICH INCLUDES ALL HARDWARE AND
SOFTWARE REQUIRED TO SUPPORT THE GROWTH PATTERN FOR THREE YEARS BASED
ON INFORMATION PROVIDED HEREIN (NUMBER OF PHOTOS, DATA BASES,
HARDWARE CONFIGURATION, ETC.).
XImage Corporation has quoted a system which includes all hardware
and software required to support the growth pattern for three years
based on information provided herein (number of photos, data bases,
hardware configuration, etc.).
4.7 IMPLEMENTATION PLANS:
BIDDERS MUST DESCRIBE THE MAKEUP OF THE INSTALLATION TEAM INCLUDING
A GENERAL TIME SCHEDULE AND LENGTH OF TIME A REPRESENTATIVE REMAINS
ON-SITE.
WITHIN SEVEN (7) DAYS OF THE DATE OF THE NOTICE TO PROCEED LETTER,
THE CONTRACTOR SHALL DESIGNATE A PROJECT MANAGER AND SHALL PREPARE
AND SUBMIT TO THE COUNTY A GENERAL SYSTEM IMPLEMENTATION PLAN. THE
PLAN SHALL DISPLAY THE PROGRESSION OF EVENTS LEADING TO THE TIMELY
INSTALLATION AND COMPLETION OF THE SYSTEM. WITHIN THIRTY (30) DAYS
OF THE DATE OF THE NOTICE TO PROCEED LETTER, THE CONTRACTOR SHALL
SUBMIT A DETAILED IMPLEMENTATION PLAN. THE PLAN SHALL INCLUDE, AT A
MINIMUM, THE REQUIRED NETWORK CONFIGURATION, PROVISIONS FOR
PRELIMINARY SYSTEM DESIGN (ANY CUSTOMIZATION REQUIREMENT NOT IN
CONTRACTOR'S CURRENT VERSION SHALL BE DEMONSTRATED PRIOR TO ANY
DELIVERY OF SOFTWARE OR HARDWARE, IF REQUIRED BY THE COUNTY),
HARDWARE AND SOFTWARE DELIVERY, SET UP (INSTALLATION) SCHEDULE,
TRAINING PLANS, TEST PLANS AND CHANGEOVER PLANS AND THE DATES FOR
COMPLETION OF EACH PHASE. THE IMPLEMENTATION PLANS SHALL BE
CONSISTENT WITH THE COUNTY'S SPECIFICATIONS AND THE CONTRACTOR'S
ACCEPTED BID PROPOSAL.
When accepted and approved by the County, the implementation plans
shall be the documentation for measuring contract performance and
progress and as such shall become a contract document to which the
contractor shall adhere.
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17 August 1993 20 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
4 GENERAL REQUIREMENTS
4.7 IMPLEMENTATION PLANS:
XImage Corporation is proud of its many associates who contribute a
broad spectrum of experience and dedication to our organization. This
dedication ensures expert and timely installation of our ForceField
Computerized Image Database Management Systems. Our talent has been
proven with over twenty-five local, county and state law enforcement
agency installations of varying complexity. Our expertise is providing
large law enforcement agencies with a system which will meet their needs
today, while remaining flexible enough to accommodate growth their
agencies will experience in the future.
<TABLE>
<CAPTION>
YEARS W/ RELATED
NAME TITLE COMPANY EXPERIENCE
---- ---- -------- -----------
<S> <C> <C> <C>
Mr. Ken Claybaugh Director Product Support 1.0 30.0
</TABLE>
Mr. Claybaugh, Director Product Support and Customer Services is
directly responsible for managing the product support planning and
implementation programs here at XImage. He has direct responsibility for
customer training at the client site, as well as at the XImage training
facility located in San Jose, California. Mr. Claybaugh has a Bachelor
of Science degree in Business from Indiana State University and has
completed advanced coursework at the University of Michigan, Princeton
and Stanford Universities.
<TABLE>
<CAPTION>
YEARS W/ RELATED
NAME TITLE COMPANY EXPERIENCE
---- ---- -------- -----------
<S> <C> <C> <C>
Mr. Scott Holt Installation Manager 6.0 6.0
</TABLE>
Mr. Holt is responsible for the timely management of ForceField System
installations. Dependant on the system configuration and installation
time line, he is usually assisted by one or more installation
specialists. Scott will be the main point of contact regarding most
system installation needs.
<TABLE>
<CAPTION>
YEARS W/ RELATED
NAME TITLE COMPANY EXPERIENCE
---- ---- -------- -----------
<S> <C> <C> <C>
Mr. Wayne Okuma Senior System Programmer 6.0 8.0
</TABLE>
Mr. Okuma's functions include ForceField system enhancements, and client
support. As part of his client support responsibilities, Wayne is
usually included as part of the XImage field installation team. He holds
a Bachelor of Science degree in Computer Science from the University of
Arizona.
<TABLE>
<CAPTION>
YEARS W/ RELATED
NAME TITLE COMPANY EXPERIENCE
---- ---- -------- -----------
<S> <C> <C> <C>
Mr. Richard Hair Software Engineer 3.0 3.5
</TABLE>
Mr. Hair, a specialist in the Forcefield customer support, is also
usually included as part of the installation team, especially when
remote networked ImageStations are part of the planned installation. He
holds a Bachelor of Science degree in Computer Science from the
University of Texas at Arlington.
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17 August 1993 21 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
4 GENERAL REQUIREMENTS
4.7 IMPLEMENTATION PLANS:
Within seven days of the date of the Notice to Proceed letter,
XImage Corporation WILL designate a Project Manager and shall
prepare and submit to the County a general system implementation
plan. The plan shall display the progression of events leading to
the timely installation and completion of the System. Within thirty
days of the date of the Notice to Proceed letter, XImage
Corporation WILL submit a detailed implementation plan. The plan
shall include at a minimum, the required network configuration,
provisions for preliminary system design (any customization
requirement not in XImage Corporation's current version shall be
demonstrated prior to any delivery of software or hardware, if
required by the County), hardware and software delivery, set up
(installation) schedule, training plans, test plans and changeover
plans and the dates for completion of each phase. The
implementation plans shall be consistent with the County's
specifications and XImage Corporation's accepted bid proposal.
WE UNDERSTAND when accepted and approved by the County, the
implementation plans shall be the documentation for measuring
contract performance and progress and as such shall become a
contract document to which XImage Corporation shall adhere.
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17 August 1993 22 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS (SEE ALSO 8.3)
5.1 IMAGE CAPTURE:
5.1.1 IMAGE MUST BE CAPTURED AND DISPLAYED AT LEAST AS A 24-BIT
COLOR DIGITAL IMAGE.
Image WILL be captured and displayed as a 24-bit color
digital image. As requested in subsequent sections, we
have provided pricing on 16-bit capture and display.
- > Please see the enclosed pricing and print samples for
information on our 16-bit system. This system represents a
significant cost savings to Hennepin County with excellent
print quality.
- > We have captured images in 16-bit and 24-bit color printed
on the Kodak SV6600 dye sublimation printer. We are
currently developing print drivers for 24-bit images for
other offered printers. These Kodak samples provide a
graphical representation of what can be expected from
other printers offered by XImage Corporation.
5.1.1.1 MUST UTILIZE THE JPEG STANDARD COMPRESSION IN LESS THAN 4
SECONDS.
The system WILL utilize the JPEG standard compression in
less than 4 seconds.
5.1.1.2 MUST BE ABLE TO COMPRESS THE IMAGE IN A RATIO RANGE FROM
10-TO-1 TO 20-TO-1. THE SUCCESSFUL BIDDER SHALL WORK WITH
THE COUNTY TO DETERMINE OPTIMUM RATIOS FOR IMAGE
COMPRESSION.
The system WILL be able to compress the image in a ratio
range from 10-to-1 to 20-to-1. The successful bidder WILL
work with the County to determine optimum ratios for image
compression.
5.1.1.3 SYSTEM MUST ALLOW MORE THAN ONE COMPRESSION RATE SO
VARIOUS APPLICATIONS CAN BE SAVED AT DIFFERENT RATES.
System WILL allow more than one compression rate so
various applications can be saved at different rates.
5.1.1.4 BIDDER MUST STATE WHETHER HARDWARE OR SOFTWARE COMPRESSION
IS USED.
XImage Corporation utilizes software compression.
5.1.2 USER MUST BE ABLE TO CONTINUE TO "FRAME" AN IMAGE, UNTIL
ACCEPTABLE IMAGE IS OBTAINED FOR PERMANENT STORAGE.
User WILL be able to continue to "frame" an image, until
acceptable image is obtained for permanent storage.
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17 August 1993 23 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.1 IMAGE CAPTURE:
5.1.3 MUST BE ABLE TO STORE MORE THAN ONE IMAGE PER BOOKING
RECORD (I.E. FRONT AND SIDE VIEWS, GLASSES, MULTIPLES OF
SCARS, MARKS AND TATTOOS.).
The system WILL be able to store more than one image per
booking record (i.e. front and side views, glasses,
multiples of scars, marks and tattoos.).
5.1.4 THE SYSTEM MUST AUTOMATICALLY RECORD THE DATE AND TIME A
NEW IMAGE IS CAPTURED AND ALLOW ENTRY OF THE DATE AND TIME
FOR PHOTOS ADDED BY SCANNING OR FROM VIDEO TAPE.
The system WILL automatically record the date and time a
new image is captured and allow entry of the date and time
for photos added by scanning or from video tape.
5.1.5 IMAGES MUST BE ATTACHED TO A RECORD.
Images WILL be attached to a record.
5.1.6 THE SYSTEM MUST HAVE THE CAPABILITY TO UTILIZE THREE
SOURCES (VIDEO CAMERA, VIDEO TAPE AND SCANNER) FOR
CAPTURING IMAGES, AND SHALL ALLOW AN AUTHORIZED USER TO
SELECT THE TYPE OF CAPTURE.
The system WILL have the capability to utilize three
sources (video camera, video tape and scanner) for
capturing images, and shall allow an authorized user to
select the type of capture.
5.1.6.1 VIDEO CAMERA ATTACHED TO A WORKSTATION:
5.1.6.1.1 THE SYSTEM SHALL INCORPORATE THE USE OF LIVE VIDEO
CAMERA AS A PRIMARY SOURCE OF IMAGE CAPTURE. IN ONE
LOCATION A CAMERA WILL BE SHARED BY THREE WORKSTATIONS
WHICH ARE IN CLOSE PHYSICAL PROXIMITY. ALSO SEE HARDWARE
SECTION.
The system WILL incorporate the use of live video camera
as a primary source of image capture. In one location a
camera WILL be shared by three workstations which are in
close physical proximity.
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17 August 1993 24 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.1 IMAGE CAPTURE:
5.1.6.1.2 THE SYSTEM MUST BE FLEXIBLE TO ALLOW COLLECTION OF THE
PHOTO AT VARYING TIMES IN THE BOOKING PROCESS.
The system WILL be flexible to allow collection of the
photo at varying times in the booking process.
5.1.6.1.3 BIDDER MUST DESCRIBE HOW AN OPERATOR CAPTURES IMAGES
FROM A VIDEO CAMERA.
A digital image capture is accomplished by placing the
individual or physical object in front of the camera and
viewing the live image on the same color monitor in
which the text will be displayed. In a split second the
live image is frozen on the screen through a keyboard or
mouse command. A moveable cropping box enables
uniformity of captured images.
5.1.6.2 VIDEOTAPE APPLICATION:
5.1.6.2.1 THE SYSTEM SHALL SUPPORT AN APPLICATION WHICH ALLOWS AN
AUTHORIZED USER TO SELECT A FRAME FROM A VHS FORMAT
VIDEOTAPE, CROP IT, AND ADD IT TO A DATA BASE FROM A
SPECIFIED WORKSTATION. ALSO SEE HARDWARE SECTION.
The system WILL support an application which allows an
authorized user to select a frame from a VHS format
videotape, crop it, and add it to a data base from a
specified workstation.
5.1.6.2.2 BIDDER MUST DESCRIBE HOW AN OPERATOR CAPTURES IMAGES
FROM VIDEOTAPE.
Capture ImageStations WILL have the capability to input
images through the use of a common VCR by using a Vid
I/O box to transform NTSC-composite or S-video signals
to RGB signals. The system can capture a frame from a
VHS format videotape, crop it, and add it to a data base
from a specified workstation.
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17 August 1993 25 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.1 IMAGE CAPTURE:
5.1.6.3 SCANNER/CAMERA APPLICATION:
5.1.6.3.1 THE SYSTEM SHALL SUPPORT A SCANNER/CAMERA TO CAPTURE
HISTORICAL IMAGES FROM A SPECIFIED WORKSTATION WHICH
ALLOWS AN AUTHORIZED USER TO ENTER PHOTOS FROM FORMATS
SPECIFIED IN HARDWARE SECTION.
The system WILL support a scanner/camera to capture
historical images from a specified workstation which
allows an authorized user to enter photos from formats
specified in hardware section.
5.1.6.3.2 BIDDER MUST DESCRIBE HOW AN OPERATOR CAPTURES IMAGES
FROM A SCANNER.
Image scanning for positive and negative images WILL be
handled by a high resolution 3-chip video camera mounted
on a copy stand equipped with special lighting for the
capture of negative and positive photographic images.
The capture procedure is identical to live capture
outlined in Section 5.1
5.1.7 SCARS, MARKS, AND TATTOOS
5.1.7.1 THE SYSTEM MUST CAPTURE IMAGES OF SCARS, MARKS AND TATTOOS.
The system WILL capture images of scars, marks and tattoos.
5.1.7.2 IMAGES MUST BE ATTACHED TO A RECORD.
Images WILL be attached to a record.
5.1.7.3 BIDDER MUST RECOMMEND WHICH SCARS, MARKS AND TATTOOS
SHOULD BE CAPTURED AND RECOMMEND A CAPTURE METHOD (I.E.
MUG CAMERA OR OTHER SPECIFIC DEVICE). IF THE CAPTURE
METHOD IS NOT THE MUG CAMERA, ALL ADDITIONAL HARDWARE OR
SOFTWARE MUST BE QUOTED IN THE RECOMMENDED SYSTEM.
Any identifying scar, mark or tattoo on the individuals
body should be captured and saved on the ForceField
system. We suggest the use of a second Hitachi HV-C10F
RGB 3 chip solid state, color camera with a Vid I/O
switching device located at the Jail/Booking location.
This camera should be mounted on a special wall mount and
equipped with a lens specialized for that application.
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17 August 1993 26 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.2 DATA CAPTURE:
5.2.1 MUST HAVE DATA ENTRY SCREENS TAILORED TO EACH APPLICATION.
BIDDER SHOULD PROVIDE SAMPLES OF STANDARD DATA ENTRY
SCREENS.
The system WILL have data entry screens tailored to each
application. We have provided samples of standard data entry
screens.
5.2.2 THE SCREENS MUST ALLOW FOR ADDING, DELETING, UPDATING AND
VIEWING A RECORD AS ALLOWED BY ACCESS CONTROL TABLES.
The screens WILL allow for adding, deleting, updating and
viewing a record as allowed by access control tables.
5.2.3 SYSTEM MUST VALIDATE FOR PROPER DATA FORMAT AND
REASONABILITY (ALPHA, NUMERIC, DECIMAL, SIZE, DATES, ETC.)
The system WILL validate for proper data format and
reasonability (alpha, numeric, decimal, size, dates, etc.)
5.2.4 FIELDS THAT HAVE A SPECIFIED NUMBER OF ACCEPTABLE VALUES
MUST BE VALIDATED AGAINST TABLES.
Fields that have a specified number of acceptable values
WILL be validated against tables.
5.2.5 MUST ALLOW SYSTEM ADMINISTRATOR TO ADD, DELETE AND MODIFY
TABLE ENTRIES FOR VALIDATION. BIDDER MUST DESCRIBE HOW
VALIDATION TABLES ARE UPDATED.
The system WILL allow System Administrator to add, delete
and modify table entries for validation. This functionality
is allowed only to individuals who have been given this
permission (usually the System Administrator) through
specialized ForceField update utilities. The System
Administrator will be fully trained by XImage Corporation
training personnel in performing this function.
5.2.6 MUST HAVE CHECKS TO ENSURE ALL MANDATORY FIELDS ARE ENTERED.
The system WILL have checks to ensure all mandatory fields
are entered.
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17 August 1993 27 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.2 DATA CAPTURE:
5.2.7 SHOULD HAVE ON-LINE FIELD LEVEL HELD TO INCLUDE
VERIFICATION LISTS OF ACCEPTABLE VALUES. SHOULD ALLOW USER
TO SELECT FIELD ENTRY FROM VALIDATION TABLES BY MOUSE OR
KEYBOARD.
The system WILL have on-line field level help to include
verification lists of acceptable values. WILL allow user
to select field entry from validation tables by mouse or
keyboard.
5.2.8 BIDDER SHOULD PROVIDE SAMPLES OF HELP SCREENS AVAILABLE.
Samples of the help screens available WILL be included in
the bid document under Section 9 - "ForceField Sample
Screens".
5.2.9 DATA RELATED TO SCARS, MARKS AND TATTOOS:
5.2.9.1 THE DATA CAPTURED MUST BE STRUCTURED AND USABLE AS
CRITERIA FOR THE SEARCH APPLICATION. FREE FORM TEXT IS NOT
ACCEPTABLE. BIDDER MUST DESCRIBE HOW THE DATA IS
STRUCTURED.
The data captured WILL be structured and usable as
criteria for the search application. Fields which are
denoted are the type of SMT, particularities within these
categories, as well as the location of the SMT.
5.2.9.2 THE BIDDER SHALL PROVIDE AN EFFICIENT METHOD OF COLLECTING
THE INFORMATION. BIDDER MUST DESCRIBE HOW THE USER
COLLECTS THE INFORMATION.
Textual information is entered and stored within the
person update screen. Entry consistency is ensured because
all field entries are filled by pre-determined pull down
menu selections. Utilizing SMT will ensure that all
distinguishing attributes specific to a suspect are
properly taken into account in a suspect's identification.
5.3 ON-LINE DATA/IMAGE RETRIEVAL:
5.3.1 A WORKSTATION MUST BE ABLE TO COMPLETE AN INDEXED FIELD
SEARCH FOR A SPECIFIC RECORD OF A DATABASE WITH 300,000
RECORDS, RETRIEVE AND DISPLAY AN IMAGE WITHIN TEN (10)
SECONDS.
A workstation WILL be able to complete an indexed field
search for a specific record of a database with 300,000
records, retrieve and display an image within ten (10)
seconds.
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17 August 1993 28 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.3 ON-LINE DATA/IMAGE RETRIEVAL:
5.3.2 A WORKSTATION MUST BE ABLE TO COMPLETE AN UNINDEXED FIELD
SEARCH FOR A SPECIFIC RECORD OF A DATABASE WITH 300,000
RECORDS, RETRIEVE AND DISPLAY AN IMAGE WITHIN SIXTY (60)
SECONDS.
A workstation WILL be able to complete an unindexed field
search for a specific record of a database with 300,000
records, retrieve and display an image within sixty (60)
seconds.
5.3.3 SYSTEM MUST SEARCH NAMES BY PHONETICS AND PROVIDE A
"WILDCARD" SEARCH FEATURE IN WHICH CERTAIN CHARACTERS ARE
NOT KNOWN.
System WILL search names by phonetics and provide a
"wildcard" search feature in which certain characters are
not known.
5.3.4 BIDDER MUST STATE THE NUMBER OF SECONDS REQUIRED TO PERFORM
A PHONETIC OR "WILD CARD" NAME SEARCH ON A DATABASE WITH
300,000 RECORDS.
Depending on the structure of the phonetic or "wild card"
search, the elapsed time WILL be anywhere from 1 to 25
seconds.
5.3.5 THE SYSTEM SHOULD ALSO PROVIDE A SEARCH ON ADDRESS FIELDS
WITH A "WILD CARD" FEATURE.
The system WILL also provide a search on address fields with
a "wild card" feature.
5.4 INVESTIGATIVE SEARCH APPLICATION:
5.4.1 THE INVESTIGATIVE SEARCH MUST RETURN THE IMAGES AND RELATED
DATA SEQUENTIALLY BASED ON PHYSICAL DESCRIPTION PROVIDED BY
A WITNESS.
The investigative search WILL return the images and related
data sequentially based on physical description provided by
a witness.
5.4.2 SYSTEM MUST ALLOW THREE (3) WORKSTATIONS TO SIMULTANEOUSLY
SEARCH A DATABASE WITH 300,000 RECORDS, RETRIEVE AND DISPLAY
THE FIRST IMAGE ON THE SCREEN WITHIN SIXTY (60) SECONDS.
The system WILL allow three (3) workstations to
simultaneously search a database with 300,000 records,
retrieve and display the first image on the screen within
sixty (60) seconds.
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17 August 1993 29 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.4 INVESTIGATIVE SEARCH APPLICATION:
5.4.3 SYSTEM MUST SEARCH BY ANY COMBINATION OF FIELDS.
System WILL search by any combination of fields.
5.4.4 SYSTEM MUST PROVIDE A RANGE ON NUMERIC FIELDS. BIDDER MUST
DESCRIBE HOW THE RANGE IS ESTABLISHED. IF RANGES CAN BE
ESTABLISHED ON NON-NUMERIC FIELDS, BIDDER MUST DESCRIBE HOW
THE RANGE IS ESTABLISHED.
The system WILL provide a range on numeric fields. Ranges
are established by predetermined tables in the system.
Ranges are established on non-numeric fields in the same
manner.
5.4.5 SYSTEM SHOULD PROVIDE FOR MULTIPLE DATA BASE SEARCHES BY
AUTHORIZED USERS.
The system does not provide for across multiple data base
searches. The system will allow for search within multiple
databases separately.
5.5 LINEUP APPLICATION:
5.5.1 THE LINEUP APPLICATION MUST RETURN ALL IMAGES AND
IDENTIFYING DATA OF PERSONS WHOSE DESCRIPTION MATCHES
ANOTHER PERSON ALREADY ENTERED INTO THE SYSTEM.
The lineup application WILL return all images and
identifying data of persons whose description matches
another person already entered into the system.
5.5.2 SYSTEM MUST PROVIDE A MINIMUM OF SIX (6) PHOTOS IN A LINEUP
AND SHOULD PROVIDE A CHOICE OF A LARGER NUMBER.
System WILL provide a maximum of six (6) photos in a lineup.
5.5.3 SYSTEM MUST ALLOW THE USER TO SAVE, SUSPEND FOR LATER REVIEW
OR DISQUALIFY/DELETE A PHOTO FROM THE LINEUP LIST.
The system WILL allow the user to save, suspend for later
review or disqualify/delete a photo from the lineup list.
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17 August 1993 30 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.5 LINEUP APPLICATION:
5.5.4 THE SYSTEM MUST STORE THE FINAL VERSION OF A LINEUP FOR
LATER RETRIEVAL.
The system WILL store the final version of a lineup for
later retrieval.
5.5.5 SYSTEM MUST ALLOW USER TO PRINT A LINEUP WITH OR WITHOUT
ASSOCIATED IDENTIFYING DATA.
The system WILL allow user to print a lineup with or without
associated identifying data.
5.5.6 SYSTEM SHOULD PROVIDE FOR AUTOMATIC RANDOM REORDERING OF THE
PHOTOS AFTER FINAL SELECTION. REORDERING OF PHOTOS SHOULD
BE PROHIBITED ONCE THE LINEUP IS STORED.
The system WILL provide for automatic random reordering of
the photos after final selection. Reordering of photos WILL
be prohibited once the lineup is stored.
5.6 SEALING BOOKING RECORDS:
5.6.1 SEALED RECORDS MUST NOT BE ACCESSED WITH ANY SCREEN EXCEPT
PERSONS WITH SEAL/UNSEAL PRIVILEGE AND MUST NOT BE RETURNED
IN ANY NAME SEARCH OR PHOTO LINEUP OR PRINTED, EXCEPT IN A
PREVIOUSLY DEFINED LINEUP RECORD, THE PHOTO WILL REMAIN AND
PRINT WITH NO IDENTIFYING TEXT. IF AN ATTEMPT IS MADE TO
ACCESS A SEALED RECORD, A MESSAGE SHOULD BE DISPLAYED
INDICATING THAT THE RECORD IS SEALED.
Sealed records WILL not be accessed with any screen except
persons with seal/unseal privilege and WILL not be returned
in any name search or photo lineup or printed, EXCEPT in a
previously defined lineup record, the photo will remain and
print with no identifying test. If an attempt is made to
access a sealed record, a message WILL be displayed
indicating that the record is sealed.
5.6.1.1 SYSTEM MUST SEAL ALL BOOKING RECORDS AND ASSOCIATED PHOTO
IMAGES THAT ARE LINKED TO A CERTAIN PERSON.
System WILL seal all booking records and associated photo
images that are linked to a certain person.
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17 August 1993 31 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.6 SEALING BOOKING RECORDS:
5.6.1.2 SYSTEM MUST SEAL A PARTICULAR BOOKING RECORD AND ITS
ASSOCIATED PHOTO IMAGES.
The system WILL seal a particular booking record and its
associated photo images.
5.6.1.3 SYSTEM SHOULD SEAL A PARTICULAR PHOTO IMAGE.
The system WILL only seal a photo image with its associated
booking record.
5.6.1.4 BIDDER MUST DESCRIBE HOW AN OPERATOR SEALS DATA.
Users so privileged to seal existing records from the
files can select the BOOKING SEAL command and seal a
selected record. A sealed record will still exist in the
database, even though it will no longer appear in response
to a SEARCH or PHOTO LINEUP command.
5.7 EXPUNGING CHARGES:
5.7.1 THE EXPUNGE PROCESS MUST DELETE THE SPECIFIED CHARGE/S AND
ALL PERSON REFERENCES FROM A BOOKING RECORD, BUT RETAIN THE
BOOKING RECORD, NOTING THAT THE CHARGE/S HAS BEEN EXPUNGED.
The expunge process WILL delete the specified charge/s and
all person references from a booking record, but retain the
booking record, noting that the charge/s has been expunged.
5.7.2 THE EXPUNGE PROCESS MUST DELETE ALL REFERENCES TO A PERSON
IF THE EXPUNGED CHARGE IS THE ONLY CHARGE ASSOCIATED WITH
THE PERSON.
The expunge process WILL delete all references to a person
if the expunged charge is the only charge associated with
the person.
5.7.3 IF ALL PERSON REFERENCES ARE DELETED, THE EXPUNGE PROCESS
MUST DELETE ALL PHOTO IMAGES ASSOCIATED WITH THE BOOKING
RECORD IF THE PHOTO STORAGE MEDIA ALLOWS IT. AT A MINIMUM,
ALL KEYS TO AN EXPUNGED PHOTO IMAGE MUST BE DELETED.
If all person references are deleted, the expunge process
WILL delete all photo images associated with the booking
record if the photo storage media allows it. At a minimum,
all keys to an expunged photo image WILL be deleted.
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17 August 1993 32 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.7 EXPUNGING CHARGES:
5.7.4 BIDDER MUST DESCRIBE HOW AN OPERATOR EXPUNGES DATA.
If the privilege is available to the user, and the record has
been retrieved on screen, the user selects the EXPUNGE
function. As a safety function the expunge confirms with the
user before the record is expunged.
5.8 MERGE/LINK BOOKING RECORDS:
5.8.1 THE MERGE/LINK PROCESS MUST ALLOW ALL BOOKING RECORDS AND
PHOTO IMAGES TO BE DETACHED FROM ONE PERSON AND ATTACHED TO
ANOTHER.
The merge/link process WILL allow all booking records and
photo images to be detached from one person and attached to
another.
5.8.2 THE MERGE/LINK PROCESS MUST ALLOW A SINGLE RECORD AND THE
ASSOCIATED PHOTO IMAGES TO BE DETACHED FROM ONE PERSON AND
ATTACHED TO ANOTHER.
The merge/link process WILL allow a single record and the
associated photo images to be detached from one person and
attached to another.
5.8.3 BIDDER MUST DESCRIBE HOW A USER MERGES/LINKS RECORDS.
Once a booking record has been retrieved, a user can
reclassify (merge or link), by changing the PERSON Master Key
for that record. Again, due to the seriousness of the update,
the system requires a confirmation from the user.
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17 August 1993 33 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.9 IMPORT/EXPORT OF DATA AND IMAGES:
5.9.1 THE SYSTEM MUST BE ABLE TO IMPORT AND EXPORT IMAGE FILES.
BIDDER MUST DESCRIBE HOW AN OPERATOR IMPORTS AND EXPORT IMAGE
FILES.
The system WILL be able to import and export image files. The
user imports and exports image files through a menu driven
process which requires the format type and file name. The
record on screen will make the imported image part of the
record, or export its image to an outside location.
5.9.2 THE SYSTEM SHOULD HAVE A MENU DRIVEN FUNCTION TO IMPORT AND
EXPORT IMAGES IN OTHER FORMATS.
The system WILL have a menu driven function to import and
export images in other formats.
5.9.3 BIDDER MUST SPECIFY IMAGE FORMATS THAT CAN BE IMPORTED AND
EXPORTED AND SHOULD ALLOW TIFF, MICROSOFT WINDOWS STANDARD
BITMAP (.BMP), PC PAINTBRUSH (.PCX) AND OS/2 STANDARD BITMAP
(.BMP) VERSION 1.1 AND VERSION 1.2 FILE FORMATS.
ForceField WILL accept; TIFF, Microsoft Windows standard
bitmap (.BMP), PC Paintbrush (.PCX) and OS/2 standard bitmap
(.BMP) Version 1.1 and version 1.2 file formats.
5.9.4 THE SYSTEM MUST ALLOW UPLOADING AND DOWNLOADING OF SELECTED
DATA FIELDS IN ASCII FORMAT. BIDDER MUST DESCRIBE HOW AN
OPERATOR UPLOADS AND DOWNLOADS DATA.
The system WILL allow uploading and downloading of selected
data fields in ASCII format. The upload and download
interconnect process is a joint effort between XImage
Corporation and Hennepin County MIS Department personnel.
XImage Corporation will work closely with the Hennepin County
MIS to define requirements, design interconnect and its
implementation.
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17 August 1993 34 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.10 REPORTING AND PRINT FUNCTIONS:
5.10.1 MUST ALLOW ANY WORKSTATION TO SEND REPORTS, FORMS, LINEUPS OR
MUG SHOTS TO ANY PRINTER ON THE SYSTEM. BIDDER MUST DESCRIBE
HOW AN OPERATOR ACCOMPLISHES THIS.
The system WILL allow any workstation to send reports, forms,
lineups or mug shots to any printer on the system as long as
the selected printer contains the print functionality. Network
printing will allow a user to select the printer location
where an image will print. In the instance of agencies with
multiple printers, this feature will allow images to print
where desired. Since a dedicated printer is no longer needed
at a particular workstation, any printer in the network may be
utilized to fulfill multiple workstation needs.
5.10.2 MUST ALLOW THE USER TO SELECT VARIOUS REPORTS, FORMS OR
MUGSHOT CARDS TO BE PRINTED.
The system WILL allow the user to select various reports,
forms or mugshot cards to be printed.
5.10.3 SHOULD ALLOW PRINTOUT FROM THE COUNTY MAINFRAME.
Through a specially designed interconnect the system could
print information stored on the County mainframe. Based on a
list of records from the County mainframe, the ForceField
system can print any desired format at a workstation.
5.10.4 MUST PROVIDE AN ON-LINE FEATURE TO DETERMINE PRINT QUEUE
STATUS WHICH WILL ALLOW USER TO CHECK STATUS OF A PRINT JOB,
CANCEL A PRINT JOB AND SHOULD ALLOW USER TO CHANGE PRIORITY
AND HOLD PRINT JOB UNTIL A SPECIFIED PERIOD OF TIME. BIDDER
MUST DESCRIBE HOW AN OPERATOR ACCOMPLISHES THIS.
The system WILL provide an on-line feature to determine print
queue status which will allow user to check status of a print
job, cancel a print job and should allow user to change
priority and hold print job until a specified period of time.
This function is available through the print menu. Print jobs
will be denoted as standard (default) priority or can be
assigned either a high or low priority by the operator.
- --------------------------------------------------------------------------------
17 August 1993 35 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.10 REPORTING AND PRINT FUNCTIONS:
5.10.5 THE SYSTEM MUST BE CAPABLE OF DIRECTLY PRODUCING REPORTS
ON-LINE WHICH CAN BE VIEWED BEFORE DECIDING TO PRINT. THESE
REPORTS WOULD NOT INCLUDE PHOTOS.
The system WILL be capable of directly producing reports
on-line which can be viewed before deciding to print. We
understand that these reports would not include photos.
5.10.6 BIDDER MUST STATE THE LENGTH OF TIME REQUIRED TO COMPLETE A
PRINT JOB FROM WHEN THE PRINT COMMAND IS GIVEN USING:
BLACK AND WHITE PRINTER OF A 3-1/2" X 5" PHOTO WITH
ASSOCIATED DATA.
60 seconds
SMALL COLOR PRINTER OF A MUG SHOT WITH FRONT AND SIDE VIEW.
90 seconds
LARGE COLOR PRINTER OF A SIX SUBJECT LINE-UP.
135 seconds
5.10.7 SYSTEM MUST RECORD THE FOLLOWING INFORMATION FOR ALL IMAGES
PRINTED: 1) NAME OF SUBJECT, FOLDER NUMBER, AND NUMBER OF
PRINTS, 2) NAME OF OPERATOR AND 3) NAME OF PERSON AND AGENCY
TO WHOM THE IMAGES WERE RELEASED.
The system WILL record the following information for all
images printed: 1) Name of subject, folder number, and
number of prints, 2) Name of operator and 3) Name of person
and agency to whom the images were released.
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17 August 1993 36 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.10 REPORTING AND PRINT FUNCTIONS:
5.10.8 REPORTS AND FORMS:
5.10.8.1 SYSTEM MUST PROVIDE INITIAL BOOKING FORMS AND REPORTS
DESIGNED FOR COUNTY NEEDS. THE BIDDER MUST SEND SAMPLES OF
STANDARD REPORTS, AUDIT TRAIL REPORTS, MANAGEMENT REPORTS
AND FORMS WITH THE BID. THE ACTUAL FORMS AND REPORTS SHALL
BE DESIGNED WITH THE CONTRACTOR. BIDDER MUST STATE THE
AMOUNT OF DESIGN INCLUDED WITH THE RECOMMENDED SYSTEM AND
THE COST FOR ADDITIONAL FORM AND REPORT DESIGN.
System WILL provide initial booking forms and reports
designed for County needs. XImage Corporation WILL DEVELOP
samples of standard reports, audit trail reports,
management reports and forms to the specifications of the
County. Additional form design will be negotiated upon
contract negotiation.
5.10.8.2 MUST BE ABLE TO CREATE REPORTS USING THE AUDIT LOG
DATABASE.
The system WILL be able to create reports using the audit
log database.
5.10.8.3 FORM AND REPORT DESIGN MUST INCLUDE CAPABILITIES SUCH AS
BOXES, COLUMNS, ROWS, MULTIPLE FONTS, FORM FEED, PAGE
BREAKS, LOGO, LOCATION AND SIZE OF IMAGE VARYING FROM
1" X 1" to 8.5" X 11", ETC.
Form and report design WILL include capabilities such as
boxes, columns, rows, multiple fonts, form feed, page
breaks, logo, location and size of image varying from
1" X 1" to 8.5" X 11", etc.
5.10.8.4 SYSTEM MUST ALLOW THE SYSTEM ADMINISTRATOR TO DESIGN FORMS
AND REPORTS. BIDDER MUST DESCRIBE THE PROCESS (PROGRAMMING
LANGUAGES AND TOOLS) THAT WOULD ALLOW THE SYSTEM
ADMINISTRATOR TO DESIGN FORMS AND REPORTS.
System WILL allow the System Administrator to design forms
and reports. A SYBASE SQL (Structured Query Language) as
well as a 4GL FOCUS Report Generator is available to allow
the System Administrator to design custom forms and
reports.
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17 August 1993 37 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.10 REPORTING AND PRINT FUNCTIONS:
5.10.8.5 SYSTEM MUST BE ABLE TO INCORPORATE DATA AND PHOTOS ON
FORMS.
System WILL be able to incorporate data and photos on
forms.
5.10.8.6 SYSTEM MUST BE ABLE TO PRODUCE BLACK AND WHITE DOUBLE
SIDED FORMS.
System WILL be able to produce black and white double
sided forms.
5.10.8.7 SYSTEM MUST PRINT IMAGES IN COLOR OR BLACK/WHITE WITH OR
WITHOUT TEXT.
System WILL print images in color or black/white with or
without text.
5.10.8.8 SYSTEM MUST BE ABLE TO PRINT MULTIPLE IMAGES ON 1 SHEET OF
1 PERSON OR IMAGE OF MULTIPLE PERSONS (1 OR MORE EACH) OR
IMAGES OF FRONT, OR FRONT AND SIDE VIEW OF 1 PERSON.
System WILL be able to print multiple images on 1 sheet of
1 person or image of multiple persons (1 or more each) or
images of front, or front and side view of 1 person.
5.10.8.9 SYSTEM MUST ALLOW OPERATOR TO SELECT THE NUMBER OF COPIES
TO PRINT.
System WILL allow operator to select the number of copies
to print.
5.10.9 AD HOC REPORTING:
5.10.9.1 THE SYSTEM MUST INCLUDE A FOURTH GENERATION LANGUAGE
REPORT WRITER TO ALLOW THE AGENCY'S SYSTEM ADMINISTRATOR
TO DEFINE, MODIFY AND STORE REPORTS AND FORMS.
The system WILL include a fourth generation language
report writer to allow the Agency's System Administrator
to define, modify and store reports and forms. The
ForceField system is installed with a set of standard
management reports, indicating usage and access to the
system. An advanced 4GL report writer is available that
will allow the Hennepin County Sheriff's Department to
modify and develop new management report formats.
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17 August 1993 38 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.10 REPORTING AND PRINT FUNCTIONS:
5.10.9.2 BIDDER MUST STATE MANUFACTURER, PRODUCT NAME AND VERSION
NUMBER OF THE 4GL REPORT WRITER.
FOCUS - Version 6.5 by Information Builders Incorporated.
5.10.9.3 BROCHURES AND TECHNICAL LITERATURE DESCRIBING 4GL MUST BE
INCLUDED WITH BID.
Brochures and technical literature describing 4GL WILL be
included with bid.
5.10.10 BILLING:
5.10.10.1 THE SYSTEM MUST PROVIDE AN EFFICIENT ACCURATE METHOD OF
COMPUTING USE OF THE SYSTEM BY SHERIFF'S AGENCIES.
Through an audit report function the system WILL provide
an efficient accurate method of computing use of the
system by Sheriff's agencies.
5.10.10.2 THE BIDDER MUST DESCRIBE THE BILLING SYSTEM, IF
AVAILABLE, OR HOW A BILLING SYSTEM COULD BE DEVELOPED
BASED ON THE DATA CAPTURED BY THE SYSTEM.
By utilizing system log on information provided by the
audit trail, the system can detail usage across all
agencies. This information can include location of
terminal accessed, the person who accessed it and
transactions processed.
5.11 INVESTIGATIVE APPLICATIONS:
THE SYSTEM MUST SUPPORT A PERSON RELATED INTELLIGENCE APPLICATION
AND SHOULD SUPPORT TWO INVESTIGATIVE APPLICATIONS THAT ARE USED TO
STORE AND RETRIEVE CRIME/EVENT/PERSON RELATED INFORMATION IN SUPPORT
OF THE CRIMINAL DIVISION. THE GENERAL SPECIFICATION FOR THESE
APPLICATIONS ARE AS FOLLOWS:
PERSON RELATED INTELLIGENCE APPLICATION
IN THIS APPLICATION, PERSON RELATED DATA IS COLLECTED AND A PERSON
WOULD BE THE PRIMARY RETRIEVAL KEY. PERSON DATA IS ORGANIZED INTO
PERSON RELATED FOLDERS. IMAGES OF THE PERSON ARE STORED AND LINKED
TO THE PERSON FOLDER. THE PERSON DATA INCLUDES NAME, ID NUMBER,
ALIASES, ADDRESS, TELEPHONE NUMBER, EMPLOYER, ASSOCIATES,
OCCUPATION, VEHICLES, HAIR COLOR, DATE OF BIRTH, EYE COLOR, HEIGHT,
AND OTHER DESCRIPTIVE DATA ABOUT THE PERSON.
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17 August 1993 39 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.11 INVESTIGATIVE APPLICATIONS:
PERSON RELATED INTELLIGENCE APPLICATION
XImage Corporation WILL provide an application meeting the
specifications as described under the heading denoted PERSON RELATED
INTELLIGENCE APPLICATION. In this application, person related data
is collected and a person would be the primary retrieval key. Person
data is organized into person related folders. Images of the person
are stored and linked to the person folder. The person data includes
name, ID number, aliases, address, telephone number, employer,
associates, occupation, vehicles, hair color, date of birth, eye
color, height, and other descriptive data about the person.
PERSON/BUSINESS SURVEILLANCE APPLICATION (OPTIONAL)
IN THIS APPLICATION, PERSON OR BUSINESS DATA IS COLLECTED AND THE
PERSON OR BUSINESS WOULD BE THE PRIMARY RETRIEVAL KEY. PERSON OR
BUSINESS DATA IS ORGANIZED INTO PERSON/BUSINESS FOLDERS. IMAGES OF A
PERSON, BUSINESS OR RELATED OBJECT ARE CAPTURED AND LINKED TO THE
PERSON/BUSINESS FOLDER. THE PERSON/BUSINESS DATA COLLECTED IS PERSON
OR BUSINESS NAME, CASE NUMBER, ALIASES, DETECTIVE, CRIME, ADDRESS,
TELEPHONE NUMBER, EMPLOYER, ASSOCIATES, OCCUPATION, VEHICLES, HAIR
COLOR, DATE OF BIRTH, EYE COLOR, HEIGHT, OTHER PERSON-TYPE
INFORMATION, A SHORT DESCRIPTION OF EACH IMAGE, AND OTHER
DESCRIPTIVE DATA ABOUT THE PERSON OR BUSINESS.
FEATURE NOT PROVIDED.
ADDRESS/LOCATION APPLICATION (OPTIONAL)
IN THIS APPLICATION, ADDRESS/LOCATION DATA IS COLLECTED AND THE
ADDRESS/LOCATION WOULD BE THE PRIMARY RETRIEVAL KEY. THE DATA IS
ORGANIZED INTO ADDRESS/LOCATION FOLDERS. IMAGES OF BUILDINGS, FLOOR
PLANS, AND OTHER OBJECTS RELATED TO THE ADDRESS/LOCATION ARE
CAPTURED AND LINKED TO THE ADDRESS/LOCATION. THE ADDRESS/LOCATION
DATA COLLECTED IS ADDRESS, OFFICERS, AGENCY, INJURIES, DATE, TIME,
TYPE, FILE NUMBER, PHONE NUMBER, VEHICLES, A SHORT DESCRIPTION TO
DESCRIBE EACH IMAGE, AND OTHER DESCRIPTIVE DATA ABOUT THE
ADDRESS/LOCATION.
FEATURE NOT PROVIDED.
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17 August 1993 40 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.11 INVESTIGATIVE APPLICATIONS:
5.11.1 BIDDER SHALL DESCRIBE ALL APPLICATIONS QUOTED IN THE SYSTEM
BID.
XImage Corporation WILL provide an application meeting the
specifications as described under the heading denoted PERSON
RELATED INTELLIGENCE APPLICATION. In this application,
person related data is collected and a person would be the
primary retrieval key. Person data is organized into person
related folders. Images of the person are stored and linked to
the person folder. The person data includes name, ID number,
aliases, address, telephone number, employer, associates,
occupation, vehicles, hair color, date of birth, eye color,
height, and other descriptive data about the person.
5.11.2 THE FOLLOWING SPECIFICATIONS APPLY TO THE REQUIRED PERSON
RELATED INTELLIGENCE APPLICATION AND, IF BID, EITHER OF THE
OPTIONAL APPLICATIONS. IF A BIDDER CHOOSES NOT TO DEVELOP
ANY OF THE OPTIONAL APPLICATIONS, THAT SHALL BE STATED.
5.11.2.1 EACH APPLICATION MUST BE TAILORED TO COUNTY NEEDS.
Each application WILL be tailored to county needs.
5.11.2.2 EACH APPLICATION MUST ALLOW FOR MULTIPLE METHODS FOR
CAPTURING IMAGES, AS DESCRIBED IN THE IMAGE CAPTURE SECTION.
Each application WILL allow for multiple methods for
capturing images, as described in the image capture section.
5.11.2.3 EACH APPLICATION MUST HAVE SEPARATE DATA BASES AND DATA
CAPTURE SCREENS. THE DATA CAPTURE SCREENS MUST MEET THE
SPECIFICATIONS AS OUTLINED IN THE DATA CAPTURE SECTION.
Each application WILL have separate data bases and data
capture screens. The data capture screens WILL meet the
specifications as outlined in the data capture section.
5.11.2.4 EACH APPLICATION MUST HAVE UP TO THREE TAILORED REPORTS/
FORMS, ONE OF WHICH IS A PRINTOUT OF THE ENTIRE FOLDER.
Each application WILL have up to three tailored reports/
forms, one of which is a printout of the entire folder.
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17 August 1993 41 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.11 INVESTIGATIVE APPLICATIONS:
5.11.2.5 EACH APPLICATION MUST MEET ON-LINE DATA/IMAGE
RETRIEVAL SECTION SPECIFICATIONS.
Each application WILL meet on-line data/image retrieval
section specifications.
5.11.2.6 EACH APPLICATION MUST ALLOW FOR 50 DIFFERENT DATA FIELDS IN
A FOLDER.
Each application WILL allow for 50 different data fields in
a folder.
5.11.2.7 EACH APPLICATION MUST ALLOW FREE FORM TEXT FIELDS ATTACHED
TO A SPECIFIED FOLDER.
Each application WILL allow free form text fields attached
to a specified folder. XImage Corporation's exclusive
"electronic note pad" function will allow the operator to
attach "notes" to a suspect's folder, booking or
appearance. They are analogous to the yellow "post-it"
note paper commonly found in offices today. This
computerized depiction will allow the inclusion of
"ad-hoc" text that will stay with a particular folder.
5.11.2.8 EACH APPLICATION MUST ABLE TO SEARCH BY ANY COMBINATION OF
DATA FIELDS TO BRING BACK ALL FOLDERS THAT MEET THE QUERY
QUALIFICATIONS.
Each application WILL able to search by any combination of
data fields to bring back all folders that meet the query
qualifications. The system will not be able to search
free form text.
5.12 BADGE MAKER APPLICATION:
5.12.1 THE SYSTEM SHALL PROVIDE FOR A METHOD OF PRODUCING EMPLOYEE
AND VISITOR BADGES. SEVERAL TYPES OF BADGES WILL BE
REQUIRED. DETAIL SPECIFICATIONS ARE INCLUDED IN THE
HARDWARE SECTION.
The system WILL provide for a method of producing employee
and visitor badges in different formats.
5.12.2 BIDDER MUST DESCRIBE HOW AN OPERATOR MAKES BADGES.
The production of photo ID badges and jail cards is
accomplished through the use of the optional ForceField
badge making sub-system. This sub-system consists of a
laminator, die cutter, and punch, along with necessary
materials for the production of 100 IDs.
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17 August 1993 42 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.13 WRISTBAND APPLICATION:
5.13.1 THE SYSTEM SHALL PROVIDE A METHOD OF PRODUCING INMATE
WRISTBANDS USING PHOTOS AND DATA FROM THE DATABASE. DETAIL
SPECIFICATIONS ARE INCLUDED IN THE HARDWARE SECTION.
The system WILL provide a method of producing inmate wristbands
using photos and data from the database.
5.13.2 BIDDER MUST DESCRIBE HOW AN OPERATOR MAKES WRISTBANDS.
The production of photo wristbands is accomplished through the
use of the optional ForceField badge making sub-system. This
sub-system consists of a laminator, die cutter, and punch,
along with necessary materials for the production of 100 IDs.
5.14 ARTIST APPLICATION (OPTIONAL):
5.14.1 THE SYSTEM, IF QUOTED, SHOULD SUPPORT AN ARTIST SUBSYSTEM ON A
SPECIFIED WORKSTATION. THE FUNCTION SHOULD ALLOW AN AUTHORIZED
USER TO ENHANCE AN EXISTING PHOTO (CHANGE SCARS, FACIAL HAIR,
GLASSES, ETC.) WITHOUT CHANGING THE ORIGINAL PHOTO. SHOULD BE
ABLE TO STORE THE ENHANCED PHOTO IN A SEPARATE FILE AND SEARCH
AGAINST EXISTING PHOTOS. THE FUNCTION SHOULD ALSO ALLOW THE
USER TO DRAW A SUBJECT FROM A DESCRIPTION WHEN THERE IS NO
EXISTING PHOTO. SHOULD BE ABLE TO STORE THE CREATED PHOTO IN A
SEPARATE FILE AND SEARCH AGAINST THE EXISTING PHOTOS.
FEATURE NOT PROVIDED.
5.14.2 BIDDER SHOULD DESCRIBE HOW AN OPERATOR CREATES IMAGES WITH THE
ARTIST APPLICATION.
FEATURE NOT PROVIDED.
5.15 WEIGHT CAPTURE APPLICATION (OPTIONAL):
THE SYSTEM SHOULD PROVIDE A METHOD OF ELECTRONICALLY COLLECTING INMATE
WEIGHT AT THE TIME OF PHOTO CAPTURE. THE SYSTEM WILL BE SHARED BY
THREE WORKSTATIONS IN THE BOOKING AREA AND SHALL HAVE A SWITCHING
DEVICE FROM EACH WORKSTATION. DETAIL SPECIFICATIONS ARE INCLUDED IN
THE HARDWARE SECTION.
FEATURE NOT PROVIDED.
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17 August 1993 43 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
5 SYSTEM FUNCTIONS
5.16 HEIGHT CAPTURE APPLICATION (OPTIONAL):
THE SYSTEM SHOULD PROVIDE A METHOD OF ELECTRONICALLY COLLECTING INMATE
HEIGHT AT THE TIME OF PHOTO CAPTURE. THE SYSTEM WILL BE SHARED BY
THREE WORKSTATIONS IN THE BOOKING AREA AND SHALL HAVE A SWITCHING
DEVICE FROM EACH WORKSTATION. THE SOLUTION MAY BE ENTIRELY
ELECTRONIC OR MAY REQUIRE SOME STAFF ACTION. DETAIL SPECIFICATIONS
ARE IN THE HARDWARE SECTION.
FEATURE NOT PROVIDED.
5.17 SIGNATURE CAPTURE APPLICATION (OPTIONAL):
THE SYSTEM SHOULD PROVIDE A METHOD OF COLLECTING INMATE SIGNATURES.
SIGNATURES SHALL BE ATTACHED TO A SPECIFIC DOCUMENT AND SHALL ONLY BE
REPRODUCED AS A PART OF THAT DOCUMENT. DETAIL SPECIFICATIONS ARE IN
THE HARDWARE SECTION.
FEATURE NOT PROVIDED.
- --------------------------------------------------------------------------------
17 August 1993 44 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
6 MECHANICAL AND ELECTRICAL REQUIREMENTS
6.1 CODES AND STANDARDS:
ALL ITEMS, EQUIPMENT, AND ACCESSORIES FOR THIS PROCUREMENT (AS
SEPARATE ITEMS AND AS A COMBINED SYSTEM) SHALL BE BUILT IN ACCORDANCE
WITH ALL APPLICABLE FEDERAL, STATE, AND CITY STANDARDS AND CODES AND
STANDARDS THAT ARE IN EFFECT ON THE DATE OF PROPOSAL SUBMITTAL,
INCLUDING BUT NOT LIMITED TO THE FOLLOWING:
FCC RULES, PART 15.
WHEN APPLICABLE, ALL EQUIPMENT SHALL CONFORM TO UNDERWRITERS'
LABORATORIES (UL) SPECIFICATIONS.
All items, equipment, and accessories for this procurement (as
separate items and as a combined system) WILL be built in accordance
with all applicable Federal, State, and City standards and codes and
standards that are in effect on the date of proposal submittal,
including but not limited to the FCC rules, PART 15.
6.2 EQUIPMENT SPECIFIED OR SUPPLIED BY THE BIDDER SHALL BE EQUIPPED WITH
FUSES, CIRCUIT BREAKERS, OR OTHER PROTECTIVE DEVICES FOR PROPER
OPERATION, PROTECTION OF PERSONNEL AND EQUIPMENT.
Equipment specified or supplied by the bidder WILL be equipped with
fuses, circuit breakers, or other protective devices for proper
operation, protection of personnel and equipment.
6.3 ALL POWER SUPPLIES USED IN THE SYSTEM SHALL BE FULLY SHORT-CIRCUIT
PROTECTED. A SHORT IN THE POWER SUPPLY DISTRIBUTION BUS SHOULD CAUSE THE
POWER SUPPLY TO ELECTRONICALLY SHUT DOWN UNTIL THE SHORT IS REMOVED.
All power supplies used in the system WILL be fully short-circuit
protected. A short in the power supply distribution bus should cause the
power supply to electronically shut down until the short is removed.
6.4 THE SYSTEM SHALL BE ABLE TO ACCEPT AN ELECTRICAL SUPPLY PROVIDED BY
THE COUNTY THAT SWITCHES AUTOMATICALLY FROM ANY 1 OF 4 SOURCES. THE
SYSTEM SHALL PROVIDE SURGE AND DROP IN POWER PROTECTION FOR ALL
HARDWARE DEVICES.
The system WILL be able to accept an electrical supply provided by the
County that switches automatically from any 1 of 4 sources. The system
shall provide surge and drop in power protection for all hardware
devices.
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17 August 1993 45 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
6 MECHANICAL AND ELECTRICAL REQUIREMENTS
6.5 ALL EQUIPMENT SUPPLIED SHALL BE PROVIDED WITH PROTECTIVE COVERS FOR
MODULES AND SUBASSEMBLIES THAT HAVE HAZARDOUS EXPOSED WIRING OR
TERMINALS. COVERS OR ENCLOSURES ON EQUIPMENT SHALL NOT BE ELIMINATED
TO ACCOMMODATE COMPONENT MODIFICATIONS.
All equipment supplied WILL be provided with protective covers for
modules and subassemblies that have hazardous exposed wiring or
terminals. Covers or enclosures on equipment WILL not be eliminated to
accommodate component modifications.
6.6 ALL EQUIPMENT MOUNTED IN CABINENTS SHALL BE DESIGNED FOR EASY ACCESS
TO FACILITATE ANY REQUIRED MAINTENANCE.
All equipment mounted in cabinents WILL be designed for easy access to
facilitate any required maintenance.
6.7 ALL REQUIRED INTERCONNECTING CABLES AND CONNECTORS SHALL BE FURNISHED
WITH THE EQUIPMENT.
All required interconnecting cables and connectors WILL be furnished
with the equipment.
6.8 ALL CABLES SHALL BE WELL INSULATED AND APPROPRIATE FOR THE INTENDED
CLASS OF SERVICE.
All cables WILL be well insulated and appropriate for the intended
class of service.
6.9 ALL CONNECTORS SUPPLIED SHALL BE WELL DESIGNED AND APPROPRIATE TO THE
NORMAL USAGE AND ENVIRONMENT OF WHICH THEY ARE APART.
All connectors supplied WILL be well designed and appropriate to the
normal usage and environment of which they are apart.
6.10 ALL CONNECTORS WHERE NECESSARY SHALL HAVE A POSITIVE LOCKING MECHANISM
TO PREVENT ACCIDENTAL REMOVAL.
All connectors where necessary WILL have a positive locking mechanism
to prevent accidental removal.
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17 August 1993 46 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
6 MECHANICAL AND ELECTRICAL REQUIREMENTS
6.11 ALL CABLES SHALL BE MARKED BY A PERMANENT METHOD, AT LEAST ON EACH
END, THAT ALLOWS IDENTIFICATION OF THE CABLE EASILY TRACEABLE TO THE
MAINTENANCE DOCUMENTATION.
All cables WILL be marked by a permanent method, at least on each end,
that allows identification of the cable easily traceable to the
maintenance documentation.
6.12 ALL CONNECTORS SHALL BE PERMANENTLY MARKED WITH A REFERENCE
DESIGNATION THAT CORRESPONDS TO THEIR MATING RECEPTACLE AND THE SUPPLIED
DOCUMENTATION.
All connectors WILL be permanently marked with a reference designation
that corresponds to their mating receptacle and the supplied
documentation.
- --------------------------------------------------------------------------------
17 August 1993 47 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.1 STANDARD EQUIPMENT:
WHEREVER POSSIBLE, THE SYSTEM SHOULD INCORPORATE STANDARD
"OFF-THE-SHELF" EQUIPMENT FOR WHICH THE PERFORMANCE AND RELIABILITY
CHARACTERISTICS ARE WELL KNOWN FROM ACTUAL FIELD EXPERIENCE.
QUALITY OF THE EQUIPMENT WILL BE CONSIDERED IN EVALUATION OF BIDS.
THE COUNTY CURRENTLY SUPPORTS IBM PS/2 AS A STANDARD PERSONAL
COMPUTER.
IF A BIDDER PROPOSES TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM
TO THE REQUIREMENTS OF THESE BID DOCUMENTS, THE BIDDER SHALL (1)
ATTACH TO THE BID A CLEAR DESCRIPTION OF SUCH PROPOSED
MODIFICATIONS AND (2) CLEARLY MARK ANY DESCRIPTIVE MATERIALS TO
SHOW THE PROPOSED MODIFICATIONS. MODIFICATIONS PROPOSED AFTER THE
BID OPENING WILL NOT BE CONSIDERED.
Wherever possible, the system WILL incorporate standard
"off-the-shelf" equipment for which the performance and reliability
characteristics are well known from actual field experience.
Quality of the equipment will be considered in evaluation of bids.
For the Hennepin County Sheriff's Department we have specified IBM
PS/2 466DX ValuePoint ImageStation workstations connected to an IBM
RISC System/6000 file server.
7.2 CONFIGURATION:
LISTED BELOW ARE PRIMARY PIECES OF HARDWARE FOR THE INITIAL SYSTEM.
SEE APPENDIX "C" FOR DRAWING OF EQUIPMENT SETUP. THIS LIST WILL NOT
PREVENT THE COUNTY FROM ELECTING TO PURCHASE A LARGER OR SMALLER
QUANTITY OF ANY ITEM. WHERE IT IS NECESSARY TO ADD HARDWARE FOR THE
QUOTED SYSTEM TO FUNCTION, THE BIDDER MUST INCLUDE THESE ITEMS.
LISTED BELOW ARE HARDWARE DEVICES WHICH MUST BE QUOTED IN THE
RECOMMENDED SYSTEM APPENDIX OF THE PRICE SHEET:
FILE SERVER
BACKUP DEVICE
WORKSTATIONS (8)
UPS (8)
SLAVE MONITOR
CAMERA AND LIGHTING SYSTEM (3)
COLOR SCANNER
VIDEO TAPE FRAME CAPTURE DEVICE
BLACK & WHITE PRINTERS (6)
COLOR PRINTERS (SMALL) (3)
COLOR PRINTER (LARGE) (1)
BADGE MAKER
WRISTBAND MAKER
- --------------------------------------------------------------------------------
17 August 1993 48 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.2 CONFIGURATION:
LISTED BELOW ARE HARDWARE DEVICES WHICH MUST BE QUOTED, IF
AVAILABLE, IN THE OPTIONAL SECTION E OF THE PRICE SHEET:
WEIGHT (SCALE) CAPTURE DEVICE
HEIGHT CAPTURE DEVICE
SIGNATURE CAPTURE DEVICE
FINGERPRINT ACCESS DEVICE
- --------------------------------------------------------------------------------
17 August 1993 49 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.2 CONFIGURATION:
7.2.1 BIDDER MUST PROVIDE A COMPLETE LIST OF HARDWARE, BASED ON
THE HARDWARE CONFIGURATION DIAGRAM, APPENDIX C.
FILE SERVER
FILE SERVER
/X/ IBM RS/6000 Model 34H with 32MB RAM, 42 Mhz(1)
AIX UNIX Version 3.2
SYBASE SQL Server
Ports:
Serial (2)
Parallel (1)
SCSI (2)
Ethernet (1)
4 Microchannel Slots
3 1/2 1.44 Floppy Disk Drive (1)
400 MB System Hard Disk (1)
Video Graphic Adaptor (1)
/X/ IBM Monochrome Display Monitor (1)
DATA STORAGE (TEXT)
/X/ 669 MB System Data Hard Disk (2)
IMAGE STORAGE
/X/ Magnetic Disk ImageStorage
2.5 GB Seagate Hard Drive (5)
BACKUP DEVICE
/X/ Parity 2.3 GB 8mm Tape Back-Up (1)
MAINTENANCE MODEM
/X/ Telebit TrailBlazer Plus 19.2 KB Maintenance
Modem (2)
WORKSTATION
/X/ IBM PS/2 ValuePoint ImageStation (1)
SCO UNIX Open Desktop Release 3.0 (1)
Truevision ATVista 32-bit Videographics Card (1)
/X/ 15-inch Electohome Color Monitor (1)
BLACK AND WHITE SIMPLEX PRINTER
/X/ HP LaserJet 4 System Printer (1)
UPS
/X/ Emerson AP1000 Series Uninterruptible
Power System (1)
- --------------------------------------------------------------------------------
17 August 1993 50 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.2 CONFIGURATION:
7.2.1 BIDDER MUST PROVIDE A COMPLETE LIST OF HARDWARE, BASED ON
THE HARDWARE CONFIGURATION DIAGRAM, APPENDIX C.
CONTINUED ...
NARCOTICS DIVISION
WORKSTATION
/X/ IBM PS/2 ValuePoint ImageStation (1)
SCO UNIX Open Desktop Release 3.0 (1)
Truevision ATVista 32-bit Videographics Card (1)
/X/ 15-inch Electohome Color Monitor (1)
SMALL COLOR PRINTER
/X/ Kodak SV6600 Color Printer, Extractor,
and Finisher. (1)
B&W SIMPLEX PRINTER
/X/ HP LaserJet 4 Printer (1)
UPS
/X/ Emerson AP1000 Series Uninterruptible
Power System (1)
- --------------------------------------------------------------------------------
17 August 1993 51 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.2 CONFIGURATION:
7.2.1 BIDDER MUST PROVIDE A COMPLETE LIST OF HARDWARE, BASED ON
THE HARDWARE CONFIGURATION DIAGRAM, APPENDIX C.
CONTINUED ...
DETECTIVES DIVISION
WORKSTATION
/X/ IBM PS/2 ValuePoint ImageStation (1)
SCO UNIX Open Desktop Release 3.0 (1)
Truevision ATVista 32-bit Videographics Card (1)
/X/ 15-inch Electohome Color Monitor (1)
SMALL COLOR PRINTER
/X/ Kodak SV6600 Color Printer, Extractor, and
Finisher. (1)
B&W SIMPLEX PRINTER
/X/ HP LaserJet 4 Printer (1)
CAL-PHOTO CAPTURE STUDIO
/X/ Hitachi Hi-Resolution HV-C10F RGB Video Camera (1)
/X/ Remote Pan and Tilt Mechanism (1)
Vicon Model V3000 APT Remote Pan & Tilt (1)
V1600 WM Wall Mount with V1600 AH Adjustable Head (1)
/X/ HALO 3-Point Lighting System (1)
/X/ Reflective Light Pedestal (1)
/X/ 18% Grey Background (1)
VIDEOTAPE CAPTURE DEVICE
/X/ Video Capture Sub-system (1)
Truevision NTSC VID I/O Box Encoder/Decoder (1)
UPS
/X/ Emerson AP1000 Series Uninterruptible
Power System (1)
ARTIST STATION
Not supplied in the confines of this bid.
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17 August 1993 52 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.2 CONFIGURATION:
7.2.1 BIDDER MUST PROVIDE A COMPLETE LIST OF HARDWARE, BASED ON
THE HARDWARE CONFIGURATION DIAGRAM, APPENDIX C.
CONTINUED ...
JAIL/RECORDS DIVISION
WORKSTATIONS
/X/ IBM PS/2 ValuePoint ImageStation (3)
SCO UNIX Open Desktop Release 3.0 (3)
Truevision ATVista 32-bit Videographics Card (3)
/X/ 15-inch Electohome Color Monitor (3)
SLAVE MONITOR
/X/ 15-inch Electohome Color Monitor (1)
- tied to 1 of the ImageStations above.
SCANNER
/X/ Hi-Res. Camera Scanner/Copy Stand (1)
Hitachi Hi-Res. HV-C10 RGB Video Camera (1)
Kaiser Copy Stand (1)
SMALL COLOR PRINTER
/X/ Kodak SV6600 Color Printer, Extractor, and
Finisher. (1)
LARGE COLOR PRINTER
/X/ Mitsubishi CP-210U Large Format Color Video Printer (1)
B&W DUPLEX PRINTER
/X/ HP LaserJet 4 Si Duplex Printer (2)
BADGEMAKER
/X/ XImage Badge Laminator
/X/ XImage Die Cutter
UPS
/X/ Emerson AP1000 Series Uninterruptible
Power System (2)
- --------------------------------------------------------------------------------
17 August 1993 53 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.2 CONFIGURATION:
7.2.1 BIDDER MUST PROVIDE A COMPLETE LIST OF HARDWARE, BASED ON
THE HARDWARE CONFIGURATION DIAGRAM, APPENDIX C.
CONTINUED ...
JAIL/BOOKING DIVISION
WORKSTATIONS
/X/ IBM PS/2 ValuePoint ImageStation (3)
SCO UNIX Open Desktop Release 3.0 (3)
Truevision ATVista 32-bit Videographics Card (3)
/X/ 15-inch Electohome Color Monitor (3)
CAL-PHOTO PHOTOGRAPHY AREA
/X/ Hitachi Hi-Res. HV-C10F RGB Video Camera (1)
/X/ Remote Pan and Tilt Mechanism (1)
Vicon Model V3000 APT Remote Pan & Tilt (1)
V1600 WM Wall Mount with V1600 AH Adjustable Head (1)
/X/ HALO 3-Point Lighting System (1)
/X/ Reflective Light Pedestal (1)
/X/ 18% Grey Background (1)
SWITCHING DEVICE
/X/ For 3 monitors to access single camera.
B&W DUPLEX PRINTER
/X/ HP LaserJet 4 Si Duplex Printer (1)
WRISTBAND MAKER
/X/ XImage Wristband Laminator
/X/ XImage Die Cutter
UPS
/X/ Emerson AP1000 Series Uninterruptible
Power System (3)
OPTIONS
Device for Weight Capture (1) - Not quoted within this bid.
Device for Signature Capture (1) - Not quoted within
this bid.
Device for Height Capture (1) - Not quoted within this bid.
Fingerprint Access Device (1) - Not quoted within this bid.
- --------------------------------------------------------------------------------
17 August 1993 54 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.2 CONFIGURATION:
7.2.2 THE CONTRACTOR SHALL PROVIDE A MANUAL FOR EACH PIECE OF
EQUIPMENT AND OPTIONS DELIVERED.
XImage Corporation WILL provide a manual for each piece of
equipment and options delivered.
7.3 PROVIDE FLEXIBILITY:
7.3.1 ALL STATIONS SHOULD BE AS FUNCTIONALLY EQUIVALENT AS
POSSIBLE SO THAT ANY FUNCTION CAN BE PERFORMED FROM ANY
WORKSTATION, SUBJECT ONLY TO SOFTWARE CONTROLS AND INHERENT
HARDWARE LIMITATIONS (E.G. CAMERA/PRINTER ETC).
All stations WILL be as functionally equivalent as possible
so that any function can be performed from any workstation,
subject only to sofware controls and inherent hardware
limitations.
7.3.2 THE SYSTEM MUST BE EASY TO RECONFIGURE AND EXPAND, SUCH AS
ADD-ON FILE SERVERS, WORKSTATIONS, SCANNERS, FINGERPRINT
ACCESS DEVICES, ETC. BIDDER MUST DESCRIBE HOW THIS IS
ACCOMPLISHED ON THE QUOTED SYSTEM.
The system WILL be easy to reconfigure and expand, such as
add-on file servers, workstations, scanners, fingerprint
access devices, etc. Because of the modular configuration of
the ForceField system it is easy to reconfigure and expand.
This will allow Hennepin County to expand their system with
a minimum of effort and with little change to the existing
system.
7.3.3 IF THE FILE SERVER BECOMES INOPERABLE, THE WORKSTATIONS MUST
BE ABLE TO CONTINUE TO CAPTURE IMAGES AND DATA, AND PRINT
INITIAL BOOKING FORMS.
If the file server becomes inoperable, the workstations WILL
be able to continue to capture images and data, and print
initial booking forms.
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17 August 1993 55 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.3 PROVIDE FLEXIBILITY:
7.3.4 THE THREE BOOKING WORKSTATIONS MUST BE CAPABLE OF STORING A
TOTAL OF 100 (ONE HUNDRED) BOOKINGS AND ASSOCIATED IMAGES
WHILE THE FILE SERVER IS INOPERABLE AND SHOULD BE CAPABLE OF
STORING 150 (ONE HUNDRED FIFTY).
The three booking workstations WILL be capable of storing a
total of 100 (one hundred) bookings and associated images
while the file server is inoperable and should be capable of
storing 150 (one hundred fifty).
7.3.5 THE REMAINING CAPTURE STATIONS MUST BE CAPABLE OF STORING 20
(TWENTY) FOLDERS AND ASSOCIATED IMAGES WHILE THE FILE SERVER
IS INOPERABLE.
The remaining capture stations WILL be capable of storing 20
(twenty) folders and associated images while the file server
is inoperable.
7.3.6 WHEN THE FILE SERVER BECOMES OPERABLE, THE DATA AND IMAGES
MUST BE TRANSFERRED TO THE FILE SERVER.
When the file server becomes operable, the data and images
WILL be transferred to the file server.
7.4 FILE SERVER:
7.4.1 THE FILE SERVER MUST BE A MEMBER OF AN UPWARD-COMPATIBLE
"FAMILY" OF PROCESSORS SO THAT THE SYSTEM CAN ACCOMMODATE
FUTURE EXPANSION BY UPGRADING THE PROCESSORS WITH MINIMAL
EFFECT ON APPLICATION SOFTWARE. BIDDER SHOULD STATE WHERE
QUOTED FILE SERVER STANDS WITHIN THE FAMILY OF PROCESSORS.
OTHER INTERPRETATIONS OF THE PHRASE, "FAMILY OF PROCESSORS,"
WILL BE ACCEPTED IF SOFTWARE WHICH HAS BEEN SUPPORTING THE
REQUIRED WORKLOAD AT THE REQUIRED PERFORMANCE LEVELS WILL
COMPILE AND EXECUTE WITHOUT MODIFICATION OR EMULATION ON
PROPOSED REPLACEMENT PROCESSORS.
The file server WILL be a member of an upward-compatible
"family" of processors so that the system can accommodate
future expansion by upgrading the processors with minimal
effect on application software.
The RISC System/6000 models come in four binary-compatible
series: entry-level 200 Series and 300 Series desktop
POWERservers, 500 Series deskside models, and the high
- --------------------------------------------------------------------------------
17 August 1993 56 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.4 FILE SERVER:
performance/high capacity 900 POWERserver Series. Binary
compatibility across the RISC System/6000 family allows you
to develop your applications on the system of your choice
and replicate them on any RISC System/6000. You buy only
enough power to serve your computing needs today, while
protecting your investment in the future.
--> The IBM RISC System/6000 family servers proposed by
XImage Corporation has been awarded the 1993 BYTE
Dealers Choice Award for best workstation.
--> The proposed 300 Series of servers are industry-leading
systems that provide excellent price/performance and
capacity, with up to 256MB of memory and a maximum of
4GB of internal disk storage.
7.4.2 THE SERVER MUST HAVE A MINIMUM OF 32 MB OF RAM AND SHOULD BE
UPGRADABLE TO 128 MB OF RAM.
The server WILL have a minimum of 32 MB of RAM and should be
upgradable to 128 MB of RAM.
7.4.3 THE SERVER SHOULD HAVE A MINIMUM PERFORMANCE SPECMARK OF 35
OR EQUIVALENT.
The server WILL have a minimum performance SPECmark of 35
or equivalent.
7.4.4 THE SERVER MUST HAVE A PROCESSOR SPEED OF 33 MHz OR BETTER.
The server WILL have a processor speed of 66 MHz.
7.4.5 THE SERVER MUST HAVE AT LEAST THREE 32-BIT OR BETTER DATA
BUS EXPANSION SLOTS.
The proposed server WILL have four (4) 32-bit Micro Channel
card slots; two (2) serial ports; and one (1) parallel
printer port.
7.4.6 THE SERVER MUST HAVE A 3 1/2" DISKETTE DRIVE.
The proposed server WILL have a 3 1/2" diskette drive.
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17 August 1993 57 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.4 FILE SERVER:
7.4.7 THE SERVER MUST HAVE A TRUE MULTI-TASKING 32-BIT OPERATING
SYSTEM THAT MEETS OPERATING SYSTEM SPECIFICATIONS AS
REFERENCED IN OPERATING SYSTEM SOFTWARE SECTION 8.2.
The server WILL utilize IBM AIX, a true multi-tasking 32-bit
operating system that meets operating system specifications
as referred in Operating System Software.
7.4.8 SYSTEM MUST INITIALLY SUPPORT A MINIMUM OF TWENTY
WORKSTATIONS (CAPTURE OR DISPLAY) WHILE CONTINUING TO MEET
ALL SPECIFICATIONS HEREIN.
The configuration specified WILL initially support a minimum
of twenty (20) workstations (capture or display) and
continue to meet all specifications herein.
7.4.9 SYSTEM MUST BE UPGRADABLE TO AT LEAST FORTY WORKSTATIONS
AND TWICE THE INITIAL SUPPORTED IMAGES AND DATE WHILE
CONTINUING TO MEET ALL SPECIFICATIONS HEREIN.
The configuration specified WILL be upgradable to at least
forty (40) workstations and twice the initial supported
images and data and continue to meet all specifications
herein.
7.4.10 BIDDER MUST STATE THE NUMBER OF WORKSTATIONS THAT INITIAL
SYSTEM WILL SUPPORT.
The configuration specified WILL initially support a maximum
of twenty (20) workshops (capture or display) and will be
upgraded to at least forty (40) workstations with minimal
changes to the initial hardware configuration.
7.4.11 DATA STORAGE:
7.4.11.1 THE SYSTEM MUST BE CAPABLE OF CAPTURING, STORING, AND
QUICKLY RETRIEVING IMAGES AND CORRESPONDING DATE IN MULTIPLE
DATABASES TO BE DEFINED BY THE COUNTY (I.E. ADULTS BOOKED,
EMPLOYEE PHOTO I.D., INVESTIGATIVE, ETC.)
The system WILL be capable of capturing, storing, and
quickly retrieving images and corresponding date in
multiple databases to be defined by the County (i.e.,
adults booked, employee photo i.d., investigative, etc.)
- --------------------------------------------------------------------------------
17 August 1993 58 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.4 FILE SERVER:
7.4.11.2 THE SYSTEM MUST BE ABLE TO INITIALLY SUPPORT THREE YEARS
OF ON-LINE STORAGE BASED ON THE GIVEN USE, A TOTAL OF
125,000 IMAGES PER YEAR AND 375,000 FOR THREE YEARS. THE
NUMBER OF IMAGES ARE BASED ON:
1) 40,000 BOOKINGS (ONE FRONT AND ONE SIDE VIEW PHOTO FOR
EACH BOOKING) PER YEAR, OR 80,000 IMAGES WITH AN
AVERAGE OF 600 BYTES OF DATA FOR EACH BOOKING;
2) 10,000 ADDITIONAL FRONT AND SIDE VIEWS FOR GLASSES,
WIGS, TATTOOS, ETC., OR 20,000 IMAGES ATTACHED TO
ABOVE BOOKINGS;
3) 2,000 EMPLOYEE/VISITOR PHOTOS WITH AN AVERAGE OF 600
BYTES OF DATA FOR EACH EMPLOYEE;
4) 23,000 INVESTIGATIVE RECORDS WITH AN AVERAGE OF 6K OF
DATA FOR EACH RECORD.
5) AUDIT LOG
The system WILL be able to initially support three years
of on-line storage based on the given use, a total of
125,000 images per year and 375,000 for three years.
7.4.12 FILE SERVER MONITOR, KEYBOARD & MOUSE:
THE SERVER MONITOR, KEYBOARD AND MOUSE MUST HAVE THE SAME
SPECIFICATIONS AS A WORKSTATION AND BE A SINGLE SCREEN
SOLUTION FOR IMAGES AND DATA. FAILURE OR MAINTENANCE OUTAGE
OF THE SYSTEM TERMINAL MUST NOT FUNCTIONALLY DISABLE THE
ASSOCIATED FILE SERVER.
An additional IBM PS/2 466DX ValuePoint ImageStation will be
located at the file server location. This station's monitor,
keyboard and mouse WILL have the same specification as other
workstation's on the system and be a single screen solution
for images and data. Failure or maintenance outage of the
system terminal WILL not functionally disable the associated
file server.
7.5 MODEM TO PROVIDE MAINTENANCE SUPPORT:
7.5.1 MUST HAVE A HIGH SPEED MODEM WITH A MINIMUM 9600 BPS RATE.
BIDDER MUST STATE MODEM BPS RATE.
The proposed system WILL have a Telebit Trailblazer T2500
modem which features a 1800 bps rate.
- --------------------------------------------------------------------------------
17 August 1993 59 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.5 MODEM TO PROVIDE MAINTENANCE SUPPORT:
7.5.2 BIDDER SHOULD STATE WHETHER OR NOT A FAX CAPABILITY IS PART
OF THE MODEM.
Fax capability is not a part of the supplied modem.
7.5.3 MUST USE A CONVENTIONALLY SWITCHED TELEPHONE LINE.
The supplied modem WILL use a conventionally switched
telephone line.
7.6 BACKUP DEVICE:
7.6.1 THE SYSTEM MUST INCLUDE A STATE-OF-THE-ART BACKUP DEVICE.
The system WILL include a 2.3 GB 8mm backup device.
7.6.2 BIDDER MUST STATE THE TYPE OF MEDIUM USED (I.E. TYPE OF
TAPE).
8MM magnetic tape backup is utilized by the ForceField
System.
7.6.3 THE DEVICE(S) MUST ALLOW BACKUPS OF ALL WORKSTATIONS AND
THE FILE SERVER FROM ONE LOCATION.
The device WILL allow backups of all workstations and the
file server from one location.
7.6.4 THERE MUST BE SUFFICIENT STORAGE FOR AT LEAST 2 GB PER
STORAGE MEDIUM.
The proposed magnetic tape storage is sufficient for 2.3
GB each cartridge.
7.6.5 THE SUSTAINED TRANSFER RATE MUST BE AT LEAST 200 KB/SEC.
BIDDER MUST STATE KB/SEC TRANSFER RATE AND SEARCH RATE OF
PROPOSED DEVICE.
The sustained transfer rate of the proposed tape backup
device WILL EXCEED 200 KB/sec.
The KB/sec transfer and search rate is 245 KB/sec.
- --------------------------------------------------------------------------------
17 August 1993 60 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.7 WORKSTATIONS (8):
7.7.1 THE WORKSTATION MUST BE A SINGLE SCREEN SOLUTION DISPLAYING
BOTH DATA AND IMAGES FOR PHOTO IMAGING APPLICATIONS.
The workstation WILL be a single screen solution displaying
both data and images for photo imaging applications. The
ForceField System displays both images and data on a single
screen.
7.7.2 MONITOR:
7.7.2.1 MUST HAVE A MINIMUM RESOLUTION OF 780 x 480 PIXELS AND
SUPPORT BOTH 16 AND 24-BIT COLOR IMAGES WITH .28MM DOT
PITCH OR BETTER.
The workstation monitor is the ELECTROHOME ECM 1510 with
a resolution of 1024 x 768 pixels and supports both 16 and
24-bit color images with .28mm dot pitch.
We also offer a 13" SONY CPD-1302 with a resolution of
900 x 560 pixels and supports both 16 and 24-bit color
images with .28mm dot pitch.
--> This option represents a significant savings to Hennepin
County.
7.7.2.2 MUST HAVE A MINIMUM OF A 15-INCH DIAGONAL NON-GLARE
SCREEN. BIDDER SHOULD SPECIFY OPTIONAL MONITORS (SCREEN
SIZES LARGER AND SMALLER THAN 15" DIAGONAL, HIGHER
RESOLUTION, ETC. WITH SPECIFICATIONS).
The ELECTROHOME ECM 1510 has a 15-inch diagonal non-glare
screen.
The SONY CPD-1302 has a 13-inch diagonal non-glare screen.
7.7.2.3 MUST HAVE A NON-INTERLACED MONITOR WITH AN APPROPRIATE
RESOLUTION AND REFRESH RATE FOR THE GRAPHICS BOARD.
The ELECTROHOME ECM 1510 & SONY CPD-1302 are both
non-interlaced with an appropriate resolution and
refresh rate for the graphics board.
7.7.2.4 MUST DISPLAY INTENSITY CONTINUOUSLY VARIABLE BY THE
OPERATOR FROM COMPLETELY DARK TO MAXIMUM BRIGHTNESS.
The ELECTROHOME ECM 1510 & SONY CPD-1302 WILL both
display intensity continuously variable by the operator
from completely dark to maximum brightness.
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17 August 1993 61 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.7 WORKSTATIONS (8):
7.7.2.5 ALL CHARACTERS AND GRAPHICS, INCLUDING "DIM," MUST BE
STABLE AND JITTER FREE.
The ELECTROHOME ECM 1510 & SONY CPD-1302 are both
non-interlaced. The primary benefit of this feature is
that the display will remain stable and flicker free
under most all ambient conditions encountered in a
typical office environment.
7.7.2.6 CHARACTERS AND GRAPHICS MUST HAVE A UNIFORM APPEARANCE ON
ALL PARTS OF THE SCREEN.
Characters and graphics WILL have a uniform appearance on
all parts of the screen.
7.7.2.7 MUST BE ATTACHED TO A TILT/SWIVEL BASE.
The monitor WILL be attached to a tilt/swivel base.
7.7.3 KEYBOARD AND MOUSE:
7.7.3.1 THE KEYBOARD DESIGN MUST PREVENT MALFUNCTION DUE TO KEY
"BOUNCE," SIMULTANEOUS CLOSURE OF MULTIPLE KEYS OR
SPILLAGE OF LIQUIDS.
The keyboard design WILL prevent malfunction to key
"bounce," simultaneous closure of multiple keys or
spillage of liquids.
7.7.3.2 THE KEYS SHOULD BE FORMED BY DOUBLE-SHOT MOLDING TO
PREVENT DIRT AND DUST FROM OBLITERATING THE LEGENDS.
The keys WILL be formed by double-shot molding to prevent
dirt and dust from obliterating the legends.
7.7.3.3 THE KEYBOARD MUST BE DETACHED OR DETACHABLE FROM THE
WORKSTATION ON AN EXTENDED, COILED CABLE, AND ITS
POSITION MUST BE ADJUSTABLE BY THE OPERATOR.
The keyboard WILL be detached or detachable from the
workstation on an extended, coiled cable, and its
position CAN be adjustable by the operator.
7.7.3.4 MUST INCLUDE A MOUSE.
The workstation WILL include a mouse.
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17 August 1993 62 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.7 WORKSTATIONS (8):
7.7.4 PROCESSOR:
7.7.4.1 THE PROCESSOR MUST BE A MEMBER OF AN UPWARD-COMPATIBLE
"FAMILY OF PROCESSORS" SO THAT THE SYSTEM CAN ACCOMMODATE
FUTURE EXPANSION BY UPGRADING THE COMPUTER WITH MINIMAL
EFFECT ON APPLICATION SOFTWARE. BIDDER SHOULD STATE WHERE
QUOTED PROCESSOR STANDS WITHIN THE FAMILY OF PROCESSORS.
OTHER INTERPRETATIONS OF THE PHRASE, "FAMILY OF PROCESSORS"
WILL BE ACCEPTED IF SOFTWARE WHICH HAS BEEN SUPPORTING THE
REQUIRED WORKLOAD AT THE REQUIRED PERFORMANCE LEVELS WILL
COMPILE AND EXECUTE WITHOUT MODIFICATION OR EMULATION ON
PROPOSED REPLACEMENT PROCESSORS.
The processor WILL be a member of an upward-compatible
"family of processors" so that the system can accommodate
future expansion by upgrading the computer with minimal
effect on application software.
The IBM PS/2 466DX ValuePoint ImageStation utilizes the
powerful Intel 80486 family of microprocessors. This will
give Hennepin County Sheriff's Department the power and the
speed to take full advantage of the ForceField imaging
software. Should the County decide to expand the
capabilities of the system, this platform can accommodate
future expansion with minimal effect on application software.
7.7.4.2 SHOULD UTILIZE A CPU WITH A MINIMUM SPECMARK OF 25 OR
EQUIVALENT.
The workstations WILL utilize a CPU with a minimum SPECmark
of 25 or equivalent.
7.7.4.3 MUST HAVE A MINIMUM PROCESSOR SPEED OF 33 MHz.
The workstations WILL have a processor speed of 66 MHz.
7.7.4.4 MUST HAVE THE EQUIVALENT OF A 486 OR BETTER PROCESSOR.
The workstations WILL utilize the Intel 486 DX processor.
- --------------------------------------------------------------------------------
17 August 1993 63 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.7 WORKSTATIONS (8):
7.7.4.5 MUST HAVE A MINIMUM OF 16 MB RAM AND SHOULD BE UPGRADABLE TO
32 MB RAM.
The workstations WILL have a minimum of 16 MB RAM and WILL be
upgradable to 32 MB RAM.
7.7.4.6 MUST HAVE A MINIMUM A 160 MB HARD DISK.
The workstations WILL have a minimum 160MB hard disk.
7.7.4.7 MUST HAVE AT LEAST TWO 32-BIT OR BETTER DATA BUS EXPANSION
SLOTS.
The workstations WILL have at least two 32-bit data bus
expansion slots.
7.7.4.8 MUST HAVE A 3-1/2" DISKETTE DRIVE.
The workstations WILL have a 3-1/2" diskette drive.
7.7.4.9 MUST HAVE A TRUE MULTI-TASKING 32-BIT OPERATING SYSTEM THAT
MEETS OPERATING SYSTEM SPECIFICATIONS AS REFERENCED IN THE
OPERATING SYSTEM SOFTWARE SECTION 8.2.
The workstations WILL utilize SCO Unix, a true Multi-tasking
32-bit operating system that meets operating system
specifications as referenced in the Operating System
Software section. SCO Open Desktop is an integrated,
advanced, 32-bit operating system that combines the
collective power of a graphical UNIX system and networking
services.
- --------------------------------------------------------------------------------
17 August 1993 64 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.7 WORKSTATIONS (8):
7.7.5 VIDEO GRAPHICS BOARD:
7.7.5.1 ALL WORKSTATIONS MUST HAVE A VIDEO GRAPHICS BOARD THAT
CAPTURES AND DISPLAYS IMAGES WITH A RESOLUTION EQUAL TO OR
BETTER THAN 750 X 480 PIXELS. BIDDER MUST QUOTE A 24-BIT
SOLUTION IN THE RECOMMENDED SYSTEM AND MUST QUOTE A 16-BIT
SOLUTION AS AN OPTION.
THE BIDDER MUST PROVIDE A DESCRIPTION IN THE QUOTED 16 AND
24-BIT SOLUTIONS. ANY CHANGES THAT WILL EFFECT EITHER PIECES
OF HARDWARE OR SOFTWARE OR THE PRICES RELATING TO THIS ITEM
ARE TO BE CLEARLY LISTED IN APPENDIX E UNDER "OPTIONS"
NOTING WHICH ITEMS THEY REPLACE AND THE NEW PRICE.
All workstations WILL have a video graphics board that
captures and displays images with a resolution equal to or
better than 750 x 480 pixels. XImage Corporation has quoted
a 24-bit solution in the recommended system and a 16-bit
solution as an option.
The 16-bit approach utilizes 5 bits for RED, GREEN, and
BLUE. This configuration allows for 32,768 colors per pixel.
Our proposed 24-bit solution utilizes 8 bits for RED, GREEN,
and BLUE and allows for 16.7 million possible colors per
pixel.
The 24-bit solution requires different software and and
additional 2MB RAM on the videographics board. Any other
changes that will effect either pieces of hardware or
software or the prices relating to this item have been
clearly listed in Appendix E under "Options" noting which
items they replace and the new price.
-> Please see the enclosed pricing and print samples for
information on our 16-bit system. This system represents a
significant cost savings to Hennepin County with excellent
print quality.
7.8 UNINTERRUPTED POWER SUPPLY (9):
7.8.1 AT LEAST A TEN MINUTE UNINTERRUPTED POWER SUPPLY MUST BE
PROVIDED FOR ALL WORKSTATIONS AND FILE SERVER TO ALLOW FOR
ORDERLY, UNATTENDED GRACEFUL (SOFT) SHUTDOWN OF THE SYSTEM DUE
TO POWER PROBLEMS.
At least a ten minute uninterrupted power supply WILL be
provided for all workstations and file server to allow for
orderly, unattended graceful (soft) shutdown of the system due
to power problems.
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17 August 1993 65 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.8 UNINTERRUPTED POWER SUPPLY (9):
7.8.2 UPS MUST BE ON-LINE TO CONTINUOUSLY FILTER INCOMING
UTILITY POWER TO REMOVE SPIKES, SURGES, TRANSIENTS, OR
OTHER IRREGULARITIES TO PRODUCE CONSTANT POWER OUTPUT.
The UPS WILL be on-line to continuously filter incoming
utility power to remove spikes, surges, transients, or
other irregularities to produce constant power output.
7.8.3 BIDDER MUST DESCRIBE HOW THE UPS AND ASSOCIATED SOFTWARE
ACCOMPLISH THE ABOVE UPS SPECIFICATIONS.
XImage Corporation has proposed the Emerson Computer Power
AP1000 Series of Uninterruptible Power Systems (UPS). These
systems provide the level of protection the ForceField
system needs for reliable continuous operation. These
systems act as two systems in one. First, they continuously
supply the computer system with conditioned power and
second, they provide a back-up source to power the
ForceField system during brownout or total blackout
conditions of 15 minutes of longer.
7.8.4 BIDDER MUST STATE WATTAGE RATING/CAPACITY FOR UPS.
Please see our technical literature section in this
proposal for the wattage ratting/capacity for the proposed
UPS.
7.9 SLAVE MONITOR (1):
7.9.1 MUST BE ATTACHED TO A WORKSTATION LOCATED WITHIN 20 FEET.
A slave monitor WILL be attached to a workstation located
within 20 feet.
7.9.2 MUST HAVE SAME SPECIFICATIONS AS LISTED IN WORKSTATION
MONITOR SECTION. SHOULD BE THE SAME MONITOR AS THE
WORKSTATION TO WHICH IT IS ATTACHED.
The slave monitor WILL have same specifications as listed in
workstation monitor section and WILL be the same monitor as
the workstation to which it is attached.
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17 August 1993 66 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.9 SLAVE MONITOR (1):
7.9.3 MUST MIRROR THE HOST WORKSTATION MONITOR.
The slave monitor WILL mirror the host workstation monitor.
7.9.4 SHOULD HAVE A SWITCH DEVICE TO TURN THE MONITOR ON AND OFF
AT THE WORKSTATION.
7.10 CAMERA AND LIGHTING SYSTEM (2):
7.10.1 THE STORED IMAGES MUST BE OF SUFFICIENT RESOLUTION TO
PRODUCE A HIGH QUALITY, HARD COPY PRINTOUT WHICH IS NEAR
OR COMPARABLE TO A 35MM PHOTOGRAPH. THE BIDDER MUST PROVIDE
SAMPLES OF BOTH COLOR AND BLACK AND WHITE MUG SHOTS BOTH
COLLECTED AND PRINTED ON THE QUOTED SYSTEM.
The stored images WILL be of sufficient resolution to
produce a high quality, hard copy printout which is near or
comparable to a 35mm photograph. We have provided samples
of both color and black and white mug shots both collected
and printed on the quoted system.
7.10.2 MUST BE A RGB 3 CHIP SOLTD STATE, COLOR CAMERA AND HAVE A
MINIMUM OF 530 LINES OF RGB RESOLUTION. BIDDER SHOULD STATE
ANY OTHER CHOICES AVAILABLE.
The booking station WILL be equipped with a Hitachi HV-C10F
RGB 3 chip solid state, color camera with 560 lines of RGB
resolution (750 TV lines at center - LUMINANCE SIGNAL).
XImage Corporation also offers the Hitachi HV-Cll RGB 3
chip solid state, color camera with 510 lines of RGB
resolution (700 TV lines at center - LUMINANCE SIGNAL).
This camera exceeds the CAL Photo standard and can be had
for a reduced cost. Please see our optional equipment
listing in the pricing section.
7.10.3 MUST HAVE A HIGH QUALITY f/1.4 OR BETTER LENS.
Both the Hitachi HV-C10F and Hitachi HV-Cll are equipped
with a high quality f/1.4 lens.
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17 August 1993 67 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.10 CAMERA AND LIGHTING SYSTEM (2):
7.10.4 BIDDER MUST DESCRIBE THE TECHNIQUE EMPLOYED TO INSURE
CONSISTENT PHOTOGRAPHS OF VERY SHORT OR VERY TALL
SUBJECTS. BIDDER MUST PROVIDE MUGSHOT SAMPLES OF 1 PERSON
LESS THAN 5' TALL AND 1 PERSON MORE THAN 6'5" TALL, USING
THE SAME CAMERA FROM A DISTANCE OF 15 FEET. BIDDER MUST
CLEARLY LABEL EACH MUGSHOT AS TO THE HEIGHT OF THE SUBJECT
AND DISTANCE FROM THE CAMERA.
Each capture station will be equipped with a Vicon Model
V3000 APT remote pan & tilt mechanism. This wall mounted
device can be controlled by a control stick located at
the workstation. The camera and lens configuration will
ensure consistent capture of short and tall subjects.
7.10.5 THE SYSTEM MUST USE AN 18% GRAY BACKGROUND.
The system WILL use an 18% gray background.
7.10.6 BIDDER MUST STATE MINIMUM AND MAXIMUM DISTANCE OF SUBJECT
TO CAMERA AND ANY REQUIREMENT FOR DISTANCE OF SUBJECT
FROM BACKGROUND/WALL FOR ACCEPTABLE PHOTOS.
MINIMUMS for image capture are:
Subject to camera 6 feet (72 inches)
Background to subject 2 feet (24 inches)
MAXIMUMS for image capture are:
Subject to camera 40 feet (480 inches)
Background to subject OPEN
7.10.7 MUST HAVE AN APPROPRIATE LIGHTING SYSTEM FOR QUALITY
IMAGES WITH MINIMAL SHADOWING.
The capture area WILL be equipped with an appropriate
lighting system for quality images with minimal shadowing.
Three point lighting will be incorporated with the 18%
grey background and a reflective pedestal to provide
optimum capture conditions.
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17 August 1993 68 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.10 CAMERA AND LIGHTING SYSTEM (2):
7.10.8 ONE OF THE CAMERAS MUST BE SHARED BY THREE WORKSTATIONS IN
THE JAIL BOOKING AREA. A HARDWARE OR SOFTWARE SWITCHING
DEVICE AT THE WORKSTATION MUST BE PROVIDED.
One of the cameras WILL be shared by three workstations in
the jail booking area. An EXTRON ADA 3-180 switching device
installed at the workstations WILL be provided.
7.10.9 THE CAMERA MUST BE SECURELY MOUNTED ON A WALL OR CEILING
AT A HEIGHT WHICH WILL PROVIDE LIMITED ACCESS TO INMATES.
The camera WILL be securely mounted on a wall or ceiling
at a height which will provide limited access to inmates.
7.10.10 THE CAMERA MUST BE OF A HEAVY DUTY, COMMERCIAL
CONSTRUCTION.
The camera WILL be of a heavy duty, commercial
construction.
7.11 COLOR SCANNER (1):
7.11.1 ONE WORKSTATION IN THE JAIL RECORDS AREA MUST HAVE A
SCANNER OR CAMERA TO CAPTURE HISTORICAL IMAGES FROM
POSITIVE OR NEGATIVE PHOTO, COLOR OR BLACK AND WHITE, 35MM,
70MM, POLAROID, ARTIST SKETCH, DRIVER'S LICENSE OR PHOTO
IDENTIFICATION, PLAIN PAPER, ETC.
One workstation in the jail records area WILL have a
Hitachi HV-C10 RGB 3 chip solid state, color camera
mounted to a copystand/scanner bed to capture historical
images from positive or negative photo, color or black and
white, 35MM, 70MM, polaroid, artist sketch, driver's
license or photo identification, plain paper, etc.
7.11.2 MUST ACCEPT A SOURCE DOCUMENT UP TO 8 1/2" X 11".
The color scanner workstation WILL accept a source
document up to 8 1/2" X 11".
7.11.3 MUST ALLOW ADJUSTMENT OF HUE, SATURATION AND CONTRAST.
The camera WILL allow adjustment of hue, saturation and
contrast.
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17 August 1993 69 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.11 COLOR SCANNER (1):
7.11.4 MUST ALLOW "CROPPING" THE PORTION OF THE ORIGINAL TO BE
STORED.
The system WILL allow "cropping" the portion of the
original to be stored.
7.11.5 THE SCANNED IMAGE SHOULD BE COMPARABLE TO THE ORIGINAL
IMAGE QUALITY.
The scanned image WILL be comparable to the original image
quality.
7.11.6 IF THE SCANNER SOLUTION INCLUDES A CAMERA, THE CAMERA
SHOULD BE EXCHANGEABLE WITH THE WORKSTATION CAPTURE CAMERA.
The camera utilized by this workstation WILL be
exchangeable with any of the workstation capture cameras.
7.12 VIDEO TAPE FRAME CAPTURE DEVICE:
7.12.1 ONE WORKSTATION IN THE DETECTIVE UNIT MUST BE EQUIPPED TO
CAPTURE COLOR IMAGES FROM VIDEO TAPE, VHS FORMAT.
One workstation in the detective unit WILL be equipped to
capture color images from video tape, VHS format.
7.12.2 MUST BE ABLE TO "CROP" THE FRAME PORTION TO BE STORED.
The video frame capture device WILL be able to "crop" the
frame portion to be stored.
7.12.3 BIDDER SHOULD STATE IF ANY OTHER DEVICES/FORMATS (VIDEO
DISK, PORTABLE DIGITAL CAMERAS, 8MM ETC.) THAT CAN ALSO BE
UTILIZED.
Forcefield can utilize output produced by the above
devices.
7.12.4 THE BIDDER MUST INCLUDE IN THE OPTION SECTION A TIME BASED
CORRECTOR UNIT.
The option of a time based corrector unit has been
included in Appendix E.
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17 August 1993 70 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.13 BLACK AND WHITE LASER PRINTER (6):
7.13.1 MUST HAVE A MINIMUM PRINT RESOLUTION OF 300 DPI. BIDDER
SHOULD ALSO QUOTE A 600 DPI SOLUTION AS AN OPTION.
XImage Corporation has proposed the Hewlett Packard
LaserJet 4 series of Black and White laser printers. These
printers WILL have a minimum print resolution of 300 DPI.
We have also quoted a 600 DPI solution as an option.
7.13.2 BIDDER MUST QUOTE BOTH SINGLE AND DOUBLE PAPER BINS.
We have quoted both single and double paper bins.
7.13.3 BIDDER MUST STATE THE NUMBER OF PAGES PER MINUTE TO PRINT
A PAGE OF TEXT. THE MINIMUM TEXT RATE MUST BE EIGHT PAGES
PER MINUTE. BIDDER MUST STATE THE NUMBER OF PAGES PER
MINUTE TO PRINT A DOCUMENT CONTAINING A PHOTO APPROXIMATELY
3" X 5". THE MINIMUM PHOTO DOCUMENT RATE MUST BE 1 PAGE
PER MINUTE.
The HP LaserJet prints 8 pages per minute of text. If an
image is included, the system will be able to print within
1 minute.
7.13.4 MUST HAVE SUFFICIENT STORAGE TO PRINT PHOTOS AND DATA ON
FORMS. BIDDER MUST STATE PRINTER RAM.
300 DPI requires 2 MB RAM and 600 DPI requires 10 MB RAM.
7.13.5 MUST HAVE SIMPLEX AND DUPLEX PRINT CAPABILITIES. BIDDER
SHOULD QUOTE BOTH TYPES.
The Hewlett Packard LaserJet 4 WILL have simplex and duplex
print capabilities. We have quoted both types.
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17 August 1993 71 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.13 BLACK AND WHITE LASER PRINTER (6):
7.13.6 BIDDER MUST STATE PAPER WEIGHTS THAT CAN BE USED. MUST ACCEPT
STANDARD 20# AND SHOULD ACCEPT UP TO AT LEAST 30# PAPER IN
8 1/2 X 11" SIZE.
The range of paper weights requested are supported by the
printer. Good quality cut-sheet copier and bond paper,
special-application papers, envelopes, labels and overhead
transparency films designed for use with laser printers can
also be utilized by the printer. Best results are obtained
when 16-36 pound paper is stored and used in temperatures from
63 to 73 degrees fahrenheit and 40 to 50% relative humidity.
7.13.7 MUST SUPPORT PRINTING OF PRESSURE SENSITIVE "STICK ON"
LABELS WHICH ARE ARRANGED ON 8 1/2" X 11" SHEETS.
The Hewlett Packard LaserJet 4 WILL support printing of
pressure sensitive "stick on" labels which are arranged on
8 1/2" X 11" sheets.
7.13.8 BIDDER MUST STATE THE NUMBER OF SHEETS PER PRINT CARTRIDGE
OF ANY PRINTER QUOTED.
The HP LaserJet series can provide 7,000 pages of text pages
or 3,000 image pages. Dependent on the print formats used on
any particular printer, print capacity can be expected to fall
within this range.
7.13.9 BIDDER MUST INCLUDE INFORMATION ON SUGGESTED REPLACEMENT
CYCLE OF COMPONENTS AND MAINTENANCE REQUIREMENTS.
Since the Hewlett Packard LaserJet 4 print head is
incorporated with the toner cartridge, periodic print head
replacement no longer exists as a separate maintenance item.
When the toner cartridge is replaced we recommend a thorough
vacuuming of the interior of the printer.
7.13.10 BIDDER MUST SUBMIT SAMPLES OF PRINTED IMAGES WITH EACH
OPTION AND MARK SAMPLES AS 16-BIT AND 24-BIT.
-> We have captured images in 16-bit and 24-bit color printed
on the Kodak SV6600 dye sublimation printer. We are currently
developing print drivers for 24-bit images for other offered
printers. These Kodak samples provide a graphical
representation of what can be expected from other printers
offered by XImage Corporation.
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17 August 1993 72 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.14 COLOR PRINTER:
7.14.1 TWO SIZES OF PRINTERS MUST BE PROVIDED. BOTH PRINTERS SHOULD
BE CAPABLE OF PRODUCING HARD COPY, NON-DETERIORATING, NEAR
PHOTOGRAPHIC QUALITY PICTURES SIMILAR TO THOSE PRODUCED BY
35MM TYPE COLOR CAMERAS.
Two sizes of printers WILL be provided. Both printers WILL
be capable of producing hard copy, non-deteriorating, near
photographic quality pictures similar to those produced by
35MM type color cameras.
7.14.2 BIDDER MUST STATE THE COST OF PRINTING PHOTOS ON EACH
PRINTER QUOTED.
-> KODAK SV6600 $1.00 each 4x5 print
-> MITSUBISHI CP-21OU $4.00 each 8.5x11 print
7.14.3 BIDDER MUST INCLUDE INFORMATION ON SUGGESTED REPLACEMENT
CYCLE OF COMPONENTS AND MAINTENANCE REQUIREMENTS.
ForceField printers are covered under the quoted hardware
maintenance agreement. XImage Corporation will support up to
12,000 prints per year on the Kodak small format printer and
6,000 prints per year on the Mitsubishi large format printer.
If print media is NOT purchased from XImage during the prior
year, there will be an additional maintenance charge of 8
cents per print for the Kodak and 16 cents per print for the
Mitsubishi on all overages. If Hennepin purchases this media
from XImage these costs will be waived. In either case print
head replacement is not included, whether periodic or by
failure.
7.14.4 BIDDER MUST STATE THE NUMBER OF SHEETS PER PRINT CARTRIDGE
OF ANY PRINTER QUOTED.
-> KODAK SV6600 100 sheets
-> MITSUBISHI CP-21OU 100 sheets
7.14.5 BIDDER MUST QUOTE A DYE SUBLIMATION SOLUTION. BIDDER
SHOULD PROVIDE ADDITIONAL OPTIONS SUCH AS THERMAL.
XImage Corporation HAS provided additional information on
The Canon CJ (Bubble Jet) and CLC (Color Laser) series of
color printers. Please see the pricing and technical
literature sections for particulars.
- --------------------------------------------------------------------------------
17 August 1993 73 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.14 COLOR PRINTER:
7.14.6 BIDDER MUST SUBMIT SAMPLES OF PRINTED IMAGES WITH EACH
OPTION AND MARK SAMPLES AS 16-BIT AND 24-BIT.
-> We have captured images in 16-bit and 24-bit color printed
on the Kodak SV6600 dye sublimation printer. We are currently
developing print drivers for 24-bit images for other offered
printers. These Kodak samples provide a graphical
representation of what can be expected from other printers
offered by XImage Corporation.
7.14.7 SMALL COLOR PRINTER (3):
7.14.7.1 THE SMALL COLOR PRINTER MUST BE CAPABLE OF PRODUCING
IMAGE(S) SINGLE OR MULTIPLE, ON PRINT PAPER SIMILAR IN SIZE
TO A 3-1/2" X 5" PRINT.
The KODAK SV6600 small color printer WILL be capable of
producing image(s) single or multiple, on 4x5 print paper.
-> We have proposed an alternative small color printer for
use with the system. The Edicon ID 200 P provides sharp
images on a small format photographic media. As we have just
completed the interface to this printer we have no marketing
brochure for your review.. Please view our print samples.
7.14.7.2 MUST PRINT IN 90 SECONDS AFTER PRINT JOB IS RECEIVED BY
THE PRINTER.
The KODAK SV6600 Series WILL print normal density prints
within 75 seconds.
7.14.7.3 MUST HAVE A MINIMUM RESOLUTION OF 500 X 460 PIXELS.
Digital images WILL be reproduced with a resolution of 512
x 512 pixels.
7.14.7.4 SHOULD OFFER A BLACK AND WHITE PRINT SET OPTION.
The KODAK SV6600 series WILL offer a black and white print
set option.
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17 August 1993 74 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.14 COLOR PRINTER:
7.14.8 LARGE COLOR PRINTER (1):
7.14.8.1 THE LARGE COLOR PRINTER MUST BE CAPABLE OF PRODUCING
IMAGE(S) SINGLE OR MULTIPLE, ON PRINT PAPER SIMILAR IN
SIZE TO A 8 1/2 X 11" PRINT.
The MITSUBISHI CP-21OU large color printer WILL be capable
of producing image(s) single or multiple, on 8.5x11 inch print
paper.
7.14.8.2 MUST PRINT IN 3 1/2 MINUTES AFTER PRINT JOB IS RECEIVED BY
THE PRINTER.
The MITSUBISHI CP-21OU will print color images in 2 1/2
minutes. Black and white prints take about 1 1/2 minutes from
the time a print job is received.
7.14.8.3 MUST HAVE A MINIMUM RESOLUTION OF 1000 X 750 PIXELS.
The MITSUBISHI CP-21OU which utilizes a sublimation dye
thermal transfer system, offers a pixel array of 1,280 by
1,218.
7.14.8.4 SHOULD OFFER A BLACK AND WHITE PRINT SET OPTION.
A black sublimation dye set is available for monochrome
print.
7.14.8.5 SHOULD OFFER A TRANSPARENCY OPTION.
The MITSUBISHI CP-21OU offers a transparency option.
7.15 BADGEMAKER (1):
7.15.1 SHOULD BE CAPABLE OF CREATING MORE THAN ONE SIZE BADGE. ONE
MUST BE APPROXIMATELY 2 1/2" X 3 1/2" IN SIZE.
XImage Corporation WILL support the badge size required. Our
badgemaking hardware does not currently support multiple sizes.
7.15.2 MUST BE ABLE TO PRODUCE IDENTIFICATION BADGES TO BE ATTACHED
TO CLOTHING BY A CLIP AND WALLET IDENTIFICATION BADGES.
Badges created by this system WILL be able to produce
identification badges to be attached to clothing by a clip and
wallet identification badges.
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17 August 1993 75 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.15 BADGEMAKER (1):
7.15.3 MUST BE TAMPER PROOF SUCH THAT ANY ATTEMPT TO SEPARATE OR
ALTER THE BADGE WILL MAKE THE BADGE USELESS OR SHOW SIGNS OF
TAMPERING.
Badges created by this system WILL be tamper proof such that
any attempt to separate or alter the badge will make the badge
useless or show signs of tampering.
7.15.4 MUST BE ABLE TO PRODUCE BADGES IN BOTH COLOR AND BLACK AND
WHITE.
The ForceField system WILL be able to produce badges in both
color and black and white.
7.15.5 FINAL PRODUCT MUST HAVE PRINTED DATA FROM DATA BASE ON BOTH
SIDES.
Final product WILL have printed data from data base on both
sides.
7.15.6 MUST INCORPORATE A PHOTOIMAGE AND THE DEPARTMENT LOGO.
The badge WILL incorporate a photoimage and the Department logo.
7.15.7 MUST PERMIT DEPARTMENT DESIGNED MULTIPLE BADGE FORMATS.
The badgemaking system WILL permit Department designed
multiple badge formats.
7.15.8 MUST BE FLEXIBLE TO ADD TO APPLICATIONS, LOGO'S, ETC.
The badgemaking system WILL be flexible to add applications,
logo's, etc.
7.15.9 BIDDER MUST SUPPLY SAMPLES OF BADGES WITH THE BID.
Samples of badges have been submitted with the bid.
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17 August 1993 76 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.15 BADGEMAKER (1):
7.15.10 MUST DRAW DATA AND PHOTO FROM EMPLOYEE/VISITOR DATA BASE.
The badgemaking system WILL draw data and photo from
employee/visitor data base.
7.15.11 MUST SUPPORT BAR CODE (3 OF 9) AT A MINIMUM. BIDDER SHOULD
STATE IF SYSTEM ALSO SUPPORTS MAGNETIC STRIP, OR IMBEDDED CHIP.
The badgemaking system WILL support bar code (3 of 9) at a
minimum. We do not currently support magnetic strip or imbedded
chip technologies.
7.15.12 BIDDER MUST DESCRIBE BADGEMAKER SOLUTION.
The production of photo ID badges and jail cards is
accomplished through the use of the optional ForceField badge
making sub-system. This sub-system consists of a laminator, die
cutter, and punch, along with necessary materials for the
production of 100 IDs. Information to be contained on these IDs
range from commissary to inmate information. The barcode
application facilitates inmate control, and transfer and release
information.
Using the ForceField badge making sub-system described above,
personnel departments are able to issue bar-coded
identification cards to any corrections employee as well as
visitors and contract employees.
7.16 WRIST BANDS:
7.16.1 THE FINISHED WRISTBAND MUST CONTAIN PHOTO AND TEXT FROM THE
ADULT BOOKING DATA BASE.
The finished wristband WILL contain photo and text from the
adult booking data base.
7.16.2 THE WRISTBAND MUST BE TAMPER PROOF IN SUCH A WAY THAT ANY
ATTEMPT TO SEPARATE OR ALTER THE WRISTBAND WILL MAKE IT USELESS
OR SHOW SIGNS OF TAMPERING UPON PRESENTATION.
The wristband WILL be tamper proof in such a way that any
attempt to separate or alter the wristband will make it useless
or show signs of tampering upon presentation.
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17 August 1993 77 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.16 WRIST BANDS:
7.16.3 THE WRISTBAND MUST BE ADJUSTABLE TO ANY SIZE WRIST.
The wristband WILL be adjustable to any size wrist.
7.16.4 THE WRISTBAND MUST BE WATERPROOF.
The wristband WILL be waterproof.
7.16.5 MUST PRODUCE WRISTBAND PHOTOS IN BOTH COLOR AND IN BLACK AND
WHITE.
The system WILL produce wristband photos in both color and in
black and white.
7.16.6 MUST PERMIT DEPARTMENT DESIGNED MULTIPLE WRISTBAND FORMATS.
The system WILL permit Department designed multiple
wristband formats.
7.16.7 SAMPLES OF WRISTBANDS MUST BE SUBMITTED WITH THE BID.
Samples of wristbands have been submitted with the bid.
7.16.8 MUST SUPPORT BAR CODE (3 OF 9) AT A MINIMUM. BIDDER SHOULD
STATE IF SYSTEM ALSO SUPPORTS MAGNETIC STRIP OR IMBEDDED CHIP.
The system WILL support bar code (3 of 9) at a minimum. We
do not currently support magnetic strip or imbedded chip
technologies.
7.16.9 BIDDER MUST DESCRIBE SOLUTION.
The production of photo ID wristbands is accomplished
through the use of the optional ForceField badge making
sub-system. This sub-system consists of a laminator, die
cutter, and punch, along with necessary materials for the
production of the wristbands. Information to be contained
on these IDs range from commissary to inmate identification
and control, as well as transfer and release information
through bar-coding.
- --------------------------------------------------------------------------------
17 August 1993 78 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.17 WEIGHT CAPTURE (OPTIONAL):
7.17.1 SHALL PROVIDE AN ACCURATE SCALE WHICH SHOULD ELECTRONICALLY
RECORD WEIGHT WHEN ACTIVATED FROM WORKSTATION.
FEATURE NOT PROVIDED.
7.17.2 SHOULD BE ACCESSIBLE BY THREE WORKSTATIONS, WITH A
SWITCHING DEVICE.
FEATURE NOT PROVIDED.
7.17.3 SHOULD BE SECURELY MOUNTED TO THE FLOOR AND OF HEAVY DUTY
COMMERCIAL CONSTRUCTION.
FEATURE NOT PROVIDED.
7.17.4 AT A MINIMUM SHOULD ACCEPT WEIGHTS UP TO 400 POUNDS.
FEATURE NOT PROVIDED.
7.17.5 BIDDER SHOULD DESCRIBE SOLUTION, IF ONE IS PROPOSED.
FEATURE NOT PROVIDED.
7.18 HEIGHT CAPTURE (OPTIONAL):
7.18.1 SHOULD PROVIDE A DEVICE TO RECORD HEIGHT WHEN ACTIVATED FROM
WORKSTATION.
FEATURE NOT PROVIDED.
7.18.2 SHOULD BE ACCESSIBLE BY THREE WORKSTATIONS, WITH A
SWITCHING DEVICE.
FEATURE NOT PROVIDED.
7.18.3 SHOULD BE SECURELY MOUNTED.
FEATURE NOT PROVIDED.
7.18.4 MAY REQUIRE STAFF TO LOCATE DEVICE (SIMILAR TO PLACING A
MEASURING DEVICE AT THE TOP OF THE SUBJECT'S HEAD) PRIOR TO
CAPTURING THE HEIGHT.
FEATURE NOT PROVIDED.
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17 August 1993 79 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
7 HARDWARE SPECIFICATIONS
7.18 HEIGHT CAPTURE (OPTIONAL):
7.18.5 BIDDER SHOULD DESCRIBE SOLUTION, IF ONE IS PROPOSED.
FEATURE NOT PROVIDED.
7.19 SIGNATURE CAPTURE DEVICE (OPTIONAL):
7.19.1 SHOULD PROVIDE A HARDWARE DEVICE ON WHICH A SUBJECT WRITES
THEIR SIGNATURE FOR STORAGE IN THE SYSTEM TO CORRESPOND TO A
SPECIFIC DOCUMENT/RECORD THAT IS PRINTED.
FEATURE NOT PROVIDED.
7.19.2 BIDDER SHOULD DESCRIBE SOLUTION, IF ONE IS PROPOSED.
FEATURE NOT PROVIDED.
7.20 FINGERPRINT ACCESS DEVICE (OPTIONAL):
7.20.1 SHOULD PROVIDE A HARDWARE DEVICE THAT VERIFIES USER
FINGERPRINT AGAINST STORED FINGERPRINT FOR VERIFICATION OF
ACCESS OR PRIVILEGE.
FEATURE NOT PROVIDED.
7.20.2 SHALL VERIFY USER IDENTIFICATION WITHIN 5 SECONDS.
FEATURE NOT PROVIDED.
7.20.3 FALSE ACCEPTANCE RATE SHALL NOT EXCEED 0.0001%.
FEATURE NOT PROVIDED.
7.20.4 FALSE REJECTION RATE SHALL NOT EXCEED .02%.
FEATURE NOT PROVIDED.
7.20.5 SHOULD BE CONNECTABLE TO ANY WORK STATION OR FILE SERVER.
FEATURE NOT PROVIDED.
7.20.6 BIDDER SHOULD DESCRIBE SOLUTION, IF ONE IS PROPOSED.
FEATURE NOT PROVIDED.
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17 August 1993 80 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.1 SOFTWARE LICENSES:
8.1.1 THE BIDDER MUST PROVIDE ALL SOFTWARE ELEMENTS LICENSING
INFORMATION AND COSTS FOR BIDDER DEVELOPED SOFTWARE AND
ALL THIRD PARTY SOFTWARE.
XImage Corporation HAS provided all software elements
and licensing information. Costs for bidder developed
software and all third party software have been bundled
with their associated hardware component.
8.1.2 THE INFORMATION MUST DESCRIBE HOW THE BIDDER WILL PRICE,
DELIVER AND INSTALL FUTURE SOFTWARE UPGRADES FOR BOTH
BIDDER'S SOFTWARE AND ALL THIRD PARTY SOFTWARE.
The ForceField Software maintenance agreement includes
software upgrades and "bug" fixes. XImage Corporation
technical support will handle diagnostic calls and
provide remedies to "bugs" as well as download the latest
enhancements to the ForceField software. Hennepin County
will be assured to have the latest version of ForceField
with supporting documentation.
8.2 OPERATING SYSTEM SOFTWARE:
8.2.1 MUST HAVE COMMERCIALLY AVAILABLE 32-BIT OPERATING SYSTEM.
THE BIDDER MUST STATE THE OPERATING SYSTEM AND VERSION
BEING UTILIZED. THE COUNTY CURRENTLY USES OS/2 VERSION
2.0 AS A STANDARD PC OPERATING SYSTEM AND IS IN THE
PROCESS OF AN UPGRADE TO VERSION 2.1.
The server WILL utilize IBM AIX version 3.2, a true
multi-tasking 32-bit operating system that meets
operating system specifications as outlined below.
8.2.2 THE SYSTEM MUST HAVE A WINDOWED, MULTI-USER AND TRUE
MULTI-TASKING ENVIRONMENT. SYSTEM MUST SUPPORT BOTH BATCH
AND INTERACTIVE PROCESSING. SYSTEM MUST SUPPORT MULTIPLE
SESSIONS INTO THE SAME APPLICATION BY ONE WORKSTATION.
The system WILL have a windowed, multi-user and true
multi-tasking environment. System WILL support both batch
and interactive processing. System WILL support multiple
sessions into the same application by one workstation.
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17 August 1993 81 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.2 OPERATING SYSTEM SOFTWARE:
8.2.3 MUST HAVE AUTOMATIC RESTART AFTER POWER FAILURE WITHOUT
LOSS OF DATA, EXCEPT THE RECORD CURRENTLY BEING ADDED OR
UPDATED THAT HAS NOT YET BEEN SAVED.
The system WILL have automatic restart after power
failure without loss of data, EXCEPT the record currently
being added or updated that has not yet been saved.
8.2.4 SYSTEM MUST HAVE BUILT IN SECURITY THAT WILL REQUIRE A
USER TO ENTER AN ACCOUNT NAME AND PASSWORD TO GAIN ANY
ACCESS TO A WORKSTATION OR FILE SERVER. MUST HAVE THE
ABILITY TO DEFINE SECURITY IN SUCH A WAY THAT THE USER IS
RESTRICTED TO SPECIFIC FUNCTIONS. BIDDER MUST STATE HOW
THIS IS ACCOMPLISHED.
The system WILL have built in security that will require
a user to enter an account name and password to gain any
access to a workstation or file server. The system WILL
have the ability to define security in such a way that
the user is restricted to specific functions.
Access control is implemented on both a machine,
operator, and database basis. An operator control table
will list all authorized operators and the specific
functions each individual operator is authorized to
perform. The system will permit an operator at a
workstation to perform only those functions for which
both the operator and the workstation are authorized.
Only the System Administrator or supervisory personnel
will be able to access and update the control tables
themselves.
8.2.5 BIDDER MUST LIST NETWORK MANAGEMENT TOOLS AND DESCRIBE HOW
THEY CAN MONITOR NETWORK PERFORMANCE AND ANALYZE,
DIAGNOSE AND RESOLVE NETWORK PROBLEMS.
Etherfind-TM- Network management tools provided as part
of the ForceField system can monitor ethernet, IP, and
TCP packets between any source and destination nodes of a
network. These packets are stored for a short duration
for analysis. This software can also be used to analyze
network activity over a period of time, as well as
different segments of the network.
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17 August 1993 82 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.2 OPERATING SYSTEM SOFTWARE:
8.2.6 BIDDER MUST LIST SYSTEM MANAGEMENT TOOLS AND DESCRIBE HOW
THEY CAN MONITOR SYSTEM PERFORMANCE AND ANALYZE, DIAGNOSE
AND RESOLVE SYSTEM PROBLEMS.
Utilities are available as part of the operating system
to provide for process monitoring regarding use of system
resources. Logs, both at the operating system level, as
well as at the ForceField system level will help the
System Administrator analyze and diagnose the system.
8.2.7 SHOULD HAVE A SCREEN SAVER FEATURE.
The system WILL have a screen saver feature.
8.2.8 SHOULD HAVE ON-LINE DOCUMENTATION FOR OPERATING SYSTEM
FUNCTIONS, PROCEDURES AND COMMANDS FOR WORKSTATIONS AND
FILE SERVER.
The system does not currently support on-line
documentation for operating system functions,
procedures and commands for workstations and file server.
XImage Corporation has plans to incorporate this feature
in an upcoming release which all sites will receive.
8.2.9 SHOULD ALLOW SYSTEM AND NETWORK MANAGEMENT TASKS TO BE
ACCOMPLISHED THROUGH MENUS.
The system WILL allow system and network management tasks
to be accomplished through menus.
8.2.10 BACKUP/RECOVERY
8.2.10.1 SYSTEM MUST PROVIDE BACKUP CAPABILITY TO COPY IMAGES, DATA
AND SYSTEM SOFTWARE.
The system WILL provide backup capability to copy images,
data and system software.
8.2.10.2 SYSTEM MUST PROVIDE ON-LINE BACKUP THAT IS CONCURRENT WITH
FULL SYSTEM OPERATION.
The system WILL provide on-line backup that is concurrent
with full system operation.
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17 August 1993 83 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.2 OPERATING SYSTEM SOFTWARE:
8.2.10.3 THERE MUST BE MINIMAL SLOW DOWN OR DEGRADATION OF ANY
SYSTEM FUNCTION WHILE BACKUPS ARE TAKING PLACE. BIDDER
MUST DESCRIBE EFFECT ON SYSTEM DURING BACKUP AND
SPECIFICALLY STATE THE AMOUNT OF SLOW DOWN OR DEGRADATION.
There WILL be minimal slow down or degradation of any
system function while backups are taking place.
System response time will slow approximately 10%.
8.2.10.4 MUST HAVE AUTOMATIC UNATTENDED BACKUP PROCEDURES.
The system WILL have automatic unattended backup
procedures.
8.2.10.5 BIDDER MUST STATE THE AVERAGE TIME TO ACCOMPLISH A FULL
BACKUP OF THE SYSTEM AFTER THREE YEARS' USE WITH 375,000
IMAGES AND ASSOCIATED DATA.
Text database tape backup for 375,records is expected to
take around 45 minutes. The ForceField system provides
an automated backup utility to backup to disk and
subsequent transfers to tape at user convenience. The
time to tape under this configuration would be reduced to
25 to 30 minutes.
As images are organized in multiple files, a backup of
the current image file is expected to take no more than
15 minutes. As files get filled they can be backed up
onto multiple tapes and archived.
8.2.10.6 BIDDER MUST STATE THE AVERAGE TIME TO COMPLETE A PARTIAL
BACKUP OF 500 IMAGES AND ASSOCIATED DATA.
The system would take no more than 15 minutes to complete
a partial backup of 500 images their associated data.
8.2.10.7 MUST HAVE UTILITY PROGRAMS TO RELOAD IMAGES, DATA AND
SYSTEM SOFTWARE.
The system WILL have utility programs to reload images,
data and system software.
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17 August 1993 84 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.2 OPERATING SYSTEM SOFTWARE:
8.2.10.8 BIDDER MUST DESCRIBE BACKUP AND RECOVERY PROCEDURES WHICH
SHALL ENSURE NO LOSS OF DATA IN THE EVENT OF A HARDWARE
FAILURE, EXCEPT: THE BOOKING RECORD CURRENTLY BEING
ADDED OR UPDATED THAT HAS NOT YET BEEN SAVED.
In the event of a system outage, the ForceField "data
shadowing" feature prevents the loss of virtually any
data or images. With the usage of disk mirroring
technology and traditional tape backup, data storage and
retrieval can be made simple and efficient. This
technology will minimize data loss, decrease system down
time, exhibit very low overhead, and provide "instant"
restore capability due to disk failure. Because of
mirroring technology, file and databases are
automatically backed up onto a secondary disk. From
research done with agencies currently using the system,
ForceField operates with an up time of 99%.
- --------------------------------------------------------------------------------
17 August 1993 85 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.3 APPLICATION SOFTWARE (SEE ALSO SECTION 5):
8.3.1 USER MANUALS: ONE USER/OPERATION MANUAL CUSTOMIZED TO THE
INSTALLED SYSTEM SHALL BE PROVIDED FOR EACH WORKSTATION AND
AN ADDITIONAL THREE (3) COPIES FOR SYSTEM MANAGERS. BIDDERS
MUST PROVIDE FOUR (4) SAMPLE COPIES OF THE CURRENT RELEASE
WITH THE BID DOCUMENT.
One user/operation manual customized to the installed system
WILL be provided for each workstation and an additional
three (3) copies for system managers. We have provided four
(4) sample copies of the current release with this bid
document.
8.3.2 SYSTEM DOCUMENTATION/SYSTEM ADMINISTRATOR MANUAL:
(FOR PURPOSES OF THIS PARAGRAPH THE DOCUMENTS SHALL BE
REFERRED TO AS "DOCUMENTATION".) BIDDER SHALL PROVIDE TWO
(2) COPIES OF ALL DOCUMENTATION, PROVIDED THAT BIDDER MUST
PROVIDE ONE COPY OF ALL SUCH DOCUMENTATION WITH THE BID. IF
THE BIDDER DESIRES THAT ANY SUCH DOCUMENTATION BE KEPT
CONFIDENTIAL, IT SHALL CLEARLY STATE ON THE COVER OF THE
FIRST PAGE OF EACH DOCUMENT THE WORDS "TRADE SECRET
INFORMATION".
AFTER EXECUTION OF THE CONTRACT BY THE SUCCESSFUL BIDDER AND
PERFORMANCE BOND, IF ANY, HAS BEEN FURNISHED, ALL COPIES OF
THE AFORESAID DOCUMENTATION LABELED AS TRADE SECRET
INFORMATION SHALL BE RETURNED TO ALL BIDDERS EXCEPT THE
SUCCESSFUL BIDDER.
XImage Corporation WILL provide two (2) copies of all
documentation, provided that bidder MUST provide one copy of
all such documentation with the bid. We desire that this
documentation be kept CONFIDENTIAL. It WILL clearly state
on the cover of the first page of each document the words
"Trade Secret Information".
8.3.3 ALL TRADE SECRET DESIGNATION OF DATA BY BIDDER -- WHETHER
REGARDING THOSE DOCUMENTS (OR PORTIONS THEREOF) SPECIFICALLY
NAMED IN OR PERMITTED TRADE SECRET DESIGNATION BY THESE
SPECIFICATIONS AND/OR OTHER DATA FURNISHED TO THE COUNTY
PURSUANT TO THESE SPECIFICATIONS -- SHALL ALSO BE SUBJECT TO
THE FOLLOWING ADDITIONAL PROVISIONS:
- --------------------------------------------------------------------------------
17 August 1993 86 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.3 APPLICATION SOFTWARE (SEE ALSO SECTION 5):
THE BIDDER IS ADVISED THAT FOR PURPOSES OF THESE SPECIFICATIONS
MINNESOTA LAW PERMITS DATA TO BE LABELED AND TREATED AS TRADE
SECRET INFORMATION ONLY IF THE INFORMATION IS THE SUBJECT OF
THE BIDDER'S EFFORTS THAT ARE REASONABLE UNDER THE
CIRCUMSTANCES TO MAINTAIN ITS SECRECY AND DERIVES INDEPENDENT
ECONOMIC VALUE, ACTUAL OR POTENTIAL, FROM NOT BEING GENERALLY
KNOWN TO, AND NOT BEING READILY ASCERTAINABLE BY PROPER MEANS
BY OTHER PERSONS WHO CAN OBTAIN ECONOMIC VALUE FROM ITS
DISCLOSURE OR USE.
NO PORTION OF THE BID OR ANY ATTACHMENTS THERETO MAY BE
DESIGNATED AS TRADE SECRET INFORMATION EXCEPT THE
AFOREMENTIONED DOCUMENTATION, ANNUAL REPORT AND FINANCIAL
STATEMENT, UNLESS BIDDER IN GOOD FAITH DETERMINES THAT SUCH
DESIGNATION IS CLEARLY ALLOWED BY THE FOREGOING TRADE SECRET
CRITERIA. IN THIS REGARD BIDDER IS ADVISED THAT IN MINNESOTA
NEARLY ALL--IF NOT ALL--BIDS AND NEARLY ALL BID INFORMATION
SUBMITTED BY BIDDER ARE OPEN TO PUBLIC SCRUTINY AFTER BID
OPENING. (GENERALLY, DATA IN SUCH BIDS AND BID DOCUMENTS
USUALLY CONSIDERED TO BE PUBLIC INCLUDE--BUT ARE NOT LIMITED
TO--PRICE, DESCRIPTION AND TYPE OF COMMODITY AND/OR SERVICE
AND QUANTITY AND QUALITY THEREOF, WARRANTY, MAINTENANCE,
SUPPORT, INDEMNIFICATION, DELIVERY, TIME FRAME, SPECIFICATION
COMPLIANCE, EQUIPMENT TITLE, AND SOFTWARE TITLE OR LICENSING.)
THE COUNTY RESERVES THE RIGHT TO DECLINE ANY SUCH DESIGNATION
BY BIDDER IF UPON EVALUATION BY THE COUNTY, THE COUNTY
DETERMINES THAT THE INFORMATION SO DESIGNATED IS CLEARLY AND
COMMONLY REGARDED AS PUBLIC DATA IN THE STATE OF MINNESOTA.
IF THE BIDDER DESIGNATES DATA--OTHER THAN THAT SPECIFICALLY
AUTHORIZED UNDER THESE SPECIFICATION--AS TRADE SECRET, BIDDER
SHALL ATTACH TO SUCH DATA AN EXPLANATORY DOCUMENT WHICH
IDENTIFIES THE DATA AND IN CAREFUL DETAIL SETS FORTH THE
FACTUAL AND/OR LEGAL JUSTIFICATION FOR SUCH TREATMENT OF THE
DATA.
HOWEVER, IF THE COUNTY DETERMINES THAT SOME OR ALL OF THE DATA
ARE PUBLIC AND NOT TRADE SECRET, THE COUNTY SHALL IN WRITING
PROMPTLY NOTIFY BIDDER THEREOF, SPECIFYING IN SUCH NOTICE
WHICH PORTION(S) OF THE DATA THE COUNTY CONSIDERS TO BE
PUBLIC. UNLESS WITHIN FIFTEEN
- --------------------------------------------------------------------------------
17 August 1993 87 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.3 APPLICATION SOFTWARE (SEE ALSO SECTION 5):
(15) DAYS AFTER BIDDER'S RECEIPT OF SAID COUNTY'S NOTICE, THE
COUNTY RECEIVES FROM BIDDER ADDITIONAL WRITTEN FACTUAL AND/OR
LEGAL JUSTIFICATION TO SUPPORT THE TRADE SECRET DESIGNATION,
BIDDER AGREES THAT THE COUNTY MAY TREAT SUCH SPECIFIED DATA AS
PUBLIC.
NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL PRECLUDE
BIDDER AT ANY TIME FROM EXERCISING ITS RIGHTS UNDER APPLICABLE
MINNESOTA LAW TO KEEP ITS DATA AS TRADE SECRET.
*****************************************************************
We fully understand and comply with the above section.
*****************************************************************
8.3.4 IN ADDITION TO THE BIDDER'S INDEMNITY OBLIGATIONS SET FORTH IN
THE CONTRACT DOCUMENTS, THE BIDDER SHALL DEFEND, INDEMNIFY AND
HOLD HARMLESS HENNEPIN COUNTY, ITS COMMISSIONERS, OFFICERS AND
EMPLOYEES AGAINST AND FROM ANY COSTS, DAMAGES, JUDGEMENTS,
EXPENSES (INCLUDING REASONABLE ATTORNEY'S FEES) ARISING FROM,
DIRECTLY OR INDIRECTLY, ANY CHALLENGE OR REQUEST MADE OR SUIT
BROUGHT BY ANY PERSON IN CONNECTION WITH ANY EFFORT IN ANY
TYPE OF PROCEEDING OR HEARING WHATSOEVER TO OBTAIN OR ACCESS
DATA DESIGNATED AS TRADE SECRET BY THE BIDDER.
BIDDER, AT ITS SOLE EXPENSE, SHALL AT ALL TIMES BE RESPONSIBLE
FOR PROMPTLY DEFENDING AND/OR RESPONDING TO ANY REQUEST FOR
ACCESS TO AND/OR COPIES OF DATA DESIGNATED BY BIDDER AS TRADE
SECRET, PROVIDED THAT THE COUNTY SHALL INFORM PERSONS SEEKING
SUCH DATA OF ITS TRADE SECRET DESIGNATION AND PROMPTLY NOTIFY
BIDDER OF THE FACT OF SUCH REQUEST AND THE COUNTY'S RESPONSE
THERETO.
FAILURE OF THE BIDDER TO SO DEFEND, RESPOND TO ANY REQUEST OR
COUNTY NOTIFICATION (AS AFORESAID), AND/OR TO PURSUE ITS
RIGHTS IN A TIMELY MANNER SHALL RELIEVE THE COUNTY FROM ANY
AND ALL LIABILITY WHATSOEVER (INCLUDING WITHOUT LIMITATION
LIABILITY UNDER ANY STATUTE, THE COMMON-LAW OR EQUITY) WITH
RESPECT TO ANY ASPECT OF THE DISCLOSURE OR FURNISHING TO ANY
PERSON ANY SUCH TRADE SECRET DESIGNATED DATA. FURTHER, THE
COUNTY SHALL NOT IN ANY MANNER BE LIABLE FOR THE DISCLOSURE OR
FURNISHING TO ANY PERSON ANY TRADE SECRET DESIGNATED DATA WHEN
SUCH DISCLOSURE OR FURNISHING IS PURSUANT TO A RULING OR ORDER
OF ANY PERTINENT TRIBUNAL, AGENCY, BOARD, COMMISSION, PANEL,
COURT OR OTHER ENTITY OR PERSON DETERMINING SUCH MATTER.
*****************************************************************
We fully understand and comply with the above section.
*****************************************************************
- --------------------------------------------------------------------------------
17 August 1993 88 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.3 APPLICATION SOFTWARE (SEE ALSO SECTION 5):
8.3.5 APPLICATIONS SOURCE CODE: THE APPLICATIONS SOURCE CODE MUST BE
WRITTEN IN A STANDARD, COMMERCIALLY AVAILABLE, HIGH-LEVEL
LANGUAGE. ASSEMBLY LANGUAGE CODING IS ACCEPTABLE ONLY FOR
SELECTED CRITICAL LOW-LEVEL MODULES SUCH AS I/O DRIVERS.
BIDDERS MUST SPECIFY ALL LANGUAGES AND DEVELOPMENT TOOLS USED
AND WHERE THEY ARE USED.
-> RELATIONAL DATABASE MANAGER SYBASE SQL
-> OPERATING SYSTEMS
File Server IBM AIX version 3.2
Work Stations SCO Unix
-> SOFTWARE CODING C
8.3.6 COUNTY MODIFICATIONS: COUNTY TECHNICIANS WILL NOT MODIFY THE
CONTRACTOR'S SOFTWARE IN ANY WAY, EXCEPT IN CONSULTATION WITH
THE CONTRACTOR, EXCEPT AS SPECIFICALLY STATED IN SECTION 8.3.8.6
OF THIS DOCUMENT.
*****************************************************************
We fully understand and comply with the above section.
*****************************************************************
8.3.7 APPLICATION SOFTWARE MUST BE EXECUTED DIRECTLY BY THE OPERATING
SYSTEM SPECIFIED IN SECTION 8.2.
Application software WILL be executed directly by the
operating system specified in Section 8.2.
- --------------------------------------------------------------------------------
17 August 1993 89 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.3 APPLICATION SOFTWARE (SEE ALSO SECTION 5):
8.3.8 SOURCE CODE RETENTION:
8.3.8.1 BIDDER MUST STATE THEIR POLICY REGARDING PROVIDING THE
COUNTY WITH AN EXACT COPY OF THE SOURCE CODE, OR ANY PORTION
THEREOF. POLICY SHALL TAKE INTO ACCOUNT THE COUNTY'S
AGREEMENT THAT THE SOURCE CODE WILL ONLY BE MADE AVAILABLE
TO THOSE COUNTY EMPLOYEES WHO WOULD NEED ACCESS TO IT TO
MAKE CHANGES. A COPY OF THOSE CHANGES BY THE COUNTY WOULD BE
PROVIDED TO THE CONTRACTOR. IF ALL OR ANY MATERIAL PART OF
THE SOURCE CODE IS GENERALLY MADE AVAILABLE BY THE
CONTRACTOR, WITH OR WITHOUT ADDITIONAL COST, TO OTHER USERS
OF COMPARABLE SOFTWARE, IT SHALL ALSO BE MADE AVAILABLE TO
THE COUNTY.
XImage Corporation WILL maintain a current version of the
source code in a secure escrow account. The ForceField
software WILL be customized for the specific needs of
Hennepin County. Any modifications to the source code after
installation will be covered under our Software Maintenance
Agreement. All work with the source code will be handled by
qualified XImage Corporation personnel.
The per annum charge for maintaining the copy in escrow
WILL be entered in appendix D.
8.3.8.2 IF A COPY OF THE SOURCE CODE IS NOT MADE AVAILABLE TO THE
COUNTY, AN EXACT COPY OF ALL CONTRACTOR'S APPLICATION
SOFTWARE SOURCE CODE INSTALLED ON THE SYSTEM MUST BE
RETAINED BY THE SUCCESSFUL CONTRACTOR IN A SECURE LOCATION
AND KEPT IN A CURRENT CONDITION AS DESCRIBED IN THIS
DOCUMENT SECTION 8.3.8.5. THE COUNTY WILL REQUIRE AN ESCROW
AGREEMENT IF THE SOURCE CODE IS NOT PROVIDED.
An exact copy of all XImage Corporation's application
software source code installed on the system WILL be
retained by XImage Corporation in a secure location and kept
in a current condition as described in this document section
8.3.8.5. XImage Corporation WILL maintain a current version
of the source code in a secure escrow account.
The per annum charge for maintaining the copy in escrow WILL
be entered in appendix D.
- --------------------------------------------------------------------------------
17 August 1993 90 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.3 APPLICATION SOFTWARE (SEE ALSO SECTION 5):
8.3.8.3 ESCROW AGREEMENT: IF THE BIDDER IS PARTY TO AN EXISTING
ESCROW AGREEMENT WHICH MEETS ALL THE REQUIREMENTS STATED IN
THE SOURCE CODE RETENTION SECTION, THAT AGREEMENT SHOULD BE
SUBMITTED WITH THE BID. IF NOT, AN ESCROW AGREEMENT WILL BE
REQUIRED WHICH DOES MEET ALL REQUIREMENTS. THE PER ANNUM
CHARGE FOR MAINTAINING THE COPY IN ESCROW MUST BE ENTERED ON
APPENDIX D.
ESCROW AGREEMENT APPLIES TO ALL IMAGING SYSTEM SOFTWARE
COMPONENTS WHICH 1) ARE NOT COMMERCIALLY AVAILABLE FROM
ANOTHER SOURCE, 2) ARE COMMERCIALLY AVAILABLE FROM ANOTHER
SOURCE BUT ARE UTILIZED WITH CHANGES AND 3) ANY MATERIALS
USED BY THE CONTRACTOR TO MAINTAIN THIS CUSTOMIZED SOFTWARE.
***********************************************************
We fully understand and comply with the above section.
***********************************************************
8.3.8.4 THE COPY SHALL INCLUDE, PRIMARILY ON MACHINE READABLE MEDIA,
OPERATIONS MANUALS, REFERENCE MANUALS, DATA MAPS, TYPE AND
VERSION OF COMPILER/ASSEMBLER, LINKAGE COMMAND FILES AND ALL
OTHER SUPPORT MATERIALS USED BY THE CONTRACTOR TO MAINTAIN
THE SOFTWARE. IF THE APPLICATIONS SOFTWARE EMPLOYS OR IS
MAINTAINED IN PART WITH LICENSED THIRD-PARTY SOFTWARE, E.G.
PROGRAMMING TOOLS OR A DATABASE MANAGEMENT SYSTEM, THE
MATERIALS HELD AND PROVIDED SHALL NAME AND DESCRIBE ALL SUCH
LICENSED THIRD-PARTY SOFTWARE AND TO PROVIDE THE NAMES AND
ADDRESSES OF THE THIRD PARTIES PROVIDING THE SOFTWARE.
The copy WILL include, primarily on machine readable media,
operations manuals, reference manuals, data maps, type and
version of compiler/assembler, linkage command files and all
other support materials used by XImage Corporation to
maintain the software. If the applications software employs
or is maintained in part with licensed third-party software,
e.g. programming tools or a database management system, the
materials held and provided WILL name and describe all such
licensed third-party software and to provide the names and
addresses of the third parties providing the software.
- --------------------------------------------------------------------------------
17 August 1993 91 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.3 APPLICATION SOFTWARE (SEE ALSO SECTION 5):
8.3.8.5 THE COPY, WHETHER GIVEN TO THE COUNTY OR MAINTAINED BY THE
CONTRACTOR, SHALL BE BROUGHT FULLY UP TO DATE WITHIN THIRTY
(30) DAYS WHENEVER VERSION UPGRADES ARE RELEASED OR A
MODIFICATION IS MADE IN THE COUNTY'S COPY OF THE SOFTWARE. A
COPY OF THE REVISED SOURCE CODE, SHALL THEN BE MAINTAINED AS
PROVIDED HEREIN. IN ADDITION, A COPY OF THE SOURCE CODE
PRIOR TO THE LATEST REVISION SHALL BE RETAINED FOR A PERIOD
OF SIX MONTHS.
The copy, whether given to the County or maintained by
XImage Corporation, WILL be brought fully up to date within
thirty (30) days whenever version upgrades are released OR a
modification is made in the County's copy of the software. A
copy of the revised source code, WILL then be maintained as
provided herein. In addition, a copy of the source code
prior to the latest revision WILL be retained for a period
of six months.
8.3.8.6 THE TERMS OF THE AGREEMENT SHALL MAKE THE COPIES REFERENCED
IN SECTION 8.3.8.5 AVAILABLE TO THE COUNTY WITHIN THIRTY
(30) DAYS IN THE EVENT THAT (1) THE CONTRACTOR ENTERS OR IS
SUBJECTED TO BANKRUPTCY PROCEEDINGS, RECEIVERSHIP,
ASSIGNMENT OR ANY OTHER PROCEEDING INVOLVING PROTECTION OF
CREDITORS OR FROM CREDITORS; (2) THE CONTRACTOR FAILS AFTER
REASONABLE NOTIFICATION TO MAINTAIN THE COUNTY'S SOFTWARE;
(3) THE CONTRACTOR SELLS, ASSIGNS OR OTHERWISE TRANSFERS ANY
RIGHTS WHICH WOULD PREVENT THE CONTRACTOR FROM MEETING THE
OBLIGATIONS SET FORTH IN THESE SPECIFICATIONS; OR (4) THE
CONTRACTOR CEASES, FOR ANY REASON, TO DO BUSINESS. HENNEPIN
COUNTY WILL RETAIN RIGHTS TO CONTINUE USE OF ALL PRODUCTS
AND COPIES WITHOUT CHARGE.
UNDER THIS SECTION THE COUNTY SHALL NOT SELL THE SOURCE CODE
OR MAKE IT AVAILABLE TO ANOTHER VENDOR, BUT SHALL HAVE THE
RIGHT TO MAKE CHANGES AND MAKE COPIES FOR ANY WORKSTATION OR
FILE SERVER ADDED TO THE SYSTEM.
***********************************************************
We fully understand and comply with the above section.
***********************************************************
- --------------------------------------------------------------------------------
17 August 1993 92 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.3 APPLICATION SOFTWARE (see also Section 5):
8.3.9 CONFIDENTIALITY; PROPRIETARY NOTICES:
8.3.9.1 The County acknowledges that the software and the source
code (if obtained) are proprietary and confidential. The
County shall not sell, furnish, or disclose the software
or any information pertinent to it (other than to County
employees who need access to such information in
connection with the exercise the County's rights under the
contract), unless authorized in writing by the Contractor.
-----------------------------------------------------------
We fully understand and comply with the above section.
-----------------------------------------------------------
8.3.9.2 Any copies of the software or the documentation which the
County makes, pursuant to the exercise of its rights under
the contract, shall bear all copyright, trademark, and
other proprietary notices included therein by the
Contractor, and shall be retained by the County and used
in accordance with the provisions in paragraph 8.3.9.1.
Notwithstanding the preceding sentence, the County may add
its own copyright or other proprietary notices to any copy
of the software and documentation to which the County has
ownership rights as a result of the contract.
-----------------------------------------------------------
We fully understand and comply with the above section.
-----------------------------------------------------------
8.3.9.3 The County's obligations under paragraphs 8.3.9.1 and
8.3.9.2 will not extend to any information, or portion of
the software, which is now or hereafter generally known to
the public; which is obtained from other sources without
obligation of confidentiality; or which is required to be
disclosed by order of a court or other body of persons
authorized by the Minnesota Rules of Court to settle
disputes.
-----------------------------------------------------------
We fully understand and comply with the above section.
-----------------------------------------------------------
- --------------------------------------------------------------------------------
17 August 1993 93 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.3 APPLICATION SOFTWARE (see also Section 5):
8.3.10 INFRINGEMENTS; COPYRIGHT INDEMNITY:
Complementary to other "hold harmless" provisions
throughout these specifications, the Contractor shall,
without cost to the County, defend, indemnify, and hold
the County, its commissioners, officers, and employees
harmless against any and all claims, liability, losses,
judgments, or other expenses arising out of or related to
any claim that the County's use or possession of the
software, licenses, or documentation obtained through the
contract, violates or infringes upon any patents,
copyrights, trademarks, trade secrets, or other
proprietary rights or information, provided that the
Contractor is promptly notified in writing of such claim.
The Contractor will have the right to control the defense
of any such claim, lawsuit, or other proceeding. The
County will in no instance settle any such claim, lawsuit,
or proceeding without the Contractor's prior written
approval.
If, as a result of any claim of infringement of rights,
the Contractor is enjoined from using, marketing, or
supporting any product or service provided through the
contract to be established (or if the Contractor comes to
believe such enjoinment imminent), the Contractor shall
either arrange for the County to continue using the
product or service at no additional cost to the County, or
propose another remedy subject to County approval.
Provision of equivalent products or services will be
acceptable, but the County alone will determine whether
proposed substitutes are sufficiently equivalent. If no
acceptable alternative is possible even after the
Contractor's best efforts, the Contractor shall return a
prorata portion of the County's costs pertaining to the
license fee -- and all consequential costs -- based on a
period of ten years. The County may also pursue any or
all of its other available remedies.
-----------------------------------------------------------
We fully understand and comply with the above section.
-----------------------------------------------------------
- --------------------------------------------------------------------------------
17 August 1993 94 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.3 APPLICATION SOFTWARE (SEE ALSO SECTION 5):
8.3.11 DATA BASE MANAGEMENT:
8.3.11.1 MUST HAVE A COMMERCIALLY AVAILABLE RELATIONAL DATA BASE
MANAGEMENT SYSTEM WITH A STRUCTURED QUERY LANGUAGE (SQL) IN A
CLIENT SERVER ARCHITECTURE. BIDDER MUST DESCRIBE HOW WORK IS
DIVIDED BETWEEN CLIENT AND SERVER. THE COUNTY CURRENTLY
SUPPORTS OS/2 DATA MANAGER AND SQL SERVER AS PC DATA BASE
MANAGEMENT SYSTEMS.
The ForceField system WILL utilize SYBASE, a commercially
available relational data base management system with a
structured query language (SQL) in a client server
architecture. To provide capacity for growth and best
maximize the use of the file server (ImageBank), much of the
preliminary screen interface, printing capabilities, image
review and compression are localized at the work station
(ImageStation) level. ImageStations are UNIX-based
workstations which communicate with the ImageBank via both
local and wide area networks.
8.3.11.2 DATA BASE MANAGEMENT SYSTEM MUST BE CAPABLE OF SUPPORTING
THE MULTIPLE SIMULTANEOUS UPDATES AND RETRIEVALS.
Data base management system WILL be capable of supporting
the multiple simultaneous updates and retrievals.
8.3.11.3 EACH SINGLE FOLDER MUST BE CAPABLE OF HOLDING UP TO 50
FIELDS, ONE OF WHICH SHOULD BE THE FREE TEXT AREA.
Each single folder WILL be capable of holding up to 50
fields, one of which should be the free text area.
8.3.11.4 ALL DATES MUST INCLUDE THE CENTURY.
All dates WILL include the century.
8.3.11.5 INITIAL SYSTEM MUST BE ABLE TO MANAGE 375,000 COMPRESSED
IMAGES AND ASSOCIATED DATA RECORDS.
Initial system WILL be able to manage 375,000 compressed
images and associated data records.
- -------------------------------------------------------------------------------
17 August 1993 95 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.3 APPLICATION SOFTWARE (SEE ALSO SECTION 5):
8.3.11.6 SHOULD ALLOW COUNTY MODIFICATIONS TO DATA BASES IN
CONSULTATION WITH THE CONTRACTOR.
The system WILL allow County modifications to data bases in
consultation with XImage Corporation.
8.3.11.7 THE SYSTEM MUST AUTOMATICALLY RECORD SIGNIFICANT
APPLICATION TRANSACTIONS AND EVENTS (DEFINED AS ADD, DELETE,
AND MODIFY RECORDS, LINEUP AND IMAGE PRINTING) IN AN AUDIT
LOG FILE AND RETAIN ON-LINE FOR A MINIMUM OF 60 DAYS. THE
APPLICATION TRANSACTION TO BE RECORDED MUST INCLUDE
WORKSTATION NAME, USER NAME, UNSUCCESSFUL LOG-ON ATTEMPTS,
RECORD KEY, TYPE OF FUNCTION, DATE AND TIME, PERTINENT ACTION
PERFORMED AND OTHER ITEMS TO BE DEFINED.
The system WILL automatically record significant application
transactions and events (defined as add, delete, and modify
records, lineup and image printing) in an audit log file and
retain on-line for a minimum of 60 days. The application
transaction to be recorded WILL include workstation name, user
name, unsuccessful log-on attempts, record key, type of
function, date and time, pertinent action performed and other
items to be defined.
8.3.11.8 SYSTEM MUST BE ABLE TO MANAGE MULTIPLE DATA BASES DESIGNED
TO STORE AT A MINIMUM THE FOLLOWING CATEGORIES OF DATA:
- JAIL ADULT BOOKING/MUGSHOT I.D.
- EMPLOYEE/VISITOR I.D.
- AUDIT LOG
- PERSON RELATED INTELLIGENCE APPLICATION
SYSTEM SHOULD BE ABLE TO MANAGE A DATA BASE DESIGNED TO
STORE THE FOLLOWING CATEGORY OF DATA:
OPTIONAL: PERSON/BUSINESS SURVEILLANCE APPLICATION
OPTIONAL: ADDRESS/LOCATION APPLICATION
The ForceField system WILL be able to manage multiple data
bases designed to store at a minimum the required
categories of data. XImage Corporation has not included the
development of the optional databases for Person/Business
Surveillance and Address/Location.
- -------------------------------------------------------------------------------
17 August 1993 96 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.3 APPLICATION SOFTWARE (SEE ALSO SECTION 5):
8.3.11.9 DATA BASES MUST BE TAILORED TO COUNTY NEEDS.
Data bases WILL be tailored to County needs.
8.3.11.10 SHOULD BE ABLE TO SEARCH FREE FORM TEXT FIELDS.
The system does not provide this capability.
8.3.11.11 SHOULD SUPPORT AN UNLIMITED FREE TEXT FIELD AND A LIMITED
FREE TEXT FIELD OF 500 CHARACTERS FOR BOOKING RECORDS.
Each application WILL allow free form text fields attached
to a specified folder. XImage Corporation's exclusive
"electronic note pad" function will allow the operator to
attach "notes" to a suspect's folder, booking or
appearance. They are analogous to the yellow "post-it" note
paper commonly found in offices today. This computerized
depiction will allow the inclusion of "ad-hoc" text that
will stay with a particular folder.
8.3.11.12 MENU:
8.3.11.12.1 MUST ALLOW MODIFICATION OF MENU SYSTEM IN CONSULTATION
WITH CONTRACTOR BY SYSTEM ADMINISTRATOR.
The system WILL allow modification of menu system in
consultation with XImage Corporation by System
Administrator.
8.3.11.12.2 MUST BE ABLE TO USE MOUSE OR KEYBOARD TO SELECT MENU
OPTIONS.
The system WILL be able to use mouse or keyboard to
select menu options.
8.3.11.12.3 BIDDER SHOULD PROVIDE SAMPLES OF EXISTING MENUS.
XImage Corporation HAS provided samples of existing
menus. These samples can be found in Section 9 of this
document.
- -------------------------------------------------------------------------------
17 August 1993 97 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
8 SOFTWARE SPECIFICATIONS
8.4 BIDDER MUST QUOTE AN OPTION TO EQUIP ALL WORKSTATIONS AND THE FILE
SERVER WITH 3270 EMULATION SOFTWARE SO THE MAINFRAME BOOKING SYSTEM
CAN BE ACCESSED VIA THE NETWORK FROM ANY WORKSTATION IN A WINDOW OF THE
PHOTOIMAGE MONITOR. IF SELECTED AS AN OPTION BY THE COUNTY, THE
3270 SHALL BE OPERATIONAL EVEN IF PHOTO IMAGE FILE SERVER IS INOPERABLE.
XImage Corporation HAS quoted an option to equip all workstations and
the file server with 3270 emulation software so the mainframe booking
system can be accessed via the network from any workstation in a window
of the photoimage monitor. If selected as an option by the County, the
3270 shall be operational even if photo image file server is inoperable.
Please see our itemized pricing schedules in the appendix of this
document.
- -------------------------------------------------------------------------------
17 August 1993 98 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
9 NETWORK
9.1 THE SUCCESSFUL BIDDER MUST WORK WITH HENNEPIN COUNTY INFORMATION
SERVICES OPERATIONS DIVISION TO DEVELOP THE DETAILED NETWORK PLAN.
THE COUNTY WILL INSTALL THE NETWORK AND THE BRIDGE TO THE COUNTY'S
BACKBONE NETWORK.
The successful bidder WILL work with Hennepin County Information
Services Operations Division to develop the detailed network plan.
The County will install the network and the bridge to the County's
backbone network.
9.2 THE PHOTOIMAGE SYSTEM MUST BE IMPLEMENTED ON A 16 MBPS TOKEN-RING
NETWORK.
The photoimage system WILL be implemented on a 16 Mbps Token-Ring
network.
9.3 ALL WORKSTATIONS AND FILE SERVERS MUST BE EQUIPPED WITH:
9.3.1 A NETWORK ADAPTER.
All workstations and file servers WILL be equipped with a
network adapter.
9.3.2 A NETWORK ADAPTER CABLE.
All workstations and file servers WILL be equipped with a
network adapter cable.
9.3.3 THE APPROPRIATE SOFTWARE TO CONNECT THE ADAPTER TO THE NETWORK.
All workstations and file servers WILL be equipped with the
appropriate software to connect the adapter to the network.
- -------------------------------------------------------------------------------
17 August 1993 99 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
9 NETWORK
9.4 THE COUNTY SUPPORTS IBM PS/2 AS WORKSTATIONS AND SERVERS, WHICH RUN
EITHER DOS OR OS/2 OPERATING SYSTEMS. THE LAN OPERATING SYSTEMS EMPLOYED
IN THIS ENVIRONMENT ARE PC LAN PROGRAM 1.3 OR OS/2 LAN SERVER 2.0. BOTH
OF THESE OPERATING SYSTEMS USE THE NETBIOS PROTOCOL. THE COUNTY USES
NETVIEW 2.0, WHICH ALSO DISPLAYS DATA FROM NETWORK PERFORMANCE MONITOR
1.4.1 AND LAN NETWORK MANAGER 1.0, TO MONITOR NETWORK PERFORMANCE.
THE BIDDER MUST PROVIDE A CONCEPTUAL NETWORK DESIGN THAT WILL INDICATE
HOW THE PROPOSED NETWORK WILL BRIDGE TO THIS NETWORK ENVIRONMENT. THE
PLAN SHOULD INCLUDE:
9.4.1 THE NAME AND VERSION OF THE PREFERRED NETWORK OPERATING SOFTWARE.
The server WILL utilize TCP/IP in combination with IBM AIX
version 3.2.
9.4.2 THE NAME AND VERSION OF ANY NETWORK MONITORING TOOLS
RECOMMENDED. IDEALLY, THE COUNTY SHOULD BE ABLE TO MONITOR THIS
NETWORK THROUGH NETVIEW.
The ForceField system WILL utilize the Etherfind-TM- operating
system tools. If Netview has options for trading TCP/IP packets,
this should be sufficient as the data link layers (Token-Ring)
for TCP/IP and PCLAN are the same.
9.4.3 A DESCRIPTION OF HOW REMOTE SITES CAN GAIN ACCESS TO THE
PHOTOIMAGE SYSTEM VIA AN EXISTING OR FUTURE TOKEN-RING NETWORK
BRIDGED TO THE HENNEPIN COUNTY BACKBONE NETWORK.
Remote sites housing ImageStations can access ImageBank
transparent of the bridging.
9.4.4 A DESCRIPTION OF HOW REMOTE SITES CAN ACCESS THE PHOTOIMAGE
SYSTEM VIA EXISTING SDLC LINKS TO THE MAINFRAME.
XImage Corporation does not support SDLC communications.
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17 August 1993 100 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
9 NETWORK
9.4.5 A DESCRIPTION OF HOW REMOTE SITES CAN GAIN ACCESS TO THE
SYSTEM VIA A DIRECT LINK TO THE PHOTOIMAGE NETWORK.
These intelligent ImageStations (UNIX based workstations)
communicate with the ImageBank via both local and remote
networking. In installations like the Hennepin County,
multiple ImageStations will be networked to the ImageBank,
providing access to data and images from all locations.
Sophisticated communications allow ImageStations to be dispersed
across large areas, but yet have all of the functional
capabilities of a local Token-Ring attached ImageStation, limited
only by the speed of the physical networking option. The mainframe
could be connected to the Token-Ring network utilizing TCP/IP
software on the mainframe. This would provide necessary
infrastructure for all the application level interconnects for
data transfer.
9.4.6 A DESCRIPTION OF HOW COMMUNICATIONS BETWEEN THE PHOTOIMAGE
SYSTEM AND DOS OR OS/2 WORKSTATIONS COULD BE ESTABLISHED.
Communications between the ForceField system and DOS or OS/2
workstations can be established by utilizing an available software
package designed specifically for that purpose that utilizes
TCP/IP.
9.5 3270 THAT IS BID AS AN OPTION MUST ALLOW THE WORKSTATIONS AND SERVER
ACCESS TO THE MAINFRAME WHENEVER THE NETWORK IS OPERATIONAL. IN ORDER TO
ACCOMPLISH THIS, HENNEPIN COUNTY WILL INSTALL A PC GATEWAY ON THE
NETWORK. THE GATEWAY WILL RUN IBM PERSONAL COMMUNICATIONS SOFTWARE WHICH
SUPPORTS THE 802.2 IEEE PROTOCOL THROUGH THE USE OF DXM DRIVERS. BIDDER
SHALL INCLUDE IN THE OPTION BID SOFTWARE ON THE ALL WORKSTATIONS AND
FILE SERVER THAT WILL ALLOW COMMUNICATION OVER THE TOKEN-RING WITH THE PC
GATEWAY.
3270 emulation software will be listed optionally that will enable the
workstation to emulate a 3270 terminal. Additional hardware may be needed
if coax connections are used.
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17 August 1993 101 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
10 SECURITY
10.1 ACCESS CONTROL MUST BE IMPLEMENTED ON BOTH WORKSTATION/FILE SERVER
AND PHOTOIMAGE SYSTEM APPLICATION BASIS USING A PASSWORD AT BOTH
LEVELS.
Access control WILL be implemented on both workstation/file server
and photoimage system application basis using a password at both
levels.
10.2 ALL PASSWORDS MUST BE ENCRYPTED.
All passwords WILL be encrypted.
10.3 A CONTROL TABLE MUST LIST ALL AUTHORIZED USERS AND SPECIFIC
FUNCTIONS EACH INDIVIDUAL USER IS AUTHORIZED TO PERFORM.
A control table WILL list all authorized users and specific
functions each individual user is authorized to perform.
10.4 THE SYSTEM SIGN ON MENUS MUST LIST ONLY THOSE SCREENS, FILES AND
FUNCTIONS WHICH THE USER AND WORKSTATION HAVE AUTHORITY TO ACCESS,
BASED ON THE CONTROL TABLES.
The system sign on menus WILL list only those screens, files and
functions which the user and workstation have authority to access,
based on the control tables.
10.5 THE SYSTEM SHOULD DISABLE A USER ID AFTER A SPECIFIED NUMBER OF
UNSUCCESSFUL LOG-ON ATTEMPTS.
The system will not provide this function, however ForceField will
automatically record every significant system transaction and
event in a log file on disk and retain on-line for a minimum of 60
days. The transaction to be recorded will include all system
start-ups, authorization file changes, sign-ons and sign-offs, and
images taken. Each history record will include the date and time
of the transaction and the operator, unit, officer, and event
identification as applicable.
10.6 BIDDER MUST DESCRIBE HOW THE SYSTEM ADMINISTRATOR ACCESSES AND
UPDATES THE CONTROL TABLES.
The system WILL allow System Administrator to add, delete and modify
table entries for validation. This functionality is allowed only
to individuals who have been given this permission (usually the
System Administrator) through specialized ForceField update
utilities. The System Administrator will be fully trained by
XImage Corporation training personnel in performing this function.
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17 August 1993 102 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
10 SECURITY
10.7 ACCESS CONTROL SYSTEM SHOULD ALLOW USER GROUP ACCESS PRIVILEGE BY
WORKSTATION, FILE AND FUNCTION.
Access control system WILL allow user group access privilege by
workstation, file and function.
10.8 THE SYSTEM SHOULD ALLOW A USER TO ACCESS ONLY AUTHORIZED RECORDS
WITHIN A FILE.
The system does not provide this capability.
10.9 THE SYSTEM MUST PROVIDE SEPARATE JUVENILE RECORD ACCESS. BIDDER
MUST DESCRIBE THE SOLUTION.
The system WILL provide separate juvenile record access. Virtually
there is no limit to the number of truly multiple separate
databases which can be created. Access is restricted to each
database through password protected log-ons. For instance, some
corrections officers may have access in the adult database but not
in the juvenile database. Likewise, personnel administration may have
access to the employee and visitor database, but no authorization
in the inmate database. In such a case, the user will only see the
database names to which they have authorization.
10.10 IF A FINGERPRINT ACCESS DEVICE WAS QUOTED IN OPTIONAL HARDWARE
SECTION, BIDDER SHOULD DESCRIBE HOW IT IS INCORPORATED INTO SYSTEM
SECURITY.
FEATURE NOT PROVIDED.
10.11 SHOULD HAVE A PHOTO OR NAME OF THE LOGGED-ON USER ON-SCREEN.
The system WILL have the name of the logged-on user on-screen.
10.12 SHOULD HAVE A SCREEN LOCK WHICH WILL ENGAGE IF NO KEY IS PRESSED
WITHIN A SPECIFIED TIME. THE SCREEN LOCK SHOULD THEN CLEAR THE
SCREEN AND RETURN TO A PROMPT SCREEN FOR RE-ENTRY TO THE SYSTEM.
The system WILL have a screen lock which will engage if no key is
pressed within a specified time. The screen lock should then clear
the screen and return to a prompt screen for re-entry to the
system.
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17 August 1993 103 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
11 SYSTEM SUPPORT/WARRANTY/MAINTENANCE
11.1 THE BIDDER MUST PROVIDE A ONE YEAR WARRANTY FOR ALL HARDWARE AND
SOFTWARE PRODUCTS FOR THE ENTIRE SYSTEM TO START AFTER THE DATE OF
FINAL ACCEPTANCE OF THE SYSTEM BY THE COUNTY.
XImage Corporation WILL provide a one year warranty for all
hardware and software products for the entire system to start
after the date of final acceptance of the system by the county.
11.2 THE BIDDER MUST ALSO PROVIDE AND QUOTE YEARLY MAINTENANCE
CONTRACTS FOR ALL HARDWARE AND SOFTWARE PRODUCTS FOR THE ENTIRE
SYSTEM TO START AFTER THE ONE YEAR WARRANTY PERIOD ENDS.
THE COUNTY RESERVES THE RIGHT TO ENTER INTO EACH YEARLY
MAINTENANCE CONTRACT AND WILL NOTIFY THE CONTRACTOR IN WRITING
PRIOR TO END OF WARRANTY PERIOD OR MAINTENANCE CONTRACT WHETHER
CONTRACT WILL CONTINUE FOR THE NEXT YEAR. THE CONTRACTOR SHALL
NOTIFY THE COUNTY SHERIFF'S DEPARTMENT IN WRITING 90 DAYS PRIOR TO
THE END OF THE WARRANTY OR MAINTENANCE CONTRACT AND QUOTE THE
YEARLY MAINTENANCE RENEWAL COST IN ACCORDANCE WITH SECTION 3.8
(PRICE CHANGES) OF THIS DOCUMENT.
XImage Corporation HAS quoted yearly maintenance contracts for all
hardware and software products for the entire system to start
after the ONE YEAR WARRANTY period ends. Please see our itemized
pricing schedules in the appendix of this document.
We understand that the County reserves the right to enter into
each yearly maintenance contract and will notify XImage
Corporation in writing prior to end of warranty period or
maintenance contract whether contract will continue for the next
year. XImage Corporation shall notify the County Sheriff's
Department in writing 90 days prior to the end of the warranty or
maintenance contract and quote the yearly maintenance renewal cost
in accordance with section 3.8 (Price Changes) of this document.
11.3 BIDDER MUST PROVIDE A COMPLETE DESCRIPTION OF THEIR STANDARD
MAINTENANCE, WARRANTY AND SUPPORT SYSTEM TO INCLUDE SUPPLY OF
REPLACEMENT PARTS, RESPONSE TIME FOR SERVICE CALLS, PROBLEM
DIAGNOSIS, PROBLEM ISOLATION, PROBLEM RESOLUTION, ROUTINE AND
PREVENTATIVE MAINTENANCE SCHEDULE, SUPPORT STAFF, ETC.
XImage Corporation stands behind their systems with a comprehensive
program for system support and maintenance. Because of the needs
of law enforcement, XImage Corporation provides 24 hour a day - 7
day a week system support via a single telephone number. Hennepin
County personnel will be able to receive prompt system support any
time of day.
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17 August 1993 104 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
11 SYSTEM SUPPORT/WARRANTY/MAINTENANCE
XImage Corporation provides a Technical Support Center staffed in San
Jose, California, to deliver single point of contact for all hardware
and software maintenance, customer training, support and consulting.
This means that Hennepin County personnel can reach a technician to
help with any problem by calling a single phone number. XImage
Corporation will provide problem management from the time the incident
is reported until the repair is effected.
The ForceField system is designed with remote diagnostic facilities
that enable the Technical Support Center in California to log in to a
customer system and operate that system as if support personnel were
on-premises. This provides quick diagnosis of difficulties, and a
means for prompt application of temporary fixes. XImage Corporation
may, of course, need the System Administrator at the site to assist
in mounting tapes or disks, obtaining printouts, and determining
results from ImageStation users.
11.4 BIDDER MUST PROVIDE A COPY OF THE STANDARD MAINTENANCE AGREEMENT.
XImage Corporation HAS provided a copy of the standard maintenance
agreement. This document can be found in the Section 7 of this
document.
11.5 BIDDER MUST PROVIDE A CRITICAL COMPONENTS SUPPORT AMENDMENT TO THE
STANDARD MAINTENANCE CONTRACT PROVIDING REPLACEMENT PARTS AND, WHEN
REQUIRED, A SERVICE TECHNICIAN ON SITE WITHIN TWENTY-FOUR HOURS, IF
NOT ALREADY A PART OF THE STANDARD AGREEMENT. CRITICAL COMPONENTS
ARE DEFINED AS ALL COMPONENTS LISTED IN THE HARDWARE SECTION UNDER
FILE SERVER AND THE TAPE BACKUP UNIT.
XImage Corporation WILL provide a critical components support
amendment to the standard maintenance contract providing replacement
parts and, when required, a service technician on site within
twenty-four hours, if not already a part of the standard agreement.
Critical components are defined as all components listed in the
hardware section under file server and the tape backup unit.
11.6 BIDDER MUST STATE THE AVERAGE TIME TO ARRIVE ON SITE WITH STAFF AND
NON-CRITICAL PARTS.
XImage WILL to respond instantly to the service needs of your imaging
system. For critical outages we can have representatives at your
site within an hour of your call to our customer support center. Our
response times are based on severity by case. Less severe service
issues will be handled in a timely manner so as not to disrupt the
operation of your system.
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17 August 1993 105 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
11 SYSTEM SUPPORT/WARRANTY/MAINTENANCE
11.7 CONTRACTOR MUST PROVIDE 24 HOUR A DAY, SEVEN DAYS A WEEK SUPPORT ON
ALL HARDWARE AND SOFTWARE PRODUCTS OF THE SYSTEM. MUST PROVIDE ONE
TELEPHONE NUMBER TO CALL FOR ALL SUPPORT PROBLEMS.
XImage Corporation WILL provide 24 hour a day, seven days a week
support on all hardware and software products of the system. We WILL
also provide one telephone number to call for all support problems.
11.8 CONTRACTOR'S SUPPORT PERSONNEL IMMEDIATELY SHALL LOG INITIAL CALL BY
COUNTY PERSONNEL.
XImage Corporation support personnel immediately WILL log initial
call by County personnel.
11.9 CONTRACTOR'S SUPPORT PERSONNEL MUST PERFORM THE FIRST LEVEL OF
DIAGNOSTICS TO DETERMINE IF THE PROBLEM IS OPERATIONAL, SOFTWARE, OR
HARDWARE.
XImage Corporation's support personnel WILL perform the first level of
diagnostics to determine if the problem is operational, software, or
hardware.
11.10 FOR OPERATIONAL PROBLEMS, CONTRACTOR'S SUPPORT PERSONNEL MUST RESPOND
WITHIN 20 MINUTES OF INITIAL CALL.
For operational problems, XImage Corporation's support personnel WILL
respond within 20 minutes of initial call.
11.11 FOR SOFTWARE PROBLEMS, CONTRACTOR'S SUPPORT PERSONNEL MUST RESPOND
WITHIN 2 HOURS OF INITIAL CALL.
IF SUPPORT PERSONNEL FOR SOFTWARE SUPPORT ARE UNABLE TO BE ON
SITE WITHIN 2 HOURS, THEN THE SUPPORT PERSONNEL SHALL BE ABLE TO
CONNECT WITH SYSTEM MODEM AND CORRECT SOFTWARE PROBLEMS.
FOR SECURITY, THE SYSTEM MODEM WILL BE PASSWORD ACCESS PROTECTED AND
SHALL DIAL BACK TO THE CONTRACTOR'S SUPPORT SYSTEM AFTER THE
CONTRACTOR'S SUPPORT PERSONNEL HAVE REQUESTED ACCESS TO THE COUNTY'S
SYSTEM.
For software problems, XImage Corporation support personnel WILL
respond within 2 hours of initial call. If support personnel for
software support are unable to be on site within 2 hours, then the
support personnel WILL be able to connect with system modem and
correct software problems. For security, the system modem WILL be
password access protected and shall dial back to XImage Corporation's
support system after XImage Corporation's support personnel have
requested access to the County's system.
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17 August 1993 106 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
11 SYSTEM SUPPORT/WARRANTY/MAINTENANCE
11.12 IF A PROBLEM IS DETERMINED, "WORK AROUNDS" AND/OR "PATCHES" MUST BE
PROVIDED WHILE SYSTEM IS BEING FIXED SO THERE WILL BE MINIMAL
DISRUPTION OF ON-LINE OPERATIONS.
If a problem is determined, "work arounds" and/or "patches" WILL be
provided while system is being fixed so there will be minimal
disruption of on-line operations.
11.13 WARRANTY AND MAINTENANCE MUST INCLUDE ALL NECESSARY ADJUSTMENTS,
REPAIRS, PARTS REPLACEMENTS, LABOR, PREVENTIVE AND REMEDIAL
MAINTENANCE, ON SITE MAINTENANCE LOG AND ALL OTHER SERVICES REQUIRED
TO KEEP ALL COMPONENTS IN GOOD WORKING ORDER. THIS MUST BE PERFORMED
WITH MINIMAL DISRUPTION OF ON-LINE OPERATIONS.
Warranty and Maintenance WILL include all necessary adjustments,
repairs, parts replacements, labor, preventive and remedial
maintenance, on site maintenance log and all other services required
to keep all components in good working order. This WILL be performed
with minimal disruption of on-line operations.
11.14 ALL COSTS ASSOCIATED WITH THE DELIVERY TO AND FROM THE COUNTY OF
SOFTWARE AND/OR HARDWARE REQUIRED AS THE RESULTS OF A MALFUNCTIONING
SYSTEM SHALL ALSO BE PROVIDED AT NO EXPENSE TO THE COUNTY. SUCH COST
ITEMS SHALL INCLUDE BUT NOT BE LIMITED TO THE FOLLOWING:
TRANSPORTATION, PACKAGING, CRATING, DELIVERY HANDLING, INSURANCE, AND
SHIPPING EQUIPMENT AND/OR SOFTWARE CARTONS, ETC.
All costs associated with the delivery to and from the County of
software and/or hardware required as the results of a malfunctioning
System WILL also be provided at no expense to the County. Such cost
items shall include but not be limited to the following:
transportation, packaging, crating, delivery handling, insurance, and
shipping equipment and/or software cartons, etc.
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17 August 1993 107 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
11 SYSTEM SUPPORT/WARRANTY/MAINTENANCE
11.15 DEFECTIVE EQUIPMENT: ANY INDIVIDUAL ITEM OF EQUIPMENT COVERED BY
THIS PROCUREMENT EXPERIENCING MORE THAN THREE FAILURES DURING THE
WARRANTY PERIOD SHALL BE REPLACED WITH A NEW ITEM MEETING
SPECIFICATIONS, AT NO COST TO THE COUNTY WITHIN FIVE (5) DAYS AFTER
RECEIPT OF NOTIFICATION FROM THE COUNTY TO REPLACE SAID ITEM(S).
A NEW WARRANTY PERIOD FOR THE ITEM IDENTICAL IN LENGTH AND TERMS TO
THE FOREGOING WARRANTY PERIOD SHALL COMMENCE ON THE DATE OF
REPLACEMENT OF ANY SUCH ITEM.
Any individual item of equipment covered by this procurement
experiencing more than three failures during the warranty period
WILL be replaced with a new item meeting specifications, at no cost
to the County within five (5) days after receipt of notification
from the County to replace said item(s). A new warranty period for the
item identical in length and terms to the foregoing warranty period
WILL commence on the date of replacement of any such item.
Defective Equipment: Any individual item of equipment covered by
this procurement experiencing more than three failures during the
warranty period WILL be replaced with a new item meeting
specifications, at no cost to the County within five (5) days after
receipt of notification from the County to replace said item(s). A
new warranty period for the item identical in length and terms to
the foregoing warranty period WILL commence on the date of
replacement of any such item.
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17 August 1993 108 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
12 TRAINING
12.1 THE BIDDER MUST DESCRIBE THEIR TRAINING PLAN IN DETAIL, INCLUDING
THE BIDDER'S EDUCATION AND TRAINING PHILOSOPHY.
The ForceField system is very user friendly and can be mastered with
a minimum of training. Included with the purchase of the system, XImage
Corporation WILL provide the necessary amount of training to all
personnel for the operation of all system hardware and software
installed. This training will include workstation operation, data entry
and inquiries, camera and lighting operation, and system support. To
assure consistency with customer standards and needs, the schedule for
training will be developed jointly with Hennepin County.
Included with the purchase of the system, XImage Corporation will
provide the necessary amount of training for all personnel for the
operation of all system hardware and software installed. This training
will include workstation operation, data entry and inquiries, camera
and lighting operation, and system support. To assure consistency with
customer standards and needs, the schedule for training will be
developed jointly with Hennepin County.
It is expected that the designated System Administrator(s) attend a
2-day System Administration course, provided at XImage Corporation's
corporate offices, prior to the installation of the ForceField System.
This course is included as part of the system, but travel and expense
costs are the responsibility of the client.
Subsequent to installation, XImage Corporation Customer Support and
Hennepin County will jointly develop a plan for follow-up training to
be accomplished by the County. It is expected that the people from the
Hennepin County responsible for training (supervisory or training
staff) will take an active role in developing and delivering on-going
training.
->XImage Corporation WILL provide the necessary amount of training to
all personnel for the operation of all system hardware and software
installed.
12.2 BIDDER MUST LIST THE AMOUNT OF TRAINING INCLUDED WITH THE SYSTEM
AND COSTS FOR ADDITIONAL TRAINING AS REQUESTED BY THE COUNTY. THESE
COSTS MUST INCLUDE BIDDERS COSTS FOR: TRAVEL, PARKING, LODGING, MEALS
AND STAFF TIME.
Included with the purchase of the system, XImage Corporation will
provide the necessary amount of training for all personnel for the
operation of all system hardware and software installed. This training
will include workstation operation, data entry and inquiries, camera
and lighting operation, and system support. To assure consistency with
customer standards and needs, the schedule for training will be
developed jointly with Hennepin County. Remedial training will be
handled on a cost incurred basis.
->"WE WILL REMAIN ON SITE UNTIL THIS TRAINING IS COMPLETED."
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17 August 1993 109 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
12 TRAINING
12.3 BIDDER MUST SPECIFY ANY OFF-SITE TRAINING REQUIRED.
It is expected that the designated System Administrator(s) attend a
2-day System Administration course, provided at XImage Corporation's
corporate offices, prior to the installation of the ForceField System.
This course is included as part of the system, but travel and expense
costs are the responsibility of the client.
12.4 THE BIDDER MUST PROVIDE TRAINING DOCUMENTATION AND ON-SITE CLASSROOM
AND HANDS-ON TRAINING.
The bidder WILL provide training documentation and on-site classroom
and hands-on training.
12.5 THE SYSTEM MUST PROVIDE A MEANS FOR PLACING DESIGNATED WORKSTATIONS
INTO A TRAINING MODE. A WORKSTATION IN TRAINING MODE SHOULD BE ABLE TO
PERFORM ALL THE FUNCTIONS NORMALLY AUTHORIZED TO THAT WORKSTATION TO
THE MAXIMUM FEASIBLE EXTENT.
HOWEVER, A WORKSTATION IN TRAINING MODE MUST NOT BE PERMITTED TO
ACTUALLY UPDATE "REAL" FILES. IN THIS MODE, THE TRAINEES MUST BE ABLE
TO "MODIFY" CURRENT SAMPLE RECORDS, AND ENTER NEW RECORDS. ACCESS
TABLES FOR THE TRAINING MODE MUST BE SEPARATE FROM THE PRODUCTION
SYSTEM ACCESS TABLES.
The ForceField system WILL provide a means for placing designated
workstations into a training mode. A workstation in training mode WILL
be able to perform all the functions normally authorized to that
workstation to the maximum feasible extent.
However, a workstation in training mode WILL not be permitted to
actually update "real" files. In this mode, the trainees WILL be able
to "modify" current sample records, and enter new records. Access
tables for the training mode WILL be separate from the production
system access tables.
12.6 TRAINING MANUALS:
12.6.1 A MINIMUM OF TEN MANUALS CUSTOMIZED TO THE INSTALLED SYSTEM
SHALL BE PROVIDED WITH THE SYSTEM. TRAINING MANUALS,
DOCUMENTATION AND MATERIALS FURNISHED DURING TRAINING WILL
BECOME THE COUNTY'S PROPERTY. FOUR (4) SAMPLE TRAINING MANUALS
MUST BE PROVIDED WITH THE BID.
A minimum of ten manuals customized to the installed system
WILL be provided with the system. Training manuals,
documentation and materials furnished during training will
become the County's property. Four (4) sample training manuals
WILL be provided with the bid.
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17 August 1993 110 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
12 TRAINING
12.6 TRAINING MANUALS:
12.6.2 IF THE USER MANUAL IS ALSO THE TRAINING MANUAL, BIDDER SHALL
SO STATE.
The user manual is used as a tool within the confines of a
specialized ForceField training program.
12.6.3 ALL MANUALS MUST BE DETAILED AND WRITTEN IN A LANGUAGE THAT
CAN BE EASILY UNDERSTOOD BY USERS WHO DO NOT POSSESS
COMPUTER KNOWLEDGE OR SKILLS.
All manuals WILL be detailed and written in a language that
can be easily understood by users who do not possess
computer knowledge or skills.
12.7 STAFF TRAINING: THE PRIMARY PURPOSE OF THE TRAINING REQUIREMENT IS
TO PRODUCE A GROUP OF HENNEPIN COUNTY SHERIFF'S DEPARTMENT STAFF
WHO WILL BE COMPETENTLY AND FULLY TRAINED BY THE CONTRACTOR AS TO
ENABLE SUCH STAFF TO ASSUME FULL RESPONSIBILITY FOR THE TRAINING OF
OTHERS IN THE DAILY OPERATION AND ROUTINE IN-HOUSE MAINTENANCE OF
THE SYSTEM. FUNCTIONAL MANAGER, TECHNICAL MANAGER AND SPECIALTY
TRAINING ARE ALSO REQUIRED.
12.7.1 TRAINING MUST BE PROVIDED TO THE FOLLOWING GROUPS:
USERS/TRAINERS: A CORE GROUP OF APPROXIMATELY TWENTY (20)
PERSONS WHO WILL USE THE PHOTOIMAGE SYSTEM AS A NORMAL
COURSE OF THEIR DUTIES. THIS CORE GROUP WILL TRAIN OTHER
USERS. THE TRAINING WILL BE DIVIDED INTO TWO GROUPS: JAIL
PERSONNEL AND INVESTIGATIVE PERSONNEL.
FUNCTIONAL MANAGERS: TWO PERSONS WHO ARE RESPONSIBLE FOR
THE DAILY OPERATION OF THE SYSTEM AND DEVELOPMENT PLANS.
TECHNICAL MANAGERS: TWO PERSONS WITH A MIS BACKGROUND,
RESPONSIBLE FOR THE TECHNICAL DEVELOPMENT, SUPPORT, OPERATING
SYSTEM, NETWORK AND INTERFACE OF THE SYSTEM.
SPECIALTY TRAINING: TRAINING FOR CERTAIN APPLICATIONS (SUCH
AS THE ARTIST APPLICATION) WHICH MAY REQUIRE EXTENSIVE
TRAINING OR BE RESTRICTED TO SEVERAL EMPLOYEES WILL BE
PROVIDED ONLY TO THOSE PERSONS AT THE COUNTY'S DISCRETION.
Training WILL be provided to the above groups.
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17 August 1993 111 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
12 TRAINING
12.7 STAFF TRAINING:
12.7.2 EACH PERSON IN THE ABOVE GROUPS MUST BE ABLE TO PERFORM ALL
FUNCTIONS NORMALLY REQUIRED OF THEM WITHOUT ASSISTANCE AT
THE CONCLUSION OF THE TRAINING SESSION.
Each person in the above groups WILL be able to perform all
functions normally required of them without assistance at
the conclusion of the training session.
12.7.3 TRAINING SHALL BE SCHEDULED WITH THE PROJECT MANAGER TO
ACCOMMODATE ROTATING TWENTY-FOUR HOUR SCHEDULES.
Training WILL be scheduled with the project manager to
accommodate rotating twenty-four hour schedules.
12.7.4 A TRAINING SITE IN THE SHERIFF'S DEPARTMENT FACILITIES WILL
BE INCLUDED IN THE NETWORK. WORKSTATIONS INTENDED FOR THE
OPERATIONAL SYSTEM WILL FIRST BE USED AT THE TRAINING SITE.
THE TRAINING SITE MAY ALSO BE USED BY THE CONTRACTOR FOR
SYSTEM TESTING. THE CONTRACTOR MUST INSTALL WORKSTATIONS IN
THIS AREA FOR TRAINING AND MOVE THE WORKSTATION TO THE
PERMANENT LOCATION PRIOR TO THE BEGINNING OF PRODUCTION MODE.
We understand that a training site in the Sheriff's
Department facilities will be included in the network.
Workstations intended for the operational system will first
be used at the training site. The training site may also be
used by XImage Corporation for system testing. XImage
Corporation WILL install workstations in this area for
training and move the workstation to the permanent location
prior to the beginning of production mode.
Before final acceptance of the system, XImage Corporation
will train all users in the operation of their new
ForceField system.
-> "OUR JOB IS NOT DONE UNTIL ALL PERSONNEL ARE FULLY TRAINED
IN SYSTEM FUNCTION AND OPERATION."
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17 August 1993 112 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
13 FUTURE PLAN STATEMENT
13.1 THE ITEMS LISTED BELOW ARE POSSIBLE FUTURE ENHANCEMENTS OF THE
INITIAL SYSTEM. THE BIDDER SHOULD STATE ANY EXPERIENCE IN THE
FOLLOWING AREAS:
13.1.1 INTERFACING TO EXISTING COUNTY IBM MAINFRAME 3090, MODEL
400J WITH A MVS/ESA OPERATING SYSTEM AND IMS, CICS, DB/2
APPLICATIONS.
XImage Corporation installations typically contain system
interfaces to existing agency mainframes. These interfaces
eliminate the need for redundant data entry and will enable
quicker and more consistent processing of bookings. XImage
Corporation has experience in providing these interfaces and
will work with Hennepin County in providing integration.
13.1.2 ADDITIONAL DATA BASES AND APPLICATIONS.
The ForceField system currently supports multiple databases.
This feature will effectively allow you segregate adults,
juveniles, employees, gangs etc. The juveniles or any other
database can be secure from unauthorized access and
inclusion in the adult database searches and lineups.
13.1.3 INTERFACING TO OS/2 CLIENT SERVER APPLICATIONS.
XImage Corporation has experience in providing these
interfaces and will work with Hennepin County in providing
integration.
13.1.4 STORAGE OF FINGERPRINTS - INTERFACE TO EXISTING DIGITAL
BIOMETRICS LIVESCAN.
A joint effort between XImage Corporation and Digital
Biometrics WILL enable us to interface with the existing
Hennepin County livescan for the storage of fingerprint
images on the ForceField system.
13.1.5 DOCUMENT RECORDING.
XImage Corporation's area of expertise is in providing the
highest quality imaging systems for booking and suspect
identification. Document recording is an entirely separate
discipline which has distinct requirements which XImage
Corporation has not addressed as of yet.
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17 August 1993 113 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
13 FUTURE PLAN STATEMENT
13.1.6 INTERFACING WITH OTHER COUNTIES, OR STATE OR FEDERAL
AGENCIES.
It has been the overall objective of XImage Corporation to
provide a standardized imaging solution for law enforcement
agencies which can be tied to a network for the exchange of
information with other agencies. By strictly adhering to the
CAL-PHOTO standards, Ximage is in a position to offer
consistent data transmission quality that will enable useful
information exchange.
13.2 BIDDER SHOULD DESCRIBE THEIR PLANS FOR COMPATIBILITY WITH NCIC 2000.
XImage Corporation plans to comply with the NCIC 2000 program. As this
important program evolves and matures, XImage Corporation will
incorporate functions and features which are compatible and will
provide our users with added value and usefulness.
13.3 BIDDER MUST DESCRIBE THEIR POLICY FOR DEVELOPING CUSTOMER REQUESTED
ENHANCEMENTS.
XImage Corporation WILL respond to the system enhancement needs of
Hennepin County in a fashion which will ensure timely and organized
implementation. In most cases, Hennepin County MIS will provide XImage
Corporation with an enhancement outline. In conference with XImage
Corporation engineering staff, final specification, time line and
implementation will be determined and agreed upon.
13.4 BIDDER MUST DESCRIBE THEIR POLICY FOR WORKING WITH COUNTY MIS
RESOURCES IN DEVELOPING NEW APPLICATIONS.
XImage Corporation WILL cooperate with Hennepin County MIS resources
and will participate in the joint development of new system
applications.
13.5 BIDDER SHOULD LIST ENHANCEMENTS TO THEIR SYSTEM WHICH ARE (1) PLANNED
FOR FUTURE DEVELOPMENT AND (2) CURRENTLY IN DEVELOPMENT. WHERE
POSSIBLE, INCLUDE PROJECTED AVAILABILITY.
XImage Corporation prefers not to disclose information on future
system enhancements until available to the client. As in the past, it
is our intent to remain at the forefront of digital imaging technology
and we will strive to incorporate features of value to our users.
- -------------------------------------------------------------------------------
17 August 1993 114 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
XImage Corporation
Proposal
13 FUTURE PLAN STATEMENT
13.6 BIDDER SHOULD DESCRIBE HOW AN EASEL CLIENT/SERVER APPLICATION RUNNING
ON AN IBM PS/2 WORKSTATION WITH OS/2 EXTENDED SERVICES WOULD BE ABLE
TO RETRIEVE DATA AND IMAGES AND DISPLAY BOTH FROM THE EASEL
APPLICATION. EASEL SUPPORTS THE FOLLOWING IMAGE FILE FORMATS:
MICROSOFT WINDOWS STANDARD BITMAP (.BMP), PC PAINTBRUSH (.PCX) AND
OS/2 PM STANDARD BITMAP (.BMP) VERSION 1.1 AND VERSION 1.2. BIDDER
SHOULD PRICE THIS FEATURE AS AN OPTION.
This functionality is not currently supported by XImage Corporation.
We will work with Hennepin County to arrive at a possible solution.
- -------------------------------------------------------------------------------
17 August 1993 115 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
APPENDIX A - 4 pages, one page for each reference.
PROPOSAL OF XIMAGE CORPORATION
CONTRACT NO. 274OA3
CURRENT INSTALLATIONS
================================================================================
Mr. Charles Barnes
Broward County Sheriff's Office (305) 764-5185
555 S.E. First Avenue
Fort Lauderdale, FL 33301 October 1991
================================================================================
Describe System (include functions, transaction volume, number of photoimages
captured, types of images captured)
Full ForceField II system software configured to the needs of Broward
County. The County utilizes Display ImageStations in conjunction with
Capture ImageStations to handle 100,000 bookings per year. The system is
equipped with a ForceField II scanning station for the conversion of both
positive and negative photographs to digital images.
- -------------------------------------------------------------------------------
Describe Hardware (include band names, number of work stations, type of storage
media for photoimages)
This installation utilizes the SUN SparcStation as its ImageBank and
features Sony WORM opticals for image storage. Four Sun 386i ImageStations
with Sony Hi-Resolution CPD-1302 monitors utilize ForceField II software and
digitizing and compression hardware in conjunction with 3 Hitachi HVC-10
video cameras mounted on pan & tilt mechanisms. One Kodak color printer with
extractor and finisher and three HP LaserJets are equipped with ForceField
II print drivers to handle the printing needs of Broward County.
- -------------------------------------------------------------------------------
Describe Network Environment (include topology used, protocols used, operating
system used)
The local area network is ethernet with TCP/IP and utilizes SUN/OS. Three
of the stations are remote and linked to the server via 56KB lines.
- -------------------------------------------------------------------------------
Describe Mainframe Interface (include mainframe brand and model, mainframe DBMS,
type of communications used)
Plans are underway to extract data from the County's mainframe.
===============================================================================
1
<PAGE>
APPENDIX A - 4 pages, one page for each reference.
CONTRACT NO. 2740A3 PROPOSAL OF XIMAGE CORPORATION
CURRENT INSTALLATIONS
===============================================================================
COMBINED OREGON JUSTICE IMAGING NETWORK (COJIN) Major James Thacker
Includes the City of Portland, the Oregon State Police, &
Multnomah County Sheriff's Department (503) 255-3600
12240 North Gilsan Street
Portland, OR 97230 Installation in
Progress
===============================================================================
Describe System (include functions, transaction volume, number of
photoimages captured, types of images captured)
The Oregon State COJIN system is the first cooperative tri-agency imaging
system in the United States. XImage Corporation was selected as the only
vendor capable of meeting the needs of this large and complex installation.
The system is designed around a central ImageBank located at the Multnomah
Sheriff's facility and networked to ImageStations located throughout the
City, County, and State. Combined bookings are expected to exceed 70,000 in
1993. Captured images will include front and side mugshots, as well as scars,
marks, and tattoos.
- -------------------------------------------------------------------------------
Describe Hardware (include band names, number of work stations, type of
storage media for photoimages)
Hardware will include a central processor, three Capture ImageStations,
eleven Display ImageStations, multiple HP LaserJet Printers, Kodak Color
Format Printers, and the new line of Canon Printers, including a CJ-10,
CLC-300, and CLC-500. The system also includes two camera copy stand
scanners, and an Identicator-TM- fingerprint capture device. Image storage
consists of four SONY 12 inch optical platters capable of storing
approximately 500,000 CAL-PHOTO size mugshot images online.
- -------------------------------------------------------------------------------
Describe Network Environment (include topology used, protocols used,
operating system used)
The local area network is ethernet. The ten remote ImageStations are
connected via dedicated 56KB digital lines. The ForceField II operating
system is the Department of Defense standard - UNIX.
- -------------------------------------------------------------------------------
Describe Mainframe Interface (include mainframe brand and model, mainframe
DBMS, type of communications used)
The third phase of the COJIN installation requires an interconnect between
the ForceField II imaging system and the County's Amdahl mainframe computer.
Communications will be opened between the County CICS database and the
ForceField II system. We will utilize a SNA gateway for connection. Data
transfer will be in real time.
===============================================================================
1
<PAGE>
APPENDIX A - 4 pages, one page for each reference.
CONTRACT NO. 2740A3 PROPOSAL OF XIMAGE CORPORATION
CURRENT INSTALLATIONS
===============================================================================
Installation Name and Address Contact Person
Pierce County Sheriff's Office Mr. Dave Cotton
Tacoma Police Department
County and City Networked System (305) 764-5185
930 Tacoma Avenue South
Tacoma, WA 98402 January 1991
===============================================================================
Describe System (include functions, transaction volume, number of
photoimages captured, types of images captured)
Full ForceField II system software configured to the needs of Pierce County
and the City of Tacoma Police Department. The City and County utilize Display
ImageStations in conjunction with Capture ImageStations to handle 50,000
bookings per year. The system is equipped with a ForceField II scanning
station for the conversion of both positive and negative photographs to
digital images.
- -------------------------------------------------------------------------------
Describe Hardware (include band names, number of work stations, type of
storage media for photoimages)
This installation utilizes the SUN SparcStation as its ImageBank and
features Sony WORM opticals for image storage. Three Sun 386i ImageStations
with Sony Hi-Resolution CPD-1302 monitors utilize ForceField II software and
digitizing and compression hardware in conjunction with 3 Hitachi HVC-10
video cameras mounted on pan & tilt mechanisms. Two Kodak color printers with
extractors and finishers and three HP LaserJets are equipped with ForceField
II print drivers to handle the printing needs of the City and County.
- -------------------------------------------------------------------------------
Describe Network Environment (include topology used, protocols used,
operating system used)
The local area network is ethernet with TCP/IP and utilizes SUN/OS. Two of
the stations are remote and linked to the server via 56KB lines.
- -------------------------------------------------------------------------------
Describe Mainframe Interface (include mainframe brand and model, mainframe
DBMS, type of communications used)
The ForceField II system is interconnected to the host DEC VAX to interface
to the City and County JIMS & CHRI systems via TCP/OP protocol.
===============================================================================
1
<PAGE>
APPENDIX A - 4 pages, one page for each reference.
CONTRACT NO. 2740A3 PROPOSAL OF XIMAGE CORPORATION
CURRENT INSTALLATIONS
===============================================================================
Sergeant James Aguirre
San Jose Police Department
201 West Mission Street (408) 277-4956
San Jose, CA 95110
June 1989
===============================================================================
Describe System (include functions, transaction volume, number of photoimages
captured, types of images captured)
Full ForceField II system software configured to the needs of the San Jose
Police Department. Display ImageStations are used in conjunction with
Capture ImageStations to handle 30,000 bookings per year that are stored on
optical WORM drives. Currently the system is utilized for capturing mugshot
images, but remains flexible enough to grow with the changing needs of this
fast growing City.
- -------------------------------------------------------------------------------
Describe Hardware (include band names, number of work stations, type of storage
media for photoimages)
This installation utilizes the SUN SparcStation as its ImageBank and
features Sony WORM opticals for image storage. Three Sun 386i ImageStations
with Sony Hi-Resolution CPD-1302 monitors utilize ForceField II software and
digitizing and compression hardware in conjunction with 2 Hitachi HVC-10
video cameras mounted on pan & tilt mechanisms. One Kodak color printer with
extractor and finisher and two HP LaserJets are equipped with ForceField II
print drivers to handle the printing needs of the San Jose Police Department.
- -------------------------------------------------------------------------------
Describe Network Environment (include topology used, protocols used,
operating system used)
The local area network is ethernet with TCP/IP and utilizes SUN/OS. All
workstations are contained within one site, but are on different floors.
- -------------------------------------------------------------------------------
Describe Mainframe Interface (include mainframe brand and model, mainframe
DBMS, type of communications used)
San Jose Police Department does not currently have an interconnect. This can
be added at a later date with the current system.
===============================================================================
1
<PAGE>
APPENDIX B
CONTRACT NO. 2740A3 PROPOSAL OF XIMAGE CORPORATION
- -------------------------------------------------------------------------------
CAL-PHOTO
(Published: 2-2-90)
CALIFORNIA LAW ENFORCEMENT'S ELECTRONIC PHOTOGRAPHIC IMAGING SYSTEM STANDARDS
The following represent standards that California law enforcement agencies
should include as minimum requirements for any electronic photographic
capture, storage, and transmission system to later interface with a statewide
system.
These minimum standards are presented in a sequence of subject headings that
have been agreed to by all participating agencies. The DOJ suggests these as
an absolute minimum.
QUALITY - Must be able to produce 3" x 4" hard copy output, comparable in
quality to a polaroid image (subjective).
FILE FORMAT - Captured uncompressed file must conform to TrueVision file
format version 2.0. (Stored compressed images must conform to
compression specifications listed below.) When image is
uncompressed, it must uncompress to TrueVision version 2.0 file
format.
COMPRESSION - Compression must conform to evolving ISO standard for
continuous tone image compression. Within the United States,
refer to ANSI X3L2.8 standards committee.
CAMERA - Solid state, CCD-RGB camera with minimum 500 line resolution.
CAMERA OUTPUT - 3 wire, RGB, compatible with NTSC. Minimum 15Khz vertical
scan.
IMAGE CAPTURE - With 500 line camera, 384 (horizontal) x 480 (vertical) x 15
(5 bits red, 5 bits green, 5 bits blue). Pixel aspect ratio
must be included in the TGA header.
IMAGE ASPECT RATIO - Image aspect ratio will be 1 x 1.25.
IMAGE INDEX NUMBER - ORI and local booking number.
ADDITIONAL CHARACTER FIELD -
DATE - Date image taken.
DIMENSIONS - Head and shoulders bust shot. No profiles necessary - lower edge
should be at the point of shoulder and to edge 1/2" top of hair.
LIGHT SOURCE - Calibrated 3-point lighting.
BACKGROUND - Viewable 18% gray background.
- -------------------------------------------------------------------------------
2
<PAGE>
XIMAGE CORPORATION
PROPOSAL
HENNEPIN APPENDICES
- -------------------------------------------------------------------------------
17 August 1993 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
APPENDIX D
RECOMMENDED SYSTEM PRICING SHEETS
<PAGE>
APPENDIX D - RECOMMENDED SYSTEM
INSTRUCTIONS FOR COMPLETING APPENDIX D.
1. The recommended system pricing sheets MUST be correctly completed
on Appendix D. Pricing sheets are broken down by narcotics,
detectives, jail/booking, jail/records, file server, other costs,
supplies, training, and total costs.
2. The bidder MUST provide brochures and technical literature for all
hardware and software items bid.
3. The bidder MUST list all hardware components, manufacturer name, and
model.
4. The bidder MUST list all software components, manufacturer name,
and version number.
5. The bidder MUST separately price all component costs and
maintenance costs per year, after first year warranty, on the
pricing sheet designated by a $ sign.
6. All prices MUST include first year's warranty and "starter"
supplies.
7. Bidder may attach additional sheets in those instances where more
space is required or may edit WordPerfect file that contains the
pricing sheets, which will be made available on a 3.5" diskette if
request by a bidder.
8. For purposes of the recommended system, B&W duplex printers bid
MUST contain at least two paper bins.
PLEASE NOTE:
--> All software will be supplied on a single tape for escrow at an
annual fee of approximately $500.00.
D-1
<PAGE>
APPENDIX D - RECOMMENDED SYSTEM
TOTAL COSTS:
<TABLE>
<CAPTION>
MAINTENANCE COST PER YEAR
DESCRIPTION COST AFTER 1ST YEAR WARRANTY
----------- ---- -----------------------
<S> <C> <C>
- Narcotics Grand Total $ 27,245.00 $ 4,087.00
- Detectives Grand Total $ 42,245.00 $ 6,337.00
- Jail/Records Grand Total $100,754.00 $ 15,114.00
- Jail/Booking Grand Total $ 79,435.00 $ 11,915.00
- File Server Grand Total $ 95,990.00 $ 14,398.00
- Other Costs Grand Total $103,195.00 INCLUDED
- Supplies Grand Total $ 34,570.00 N/A
- Training Grand Total INCLUDED INCLUDED
- Taxes (including 6.5% MN sales) $ 31,423.21 N/A
- Performance Bond $ 10,297.14 N/A
- Less Discount N/A N/A
----------- -----------
Grand Total System Cost $525,154.35 $ 51,851.00
=========== ===========
- Estimated Yearly Annual Escrow Cost $ 500.00 N/A
</TABLE>
COMMENTS:
--> All software will be supplied on a single tape for escrow at an annual
fee of approximately $500.00
D-2
<PAGE>
APPENDIX D - RECOMMENDED SYSTEM
NARCOTICS:
<TABLE>
<CAPTION>
MAINTENANCE COST PER YEAR
COMPONENT COST AFTER 1ST YEAR WARRANTY
- --------- ---- -----------------------
<S> <C> <C>
HARDWARE (Make and Model)
- - Workstation -24-Bit Color $ 9,405.00 $ 1,411.00
- IBM PS/2 466DX2 ValuePoint ImageStation 16MB RAM (1)
- Truevision ATVista 32-bit Vidoegraphics Card (1)
- IDE 200MB System Disk (1)
- Network Adaptor (1)
- -Monitor $ 3,000.00 $ 450.00
- 15-inch Electrohome ECM-1510 Color Monitor (1)
----------- -----------
Workstation Subtotal $12,405.00 $ 1,861.00
- - Uninterrupted Power Supply $ 1,595.00 $ 239.00
- Emerson AP1000 Series UPS (1)
- - Small Color Printer $ 3,200.00 $ 480.00
- Kodak SV6600 Color Printer/Extractor/Finisher. (1)
- - B&W Simplex Printer $ 2,000.00 $ 300.00
- HP LaserJet 4 Printer (1)
(List other hardware components, cost, and maint.
needed for jail/records unit not listed above.)
NONE NONE
----------- -----------
HARDWARE TOTAL: $19,200.00 $ 2,880.00
----------- -----------
</TABLE>
COMMENTS:
D-3
<PAGE>
APPENDIX D - RECOMMENDED SYSTEM
NARCOTICS: (continued)
<TABLE>
<CAPTION>
MAINTENANCE COST PER YEAR
COMPONENT COST AFTER 1ST YEAR WARRANTY
- --------- ---- -----------------------
<S> <C> <C>
SOFTWARE (Product, Manufacturer, and Version)
BIDDER'S SOFTWARE
FORCEFIELD IMAGESTATION APPLICATION SOFTWARE
Including:
- Database Library Software (1)
- Image Compression Software (1)
- Print Manager Software (1)
- HPLJ4 Laser Printer Driver Software (1)
- Kodak SV6600 Printer Driver Software (1)
---------- ---------
BIDDER'S SOFTWARE SUBTOTAL:
$6,380.00 $957.00
---------- ---------
3RD PARTY SOFTWARE
- SCO UNIX Open Desktop Release 3.0 (1)
- Sybase (client) (1)
---------- ---------
3RD PARTY SOFTWARE SUBTOTAL:
$1,665.00 $250.00
---------- ---------
SOFTWARE TOTAL:
$8,045.00 $1,207.00
========== =========
NARCOTICS GRAND TOTAL $27,245.00 $4,087.00
========== =========
</TABLE>
COMMENTS:
--> All software will be supplied on a single tape for escrow at an annual fee
of approximately $500.00.
D-4
<PAGE>
APPENDIX D - RECOMMENDED SYSTEM
DETECTIVES:
<TABLE>
<CAPTION>
MAINTENANCE COST PER YEAR
COMPONENT COST AFTER 1ST YEAR WARRANTY
- --------- ---- -----------------------
<S> <C> <C>
HARDWARE (Make and Model)
- - Workstation -24-BIT COLOR $9,405.00 $1,411.00
- IBM PS/2 466DX2 ValuePoint ImageStation 16MB RAM (1)
- Truevision ATVista 32-bit Videographics Card (1)
- IDE 200MB System Disk (1)
- Network Adaptor (1)
- - Monitor $3,000.00 $450.00
- 15-inch Electrohome ECM-1510 Color Monitor (1)
---------- ----------
Workstation Subtotal $12,405.00 $1,861.00
- - Uninterrupted Power Supply $1,595.00 $239.00
- Emerson AP1000 Series UPS (1)
- - Camera System $14,000.00 $2,100.00
- Hitachi Hi-Resolution HV-C10F RGB Video Camera (1)
- Remote Pan and Tilt Mechanism (1)
Vicon Model V3000APT Remote Pan & Tilt (1)
V1600WM Wall Mount (1)
V1600AH Adjustable Head (1)
- HALO 3-Point Lighting System (1)
- Reflective Light Pedestal (1)
- 18% Grey Background (1)
- - Lighting System INCLUDED INCLUDED
- - Small Color Printer $3,200.00 $480.00
- Kodak SV6600 Color Printer/Extractor/Finisher. (1)
- - B&W Simplex Printer $2,000.00 $300.00
- HP LaserJet 4 Printer (1)
(List other hardware components, cost, and maint.
needed for jail/records unit not listed above.)
NONE NONE
---------- ----------
HARDWARE TOTAL: $33,200.00 $4,980.00
---------- ----------
COMMENTS:
D - 5
<PAGE>
APPENDIX D - RECOMMENDED SYSTEM
DETECTIVES: (continued)
<CAPTION>
MAINTENANCE COST PER YEAR
COMPONENT COST AFTER 1ST YEAR WARRANTY
- --------- ---- -----------------------
<S> <C> <C>
SOFTWARE (Product, Manufacturer, and Version)
BIDDER'S SOFTWARE
FORCEFIELD IMAGESTATION APPLICATION SOFTWARE
Including:
- Database Library Software (1)
- Image Compression Software (1)
- Print Manager Software (1)
- HPLJ4 Laser Printer Driver Software (1)
- Kodak SV6600 Printer Driver Software (1)
- Capture Camera Software (1)
---------- ----------
BIDDER'S SOFTWARE SUBTOTAL:
$7,380.00 $1,107.00
---------- ----------
3RD PARTY SOFTWARE
- SCO UNIX Open Desktop Release 3.0 (1)
- Sybase (client) (1)
---------- ----------
3RD PARTY SOFTWARE SUBTOTAL:
$1,665.00 $250.00
---------- ----------
SOFTWARE TOTAL:
$9,045.00 $1,357.00
---------- ----------
---------- ----------
DETECTIVES GRAND TOTAL $42,245.00 $6,337.00
---------- ----------
---------- ----------
</TABLE>
COMMENTS:
--> All software will be supplied on a single tape for escrow at an
annual fee of approximately $500.00.
D - 6
<PAGE>
APPENDIX D - RECOMMENDED SYSTEM
JAIL/RECORDS:
<TABLE>
<CAPTION>
MAINTENANCE COST PER YEAR
COMPONENT COST AFTER 1ST YEAR WARRANTY
- --------- ---- -----------------------
<S> <C> <C>
HARDWARE (Make and Model)
- - 3 Workstations -24-BIT COLOR $28,215.00 $4,232.00
- IBM PS/2 466DX2 ValuePoint ImageStation 16MB RAM (3)
- Truevision ATVista 32-bit Videographics Card (3)
- IDE 200MB System Disk (3)
- Network Adaptor (3)
- - Slave Monitor System $3,000.00 $450.00
- 15-inch Electrohome ECM-1510 Color Monitor (1)
- - 3 Monitors $9,000.00 $1,350.00
- 15-inch Electrohome ECM-1510 Color Monitor (3)
---------- ----------
- - Workstations Subtotal $40,215.00 $6,032.00
- - 3 Uninterrupted Power Supplies $4,875.00 $731.00
- Emerson AP1000 Series UPS (3)
- - Scanner System $10,500.00 $1,575.00
- Hitachi Hi-Resolution HV-C10F RGB Video Camera (1)
- Kaiser Copy Stand (1)
- - Badgemaker System $2,050.00 $308.00
- - Large Color Printer $9,929.00 $1,489.00
- Mitsubishi CP-210U Color Video Printer
- - Small Color Printer $3,200.00 $480.00
- Kodak SV6600 Color Printer/Extractor/Finisher. (1)
- - 2 B&W Duplex Printer $7,800.00 $1,170.00
- HP LaserJet 4Si Printer (2)
(List other hardware components, cost, and maint.
needed for jail/records unit not listed above.)
NONE NONE
---------- ----------
HARDWARE TOTAL: $78,569.00 $11,785.00
---------- ----------
COMMENTS:
</TABLE>
D - 7
<PAGE>
APPENDIX D - RECOMMENDED SYSTEM
JAIL/RECORDS: (continued)
<TABLE>
<CAPTION>
MAINTENANCE COST PER YEAR
COMPONENT COST AFTER 1ST YEAR WARRANTY
- --------- ---- -------------------------
<S> <C> <C>
SOFTWARE (Product, Manufacturer, and Version)
BIDDER'S SOFTWARE
FORCEFIELD IMAGESTATION APPLICATION SOFTWARE
INCLUDING:
- Database Library Software (3)
- Image Compression Software (3)
- Print Manager Software (3)
- HPLJ4 Laser Printer Driver Software (2)
- Kodak SV6600 Printer Driver Software (1)
- Mitsubishi CP200U Printer Driver Software (1)
- Scanner Camera Software (1)
----------- ----------
BIDDER'S SOFTWARE SUBTOTAL:
$ 17,190.00 $ 2,579.00
----------- ----------
3RD PARTY SOFTWARE
- SCO UNIX Open Desktop Release 3.0 (3)
- Sybase (client) (3)
----------- ----------
3RD PARTY SOFTWARE SUBTOTAL:
$ 4,995.00 $ 750.00
----------- ----------
SOFTWARE TOTAL:
$ 22,185.00 $ 3,329.00
=========== ==========
JAIL/RECORDS GRAND TOTAL $100,754.00 $15,114.00
=========== ==========
</TABLE>
COMMENTS:
--> All software will be supplied on a single tape for escrow at an
annual fee of approximately $500.00
D-8
<PAGE>
APPENDIX D - RECOMMENDED SYSTEM
JAIL/BOOKING:
<TABLE>
<CAPTION>
MAINTENANCE COST PER YEAR
COMPONENT COST AFTER 1ST YEAR WARRANTY
- --------- ---- -------------------------
<S> <C> <C>
HARDWARE (Make and Model)
- - 3 Workstations - 24-BIT COLOR $ 28,215.00 $ 4,232.00
- IBM PS/2 466DX2 ValuePoint ImageStation 16MB RAM (3)
- Truevision ATVista 32-bit Videographics Card (3)
- IDE 200MB System Disk (3)
- Network Adaptor (3)
- - Monitor $ 9,000.00 $ 1,350.00
- 15-inch Electrohome ECM-1510 Color Monitor (3)
----------- ----------
Workstation Subtotal $ 37,215.00 $ 5,582.00
- - Uninterrupted Power Supply $ 4,875.00 $ 730.00
- Emerson AP1000 Series UPS (3)
- - Camera System $ 14,000.00 $ 2,100.00
- Hitachi Hi-Resolution HV-C10F RGB Video Camera (1)
- Remote Pan and Tilt Mechanism (1)
Vicon Model V3000APT Remote Pan & Tilt (1)
V1600WM Wall Mount (1)
V1600AH Adjustable Head (1)
- HALO 3-Point Lighting System (1)
- Reflective Light Pedestal (1)
- 18% Grey Background (1)
- - Lighting System INCLUDED INCLUDED
- - Wrist Band Device $ 2,050.00 $ 308.00
- - B&W Duplex Printer $ 3,900.00 $ 585.00
- HP LaserJet 4Si Printer (1)
(List other hardware components, cost, and maint.
needed for jail/records unit not listed above.)
NONE NONE
----------- ----------
HARDWARE TOTAL: $ 62,040.00 $ 9,305.00
----------- ----------
</TABLE>
COMMENTS:
D-9
<PAGE>
APPENDIX D - RECOMMENDED SYSTEM
JAIL/BOOKING: (continued)
<TABLE>
<CAPTION>
MAINTENANCE COST PER YEAR
COMPONENT COST AFTER 1ST YEAR WARRANTY
- --------- ---- -------------------------
<S> <C> <C>
SOFTWARE (Product, Manufacturer, and Version)
BIDDER'S SOFTWARE
FORCEFIELD IMAGESTATION APPLICATION SOFTWARE
INCLUDING:
- Database Library Software (3)
- Image Compression Software (3)
- Print Manager Software (3)
- HPLJ4 Laser Printer Driver Software (1)
- Capture Camera Software (1)
----------- ----------
BIDDER'S SOFTWARE SUBTOTAL:
$ 12,400.00 $ 1,860.00
----------- ----------
3RD PARTY SOFTWARE
- SCO UNIX Open Desktop Release 3.0 (3)
- Sybase (client) (3)
----------- ----------
3RD PARTY SOFTWARE SUBTOTAL:
$ 4,995.00 $ 750.00
----------- ----------
SOFTWARE TOTAL:
$ 17,395.00 $ 2,610.00
=========== ==========
JAIL/BOOKING GRAND TOTAL $ 79,435.00 $11,915.00
=========== ==========
</TABLE>
COMMENTS:
--> All software will be supplied on a single tape for escrow at an
annual fee of approximately $500.00
D-10
<PAGE>
APPENDIX D - RECOMMENDED SYSTEM
FILE SERVER:
<TABLE>
<CAPTION>
MAINTENANCE COST PER YEAR
COMPONENT COST AFTER 1st YEAR WARRANTY
- --------- ---- -----------------------
<S> <C> <C>
HARDWARE (Make and Model)
- - File Server $17,700.00 $2,655.00
- IBM RS/6000 Model 34H with 32MB RAM, 42 Mhz (1)
Ports:
Serial (2)
Parallel (1)
SCSI (2)
Ethernet (1)
4 Microchannel Slots
3 1/2 1.44 Floppy Disk Drive (1)
400 MB System Hard Disk (1)
Video Graphic Adaptor (1)
- IBM 8507-16 Monochrome Display Monitor (1)
- - Data Storage Device(s) $11,500.00 $1,725.00
- Magnetic Disk ImageStorage
2.5 GB Seagate Hard Drive (5)
- - Modem $2,400.00 $360.00
- Telebit TrailBlazer Plus 19.2 KB Maintenance Modem (2)
- - Uninterrupted Power Supply $3,695.00 $554.00
- Emerson AP1000 Series Uninterruptible Power System (1)
- - Backup Device $8,400.00 $1,260.00
- Parity 2.3 GB 8mm Tape Back-Up (1)
- 669 MB System Data Hard Disk (2)
- - B&W Simplex Printer $2,000.00 $300.00
- HP LaserJet 4 Printer (1)
(List other hardware components, cost, and maint.
needed for jail/records unit not listed above.)
- - Workstation for Image Viewing -24-BIT COLOR $14,000.00 $2,100.00
- IBM PS/2 466DX2 ValuePoint ImageStation 16MB RAM (1)
- 15-inch Electrohome ECM-1510 Color Monitor(1)
- Truevision ATVista 32-bit Vidoegraphics Card (1)
- IDE 200MB System Disk (1)
- Network Adaptor (1)
- Emerson AP1000 Series Uninterruptible Power System (1)
HARDWARE TOTAL: $59,695.00 $8,954.00
---------- ---------
</TABLE>
COMMENTS:
D - 11
<PAGE>
APPENDIX D - RECOMMENDED SYSTEM
FILE SERVER: (continued)
<TABLE>
<CAPTION>
MAINTENANCE COST PER YEAR
COMPONENT COST AFTER 1st YEAR WARRANTY
- --------- ---- -----------------------
<S> <C> <C>
SOFTWARE (Product, Manufacturer, and Version)
BIDDER'S SOFTWARE
FORCEFIELD IMAGEBANK APPLICATION SOFTWARE
Including:
- Client Interface Software
- Operating System Software
- Database Management Software
- Network File Server Software
- Image Storage Software
- Network Communications Software
- HPLJ4 Laser Printer Driver Software
- Print Manager Software
---------- ---------
BIDDER'S SOFTWARE SUBTOTAL:
$26,295.00 $3,944.00
---------- ---------
3RD PARTY SOFTWARE
- IBM AIX UNIX - Version 3.2
- SYBASE SQL Server
---------- ---------
3RD PARTY SOFTWARE SUBTOTAL:
$10,000.00 $1,500.00
---------- ---------
SOFTWARE TOTAL:
$36,295.00 $5,444.00
========== =========
FILE SERVER GRAND TOTAL $95,990.00 $14,398.00
========== =========
</TABLE>
COMMENTS:
-- > All software will be supplied on a single tape for escrow at an annual
fee of approximately $500.00.
D - 12
<PAGE>
APPENDIX D - RECOMMENDED SYSTEM
OTHER COSTS:
<TABLE>
<CAPTION>
MAINTENANCE COST PER YEAR
COMPONENT COST AFTER 1st YEAR WARRANTY
- --------- ---- -----------------------
<S> <C> <C>
DELIVERY AND INSTALLATION TOTAL: $43,695.00 N/A
OTHER HARDWARE (Make and Model) NONE NONE
---------- ---------
OTHER HARDWARE TOTAL: NONE NONE
---------- ---------
OTHER SOFTWARE (Product, Manufacturer, and Version)
Bidder's Software
Investigative Person Related Intelligence Application
- Additional ForceField Software development for $58,000.00 INCLUDED
applications required by Hennepin County
Sheriff's Department.
---------- ---------
BIDDER'S SOFTWARE SUBTOTAL: $58,000.00 INCLUDED
---------- ---------
3rd Party Software
- FOCUS 4GL Report Writer Version 6.5 $1,500.00 INCLUDED
---------- ---------
3RD PARTY SOFTWARE SUBTOTAL: $1,500.00 INCLUDED
---------- ---------
OTHER SOFTWARE TOTAL: $59,500.00 INCLUDED
========== =========
OTHER COSTS GRAND TOTAL $103,195.00 INCLUDED
=========== =========
</TABLE>
COMMENTS:
-- > All software will be supplied on a single tape for escrow at an annual
fee of approximately $500.00.
D - 13
<PAGE>
APPENDIX D - RECOMMENDED SYSTEM
SUPPLIES:
<TABLE>
<CAPTION>
UNIT TOTAL
PRODUCT NUMBER/PRODUCT/DESCRIPTION QUANTITY COST COST
- ---------------------------------- -------- ---- ----
(Itemized supplies to include 20,000 wristbands, 400 badges, 250,000 black and white laser printer pages, 20,000 small
color printer pages, 1,000, large color printer pages, and an estimated 1 year supply of all other items.)
<S> <C> <C> <C>
LAMINATED WRISTBAND POUCHES (500 EACH) 40 $163.00 $6,520.00
CREDIT CARD SIZE BADGE POUCHES 1000 @ $0.52 $520.00
LASER PRINTER PAPER (500 SHEET REAM) 500 $7.14 $3,570.00
SMALL FORMAT KODAK PRINT SETS (600 PER CASE) 34 $540.00 $18,360.00
LARGE FORMAT KODAK PRINT SETS (100 PER BOX) 10 $176.00 $1,760.00
TONER CARTRIDGES FOR HPLJ4 (BLACK) 40 $96.00 $3,840.00
SUPPLIES GRAND TOTAL $34,570.00
=========
</TABLE>
COMMENTS:
@ 1000 IS THE MINIMUM PURCHASE QUANTITY.
D - 14
<PAGE>
APPENDIX D - RECOMMENDED SYSTEM
TRAINING:
<TABLE>
<CAPTION>
STUDENTS COST PER TOTAL
COURSE/DESCRIPTION PER CLASS PERSON COST
- ------------------ --------- ------ ----
<S> <C> <C> <C>
(Itemize training classes by the following groups:
Users/Trainers, Functional Managers, Technical
Managers, specialty training, and any off-site
training.)
SYSTEM SPECIFICATION CLASS
(On Site at XImage San Jose Training Facility)* 2 - 4 INCLUDED INCLUDED
SYSTEM ADMINISTRATOR'S CLASS
(On Site at XImage San Jose Training Facility)* 2 - 4 INCLUDED INCLUDED
TRAINING OF HENNEPIN COUNTY SYSTEM USERS
(On Site at Hennepin County Sheriff's Dept.) 10 INCLUDED INCLUDED
--------
TRAINING GRAND TOTAL INCLUDED
========
</TABLE>
COMMENTS:
* All associated travel expenses to XImage's San Jose, California Training
Facility are the sole responsibility of Hennepin County. XImage
Corporation can make recommendations on local accommodations.
D - 15
<PAGE>
XImage Corporation
Proposal
<TABLE>
<CAPTION>
TABLE OF CONTENTS
-----------------
<S> <C>
1. COVER LETTER AND PROPOSAL
2. TABLE OF CONTENTS
3. FORCEFIELD SYSTEM FUNCTIONAL DESCRIPTION
-> Why Choose XImage?
-> Our Approach to Imaging
4. HENNEPIN RFP RESPONSE (SECTIONS 3-13)
3 Terms and Conditions 7
4 General Requirements 18
5 System Functions 23
6 Mechanical and Electrical Requirements 45
7 Hardware Specifications 48
8 Software Specifications 81
9 Network 99
10 Security 102
11 Support/Warranty/Maintenance 104
12 Training 109
13 Future Plan Statement 113
5. HENNEPIN APPENDICES
Appendix A Current Installations
B CAL-PHOTO Requirements
C General Hardware Configuration
D Recommended System Pricing Sheets
E Optional Items & Upgrades
F Documentation Listing Sheet
G Quality Rating Scale
6. XIMAGE APPENDICES
-> Installation Schedule
-> Customer References
-> Recent Bid Awards
-> XImage System Installation Team
7. AGREEMENTS
-> Software Maintenance Agreement
-> Hardware Maintenance Agreement
-> Installation Agreement
-> License Agreement
8. TECHNICAL PRODUCT INFORMATION
9. FORCEFIELD SAMPLE ENTRY SCREENS
10. FORCEFIELD PRINT SAMPLES
</TABLE>
- --------------------------------------------------------------------------------
17 August 1993 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
APPENDIX E
OPTIONAL ITEMS, UPGRADES, AND ADDITIONAL FEATURES PRICING SHEETS
<PAGE>
APPENDIX E - OPTIONAL ITEMS, UPGRADES, AND ADDITIONAL FEATURES
INSTRUCTIONS FOR COMPLETING APPENDIX E.
1. Optional items, upgrades, and additional features pricing sheets MUST
be correctly completed on Appendix E.
2. The bidder MUST provide brochures and technical literature for all
hardware and software items bid.
3. The bidder MUST list all hardware components, manufacturer name, and
model.
4. The bidder MUST list all software components, manufacturer name, and
version number.
5. The bidder MUST separately price all component costs and maintenance
costs per year, after first year warranty, on the pricing sheet
designated by a $ sign.
6. All prices MUST include first year's warranty and "starter" supplies.
7. Bidder may attach additional sheets in those instances where more
space is required or may edit WordPerfect file that contains the
pricing sheets, which will be made available on a floppy disk if
request by a bidder.
8. If various component choices are given, the bidder MUST also reference
which recommended component they would replace.
E-1
<PAGE>
APPENDIX E - OPTIONAL ITEMS, UPGRADES, AND ADDITIONAL FEATURES
OPTIONAL ITEMS, UPGRADES, AND ADDITIONAL FEATURES COSTS:
<TABLE>
<CAPTION>
MAINTENANCE COST PER YEAR
COMPONENT COST AFTER 1ST YEAR WARRANTY
- --------- ---- -----------------------
<S> <C> <C>
HARDWARE (Make and Model)
- --------
- - Height Capture Device NOT BID NOT BID
- - Weight Capture Device NOT BID NOT BID
- - Signature Capture Device NOT BID NOT BID
- - Fingerprint Access Device NOT BID NOT BID
- - Monitor ($1,500.00) ($225.00)
X SONY CPD-1302 13" Color Multiscan Display
Monitor
- - B&W Printer 600 DPI $1,000.00 $150.00
X Upgrade HPLJ4 to 600 DPI
- - Time Base Corrector Unit
X FOR A FA-220 Digital Time Base Corrector $3,250.00 $488.00
X FOR A FA-310 Digital Time Base Corrector $5,868.00 $880.00
(List optional items, upgrades, and additional
features hardware components, cost, and maintenance.
- -> Change 24-Bit Capture to 16-Bit Capture (each
station)
X 486-66 Mhz Suspect ID ImageStation -16-Bit
Color ($3,500) ($525.00)
TOTAL SAVINGS (Replace 9 Stations) ($31,500.00) ($4,725.00)
- -> Change to Lower Resolution Camera Sub-system:
X CAL-PHOTO CAPTURE STUDIO Sub-system
3-Chip Camera with 510 RGB lines of
resolution
Reflective Pedestal to Eliminate
Shadows
Calibrated 18% Grey Background
3-point Studio Lighting Package ($4,500) ($675.00)
TOTAL SAVINGS (Replace 2 Cameras) ($9,000.00) ($1,350.00)
- -> Change to Lower Resolution Camera Sub-system:
X STANDARD CAPTURE STUDIO Sub-system
1-Chip Camera with 480 lines of resolution
Reflective Pedestal to Eliminate Shadows
Calibrated 18% Grey Background
3-point Studio Lighting Package ($11,000.00) ($1,650.00)
TOTAL SAVINGS (Replace 2 Cameras) ($22,000.00) ($3,300.00)
</TABLE>
OPTIONAL ITEMS, UPGRADES, AND ADDITIONAL FEATURES COSTS: (continued)
E-2
<PAGE>
APPENDIX E - OPTIONAL ITEMS, UPGRADES, AND ADDITIONAL FEATURES
<TABLE>
<CAPTION>
MAINTENANCE COST PER YEAR
COMPONENT COST AFTER 1ST YEAR WARRANTY
- --------- ---- -----------------------
<S> <C> <C>
HARDWARE (Make and Model)
- --------
- -> Change Workstation Monitors to 13" Diagonal:
(each station)
X SONY CPD-1302 Multiscan Display Monitor ($1,500) ($225.00)
TOTAL SAVINGS (Replace 10 Monitors) ($14,000.00) ($2,250.00)
- -> Change Kodak SV6600 to Edicon ID 200 U:(add to each
location)
X Edicon ID 200 U Small Format Dye Sublimation Printer $2,850.00 $427.00
- -> Delete UPS from system: ($18,320.00) ($2,748.00)
TOTAL SAVINGS (Replace 11 UPS) ($18,320.00) ($2,748.00)
</TABLE>
COMMENTS:
-- An additional pricing summary has been included to illustrate how
Hennepin County can realize a tremendous savings without hindering the
functionality of the system. We will be happy to discuss any
configuration enhancements or deletions as seen appropriate.
"The overall goal of XImage Corporation is to provide Hennepin County
with an imaging system of considerable value which will fully meet your
current and future needs."
E-3
<PAGE>
APPENDIX E - OPTIONAL ITEMS, UPGRADES, AND ADDITIONAL FEATURES
OPTIONAL ITEMS, UPGRADES, AND ADDITIONAL FEATURES COSTS; (continued)
<TABLE>
<CAPTION>
MAINTENANCE COST PER YEAR
COMPONENT COST AFTER 1ST YEAR WARRANTY
- --------- ---- -------------------------
SOFTWARE (Product, Manufacturer, and Version)
BIDDERS SOFTWARE
<S> <C> <C>
- -Investigative Person/Business Surveillance
Application NOT BID NOT BID
- -Investigative Address/Location Application NOT BID NOT BID
- -Height Capture Application NOT BID NOT BID
- -Weight Capture Application NOT BID NOT BID
- -Signature Capture Application NOT BID NOT BID
- -Fingerprint Access Application NOT BID NOT BID
(List optional items, upgrades, and additional features biders
software components, cost, and maintenance.)
-> UTILIZE THE CURRENT RELEASE OF THE FORCEFIELD BOOKING AND
SUSPECT IDENTIFICATION SOFTWARE.
X DELETE ForceField Software development for ($58,000.00) INCLUDED
applications required by Hennepin County
Sheriff's Department.
------------ ------------
Bidder's Software Subtotal ($58,000.00) INCLUDED
TOTAL SAVINGS ($58,000.00) ($1,350.00)
3RD PARTY SOFTWARE
- -3270 Emulation per workstation $1,000.00 $100.00
</TABLE>
(List optional items, upgrades, and additional features 3rd party software
components, cost, and maintenance.)
COMMENTS:
E-4
<PAGE>
APPENDIX F
DOCUMENTATION LISTING SHEET
<PAGE>
APPENDIX F - DOCUMENTATION LISTING
Instructions for completing Appendix F.
1. Documentation provided with the system MUST be correctly completed on
Appendix F.
2. The bidder MUST list all hardware and software documentation provided
with the system.
F-1
<PAGE>
APPENDIX F - DOCUMENTATION LISTING
DOCUMENTATION
<TABLE>
<CAPTION>
QUANTITY VERSION NUMBER DESCRIPTION
- -------- -------------- -----------
<S> <C> <C>
10 2.3 FORCEFIELD USER'S GUIDE
2 2.3 SYSTEM ADMINISTRATOR GUIDE
2 2.3 UTILITIES GUIDE
2 2.3 PLANNING GUIDE
9 2.3 SUPPORT REFERENCE CARD
</TABLE>
COMMENTS:
F-2
<PAGE>
XImage Corporation
Proposal
AGREEMENTS
- --------------------------------------------------------------------------------
17 August 1993 Hennepin County Sheriff's Department
Computerized Image Database
<PAGE>
EXHIBIT C
[LOGO] INSTALLMENT AGREEMENT
XIMAGE CORPORATION
AGREEMENT #_________________ INSTALL DATE: ___________ TODAYS'S DATE: __________
CUSTOMER NAME: _________________________________________________________________
This Agreement governs the installation of equipment sold or leased by XIMAGE
to CUSTOMER ("Equipment").
1. SITE. Equipment shall be delivered and installed at the site to be
specified in the sale or lease contract. The installation site shall meet
XIMAGE's specifications for the Equipment and shall be made ready for the
installation of the Equipment by the mutually agreed upon installation date.
2. INSTALLATION RESPONSIBILITIES.
2.1. XIMAGE Installation Responsibilities.
2.1.1. Supervision of CUSTOMER's employees who physically locate and
unpack the Equipment at the site.
2.1.2. Connection of data and power cables to appropriate terminating
points.
2.1.3. Operational checkout of the Equipment, including off-line
verification.
2.1.4. Operational verification of each item of Equipment on a
stand-alone basis, and as interfaced with non-furnished
equipment, such as transmission lines, modems and computers.
2.2. CUSTOMER Installation Responsibilities.
In order to accomplish the above installation and checkout procedures
within the normal installation period, the follow must be provided by
the CUSTOMER on or before the installation date:
2.2.1. All necessary labor and equipment required to transport the
Equipment from the CUSTOMER receiving area to the operational
location.
2.2.2. Computer and modems, if necessary, available on site in
operational condition.
2.2.3. Transmission lines, if required will have been ordered and
installed by the common carrier.
2.2.4. All computer input/output and associated interface cables
required by the Equipment, with mating connectors attached
thereto.
2.2.5. Suitable space and mounting provisions.
2.2.6. A knowledgeable computer operator to be available during the
installation and test period.
2.2.7. Computer time required will be furnished by the CUSTOMER at no
cost during installation and testing.
All facilities and test equipment will be furnished by XIMAGE must be
operational as of the installation date to ensure operation of the
furnished Equipment within the standard operational criteria for
interface to such Equipment. CUSTOMER bears the responsibility for
the foregoing.
3. DELAYS. In the event the CUSTOMER's responsibilities set forth above are
not completed or complied with at the time of Equipment installation and
this failure causes a delay in the completion of the installation, the
CUSTOMER agrees to pay XIMAGE for the additional time expended by XIMAGE at
XIMAGE's normal hourly service rates in effect at the time the service was
provided. Such payment shall by made upon XIMAGE invoicing the CUSTOMER
for such additional time. Examples of causes of delays due to CUSTOMER
failing to complete or comply with its responsibilities are as follows:
3.1. Telephone lines, data sets, or modems not meeting specifications and
requiring re-cabling or modification by common carrier or CUSTOMER.
3.2. CUSTOMER equipment not operational or not complying with
specifications.
3.3. CUSTOMER-FURNISHED interface cable not available or not complying with
specifications.
3.4. Errors in, or non-compatibility with, CUSTOMER's computer programs or
equipment not furnished by XIMAGE which causes the furnished Equipment
or software to malfunction.
<PAGE>
4. ENVIRONMENTAL. The CUSTOMER shall maintain a clean operating environment
at the installation site which complies with temperature, humidity and
operational specifications of the Equipment.
5. ACCESS. The CUSTOMER shall allow the installation and maintenance personnel
access to the Equipment site at all reasonable times provide identification
badges or passes and make available adequate work space, storage space and
utilities required during installation, checkout and maintenance of
Equipment.
6. POST-INSTALLATION CHARGES. If the CUSTOMER requires that any item of
Equipment be relocated to a new location after installation, the Equipment
relocated shall be re-installed (at an additional charge) in accordance with
the provisions hereof. The additional charges shall be based on XIMAGE's
installation charges in effect at the time that such service is requested,
payable upon invoicing.
7. ACCEPTANCE. Upon completion of the installation and testing phase, CUSTOMER
shall execute this Agreement in the space provided below evidencing its
acceptance and approval of the Equipment and satisfactory installation
thereof.
CUSTOMER (BY AUTHORIZED REPRESENTATIVE): XIMAGE CORPORATION
- ------------------------------------- ------------------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
C. ROBERT LANE CHAIRMAN / CFO
- ------------------------------------- ------------------------------------
PRINTED NAME AND TITLE PRINTED NAME AND TITLE
- ------------------------------------- ------------------------------------
DATE DATE
- --------------------------------------------------------------------------------
ACCEPTANCE AND APPROVAL
The undersigned acknowledges that the Equipment has been delivered and installed
by XIMAGE, and has accepted and approved such delivery and installation.
CUSTOMER (BY AUTHORIZED REPRESENTATIVE): XIMAGE CORPORATION
- ------------------------------------- ------------------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
C. ROBERT LANE CHAIRMAN / CFO
- ------------------------------------- ------------------------------------
PRINTED NAME AND TITLE PRINTED NAME AND TITLE
- ------------------------------------- ------------------------------------
DATE DATE
<PAGE>
EXHIBIT D
LICENSE AGREEMENT
XIMAGE CORPORATION
[LOGO]
XImage Corporation ("Licensor") grants to the _______________________
_____________ ("Licensee") a non-exclusive, non transferrable license to use for
business purposes, Image Database System Software delivered pursuant to the
agreement between the parties hereto subject to the Software and the Software
shall be and remain the sole and exclusive products of Licensor. Licensee shall
not have rights in or to the Software of any changes made thereto by Licensor
except where specifically provided for in writing. Licensee is prohibited from
permitting the Software to be used by third-parties. Licensee hereby agrees not
to remove from any copies of the Software any statements appearing thereon
regarding copyrights or proprietary rights of Licensor. Licensee may not copy
(in any form) distribute, sell, lease, assign, encumber, license or sub-license
this Software or programs written using this Software to a third party without
prior written consent from Licensor which consent may be withheld for any
reason. Licensee hereby acknowledges and agrees that similar Software may be
licensed by Licensor to other users without limitation of any kind. Licensee
acknowledges that the license granted hereby extends solely to ________________
____________________ and that Software shall not be used by any other political
subdivision, division, subsidiary or affiliated entity.
Licensee acknowledges that the computer programs, manuals and related
data which comprise or are related to the Software are proprietary products of
Licensor who retains all rights, title and interest, including copyright to
these products. Licensee agrees that the Software constitutes proprietary
information and trade secrets of Licensor, whether or not any portion thereof is
or may be the subject of a valid copyright or patent. Licensee agrees not to
reverse assemble, reverse compile or otherwise reverse engineer any of the
Software. Any distribution, sale, or other disposition by the Licensee of the
Software, including derivative modifications or extensions of them, and
including any proprietary products, is expressly prohibited. Licensee
recognizes and agrees that any unauthorized use or distribution of the Software
or proprietary products would immediately and irreparably damage Licensor in a
way not capable of being fully compensated by monetary damages, and accordingly,
Licensor shall be entitled to injunctive relief in the event of any such
unauthorized use, distribution or violation of this agreement. The Software is
subject to the U.S. Government's Restricted Rights Legend and use, duplication,
or disclosure by the Government is subject to restrictions set forth in
Subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software
clause at 52.227-7013 of the Department of Defence Federal Acquisition
Regulations.
Licensor warrants that the Software will perform the functions set
forth in the contract between the parties so long as the Software is unmodified
and operated in accordance with the instructions of the Licensor. Licensor's
sole obligation and liability under this warranty shall be to provide
corrections to the Software to cause it to perform as specified in the contract.
EXCEPT FOR THE FOREGOING WARRANTY, LICENSOR MAKES NO WARRANTY, EXPRESS OR
IMPLIED, WITH RESPECT TO THE SERVICES OR SOFTWARE TO BE PROVIDED, INCLUDING, BUT
NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INCENDENTAL OR
CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOST PROFITS.
LICENSEE: LICENSOR:
CUSTOMER XIMAGE CORPORATION
BY: BY:
------------------------------------- -------------------------------
TITLE: TITLE: CHAIRMAN/CFO
---------------------------------- ----------------------------
DATE: DATE:
----------------------------------- -----------------------------
<PAGE>
[LOGO]
EXHIBIT A
SOFTWARE MAINTENANCE
XIMAGE CORPORATION AGREEMENT
1050 NORTH FIFTH STREET
SAN JOSE, CA 95112
408-288-8800 FAX 408-993-1050
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------
AGREEMENT # EFFECTIVE DATE: TODAY'S DATE:
- -----------------------------------------------------------------------------------------------------
CUSTOMER NAME: BILL TO:
- -----------------------------------------------------------------------------------------------------
TERM AGREEMENT TYPE PERIOD OF COVERAGE RESPONSE TIME CUSTOMER CONTACT
- -----------------------------------------------------------------------------------------------------
ONE YEAR NEW 24 HR/Day & 7 Days/Week 24 2Hr Phone TBA
- -----------------------------------------------------------------------------------------------------
ITEM QTY TYPE DESCRIPTION LOCATION UNIT CHARGE TOTAL
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
- -------------------------------------------------------------------------------
TOTAL ANNUAL MAINTENANCE CHARGE:___________________
SEE ATTACHED SCHEDULES FOR ANY ADDITIONAL EQUIPMENT)
- -------------------------------------------------------------------------------
SUBJECT TO THE TERMS AND CONDITIONS HEREINAFTER SET FORTH, XIMAGE CORPORATION
("XIMAGE"), AGREES TO PROVIDE OR CAUSE TO BE PROVIDED TO CUSTOMER SOFTWARE
MAINTENANCE SERVICES WITH RESPECT TO THE SOFTWARE ("SOFTWARE") DESCRIBED ABOVE.
CUSTOMER (BY AUTHORIZED REPRESENTATIVE): XIMAGE CORPORATION
- ---------------------------------------- -----------------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
C. ROBERT LANE CHAIRMAN/CFO
- ---------------------------------------- -----------------------------------
PRINTED NAME AND TITLE PRINTED NAME AND TITLE
- -------------------------------------------------------------------------------
<PAGE>
TERMS AND CONDITIONS - CUSTOMER SUPPORT AND SOFTWARE MAINTENANCE AGREEMENT
1. TERM OF AGREEMENT. XIMAGE's obligations hereunder shall become effective
upon the "Effective Date" (set forth on the reverse side) and, unless sooner
terminated provided herein, shall remain in full force and effect for at least
one year thereafter. This Agreement shall automatically renew for consecutive
one (1) year terms at XIMAGE's prevailing rates at the end of each one (1) year
term unless either party gives at least sixty (60) days prior written notice of
the non-renewal of this Agreement.
2. SOFTWARE MAINTENANCE SERVICES. XIMAGE will provide to CUSTOMER during the
term hereof "Software Maintenance Services" which shall include remedial
maintenance service (i.e., error fixing and/or work arounds) for any significant
error, malfunction or defect (collectively in "Error") in the Software so that
the Software will operate in accordance with the specifications set forth in the
related documentation. Correction of Errors is subject to CUSTOMER's prompt
notification to XIMAGE of the nature and description of the Error which XIMAGE
can replicate and the Error is not caused by the abuse, misuse or neglect of the
products by CUSTOMER or by hardware or software which is not supplied by XIMAGE
hereunder. In addition, XIMAGE will provide the following as additional
Customer Support Services:
(a) Telephone support as reasonably requested by CUSTOMER at the rate of
$100 per hour for all hours in excess of 40 hours in any one-year
term;
(b) On-site visits to CUSTOMER's sites as determined to be reasonable or
necessary by XIMAGE for Error correction;
(c) Offer and, if requested, install modifications and enhancements to the
Software which XIMAGE generally makes available to its other customers
(at no additional Charge) under standard software maintenance
agreements relating to the Software; and
(d) Training for one (1) person per application per year with respect to
the Software.
If CUSTOMER requests XIMAGE to perform any other services, the related
terms and conditions shall be based on further separate agreement between the
parties. Under no circumstances shall this Agreement and the rights and duties
contained herein, be deemed to cover maintenance or support services with
respect to hardware.
3. PERFORMANCE OF SERVICES. When XIMAGE provides Software Maintenance
Services which require the use of the hardware portion of equipment which
utilizes the Software (the "Equipment"), CUSTOMER shall make such Equipment
available to XIMAGE at and for reasonable times, and in no event will the
CUSTOMER charge XIMAGE for such use of such Equipment. All Software Maintenance
Services covered by the Annual Maintenance Charges will be performed during the
regular business hours of XIMAGE (Monday-Friday, exclusive of holidays). If
Software Maintenance Services are performed outside regular business hours, the
CUSTOMER will pay the additional charges, if any, as are established from time
to time by XIMAGE.
4. RELOCATION OF EQUIPMENT. If the CUSTOMER wishes to relocate the Equipment,
CUSTOMER shall give timely notice to XIMAGE, and the continued maintenance of
the relocated Software, if any, shall be subject to further agreement between
authorized representatives of XIMAGE and CUSTOMER. This Agreement is for the
location described on the reverse side only.
5. CUSTOMER OBLIGATIONS AND WARRANTIES. The obligations of XIMAGE to provide
Software Maintenance Services are subject to the CUSTOMER using the Equipment in
accordance with their respective operating manuals and recommended procedures,
and causing proper and recommended Equipment Maintenance Services to be
performed, including selecting a site which complies with the environmental
requirements suggested by the manufacturer of the Equipment or XIMAGE and
utilizing appropriate back-up procedures (no less often than daily) with respect
to the Software and data.
6. CHARGES. The CUSTOMER shall pay all charges under this Agreement,
including the total Annual Maintenance Charges set forth on the reverse side
hereof, upon receipt of invoice. Thereafter, the then applicable Annual
Maintenance Charges shall be invoiced to, and paid by CUSTOMER prior to the
beginning of the next annual maintenance period. All other charges under this
Agreement shall be invoiced by XIMAGE and shall be due and payable upon receipt
of the invoice. The Annual Maintenance Charges do not include any federal,
state, county, local, or other taxes, if any. Any such taxes, excluding taxes
based on net income of XIMAGE, shall be borne by the Customer and paid to XIMAGE
upon invoicing.
7. NON-DISCLOSURE. CUSTOMER shall take all reasonable steps necessary to
ensure that the Software, or any portion thereof, is not made available,
transferred or disclosed by CUSTOMER (or by any of its employees or agencies) to
any person other than to CUSTOMER's employees and representatives solely in
connection with CUSTOMER's business or agents or to XIMAGE (and its
representatives). CUSTOMER agrees not to reverse assemble, reverse compile or
otherwise reverse engineer any of the Software. CUSTOMER agrees that all of its
employees and agents having access to the Software under this Agreement shall be
informed by CUSTOMER of, and shall observe and perform, the terms of this
Section 7. The Software is protected by copyright and trade secret rights of
XIMAGE.
8. INJUNCTIVE RELIEF/TERMINATION. CUSTOMER acknowledges and agrees that any
violation of the provisions of Section 7 herein by CUSTOMER will result in
irreparable harm to XIMAGE and that money damages would provide inadequate
remedy. Accordingly, in addition to any other rights and remedies available to
XIMAGE hereunder or at law, XIMAGE shall be entitled to injunctive or other
equitable relief to restrain any such violation and to such other and further
relief as a court may deem proper under the circumstances. In addition to any
other rights of XIMAGE hereunder, the rights granted CUSTOMER to use the
Software by license or otherwise may be terminated by XIMAGE for any material
breach of Section 7 upon written notice given to CUSTOMER and CUSTOMER shall
return to XIMAGE all of the Software.
9. INDEMNIFICATION. CUSTOMER hereby indemnifies and holds XIMAGE harmless
from any and all claims, suits, actions and procedures brought or filed by third
parties and from all damages, penalties, losses costs and expenses (including
without limitation, attorneys' fees) arising out of, or related to, any act or
omission of CUSTOMER and its employees or agents in connection with CUSTOMER's
obligation herein.
XIMAGE hereby indemnifies and agrees to hold CUSTOMER harmless from any
claim of any third party that any of the Software infringes any United States
patent, copyright, trademark or other property right held by a third party,
provided that XIMAGE is notified promptly by CUSTOMER or any such claim
(including any threatened claim) and XIMAGE shall have had sole control of the
defense with respect to same (including the settlement of such claim). The
foregoing indemnification by XIMAGE shall not apply with respect to any claim
based, in whole or part, on any modification of the Software made by any person
other than XIMAGE.
10. TERMINATION. Without prejudice to any other of its rights or remedies,
either party may elect to terminate the rights and obligations contained in this
Agreement:
(a) Upon sixty (60) days' written notice if the other party has failed to
perform any material obligation required to be performed by it
pursuant to this Agreement and such failure has not been cured within
such a sixty (60) day period, or
(b) Upon thirty (30) days' written notice if the other party has failed to
make timely payment of any amounts required to be paid hereunder, or
(c) Immediately, (i) if a petition in bankruptcy has been filed by or
against the other party, (ii) if the other party has made an
assignment for the benefit of creditors, (iii) if a receiver has been
appointed or applied for by the other party, or (iv) if the other
party has admitted in writing its inability to pay its debts as they
become due and payable.
11. DISCLAIMER OF WARRANTY. XIMAGE MAKES NO WARRANTY OF ANY KIND, WHETHER
EXPRESS OR IMPLIED (INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE) WITH RESPECT TO THE SERVICES, SOFTWARE OR DOCUMENTS PROVIDED
(OR TO BE PROVIDED) HEREUNDER.
12. LIMITATIONS OF LIABILITY. CUSTOMER agrees that XIMAGE's total liability to
CUSTOMER for any damages suffered in connection with, or arising out of, this
Agreement or CUSTOMER's use of any documentation, product or service provided
(or to be provided) hereunder, regardless of whether any such liability is based
upon contract, tort or other basis, shall be limited to an amount not to exceed
the basic Annual Maintenance Charges, for a sixty (60) day term under this
Agreement.
IN NO EVENT SHALL XIMAGE BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION,
DAMAGES ARISING FROM LOSS OF BUSINESS, DATA, PROFITS OR GOODWILL) INCURRED OR
SUFFERED BY CUSTOMER IN CONNECTION WITH, OR ARISING OUT OF, THIS AGREEMENT OR
CUSTOMER'S USE OF ANY DOCUMENTATION OR SOFTWARE OR SERVICES PROVIDED, OR TO BE
PROVIDED, HEREUNDER, EVEN IF XIMAGE HAS BEEN APPRISED OF THE LIKELIHOOD OF THE
SAME. NO ACTION, REGARDLESS OF FORM, RELATED TO TRANSACTIONS OCCURING UNDER, OR
CONTEMPLATED BY, THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1)
YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
13. ARBITRATION. Except as provided in Section 8 herein, in the event of any
dispute or controversy between the parties hereto arising out of or relating to
this Agreement or any transaction contemplated hereunder, such dispute or
controversy shall be submitted to arbitration under the Commercial Rules of
Arbitration of the American Arbitration Association at the office nearest XIMAGE
for decision in any such matter in accordance with the then applicable rules of
the American Arbitration Association or any successor organization. The
determination of the arbitrators shall not be subject to judicial review,
provided however, that any award or determination rendered by the arbitrators
may be enforced any court of jurisdiction.
14. FORCE MAJEURE. XIMAGE shall not be liable for any failure or delay in
performing its obligation hereunder due to any cause beyond its reasonable
control, including without limitation, fire, accident, acts of public enemy,
war, rebellion, labor dispute or unrest, insurrection, sabotage, transportation
delays, shortage of raw material, energy or machinery, acts of God, government
or the judiciary.
15. SUCCESSORS AND ASSIGNS. The interests of the CUSTOMER in this Agreement
are personal and shall not be assigned, transferred, shared or divided in any
manner by the CUSTOMER without the prior written consent of XIMAGE. Subject to
the foregoing, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their heirs, representatives, successors and
permitted assignees.
16. AMENDMENTS. No supplement, modification or amendment of any term,
provision or condition of this Agreement shall be binding or enforceable unless
executed in writing by the parties hereto.
17. ENTIRE AGREEMENT AND WAIVER. This Agreement contains the entire agreement
between the parties hereto and supersedes all prior contemporaneous agreements,
arrangements, negotiation and understandings between the parties hereto,
relating to the subject matter hereof except any prior or contemporaneous
Software licenses between the parties. There are no other understandings,
statements, promises or inducements, oral or otherwise, contrary to the terms of
this Agreement. No representations, warranties, covenants or conditions,
express or implied, whether by statute or otherwise, other than as set forth
herein have been made by any party hereto. No waiver of any term, provision, or
condition of this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or shall constitute, a waiver of any other
provision hereof, whether or not similar, nor shall such waiver constitute a
continuing waiver, and no waiver shall be binding unless executed in writing by
the party making the waiver.
<PAGE>
EXHIBIT B
HARDWARE MAINTENANCE AGREEMENT
[LOGO] XIMAGE CORPORATION
1050 NORTH FIFTH STREET
SAN JOSE, CA 95112
408-288-8800 FAX 408-993-1050
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
AGREEMENT # EFFECTIVE DATE: TODAY'S DATE:
- --------------------------------------------------------------------------------
CUSTOMER NAME: BILL TO:
- --------------------------------------------------------------------------------
TERM AGREEMENT TYPE PERIOD OF COVERAGE RESPONSE TIME CUSTOMER CONTACT
- --------------------------------------------------------------------------------
ONE YEAR NEW SEE BELOW 4 Hours TBA
- --------------------------------------------------------------------------------
ITEM QTY MODEL DESCRIPTION LOCATION UNIT CHARGE TOTAL
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
</TABLE>
Maintenance based on 24 hours 7 days a week for critical items, 9 to 5 M-F for
all other items.
TOTAL ANNUAL MAINTENANCE CHARGE:
--------------------
(SEE ATTACHED SCHEDULES FOR ANY ADDITIONAL EQUIPMENT)
- --------------------------------------------------------------------------------
SUBJECT TO THE TERMS AND CONDITIONS HEREINAFTER SET FORTH, XIMAGE CORPORATION
("XIMAGE"), AGREES TO PROVIDE OR CAUSE TO BE PROVIDED TO CUSTOMER AND CUSTOMER
AGREES TO ACCEPT MAINTENANCE SERVICES FOR THE EQUIPMENT DESCRIBED ABOVE.
CUSTOMER (BY AUTHORIZED REPRESENTATIVE): XIMAGE CORPORATION
- --------------------------------- ------------------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
C. ROBERT LANE CHAIRMAN/CFO
- --------------------------------- ------------------------------------
PRINTED NAME AND TITLE PRINTED NAME AND TITLE
<PAGE>
TERMS AND CONDITIONS - HARDWARE MAINTENANCE AGREEMENT
1. TERM OF AGREEMENT. XImage's obligations hereunder shall become effective
upon the "Effective Date" (set forth on the reverse side) and, unless
sooner terminated as provided herein, shall remain in full force
and effect for at least one year thereafter. XImage will provide to the
Customer, thirty (30) days prior to the end of the one year term, a
renewal of this Agreement with XImage's prevailing maintenance fees, for
the covered items listed on the reverse side, during the renewal period.
The Customer will accept or reject the renewal Agreement within the
above stated thirty (30) day period. The renewal rates for the 1993
Agreement are as stated in Exhibit 9 of the Agreement between XImage and
the Customer.
2. HARDWARE MAINTENANCE SERVICE. XImage Shall provide "Covered Maintenance"
(as such term is herein defined) with respect to the hardware identified on
the reverse side (the "Equipment") solely at the "Location of Equipment"
(set forth on the reverse side). If Customer wishes to relocate the
Equipment, Customer shall give timely notice to XImage and continued
maintenance of the Equipment shall be subject to further agreement between
authorized representatives of XImage and Customer relative to any increases
resulting from the relocation. Under no circumstances shall this Agreement,
or the rights and duties contained herein, be deemed to cover maintenance
or [ILLEGIBLE] services with respect to software (exclusive of firmware).
All maintenance charges are subject to increase or decrease upon addition
or deletion of the Equipment, or [ILLEGIBLE] or attachments thereto.
XImage shall have full and free access to the Equipment in order to
provide services thereon.
3. COVERED MAINTENANCE. During the term hereof, XImage shall maintain
Customer's Equipment in normal operating condition by providing
"Preventative Maintenance" and "Remedial Maintenance" with respect to the
Equipment during XImage's normal working hours, Monday through Friday,
exclusive of holidays, unless otherwise specified on the reverse side
(collectively "Covered Maintenance").
(a) PREVENTATIVE MAINTENANCE. Preventative Maintenance is based on the
specific needs of each unit of equipment as determined by XImage,
including adjustments repairs and replacements necessitated by normal
usage of the Equipment. Preventative Maintenance shall be conducted at
times of Remedial Service or at other times scheduled by XImage with
approval of the Customer.
(b) REMEDIAL SERVICE. Upon receipt of notice of failure of the Equipment
to function properly while in normal usage, XImage will promptly
assign a service representative to make such repairs (including the
replacement of components on an exchange basis) and adjustments to
place the Equipment in normal operating condition. XImage will use its
best efforts to have a service representative at the user's facility
in the minimum practical time after receipt of notice of failure,
giving consideration to the location of the Equipment and the nature
of the problem.
(c) EXCLUSIONS FROM COVERED MAINTENANCE. Covered Maintenance does not
include:
(1) Maintenance of accessories, supplies, attachments, machines or
other devices that are not specifically identified as covered
herein.
(2) Repair of damage caused by other than normal operating
conditions or events (including without limitation, resulting
from accident, transportation, neglect, misuse, lightning,
failure or fluctuation of electrical power, air conditioning
or humidity control, telephone equipment or communication
lines failure, failure of foreign interconnect equipment, use
of external materials or equipment which does not adhere to
XImage specifications, or causes arising from other than
normal use), alterations in the Equipment made by persons
other than XImage, acts of God, or governments, the connection
of Equipment by mechanical or electrical means to another
machine or device not provided by XImage, or the physical
inaccessibility of the Equipment.
(3) Any services in respect of, or caused by, non-XImage provided
software, or any repair of any damage to the Equipment caused by
such software.
(4) Reconditioning required due to age, duty cycle, or excessive use
of the Equipment, normal repair and parts replacement cannot keep
Equipment in normal operating condition.
(5) Replacement of supplies or expendable parts such as but not
limited to: ink rollers, ribbon cartridges, paper, film,
diskettes and tape cassettes.
4. BILLABLE CALL MAINTENANCE. If the Customer requests Billable Call
Maintenance, such service will be provided at XImage's applicable standard
time and materials market rates and on the terms then in effect. Market
rates based on time shall not exceed $125 per hour. Charges for Billable
Call Maintenance shall be due and payable within thirty (30) days of
receipt of an invoice therefore after the completion of the installation or
other service. As used herein, "Billable Call Maintenance" shall mean any
maintenance other than Covered Maintenance, which XImage agrees to perform
and includes, but not limited to, the following types of maintenance:
(a) Work requested by Customer and performed outside of XImage's normal
working hours, as set out on the reverse side of this Agreement;
(b) Work requested by Customer for installing, deinstalling or relocating
Equipment;
(c) Refinishing or reconditioning Equipment;
(d) Adding or removing accessories, attachments or other devices;
(e) Specific requests by Customer for maintenance which are in addition to
Covered Maintenance services and parts; and
(f) Providing enhancements or upgrades of the Equipment.
5. PARTS. In the case of Billable Call Maintenance, replacement of
unserviceable parts shall be made at XImage's replacement part prices
current at the time of replacement, unless the maintenance involving
replacement would be Covered Maintenance but is Billable Call Maintenance
solely because of the hour of the day when performed, in which event the
maintenance shall include parts replacement as in the case of Covered
Maintenance. All replaced parts become the property of XImage.
6. TAXES. All maintenance charges are exclusive of applicable federal, state
or local taxes; Customer shall pay, or reimburse XImage, any such taxes
upon receipt of invoices submitted to Customer by XImage.
7. TRAVEL AND OTHER CHARGES. There is a minimum charge of two hours including
travel time for service provided outside the scope of Covered Maintenance.
Customer shall pay for travel time and travel expense portal to/from portal
(i.e. XImage's to/from Customer's location) in connection with all Billable
Call Maintenance. Travel time will be charged to Customer at the hourly
Billable Call rate then in effect for the hour or day the travel is
performed. Travel expenses will be charged as incurred and includes parking
and other out-of-pocket costs plus mileage at the then current rates.
8. PAYMENT FOR SERVICE. Upon receipt of invoice Customer hereby agrees to pay
the Annual Hardware Maintenance Charges set forth on the reverse side. The
then current Annual Hardware Maintenance Charges for Covered Maintenance
will be invoiced thirty (30) days in advance of each Annual period and
payment shall be due within thirty (30) days of receipt of such invoice.
All other payments due hereunder shall be due and payable within thirty
(30) days of receipt of the invoice for services rendered. Failure to remit
payment when due for amounts invoiced shall relieve XImage of any
obligations hereunder. In addition to any other remedies allowed by law,
XImage shall have the right to invoice, and Customer agrees to pay,
applicable late charges.
9. INSTALLATION CHANGES. All installation changes relating to enhancements
available to purchasers of Equipment shall be made available to Customer at
XImage's normal prices, and on XImage's normal terms and conditions for
such changes. If Customer purchases the enhancement, within thirty (30)
days after requested by XImage, Customer agrees to provide XImage with
access to all Equipment for installation of such changes.
10. CUSTOMER RESPONSIBILITY. Customer shall be responsible for (a) changing
ribbons, paper and similar expandable items; (b) clearing paper jams; (c)
cleaning as specified by XImage or the equipment manufacturer; (d)
maintaining and operating the Equipment within proper environmental and
Equipment guidelines by trained personnel; and (e) assuring properly
back-up and storage of data. Access for all XImage Services hereunder shall
be provided by Customer during XImage's normal working hours or as
otherwise mutually agreed.
11. TERMINATION. Without prejudice to any other of its rights or remedies,
either party may elect to terminate the rights and obligations contained in
this Agreement:
(a) Upon sixty (60) days' written notice if the other party has failed to
perform any material obligation required to be performed by it
pursuant to this Agreement and such failure has not been cured within
such a sixty (60) day period, or
(b) Upon thirty (30) days' written notice if the other party has failed to
make timely payment of any amounts required to be paid hereunder, or
(c) Immediately, (i) if a petition in bankruptcy has been filed by or
against the other party, (ii) if the other party has made an
assignment for the benefit of creditors, (iii) if a receiver has been
appointed or applied for by the other party, or (iv) if the other
party has admitted in writing its inability to pay its debts as they
become due and payable, or
(d) If the Customer is a government entity and funds are not appropriated
in an amount to cover the cost of the maintenance services, then the
Customer may, in its sole discretion, terminate this Agreement on 90
days written notice without further obligation to the Customer. In the
event this Agreement is terminated by the Customer, pursuant to this
paragraph, XImage may continue to provide maintenance services, on
such terms and conditions as are mutually agreed to by the Customer
and XImage.
12. LIMITATIONS OF LIABILITY. Customer agrees that XImage's total liability to
Customer for any damages suffered on account of, or arising out of,
negligently performed maintenance services under this Maintenance Agreement
shall be limited to an amount not to exceed the basic Annual Maintenance
charges.
IN NO EVENT SHALL XIMAGE BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION,
DAMAGES ARISING FROM LOSS OF BUSINESS, DATA, PROFITS OR GOODWILL) INCURRED
OR SUFFERED BY CUSTOMER IN CONNECTION WITH, OR ARISING OUT OF, THIS
AGREEMENT OR CUSTOMER'S USE OF ANY DOCUMENTATION OR SOFTWARE OR SERVICES
PROVIDED, OR TO BE PROVIDED, HEREUNDER, EVEN IF XIMAGE HAS BEEN APPRISED OF
THE LIKELIHOOD OF THE SAME.
13. ARBITRATION. Except as provided in Section 8 herein, in the event of any
dispute or controversy between the parties hereto arising out of or
relating to this Agreement or any transaction contemplated hereunder, such
dispute or controversy shall be submitted to arbitration under the
Commercial Rules of Arbitration of the American Arbitration Association at
the office nearest the Customer for decision in any matter in accordance
with the then applicable rules of the American Arbitration Association or
any successor organization. The determination of the arbitrators shall not
be subject to judicial review, provided however, that any award or
determination rendered by the arbitrators may be enforced in any court of
jurisdiction.
14. FORCE MAJEURE. XImage shall not be liable for any failure or delay in
performing its obligation hereunder due to any cause beyond its reasonable
control, including without limitation, fire, accident, acts of public
enemy, war, rebellion, labor dispute or unrest, insurrection, sabotage,
transportation delays, shortage of raw material, energy or machinery, acts
of God, government or the judiciary.
15. SUCCESSORS AND ASSIGNS. The interests of the Customer in this Agreement are
personal and shall not be assigned, transferred, shared or divided in any
manner by Customer or XImage without the prior written consent of the other
party. Subject to the foregoing, this Agreement shall be binding upon and
shall inure to the benefit of parties hereto and their heirs,
representatives, successors and permitted assignees.
16. AMENDMENTS. No supplement, modification or amendment of any term, provision
or condition of this Agreement shall be binding or enforceable unless
executed in writing by the parties hereto.
17. INTEGRATION. This Agreement is part of and incorporated by reference with
the FF2 Agreement entered into between XImage and the Customer. To the
extent that there are conflicting terms the FF2 Agreement takes precedence,
however, to the extent that the terms can be interpreted to be consistent,
they shall be so construed.
<PAGE>
Exhibit 10.31
PURCHASING SERVICES COUNTY OF VENTURA SHOW THIS NUMBER
800 SOUTH VICTORIA AVENUE GENERAL SERVICES AGENCY ON ALL DOCUMENTS
VENTURA, CA 93009-3120
(805) 654-3750 FAX (805) 654-3754 PC 40500000509
REFER INQUIRIES TO BUYER: CENTRALIZED PURCHASE ORDER
ROSA CENICEROS
THIS ORDER SUPERSEDES PRIOR ORDERS WITH SAME NUMBER
<TABLE>
<CAPTION>
BID/CONTRACT NUMBER PAGE DATE DELIVER ON OR BEFORE: SHIP TO: COUNTY OF VENTURA
<S> <C> <C> <C> <C>
1 OF 2 09/17/99 12/01/99 SHERIFF'S DEPARTMENT
BUSINESS OFFICE
VENDOR NUMBER 800 S VICTORIA AVE
330224167 A SHD/4052 VENTURA, CA 93009-3340
TO: IMAGEWARE SOFTWARE INC
10883 THORNMINT RD
SUBMIT INVOICE IN DUPLICATE TO:
SAN DIEGO, CA 92127 COUNTY OF VENTURA
SHERIFF'S DEPARTMENT
BUSINESS OFFICE
PAYMENT TERMS: FAILURE TO INDICATE THE CORRECT ORDER NUMBER 800 S VICTORIA AVE
NET 30 DAYS ON YOUR INVOICE AND/OR FAILURE TO SUBMIT INVOICES VENTURA, CA 93009-3340
F.O.B. POINT: PROPERLY AS INDICATED ON THE PURCHASE ORDER
DESTINATION CAN DELAY PROCESSING OF PAYMENT.
</TABLE>
<TABLE>
<CAPTION>
ITEM
NO. MATERIAL OR SERVICE QUANTITY UNIT UNIT PRICE COST
- ---- --------------------------------------------------------------- ------------ ---------- ---------- -----------
<S> <C> <C> <C> <C> <C>
REF REQUISITION: 40500000637
001 IN ACCORDANCE WITH VENTURA COUNTY CONTRACT #3919, PROVIDE 18,444.76 LOT 1.000 18,444.76
ALL HARDWARE, SOFTWARE, LABOR AND MATERIALS FOR A TURNKEY PHOTO
IMAGING SYSTEM.
--------------------------------------------------------------- ------------ ---------- ---------- -----------
002 HARDWARE ACCOUNTING ALLOCATION 170,158.83 LOT 1.000 170,158.83
--------------------------------------------------------------- ------------ ---------- ---------- -----------
003 HARDWARE FOR PHOTO IMAGING SYSTEM 37,871.35 LOT 1.000 37,871.35
--------------------------------------------------------------- ------------ ---------- ---------- -----------
004 CAMERA ACCESSORIES FOR PHOTO IMAGING SYSTEM 44,846.00 LOT 1.000 44,846.00
--------------------------------------------------------------- ------------ ---------- ---------- -----------
005 SOFTWARE FOR PHOTE IMAGING SYSTEM 101,446.70 LOT 1.000 101,446.70
SUB TOTAL 372,767.64
- ---- --------------------------------------------------------------- ------------ ---------- ---------- -----------
</TABLE>
VENDOR -- READ IMPORTANT INSTRUCTIONS AND CONDITIONS
ON REVERSE SIDE. -- TERMS AND CONDITIONS SET FORTH
IN OUR BID OR QUOTATION, AND/OR INCORPORATED HEREIN
BY REFERENCE, BECOME A PART OF THIS ORDER.
THOMAS A. GILL, C.P.M, PURCHASING AGENT/MATERIALS MANAGER
/s/ Thomas A. Gill
- -------------------
<PAGE>
PURCHASING SERVICES COUNTY OF VENTURA SHOW THIS NUMBER
800 SOUTH VICTORIA AVENUE GENERAL SERVICES AGENCY ON ALL DOCUMENTS
VENTURA, CA 93009-3120
(805) 654-3750 FAX (805) 654-3754 PC 40500000509
REFER INQUIRIES TO BUYER: CENTRALIZED PURCHASE ORDER
ROSA CENICEROS
THIS ORDER SUPERSEDES PRIOR ORDERS WITH SAME NUMBER
<TABLE>
<CAPTION>
BID/CONTRACT NUMBER PAGE DATE DELIVER ON OR BEFORE: SHIP TO: COUNTY OF VENTURA
<S> <C> <C> <C> <C>
2 OF 2 09/17/99 12/01/99 SHERIFF'S DEPARTMENT
BUSINESS OFFICE
VENDOR NUMBER 800 S VICTORIA AVE
330224167 A SHD/4052 VENTURA, CA 93009-3340
TO: IMAGEWARE SOFTWARE INC
10883 THORNMINT RD
SUBMIT INVOICE IN DUPLICATE TO:
SAN DIEGO, CA 92127 COUNTY OF VENTURA
SHERIFF'S DEPARTMENT
BUSINESS OFFICE
PAYMENT TERMS: FAILURE TO INDICATE THE CORRECT ORDER NUMBER 800 S VICTORIA AVE
NET 30 DAYS ON YOUR INVOICE AND/OR FAILURE TO SUBMIT INVOICES VENTURA, CA 93009-3340
F.O.B. POINT: PROPERLY AS INDICATED ON THE PURCHASE ORDER
DESTINATION CAN DELAY PROCESSING OF PAYMENT.
</TABLE>
<TABLE>
<CAPTION>
ITEM
NO. MATERIAL OR SERVICE QUANTITY UNIT UNIT PRICE COST
- ---- --------------------------------------------------------------- ------------ ---------- ---------- -----------
<S> <C> <C> <C> <C> <C>
006 INSTALLATION OF COMPUTER PHOTO IMAGING SYSTEM 64,332.42 LOT 1.000 64,332.42
SUB TOTAL 437,100.06
TOTAL DISCOUNT 0.00
TOTAL FREIGHT 0.00
TOTAL TAX 0.00
GRAND TOTAL 437,100.06
- ---- --------------------------------------------------------------- ------------ ---------- ---------- -----------
</TABLE>
VENDOR -- READ IMPORTANT INSTRUCTIONS AND CONDITIONS
ON REVERSE SIDE. -- TERMS AND CONDITIONS SET FORTH
IN OUR BID OR QUOTATION, AND/OR INCORPORATED HEREIN
BY REFERENCE, BECOME A PART OF THIS ORDER.
THOMAS A. GILL, C.P.M, PURCHASING AGENT/MATERIALS MANAGER
/s/ Thomas A. Gill
- -------------------
<PAGE>
CONTRACT #3919
This is a contract between the COUNTY OF VENTURA, hereinafter referred to as
County, and IMAGEWARE SOFTWARE, INC., hereinafter referred to as Contractor.
The parties hereto agree as follows:
1. SCOPE OF WORK
Contractor will furnish hardware, software, modification/programming, photo
conversion and training services, in relation to the installation and
implementation of the CRIME CAPTURE PHOTO IMAGING SYSTEM per (EXHIBIT A),
by reference made a part hereof, including all necessary installation
material to provide a turnkey system that meets all terms, conditions,
and specifications hereunder.
2. PERFORMANCE BOND
A performance bond is required. The bond shall be 50% of the final
contract price. The required bond must be received at Ventura County
Purchasing Services within ten (10) consecutive days of receipt of
purchase order. The bond shall be paid up and in effect for six months
after the acceptance of the job by the County.
3. SOFTWARE LICENSE
Contractor will, in the course of the transaction for the services
identified in Exhibit A, deliver to the County on a licensed basis, one
or more computer programs (SOFTWARE) identified in Exhibit A. The
granting of such nonexclusive and nontransferable license is based on
the following terms and conditions.
a. County agrees to use the SYSTEM SOFTWARE only for its own business
and may not sell or resell any of the System Software or any rights
to use the System Software.
b. County agrees that only Contractor has the right to alter, enhance
or otherwise modify the System Software. County agrees not to
disassemble, decompile or reverse engineer the System Software or
to allow another party to do so.
c. County acknowledges that Contractor retains all title to the System
Software. County is neither the owner of the System Software nor
any copies thereof, but is licensed (pursuant to this Agreement) to
utilize the System Software for the purpose of maintaining a
Booking & Suspect Identification System.
4. COMPENSATION
Payment shall be made on presentation of three copies of an invoice to
the Ventura County Sheriff for goods supplied and accepted by County's
contract administrator according to the costs attached hereto as Exhibit A
and according to the terms hereunder.
50% of hardware with proof of receipt at contractors location- $90,315.31.
Balance of hardware upon receipt at County facilities- $90,315.31
Due at start of acceptance testing- 25% of service and software $64,117.36
Balance due upon completion of acceptance testing-- $192,352.09
1
<PAGE>
5. PERFORMANCE PERIOD
The Contractor shall install the computer system and software listed in
Exhibit A ready for use according to the implementation plan specified in
Exhibit C. TIME IS OF THE ESSENCE IN THIS CONTRACT.
6. SITE PREPARATION
a. If the system to be installed requires special environmental
considerations, Contractor shall provide site preparation
specifications for system listed in Exhibit A within a reasonable
time upon request by the County, unless such specifications have
been included in the Contractor's proposal. These specifications
shall be in such detail as to ensure that the system, if installed
according to these specifications, shall operate efficiently, from
an environmental point of view and properly from a functional point
of view.
b. The County may prepare a site plan showing the location of each
item or system listed in Exhibit A and detailing the associated
electrical power and environmental control facilities. If
requested, the Contractor will review and comment on the adequacy
of the County's plan, and shall be permitted free access to the
site for this purpose with prior notification and consent from
Sheriff's ISB (Information Service Bureau) personnel as well as the
local site Administrator.
Alternatively, the Contractor may prepare the site plan, and will
be permitted free access to the site for this purpose so long as
the Contractor is accompanied by personnel from the Sheriff's
Information Services Bureau (ISB) or their representative. Prior to
the Contractor being given access, ISB personnel must have been
given adequate notice to secure permission from the site
Administrator.
c. The County will cause the site to be prepared in accordance with
the Contractor's written minimum site and environmental
specifications that will be provided to the County no less than two
weeks in advance of any work being conducted except as otherwise
agreed upon by the County, unless the Contractor has agreed to be
responsible for such site preparation, on or before the Facility
Readiness Date specified in Exhibit A.
d. Any subsequent alterations or modifications to the site which are
directly attributable to incomplete or erroneous specifications
provided by the Contractor and which involve additional expense
shall be made at the expense of the Contractor, to the extent that
such costs would not have been incurred had the complete and/or
correct specifications been initially provided.
7. INSTALLATION AND DELIVERY DATES
a. Installation
County is responsible, for providing access to, and preparation of,
the installation site(s) as described in the Installation
Procedures set forth in Exhibit-B of this Agreement. County also
agrees to complete these preparations at least five (5) days prior
to the date installation of the System commences and confirm that
all site(s) are ready for installation.
2
<PAGE>
Contractor will be responsible for the delivery and installation of
the Crime Capture Photo Imaging System, including computer server,
workstation(s), imaging equipment (camera, remote pan & tilt, etc.),
printers and all software provided by the Contractor.
b. Delivery dates
Installation will commence in accordance with the Implementation
Plan, Exhibit-C. The Contractor shall install the System (listed in
Exhibit A) ready for use on or before the Installation Date
specified in Exhibit C. Time is of the essence in this contract.
Installation of the System Hardware is completed when the hardware
is functioning in accordance with the manufacturer's specifications.
Installation of the System is complete when Contractor completes
functional hardware and software testing and states in writing to
County that the System has been successfully installed.
8. ACCEPTANCE/ACCEPTANCE TESTING
a. All system components will be signed for by authorized County
personnel. Such acknowledgment of receipt will be given when system
components are received without evidence of mishandling. This step
will provide proof of delivery of all contract deliverable items.
b. When each deliverable item is installed, it will be checked for
completeness and when stand-alone operation is practical, such an
operational test will be made. Authorized representatives of Ventura
County will sign off this test step. Non-system items such as
documentation, training materials, etc., will be acknowledged as
received.
c. Acceptance Testing-Upon completion of installation, Contractor will
conduct a demonstration of the total system operation. This
demonstration will be observed and successful compliance with the
contract provisions will be acknowledged by authorized
representatives of the Ventura County Sheriff's ISB staff and the
Sheriff's Department Project Manager or his/her designee.
Installation of the System is deemed complete, when the Ventura
County Sheriff's Department operational personnel and other local
site personnel have been trained, and the Ventura County Sheriff's
Department Project Manager and the Ventura County ISB Staff agrees
that the System is functioning reliably.
County will immediately commence a 30 (thirty)-day period of
acceptance testing. Acceptance testing is intended to ensure that
the system provided hereunder operates in substantial accord with
Contractor's technical specifications, is adequate to perform as
warranted by Contractor, and evidences a satisfactory level of
performance reliability, prior to its acceptance by the County.
The system acceptance-testing period will be considered successful
if the requirements defined in the System Acceptance Testing,
Exhibit-E, are satisfied.
3
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County agrees to accept the System after the Ventura County
Sheriff's Department Project Manager or his/her designee has agreed
that the System has functioned reliably for thirty (30) consecutive
days of acceptance testing.
If the Acceptance test is not successfully completed, the Contractor
shall be notified immediately of the failure, with written
confirmation to be provided in not more than five working days.
Control of the system shall immediately be given to the Contractor.
The system shall not be deemed to be accepted until the Contractor
re-certifies, and the Ventura County Sheriff's Department Project
Manager or his/her designee agrees, that the System is ready to begin
acceptance testing once more.
If the system does not meet the standards of performance discussed
in Paragraph 11a and 11b within ninety days after the start of the
acceptance testing, the County shall have the option to request a
replacement system, extend the performance period or terminate the
order (or portion thereof) and seek relief as provided in Paragraph
28, "Rights and Remedies of County for Default". The County's option
shall remain in effect until such time as the system meets the
performance criteria, or 180 consecutive days after the start of the
acceptance testing, whichever occurs first.
System shall not be accepted by the County and no final charges
associated with such system shall be paid by the County until the
system has satisfactorily completed the acceptance tests.
Immediately upon successful completion of the acceptance tests, the
County shall notify the Contractor in writing of acceptance of the
system and authorize payment as listed in Exhibit A attached hereto.
9. TRAINING
The training of County and local law enforcement staff at each site shall
be the responsibility of Contractor and shall include the training program
presented in the Crime Capture System Training Outline, Exhibit D. The
Sheriff's Department in cooperation with other local law enforcement
agencies within Ventura County shall be responsible for identifying
personnel requiring training and ensuring that they are available for
scheduled training.
Training shall take place on dates mutually agreed upon by the parties.
The training schedule presented in the Crime Capture System Training
Outline, Exhibit D, may be revised only upon written request by County
and acceptance of that request by Contractor. All training provided
directly by Contractor shall be conducted on a functional training
system located at various County site(s). All handout and reference
training materials will be furnished by the Contractor to each trainee at
the time of training.
All training activities may be video taped at County's expense for future
in-house training. Such videotapes shall not be sold, loaned or made
available for use to other than Ventura County Sheriff's Department staff
and other local law enforcement staff within Ventura County as needed for
training.
4
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All Contractor personnel costs related to the provision of training
services for training County and other local law enforcement staff for
the training days specified in Crime Capture System Training Outline,
Exhibit D are included in the purchase price of the SYSTEM, per Contractor
Cost Proposal, Exhibit A, County expenses include, but are not limited to,
the provision of adequate classroom space, training workstation and network
equipment, and for video taping of training events.
Contractor provided training shall be sufficient to allow County to meet
its obligations and responsibilities with respect to operation and
maintenance under County's obligations and responsibilities for maintenance
support as defined within the Contractor's Hardware and Software
Maintenance Agreement, entered into separately.
The Contractor agrees to provide informal, "hands on" instruction to
Ventura County Sheriff ISB personnel in the operation of the System, at no
additional charge to the County, at mutually agreeable times prior to, or
subsequent to, system installation for the purposes of familiarization
with administrative system operation.
Contractor shall not be responsible for providing additional training,
if County's users fail to achieve competence due to absence, turnover,
failure to complete adequate preparation and practice exercises, or due to
demonstrably deficient native ability or qualifications.
The County may request additional training days. Training, if needed
within 6 months of acceptance, will be provided at the rate of $1000.00
per day, including expenses. Thereafter the County can request additional
training at the Contractor's on-going ratio.
10. DOCUMENTATION
Contractor shall develop and provide, at no additional charge, in both
Office '97 Microsoft Word electronic (2 copies) and printed format (1 copy
per workstation), procedural manuals containing all procedures, methods,
documentation requirements, and techniques necessary for the successful use
and operation of the SYSTEM. Contractor agrees that the County may
reproduce this material for its internal use on an unlimited basis.
11. WARRANTIES
a. Hardware
Contractor warrants that all major components of the System
Hardware are new at the time of installation and will operate in
conformity with its documentation provided by Contractor for a period
of one(1) year after acceptance. In the event the System Hardware
fails during this period, Contractor, at its sole option, will
repair, modify or replace the failed component(s) in a timely manner
at no additional cost to the County.
b. Software
Contractor warrants that the Software will operate in conformity
with its documentation. In the event of any non-conformity for a
period of one (1) year after acceptance, Contractor will use all
commercially reasonable efforts to correct the problem by
modification, enhancement or other repair so that the Software
conforms to its documentation.
5
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Contractor further warrants that:
c. It has title to the Software, that may be provided under this
contract, and/or the authority to grant licenses to use the third
party software.
d. Its work hereunder shall be of professional quality and performed
consistent with generally accepted industry standards.
e. There exists no actual or potential conflict of interest concerning
the Services to be performed under this agreement. Contractor
represents that performance under this agreement does not require the
breach of any agreement or obligation to keep in confidence the
proprietary information of another party.
f. Upon completion of the installation of all sites, the System as
installed by Contractor, including hardware and software components,
when operational, will meet or exceed NIST, CAL DOJ, and CAL ID
mug-shot photographic standards.
g. The hardware/software supplied hereunder shall provide fault-free
performance and fault-free result in the processing date and date
related data (including, but not limited to calculating, comparing
and sequencing) of any hardware, software and firmware products
delivered by Contractor and services provided under this contract,
individually or in combination, as the case may be from the effective
date of this contract. Also, the supplier warrants the year 2000
calculations will be recognized and accommodated and will not in
any way, result in hardware, software or firmware failure. The County,
at its solo option, may require the Contractor, at any time, to
demonstrate the procedures it intends to follow in order to comply
with all the obligations contained herein.
The obligations contained herein apply to products provided by the
Contractor, its subcontractor or any third party involved in the
creation of the products to be delivered to the County under this
contract. Failure to comply with any of the obligations contained
herein, may result in the County, availing itself of all its rights
under the law and under this contract including, but not limited to,
its right pertaining to termination or default.
The warrants contained herein are separate and discrete from any
other warranties specified in this contract, and are not subject to
any disclaimer or warranty or limitation of the suppliers liability
which may be specified in this contract, its appendices, its
schedules, its annexes or any document incorporated in this contract
by reference. Y2K compliance problems shall not be considered an act
of God.
12. LIMITATION OF LIABILITY
Contractor's maximum liability to the County arising for any reason
relating to Contractor's performance of the Contract, or any amendment
thereto, shall be limited to the amount of fees paid to the Contractor for
its performance. Neither party shall have any liability to the other party
for any lost profits or special, incidental, indirect or consequential
damages, even if such party has been advised of the possibility of such
damages.
6
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13. COUNTY MODIFICATION OF EQUIPMENT
The County may connect equipment manufactured or supplied by other
companies to the System, including peripheral equipment, computers,
communications equipment, and terminal devices, provided however, that
Contractor will not be held responsible for any damage and/or downtime
that may occur. Contractor shall provide the County with a list of
replacement equipment acceptable and certified by the Contractor and
Ventura County Sheriff's Department. For equipment not listed,
Contractor shall within 15 days of request, notify the County of whether
such equipment is likely to interfere with system operation or
Contractor ability to perform maintenance. In emergency situations
Contractor shall provide a response within 48 hours.
14. PATENT AND COPYRIGHT PROTECTION
The Contractor, at its own expense, shall defend any action brought
against the County to the extent that such action is based upon a claim
that the system supplied by the Contractor, or the operation of such
system pursuant to a current version of Contractor-supplied operating
software, infringes a United States patent or copyright.
The Contractor shall pay those costs and damages finally awarded against
the County in any such action. Such defense and payment shall be
conditioned on the following:
a. That the Contractor shall be notified within a reasonable time in
writing by the County of any notice of such claim; and,
b. That the Contractor shall have the sole control of the defense of
any action on such claim and all negotiations for its settlement or
compromise.
Should the system, or the operation thereof, become, or in the
Contractor's opinion are likely to become, the subject of a claim of
infringement of a United States patent or copyright, the County shall
permit the Contractor at its option and expense either to procure for
the County the right to continue using the system, or to replace or
modify the same so that they become non-infringing.
If, in the sole opinion of the County, the return of such infringing
system makes the retention of other items of system acquired from the
Contractor under this contract impractical, the County shall then have
the option of terminating the contract, or applicable portions thereof,
without penalty or termination charge. The Contractor agrees to take
back such system and refund any sums the County has paid Contractor less
any reasonable amount for use or damage. Such indemnity by the
Contractor as to use of such system shall not apply to any infringement
arising out of the use or in combination with other items where such
infringement would not have occurred in the normal use for which the
system was developed.
15. SYSTEM MAINTENANCE AND SUPPORT SERVICES
Commencing 90 days after final acceptance the County may acquire
Hardware/Software Support Services. Such support shall be provided in
accordance with Contractor's standard Software Support Services Terms
and Conditions entered into as a separate agreement. Support services
include fixes to errors, updates, enhancements and technical support.
Contractor shall provide maintenance and support services for 90 days
after final acceptance for no additional fee.
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Support fees shall be based on 15% of the hardware and software costs
per year and shall be firm for a period of 5 years.
16. FORCE MAJEURE
Except for defaults of subcontractors, neither party shall be
responsible for delays or failures in performance resulting from acts
beyond the control of the offending party.
Such acts shall include but shall not be limited to acts of God, fire,
flood, earthquake, other natural disaster, nuclear accident, strike,
lockout, riot, freight embargo, public regulated utility, or
governmental statutes or regulations superimposed after the fact.
If a delay or failure in performance by the Contractor arises out of a
default of its subcontractor, and if such detail arises out of causes
beyond the control of both the Contractor and subcontractor, and without
the fault or negligence of either of them, the Contractor shall not be
liable for damages of such delay or failure, unless the supplies or
services to be furnished by the subcontractor were obtainable from other
sources in sufficient time to permit the Contractor to meet the required
performance schedule.
17. RESERVED
18. INSURANCE PROVISIONS
A. CONTRACTOR, at its sole cost and expense, will obtain and maintain
in full force during the term of this contract the following types
of insurance:
1. Commercial General Liability "occurrence" coverage in the
minimum amount of $1,000,000 combined single limit (CSL) bodily
injury & property damage each occurrence and $2,000,000
aggregate, including personal injury, broad form property
damage, products/completed operations, broad form blanket
contractual and $100,000 fire legal liability.
2. Commercial Automobile Liability coverage in the minimum amount
of $1,000,000 CSL bodily injury & property damage, including
owned, non-owned, and hired automobiles. Also to include
Uninsured/Underinsured Motorists coverage in the minimum amount
of $100,000 when there are owned vehicles.
3. Workers' Compensation coverage, in full compliance with
California statutory requirements, for all employees of
CONTRACTOR and Employer's Liability in the minimum amount of
$1,000,000.
B. All insurance required will be primary coverage as respects COUNTY
and any insurance or self-insurance maintained by COUNTY will be
excess of CONTRACTOR'S insurance coverage and will not contribute
to it.
C. COUNTY is to be notified immediately if any aggregate insurance
limit is exceeded. Additional coverage must be purchased to meet
requirements.
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D. The County of Ventura, Its Boards, Agencies, Departments, Offices,
Employees, Agents, and Volunteers are to be named as Additional Insured
as respects work done by CONTRACTOR under the terms of this contract
on all policies required (except Workers' Compensation).
E. Contractor agrees to waive all rights of subrogation against the
County of Ventura, its Boards, Agencies, Departments, Officers,
Employees, Agents and Volunteers for losses arising from work
performed by Contractor under the terms of this contract.
F. Policies will not be canceled, non-renewed or reduced in scope of
coverage until after sixty (60) days written notice has been given
to the County of Ventura, Risk Management Division.
G. CONTRACTOR agrees to provide COUNTY with the following insurance
documents on or before the effective date of this contract:
1. Certificates of Insurance for all required coverage.
2. Additional insured endorsements
3. 60 Days Notice Cancellation Clause endorsement
Failure to provide these documents will be grounds for immediate
termination or suspension of this contract.
19. TAXES
The County is exempt from Federal excise taxes and no payment shall be
made for any personal property taxes levied on the Contractor or on any
taxes levied on employee wages. The County will only pay for any State
or local sales or use taxes on the services rendered or equipment, parts
supplied to the County pursuant to this contract.
20. INDEPENDENT CONTRACTOR
This contract is for the professional services of Contractor and is non-
assignable by Contractor without prior consent by County in writing. In
performing these professional services, Contractor is an independent
Contractor and is not acting as an agent or employee of the County.
21. EMPLOYEE
Contractor will submit biographical and fingerprint information for each
person who will be engaged in performing any part of the installation.
The biographical and fingerprint information will be sufficient to allow
the County to perform security background checks on all such persons.
Contractor agrees to bar any person identified by the County as a
security risk from County offices.
9
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22. CONTRACT MONITORING
The County shall have the right to review the work being performed by the
Contractor under this contract at any time during County's usual working
hours. Review, checking, approval or other action by the County shall
not relieve Contractor of Contractor's responsibility for the accuracy
and completeness of the work performed under this contract. This contract
shall be administered by the County's contract administrator, Walt
Wilson, or his/her authorized representative.
23. EQUAL OPPORTUNITY
Contractor will not discriminate against any employee, or against any
applicant for such employment because of age, race, color, religion,
physical handicap, ancestry, gender or national origin. This provision
shall include, but not be limited to, the following: employment,
upgrading, demotion, or transfer, recruitment or recruitment advertising,
layoff or termination; rates of pay or other forms of compensation, and
selection for training, including apprenticeship.
24. INVESTIGATION AND RESEARCH
Contractor by investigation and research has acquired reasonable
knowledge of all conditions affecting the work to be done and labor and
material needed, and the execution of this contract is to be based upon
such investigation and research, and not upon any representation made
by the County or any of its officers, agents or employees, except as
provided herein.
25. TERMINATION
Upon termination or other expiration of this contract, each party will
assist the other party in the orderly termination of the contract and
the transfer of all assets, tangible and intangible, as may facilitate
the orderly, non-disrupted business continuation of each party. Prior
to the expiration of this contract, this contract may be terminated for
the convenience of both parties by mutual consent.
In the event of termination for convenience, Contractor shall be paid for
all work provided to the date of termination, as long as such work meets
the terms and conditions of this agreement. Contractor hereby expressly
waives any and all claims for damages or compensation arising under this
Agreement as set forth in this paragraph in the event of such
termination.
The County may terminate this contract under the provisions of
paragraph 28, "Rights and Remedies of County for Default".
26. SOURCE CODE PROVISION
CONTRACTOR agrees to deposit the source code, documentation and related
materials for the System (Deposit Materials) with an Escrow Agent subject
to COUNTY entering into an IWS Software Escrow Agreement.
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The Deposit Materials will be made available to the COUNTY for the
purposes of self-support if certain events named in the IWS Software
Escrow Agreement occur. CONTRACTOR will provide a copy of its current
Software Escrow Agreement to COUNTY. Any such Software Escrow Agreement
is optional for COUNTY and requires COUNTY to sign and accept the terms
of the Software Escrow Agreement.
27. CONFIDENTIALITY/PUBLICITY
Any reports, information, data, statistics, forms, procedures, systems,
studies and any other communication or form of knowledge given to or
prepared or assembled by Contractor under this contract which County
requests to be kept as confidential shall not be made available to any
individual or organization by Contractor without the prior written
approval of the County except as authorized by law. Contractor will
keep such information confidential using the same care and discretion
used with similar information that Contractor designates as
confidential.
Any publicity giving reference to the sale, installation, and/or
operation of the System, whether in the form of press release,
brochure, photographic coverage, or verbal announcement, shall be made
only with the prior approval of the County, provided that Contractor
may refer to the System during its normal course of business.
28. ADDENDA
County may from time to time require changes in the scope of the
services required hereunder. Such changes, including any increase or
decrease in the amount of Contractor's compensation which are mutually
agreed upon by and between County and Contractor, shall be effective
when incorporated in written amendments to this contract.
29. RIGHTS AND REMEDIES OF COUNTY FOR DEFAULT
a. In the event any equipment, software, or service furnished by the
Contractor in the performance of this contract should fail to
conform to the specifications therefor, the County may reject the
same, and it shall thereupon become the duty of the Contractor to
reclaim and remove the same forthwith, without expense to the County,
and immediately to replace all such rejected equipment, software, or
service with others conforming to such specifications; provided that
should the Contractor fail, neglect or refuse to do so the County
shall thereupon have the right to purchase in the open market, in
lieu thereof, a corresponding quantity of any such equipment,
software, or service and to deduct from any moneys due or that may
thereafter become due to the Contractor the difference between the
price named in this contract and the actual cost thereof to the
County.
b. In the event the Contractor shall fail to make prompt delivery as
specified of any equipment, software, or service, and as long as
the delay is not caused by the County, the same conditions as to
the rights of the County to purchase in the open market and to
reimbursement set forth above shall apply, except as otherwise
provided in Paragraph 15, "Force Majeure".
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c. In the event of the cancellation of this contract either in whole
or in part, by reason of the default or breach thereof by the
Contractor, any loss or damage sustained by the County in procuring
any equipment, software or service which the Contractor therein
agreed to supply shall be borne and paid for by the Contractor.
d. The rights and remedies of the County provided above shall not be
exclusive and are in addition to any other rights and remedies
provided by law or under the contract.
30. NOTICES
All notices required under this agreement shall be made in writing and
addressed or delivered as follows:
TO COUNTY-
VENTURA COUNTY PURCHASING DEPARTMENT
800 SOUTH VICTORIA AVENUE
VENTURA, CA 93009
TO CONTRACTOR-
IMAGEWARE SOFTWARE, INC.
CARMEN ERREJON
10883 THORNMINT RD
SAN DIEGO, CA 92127
Either party may, by written notice to the other, change its own
mailing address.
31. GOVERNING LAW
The validity of this contract and any of its terms or provisions, as
well as the rights and duties of the parties under this contract, will
be construed pursuant to and in accordance with the laws of the State of
California.
32. SEVERABILITY OF CONTRACT
If any term of this contract is held by a court of competent
jurisdiction to be void or unenforceable, the remainder of the contract
terms will remain in full force and effect and will not be affected.
33. CUMULATIVE REMEDIES
The exercise or failure to exercise of legal rights and remedies by the
County of Ventura in the event of any default or breach hereunder will
not constitute a waiver or forfeiture of any other rights and remedies,
and will be without prejudice to the enforcement of any other right or
remedy available by law or authorized by this contract.
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34. COMPLIANCE WITH LAWS
Each party to this contract will comply with all applicable laws.
35. FULL AGREEMENT AND ORDER OF PRECEDENCE
This Agreement consists of 13 pages along with the following which
are incorporated into this Agreement by reference. This Agreement and
Exhibits hereto constitute the final expression of the agreement of the
parties and supersedes all previous agreements and understandings,
whether written or oral, relating to the work. This Agreement may not be
altered, amended, or modified except by written instrument signed by
the duly authorized representatives of both parties. In the event of an
inconsistency in this Agreement, the inconsistency shall resolved in
the following order:
1. This Agreement,
2. Exhibit A-price schedule
Exhibit B-Installation Plan
Exhibit C-Implementation Plan
Exhibit D-Training
Exhibit E-Acceptance test plan
Exhibit F-County of Ventura RFP #4799
Exhibit G-Contractor's proposal dated March 9, 1999
IN WITNESS WHEREOF, the parties hereto have executed this contract.
COUNTY OF VENTURA Imageware
/s/ Rosa Ceniceros /s/ Paul Devermann
- -------------------------- --------------------------
Signature Signature
Rosa Ceniceros Paul Devermann
- -------------------------- --------------------------
Printed Name Printed Name
Principal Buyer Vice President
- -------------------------- --------------------------
Title Title
8/25/99 10/12/99
- -------------------------- --------------------------
Date Date
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EXHIBIT A
IWS COST PROPOSAL AUGUST 10, 1999
<TABLE>
<CAPTION>
DESCRIPTION QTY UNIT EXT TOTAL
----------- --- --------- --------- ---------
<S> <C> <C> <C> <C>
NETFINILY 5500 450MHZ DUAL PENTIUM SERVER
IBM Netfinity 5500 Pentium II 450MHz
512KB L2 256MB ECC OPEN 32X PCI/IS 1 $7,436.25 $7,436.25
(Std) 10/100 PCI Ethernet
(Std) 2-Drop 16-bit SCSI Internal Cable
(Std) 32X Max IDE CD-ROM Drive
(Std) 450/100MHz Pentium II Processor with
512KB ECC L2 Cache
(Std) IBM 1.44MB 3.5 inch Diskette Drive
(Std) IBM 104 key Keyboard (Stealth Grey)
(Std) Integrated IDE Controller
(Std) Integrated PCI Ultra SCSI RAID
Controller - dual channel
(Std) Mouse Stealth Grey
(Std) Netfinity 400W Hot Swap Power Supply
(Std) Netfinity NetBay3
(Std) Processor Complex Card
(Std) S3 TrioG4V2 Graphics - 1MB SGRAM
(Std) Systems Management Processor
IBM 20/40GB DLI Internal SCSI Tape Drive (FH) 1 $2,937.50 $2,937.50
IBM Netfinity 400W Hot-Swap Redundant Power
Supply II 1 $750.00 750.00
IBM Netfinity 256MB SDRAM ECC RDIMM
(Registered) 1 $1,187.50 $1,187.50
IBM Netfinity 9.1GB 10K Wide Ultra SCSI
SL SCA-2 HDD 4 $1,006.80 $4,027.20
450/100MHz Pentium II Processor with
512KB ECC L2 Cache 1 $1,498.75 $1,498.75
G74 - 17(15.9) in. Color Monitor, 69 KHz,
Stealth Gray 1 $463.75 $463.75
Smart-UPS 1400-17 Min Runtime 1 $735.00 $735.00
SUBTOTAL $19,035.95
CAPTURE HARDWARE
IBM PC 300PL 6862 (4x4) 2
PC 300PL Pentium II 400MHz MMX/512KB, 64MB,
6.4GB, 4MB, 32X, 16bit, WinNT 8 $1,776.00 $14,208.00
(Std) IBM 6.4GB EIDE Hard Drive
(Std) 10/100 PCI Ethernet WOL
(Std) 16-bit 15A Crystal Audio Integrated
(Std) 400/100MHz MMX Pentium II Processor
with 512KB Pipeline B
(Std) 4MB Intergated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internal 32X Max
(Variable Speed)
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
Olympus D-400 2 $742.50 $1,485.00
HP 2000C Color Ink Jet Printer 8 $610.20 $4,881.00
C74-17(15.9) in Color Monitor, 69 KHz,
Pearl White 8 $423.60 $3,388.80
Cable bundle 8 $187.50 $1,500.00
Capture Card MVPro 8 $837.50 $6,700.00
SUBTOTAL $32,163.40
CAMERA SUB-SYSTEMS
Hitachi HV-C20 Camera, NIST standards (3 chip) 8 $4,805.65 $39,085.20
Fujinon Lens 8 $1,509.30 $12,074.40
3 point Lighting system 8 $1,343.25 $10,746.00
Pan and Tilt Camera mount 8 $1,620.00 $12,950.00
Reflective Pedestal 8 $924.75 $7,398.00
NIST compliance capture software 8 $1,500.00 $12,000.00
Power Supply (Three Chip) 8 $202.50 $1,620.00
SUBTOTAL $95,883.60
</TABLE>
Page 1
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
INVESTIGATIVE HARDWARE
IBM PC 300PL 6862 (4X4)2
PC 300PL Pentium II 400MHz MMX/512KB, 64MB, 6.4GB, 4MB, 32X, 16bit, WinNT 14 $1,776.00 $24,864.00
(Std) IBM 6.4GB EIDF Hard Drive
(Std) 10/100 PCI Ethernet WOL
(Std) 16-bit ISA Crystal Audio Integrated
(Std) 400/100MHz MMX Pentium II Processor with 512KB Pipeline B
(Std) 4MB Integrated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internal 32X Max (Variable Speed)
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
HP 2000C Color Ink Jet Printer 14 $610.20 $8,542.80
G74-17(15.9) in. Color Monitor, 69 KHz, Pearl White 14 $423.60 $5,390.40
SUBTOTAL $39,337.20
SUBTOTAL HARDWARE $186,420.15
HARDWARE DISCOUNT $18,000.00
HARDWARE TOTAL $168,420.15
HARDWARE TOTAL INCLUDING TAX $180,630.61
SOFTWARE
CCS Investigative Display Software (Full) 14 $4,900.00 $68,600.00
CCS Capture Station Software 8 $8,000.00 $64,000.00
CCS Capture Station Retrieval Software 8 $2,000.00 $16,000.00
Suspect ID 2 $0.00 $0.00
Crime Lab 2 $0.00 $0.00
Vehicle ID 2 $0.00 $0.00
CUSTOM INTERFACE
Systems Integration - Flat File Intenece w/ VCJIS 1 $5,000.00 $5,000.00
Systems Integration - Custom API for Image Retrieval & Site License 1 $17,000.00 $17,000.00
TOTAL SOFTWARE $170,600.00
TOTAL SOFTWARE INCLUDING TAX $182,968.50
TOTAL HARDWARE AND SOFTWARE $339,020.15
TOTAL HARDWARE AND SOFTWARE INCLUDING TAX $363,599.11
SERVICES
Project Management 5 $900.00 $4,500.00
Conversion of Records from IHP 183000 $0.05 $9,150.00
SERVICES TOTAL $13,650.00
LICENSES
Enterprise Server Win NT 4.0 (25 License) 1 $4,056.25 $4,056.25
Sybase License Server + 5 users 1 $1,248.75 $1,248.75
Sybase License 6.0 (20 User) 1 $3,243.75 $3,243.75
TOTAL LICENSES $8,548.75
TOTAL LICENSES INCLUDING TAX $9,168.53
SYSTEM SUBTOTAL INCLUDING TAX $386,417.65
SHIPPING/HANDLING $11,257.47
INSTALLATION $27,425.00
TRAINING 12 $1,000.00 $12,000.00
TOTAL PROPOSAL $437,100.07
Does NOT include the additional Sybase licenses for concurrency
</TABLE>
Page 2
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
MAINTENANCE PLAN
ImageWare Customer Service (Year 1) $50,853.02
STARTS 90 DAYS FROM FINAL ACCEPTANCE
Yearly Maintenance & Technical Support (Year 2 thru 5) $50,853.02
ADDITIONAL SOFTWARE
Suspect ID $2,000.00
Crime Lab $300.00
Vehicle ID $1,000.00
</TABLE>
Page 3
<PAGE>
EXHIBIT B - INSTALLATION PROCEDURES
As noted on the implementation schedule, installation will commence with
the server. Once the server is on-line, installation of the capture
stations and investigate stations will take place beginning with the
jail site. Sites will install as follows:
a. turn off an existing capture station
b. install new CCS station
c. bring new capture station live
d. install investigate station where applicable
e. IWS testing
f. User Training
Down time for each capture station will be approximately one day per
station. Ventura County will be responsible for dismantling the existing
capture stations and preparing the sites for IWS.
1. INSTALLATION LOCATION
The System is to be installed at the following address(es):
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
2. COUNTY'S RESPONSIBILITIES
IWS will provide COUNTY with a copy of the CCS System Preparation and
Installation Guide. COUNTY is responsible for reviewing the Guide and
providing the following in conformance with the Guide:
(a) SITE PREPARATION -- SERVER
(1) Suitable space including tables, chairs, stands, or racks.
(2) Two telephone lines (one voice line and one modem line) and one
voice handset.
(3) Clean temperature controlled environment.
(4) Any requisite electrical and/or lighting work.
(5) Tested and operational network connection.
(b) SITE PREPARATION -- WORKSTATIONS
(1) Suitable space including tables, chairs, stands, or racks.
(2) One telephone line and one voice handset.
(3) A suitable background (plywood, plaster board, etc.) secured to
the wall for any capture stations.
(4) Reasonably clean environment.
1
<PAGE>
(5) Any requisite electrical and/or lighting work.
(6) Tested and operational network connection.
(c) OTHER
(1) Suitable nearby parking for IWS installation personnel. COUNTY
will pay any and all parking costs associated with installation
work performed by IWS personnel at COUNTY's facility.
(2) COUNTY will make certain that authorized IWS personnel have access
to COUNTY's facility(ies) 24 hours/day -- 7 days/week while the
SYSTEM is being installed and tested.
(3) Labor and equipment necessary to transport the SYSTEM HARDWARE
from COUNTY's receiving area at the receiving location to the
installation site.
(4) A clean operating environment at the installation site which
complies with temperature, humidity and operational specifications
of the SYSTEM HARDWARE.
3. IWS's INSTALLATION RESPONSIBILITIES
IWS is responsible for providing the following relating to the SYSTEM
installation:
(1) Supervision of COUNTY employees who transport the SYSTEM HARDWARE from
the receiving area to the installation site.
(2) Installation of the SYSTEM HARDWARE at the designated sites.
(3) Operational checkout of the Equipment, including off-line verification.
(4) Installation of the SYSTEM SOFTWARE at the designated sites.
(5) Operational verification of each computer and item of equipment on a
stand-alone basis and as interfaced with equipment furnished by COUNTY,
including transmission lines, modems and computers.
2
<PAGE>
VENTURA IMPLEMENTATION PLAN
AUGUST 11, 1999
<TABLE>
<CAPTION>
SEP '99 OCT '99
------------------------------- --------------------------
ID TASK NAME DURATION START FINISH 8/29 9/5 9/12 9/19 9/26 10/3 10/10 10/17 10/24
- -- --------------------------- -------- ----- ------ ---- --- ---- ---- ---- ---- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 Project Implementation Plan 1 day 8/30/99 8/30/99 **
2 Site Survey 1 day 8/30/99 8/30/99 **
3 Interconnect Specs 5 days 8/30/99 9/3/99 *******
4 Interconnect Schematic 5 days 8/30/99 9/3/99 *******
5 CJIS description 5 days 8/30/99 9/3/99 *******
6 AP Description 5 days 8/30/99 9/3/99 *******
7 CJIS data examples 2 days 8/30/99 8/30/99 ****
8 Data Conversion 2 days 9/6/99 9/7/99 ***
9 Data to IWS 2 days 9/6/99 9/7/99 **
10 Database Specifications 3 days 9/13/99 9/15/99 ****
11 User Defined Fields 3 days 9/13/99 9/15/99 ****
12 Mandatory Fields 3 days 9/13/99 9/15/99 ****
13 Hardware Specifications 3 days 9/13/99 9/15/99 ****
14 IP addresses 3 days 9/13/99 9/15/99 ****
15 Gateways/Subnets 3 days 9/13/99 9/15/99 ****
16 Interconnect Development 40 days 9/6/99 10/29/99 ******************************************************
17 Data Conversion 25 days 9/13/99 10/15/99 **************************************
18 Print Formats 21 days 9/27/99 10/25/99 *********************************
19 Samples to Ventura 4 days 9/27/99 9/30/99 ******
20 Print Format Request due 1 day 10/4/99 10/4/99 *
21 First Review to Ventura 1 day 10/12/99 10/12/99 *
22 Final Review to Ventura 1 day 10/25/99 10/25/99 *
23 Hardware Configuration 19 days 10/18/99 11/11/99 ******************
24 Hardware Order Form 2 days 10/18/99 10/19/99 ***
25 Order Hardware 1 day 10/20/99 10/20/99 *
</TABLE>
<TABLE>
<CAPTION>
NOV '99 DEC '99 JAN '00
------------------------------------ ---------------------------- ---------------
ID TASK NAME 10/31 11/7 11/14 11/21 11/28 12/5 12/12 12/19 12/26 1/2 1/9 1/16
- -- ---------------------------- ----- ---- ----- ----- ----- ---- ----- ----- ----- --- --- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 Project Implementation Plan
2 Site Survey
3 Interconnect Specs
4 Interconnect Schematic
5 CJIS description
6 AP Description
7 CJIS data examples
8 Data Conversion
9 Data to IWS
10 Database Specifications
11 User Defined Fields
12 Mandatory Fields
13 Hardware Specifications
14 IP addresses
15 Gateways/Subnets
16 Interconnect Development
17 Data Conversion
18 Print Formats
19 Samples to Ventura
20 Print Format Request due
21 First Review to Ventura
22 Final Review to Ventura
23 Hardware Configuration * * * * *
24 Hardware Order Form
25 Order Hardware
</TABLE>
Page 1
<PAGE>
VENTURA IMPLEMENTATION PLAN
AUGUST 11, 1999
<TABLE>
<CAPTION>
SEP '99 OCT '99
------------------------------- --------------------------
ID TASK NAME DURATION START FINISH 8/29 9/5 9/12 9/19 9/26 10/3 10/10 10/17 10/24
- -- --------------------------- -------- ----- ------ ---- --- ---- ---- ---- ---- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
26 Hardware Config 9 days 11/1/99 11/11/99
27 Ship Hardware 1 day 11/11/99 11/11/99
28 Send Manuals 1 day 11/11/99 11/11/99
29 Hardware Config Complete 1 day 11/11/99 11/11/99
30 Installation 14 days 11/16/99 12/7/99
31 Install Server 1 day 11/16/99 11/16/99
32 Install Capture Stations 10 days 11/17/99 12/2/99
33 Install Investigate Stations 10 days 11/17/99 12/2/99
34 Final Data Conversion 2 days 12/1/99 12/2/99
35 Training 12 days 11/18/99 12/7/99
36 IWS Testing 2 days 12/1/99 12/2/99
37 Installation Complete 1 day 12/3/99 12/3/99
38 System Acceptance 30 days 30 days 12/6/99 1/18/00
</TABLE>
<TABLE>
<CAPTION>
NOV '99 DEC '99 JAN '00
------------------------------------ ---------------------------- -------------------
ID TASK NAME 10/31 11/7 11/14 11/21 11/28 12/5 12/12 12/19 12/26 1/2 1/9 1/16
- -- ---------------------------- ----- ---- ----- ----- ----- ---- ----- ----- ----- --- --- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
26 Hardware Config **********
27 Ship Hardware **
28 Send Manuals **
29 Hardware Config Complete **
30 Installation *************************
31 Install Server **
32 Install Capture Stations *****************
33 Install Investigate Stations *****************
34 Final Data Conversion *****
35 Training *******************
36 IWS Testing ***
37 Installation Complete **
38 System Acceptance 30 days *********************************************
</TABLE>
Page 2
<PAGE>
EXHIBIT D -- TRAINING
Crime Capture System -TM- Training Outline
I. Training
A trainer will follow each install on the day after the install is
completed. Training for each location will be one day.
II. System Administrator Training
System Administrator training will take place on the day after the
first capture station is installed. Ventura County will need to
designate a reasonable number of system administrators for training.
This number should not exceed 5-7 people and the training will be one
day. Training will cover all aspects of the system including server,
capture and investigate.
OPERATOR TRAINING
Objective: By the end of the training session, students will know how to book
a suspect, search a database, use the mug book function and create photo
line-ups.
TRAINING OUTLINE:
I. STARTING THE PROGRAM 5 minutes
III. New Bookings 120 minutes
a. ADDING A NEW BOOKING
1. TAKING A PICTURE
2. QUALITY CONTROL
b. VIEWING RECORDS
c. VIEWING MULTIPLE BOOKINGS
d. EDITING AND DELETING RECORDS
e. PRINTING INDIVIDUAL RECORDS
IV. Searching 45 minutes
a. QUICK SEARCH
b. SAVING A SEARCH
c. RUNNING AND EXISTING SEARCH
d. DELETING AND EXISTING SEARCH
e. PRINTING SEARCH RESULTS
V. Mug Book 30 minutes
a. SEARCHING FOR MUGSHOT
b. SAVING A MUG BOOK
c. VIEWING AN EXISTING MUG BOOK
1
<PAGE>
d. DELETING A MUG BOOK
VI. Photo Line-up 40 minutes
a. CREATING A PHOTO LINE-UP
b. SAVING A PHOTO LINE-UP
c. VIEWING AN EXISTING PHOTO LINE-UP
d. DELETING AN EXISTING PHOTO LINE-UP
E. PRINTING A PHOTO LINE-UP
SYSTEM ADMINISTRATOR TRAINING
II. SETTING UP PASSWORDS
III. DEFINING OPERATOR RIGHTS
IV. BACKING UP THE SYSTEM
V. ARCHIVING INFORMATION
VI. SETTING MANDATORY FIELDS
VII. CUSTOMIZING DATA PICK LISTS
2
<PAGE>
EXHIBIT E - ACCEPTANCE TESTING CRITERIA
PROCEDURES
Section I: Acceptance of Plan
This plan has been mutually agreed upon by both Ventura County
and ImageWare Software Inc. Project Managers as to it's
content, format, procedures, and terms.
Section II: Adherence to Plan
It is imperative that Ventura County and ImageWare Software
Inc. Information Services closely adhere to this plan to test
the system fully. Extensions to the test period will be granted
to Ventura County if the tests fail to demonstrate that
ImageWare's photo imaging system is not operating in a reliable
manner as determined by the Ventura County Project Manager or
his designee. If during the test period, successful completion
of a given measurement is compromised due to fault of the
county, the county shall have 5 business days to correct the
problem, if the problem cannot be corrected in that time frame
that measurement shall be waived by the County for Final
Acceptance purposes.
Section III: Responsibility for Testing
Ventura County will perform all testing prescribed herein with
ImageWare Software Inc.'s assistance. ImageWare Software Inc.
representatives will monitor all tests.
Section IV: Testing Procedure
Contained in Exhibit E are Acceptance Criteria for each of the
system components that will be tested for Acceptance. Each such
system component will be tested for Acceptance as the
installation of that component is completed. ImageWare Software
Inc. will notify Ventura County in writing that the applicable
system component is ready for Acceptance testing.
When a test is completed successfully, Ventura County's Project
Managers will sign and date the Acceptance Criteria form and
return it promptly to ImageWare Software Inc. In the event that
a test is not successful, Ventura County will complete a notice
of Acceptance Test Failure ("Notice") and deliver such notice
to ImageWare Software Inc. immediately. The Notice shall
identify each and every failure of the test. ImageWare Software
Inc. will then remedy the condition and notify Ventura County
of the availability of the system component for re-test,
thereupon Acceptance tests will be deemed to have been
completed successfully within five (5) business days of
initiation of said test, unless ImageWare Software Inc. has
received a notice within said period.
<PAGE>
NOTICE NUMBER: _______________
NOTICE OF ACCEPTANCE TEST FAILURES
Identified By: _________________________ Date: ___________________________
This notice refers to the _____________________ Acceptance Criteria.
Failures noted in testing the above:
1. ___________________________________________________________________________
2. ___________________________________________________________________________
3. ___________________________________________________________________________
4. ___________________________________________________________________________
5. ___________________________________________________________________________
6. ___________________________________________________________________________
7. ___________________________________________________________________________
8. ___________________________________________________________________________
9. ___________________________________________________________________________
10. ___________________________________________________________________________
11. ___________________________________________________________________________
12. ___________________________________________________________________________
13. ___________________________________________________________________________
14. ___________________________________________________________________________
15. ___________________________________________________________________________
All supporting Documentation evidencing the above are attached.
<PAGE>
SERVER INSTALLATION
ACCEPTANCE CRITERIA
1 OF 9
Description: These measurements will verify that the Server, RAID array,
and Microsoft SQL database engine has been installed and
is operating properly.
Objective The Server, RAID array, and Microsoft SQL database engine
has been installed and is operating normally.
Measurements The Server can be powered up.
The operating system is installed.
Users can log on the Server and execute programs reliably.
RAID array is attached to Server and images can be copied
to the drives.
The application can connect from a PC to the Microsoft SQL
Database on the Server.
Tape backup and archive is functioning properly.
Remote dial-in is functioning.
Peripherals are functioning properly.
- -------------------------------------------------------------------------------
Accepted By (Ventura County):____________________________ Date: ______________
Accepted By (ImageWare Software Inc.):___________________ Date: ______________
<PAGE>
SOFTWARE - CRIME CAPTURE SYSTEM
ACCEPTANCE CRITERIA
2 OF 9
Description: These measurements will verify that the Crime Capture
System Software has been installed and is operating
properly.
Objective Images and data can be stored and retrieved from the Crime
Capture System server reliably. Images can be stored and
retrieved from magnetic media. Through a PC workstation
the Crime Capture System and Investigative Software can be
executed and all available functions can be executed
reliably and performs as outlined in the "Technical
Approach" section of ImageWare's response for proposal
#4799 dated 3/10/99
Measurements A user should be able to access Crime Capture System
Software from a PC workstation.
A user should be able to access Crime Investigative
Software from a PC workstation.
Images should be create-able and storable on the Crime
Capture System server.
Images, data, and print formats, can be displayed, copied,
and printed.
The Crime Capture System Administrator panel can be
executed. All administrative functions available from the
utility can be executed.
The Crime-Capture System server can be brought up and shut
down without error.
Crime Capture System server parameters can be set and
updated.
- -------------------------------------------------------------------------------
Accepted By (Ventura County):____________________________ Date: ______________
Accepted By (ImageWare Software Inc.):___________________ Date: ______________
<PAGE>
CRIME CAPTURE SYSTEM
CAPTURE STATION
ACCEPTANCE CRITERIA
3 OF 9
Description: These measurements will verify that the Capture stations
have been installed and are operating properly.
Objective Capture stations should perform all functions correctly
and without errors or failures. The capture stations
should be able to log-on to the Crime Capture System
Server. The capture stations should be able to display or
save an image to the Crime Capture System Server and
perform as outlined in the "Technical Approach" section of
ImageWare's response for proposal #4799 dated 3/10/99.
Measurements A PC should begin the boot process when powered on,
including memory checking and OS loading. The process
should complete with Microsoft Windows NT workstation
program manager displayed.
The capture station can access the Server and perform
normal Crime Capture System functions.
New Booking
Photo capture is allowed.
Data input is allowed.
"Save record" is operational.
Camera is operational.
Pan and tilt is operational.
Zoom and focus is operational.
Photo import and photo export are operational
Photo exports to peripherals (printers, wrist band
printers) properly.
- -------------------------------------------------------------------------------
Accepted By (Ventura County):____________________________ Date: ______________
Accepted By (ImageWare Software Inc.):___________________ Date: ______________
<PAGE>
CRIME CAPTURE SYSTEM
INVESTIGATIVE APPLICATION
ACCEPTANCE CRITERIA
4 OF 9
Description: These measurements will verify that the Crime Capture System
Investigative Application is operating properly.
Objective: The PC's with Investigative Software installed should be
able to log-on to the Crime Capture System Server. PC's with
Investigative Software installed should be able to display
images and data and perform as outlined in the "Technical
Approach" section of ImageWare's response for proposal #4799
dated 3/10/99.
Measurements: The investigative application should be able to access,
display, print, or copy images and data from the Printrak
converted database.
"Quick search" is operational.
"View search results" is operational.
"Print search results" is operational.
"View record" is operational.
"Edit record" is operational:
"Edit record contents" is operational.
"Save record" is operational.
"Delete record" is operational.
"Print record" is operational.
Mugbook:
"Build mugbook" is operational.
Photo Line-up:
"Create photo line-up" is operational.
"Save line-up" is operational.
_______________________________________________________________________________
Accepted By (Ventura County): ________________________________ Date: ________
Accepted By (ImageWare Software Inc.): _______________________ Date: ________
<PAGE>
DATA CONVERSION
ACCEPTANCE CRITERIA
5 OF 9
Description: These measurements will verify that the data and image
conversion is complete.
Objective: Printrak records have been converted to Crime Capture
System records and can be accessed, viewed and printed from
the Crime Capture System.
Measurements: A number of converted CCS records will be compared against
the corresponding Printrak records in order to verify that
the data and image have been converted properly. (This test
has to be conducted in IWS offices. A member of Ventura
County is welcomed to oversee this test.)
_______________________________________________________________________________
Accepted By (Ventura County): ________________________________ Date: ________
Accepted By (ImageWare Software Inc.): _______________________ Date: ________
<PAGE>
INTERFACE WITH VCJIS
ACCEPTANCE CRITERIA
6 OF 9
Description: These measurements will verify that the interface with
VCJIS is operating properly.
Objective: Crime Capture System fields will be populated via file
transport mechanism from inmate management system (VCJIS).
Measurements: A booking record is created is CCS upon creation of a
record within the VCJIS database.
______________________________________________________________________________
Accepted By (Ventura County): ________________________________ Date: ________
Accepted By (ImageWare Software Inc.): _______________________ Date: ________
<PAGE>
CUSTOM API FOR IMAGE RETRIEVAL
ACCEPTANCE CRITERIA
7 OF 9
Description: These measurements will verify that the custom API for
image retrieval is operating properly.
Objective: The API is developed and specifications are provided to
County.
Measurements: Using a separate application a booking number will be
entered and an image will be retrieved using the API.
______________________________________________________________________________
Accepted By (Ventura County): ________________________________ Date: ________
Accepted By (ImageWare Software Inc.): _______________________ Date: ________
<PAGE>
TRAINING
ACCEPTANCE CRITERIA
8 OF 9
Description: These measurements will verify that training has been
completed and that Ventura County was able to successfully
simulate a full day of processing.
Objective: All trained personnel are able to perform their normal daily
function(s) on ImageWare's Crime Capture System and
Investigative Display systems, and the photo imaging system
is able to process a normal daily work load consistently and
reliably without breakdowns attributed to either the hardware
or software supplied by ImageWare Software, Inc. to the County
of Ventura.
Measurements: All trained personnel are able to perform their normal daily
function(s) using ImageWare's supplied hardware and software.
All data and images are stored on the Crime Capture System
Server.
All data and images can be retrieved, displayed, or exported
to peripherals printers.
- ------------------------------------------------------------------------------
Accepted By (Ventura County): Date:
-------------------------------- ------------
Accepted By (ImageWare Software Inc.): Date:
----------------------- ------------
<PAGE>
FINAL ACCEPTANCE
9 OF 9
Description: This verifies that all the software and hardware has been
tested and accepted.
Objective: The software and hardware will be fully operational with no
significant disruptions.
Measurements: Final Acceptance will be deemed to have occurred if the
software and hardware is fully operational with no significant
disruptions for 30 days.
- ------------------------------------------------------------------------------
Accepted By (Ventura County): Date:
----------------------------- ---------------
Accepted By (Ventura County): Date:
----------------------------- ---------------
Accepted By (ImageWare Software Inc.) Date:
--------------------- ---------------
Accepted By (ImageWare Software Inc.) Date:
--------------------- ---------------
<PAGE>
==============================================================================
COUNTY OF VENTURA SHERIFF
CALIFORNIA VENTURA COUNTY
LOGO LOGO
COUNTY OF VENTURA
GENERAL SERVICES AGENCY
FACILITIES AND MATERIALS
PURCHASING SERVICES
800 VICTORIA AVENUE
VENTURA CA 93009-3120
REQUEST FOR PROPOSAL
#4799
FOR
PHOTO IMAGING SYSTEM
Design, Construction and Implementation
for Sheriff's Department
February 1, 1999
<PAGE>
COUNTY OF VENTURA
REQUEST FOR PROPOSAL #4799
for
SHERIFF'S DEPARTMENT PHOTO IMAGING SYSTEM --
Design, Construction and Implementation
SECTION 1.0
GENERAL INFORMATION AND SCOPE OF WORK
1.1 INTRODUCTION
THE COUNTY OF VENTURA (HEREINAFTER REFERRED TO AS COUNTY) INVITES
YOUR ORGANIZATION TO SUBMIT A WRITTEN PROPOSAL TO PROVIDE DESIGN,
CONSTRUCTION, IMPLEMENTATION AND RELATED SERVICES FOR A NEW PHOTO
IMAGING SYSTEM FOR THE SHERIFF'S DEPARTMENT, WHICH WILL REPLACE OUR
EXISTING SYSTEM. PROPOSALS SHALL BE DUE NO LATER THAN 4:00 P.M. ON
THURSDAY, MARCH 11, 1999. MANDATORY PRE-PROPOSAL CONFERENCE IS
SCHEDULED FOR FEBRUARY 19, 1999.
The County will receive proposals from firms having specific
experience and qualifications in the Photo Imaging arena. For
consideration proposals for the project must contain evidence of the
offeror's experience and abilities in the specified area and other
disciplines directly related to the proposed services. All offerors
shall provide profiles and resumes of the staff to be assigned to the
project. Offerors should have demonstrated ability, within the past
three years, in at least two comparable jurisdictions with a
population of at least 150,000.
Due to the nature of the equipment and the necessary interfacing that
is required, the County is seeking a vendor who can provide and
install a turnkey system including all software, hardware, labor,
materials and coordination between all agencies. HOWEVER, OFFERORS
ARE ADVISED THAT THE COUNTY MAY ELECT TO AWARD SEPARATE CONTRACTS FOR
EACH COMPONENT, OR PURCHASE HARDWARE/EQUIPMENT IN THE OPEN MARKET, IF
IT IS IN THE BEST INTEREST OF THE COUNTY TO DO SO.
The desired completion period from date of "notice to proceed" is 90
days, including legacy photo file conversion and training. This does
not include the 60 (sixty) day shake down period.
The following areas have been identified as justification for
prompting the Ventura County Sheriff's Department, in cooperation
with the other local law enforcement agencies, to consider upgrading
or replacing the current system.
Page 1
<PAGE>
- Not Year-2000 compliant.
- Outdated hardware architecture.
- Current system does not provide for an on-line back-up solution.
- Not compatible with most drivers (i.e., printers, video cards)
on the market.
1.2 PRE-PROPOSAL CONFERENCE
A MANDATORY PRE-PROPOSAL CONFERENCE AND JOB-WALK WILL BE HELD AT 9:30
A.M. ON FRIDAY, FEBRUARY 19, 1999. VENDORS SHALL MEET AT THE VENTURA
COUNTY GOVERNMENT CENTER, SERVICE COMPLEX, PURCHASING SERVICES, 800
SOUTH VICTORIA AVENUE, VENTURA, CALIFORNIA. (SEE EXHIBIT 'A',
GOVERNMENT CENTER MAP TO LOCATE THE SERVICE COMPLEX.) THE PURPOSE OF
THIS CONFERENCE IS TO CLARIFY THE COUNTY'S NEEDS AND TO ANSWER
QUESTIONS RELATING TO THE REQUEST FOR PROPOSAL (RFP) REQUIREMENTS.
1.3 BACKGROUND
In 1993, a committee was formed to study and formulate a strategy to
purchase a Photo Imaging System. The proposal for installing this
new, state-of-the-art Photo Imaging System was adopted with system
implementation in 1995. The system executes on a host server located
in the Sheriff's Department Emergency Operations Center networked to
other local law enforcement agencies within Ventura County. Since
implementation, a total of 12 retrieval stations and 9 capture
stations have been installed at the following sites:
<TABLE>
<CAPTION>
AGENCY LOCATION TYPE OF SITE MISC. REMARKS
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Ventura County Sheriff's Computer Application Server None
Sheriff's Department Room
- --------------------------------------------------------------------------------------------
Ventura County Sheriff's Computer Host Server None
Sheriff's Department Room
- --------------------------------------------------------------------------------------------
Ventura County Pre-Trial Detention Capture Station None
Sheriff's Department Facility/Men's
Booking
- --------------------------------------------------------------------------------------------
Ventura County Pre-Trial Detention Capture Station None
Sheriff's Department Facility/Women's
Booking
- --------------------------------------------------------------------------------------------
Page 2
<PAGE>
- --------------------------------------------------------------------------------------------
Ventura County Sheriff's Records/ Capture Station None
Sheriff's Department West County
- --------------------------------------------------------------------------------------------
Ventura County Todd Road Jail Capture Station None
Sheriff's Department
- --------------------------------------------------------------------------------------------
Ventura County Fast County Jail Capture Station None
Sheriff's Department
- --------------------------------------------------------------------------------------------
Simi Valley PD City of Simi Valley Capture Station None
- --------------------------------------------------------------------------------------------
Port Hueneme PD City of Port Hueneme Capture Station None
- --------------------------------------------------------------------------------------------
Ventura County District Attorney's Retrieval Station None
District Attorney Office
- --------------------------------------------------------------------------------------------
Ventura County West County Retrieval Station None
Sheriff's Department Detectives
- --------------------------------------------------------------------------------------------
Ventura County Pre-Trial Detention Retrieval Station None
Sheriff's Department Facilities/Central (Armband)
Inmate Records
- --------------------------------------------------------------------------------------------
Ventura County East County/ Retrieval Station None
Sheriff's Department Detectives
- --------------------------------------------------------------------------------------------
Ventura County East County/Gangs Retrieval Station None
Sheriff's Department
- --------------------------------------------------------------------------------------------
Camarillo PD City of Camarillo Retrieval Station None
- --------------------------------------------------------------------------------------------
Ventura PD City of Ventura Retrieval Station None
- --------------------------------------------------------------------------------------------
Fillmore PD City of Ventura Retrieval Station None
- --------------------------------------------------------------------------------------------
Oxnard PD City of Oxnard Retrieval Station None
- --------------------------------------------------------------------------------------------
Ventura County Honor Farm Retrieval Station None
Sheriff's Department
- --------------------------------------------------------------------------------------------
Santa Paula PD City of Santa Paula Retrieval Station None
- --------------------------------------------------------------------------------------------
Ojai PD City of Ojai Retrieval Station None
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
</TABLE>
Page 3
<PAGE>
1.4 PHOTO IMAGING SYSTEM PHASES OVERVIEW
The proposed Photo Imaging System will incorporate the areas for
improvement listed in Section 1.1 above, as well as the overall needs
established by the Ventura County Sheriff's Department and the other
Law Enforcement Agencies they serve.
This overview is to define the development phases and major
deliverables that are expected in the development of the new Photo
Imaging System. This overview will serve as the basis for the project
statement of work. The major deliverables, and others defined by the
vendor, will be tied directly to the project schedule and subsequently
reflected in the payment schedule. The proposed development will
include:
a) Project Planning
b) Detailed Design
c) Construction
d) Documentation and Training
e) User Acceptance Testing
f) 60 day Final Acceptance Test/Implementation
g) Data Conversion
a) PROJECT PLANNING
The successful offerors will define the individual tasks,
dates, hours, and resources associated with this project. The
vendor will meet with representatives from the Ventura
County Sheriff's Department Information Services Bureau and
the Ventura County Information Systems Department to plan and
coordinate the implementation of the new Photo Imaging
System. The objectives, risks, constraints, assumptions and
controls (Change Control Management) will be identified and
documented by the vendor and approved by the County Project
Manager. The Critical Success Factors will be developed by
the vendor and approved by the Project Manager that will be
used to measure acceptable performance and completion of
selected tasks and milestones.
Successful Offeror will be required to submit written
semi-weekly reports to the Ventura County Project Manager or
his representative. The report will cover the progress of
work being performed, milestones attained, resources
expended, problems encountered and corrective action taken.
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b) DETAILED DESIGN
The vendor will define the overall design of the networked
Photo Imaging System with the approval of the County Project
Manager.
c) CONSTRUCTION
The functional prototype will be constructed and reviewed by
the users. Any changes and modifications will be identified
and earlier phases revisited as necessary to incorporate
these changes. Conversion programs will be developed in
accordance with a Conversion Plan that the vendor will
produce and must be approved by the County Project Manager.
Performance engineering will be applied where needed to
maintain response time expectations. The vendor will perform
testing to the satisfaction of the County. Lastly, the vendor
will make the functional prototype operational (ready for
acceptance testing) and provide documentation as to how they
propose to implement the system (i.e. parallel approach to
current system). Vendor will document all change and
modification requests and continue to apply change control
management.
d) DOCUMENTATION AND TRAINING
Vendor will finalize user manual, system manual, on-line help
text, and user training documentation. Written documentation
will be professionally prepared and reproduced. Vendor will
conduct user training; 'train the trainer' and systems
training.
e) USER ACCEPTANCE TESTING
Vendor will load system with test cases as outlined by the
Project Manager. This will be a combination of electronically
converted data and manually entered data. The vendor will
exercise test scripts and validate results against
predetermined results. Vendor will obtain user acceptance via
the County Project Manager before continuing. Once accepted
by the user, the operational system will be ready for
interfacing and testing.
f) FINAL ACCEPTANCE TEST/IMPLEMENTATION
The vendor will load converted production data. This will be
a combination of electronically converted data and some
manually entered data. Vendor will exercise Implementation
Plan and begin Final Acceptance Test for a 60-day period. The
vendor will obtain final user acceptance through the County
Project Manager.
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g) PHOTO (DATA) CONVERSION
The project scope shall also include photo image conversion
(convert existing images to a common format) and conversion
of a proprietary database containing demographic data into an
'open architecture' RDBMS. These requirements should include
the overall Conversion strategy and detailed specifications
to complete this process. Detail specifications will be
provided at the Pre-Proposal Conference.
1.5 ACTION DATES
The following is an outline of the anticipated schedule for the
proposal review and contract award. Schedule is subject to change:
Issue RFP February 1, 1999
Offeror Conference February 19, 1999
Proposals Due March 11, 1999
Evaluation-award April-May
Start Work May 1999
1.6 QUESTIONS REGARDING RFP
All questions concerning this Proposal may be directed to Rosa
Ceniceros, Principal Buyer, at (805) 654-5133.
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SECTION 2.0
INSTRUCTIONS TO OFFERORS/RULES GOVERNING COMPETITION
2.1 EXAMINATION OF THE REQUEST FOR PROPOSAL
Offerors should carefully examine the entire RFP, any addenda
thereto, and all related materials and data referenced herein or
otherwise available to offeror.
Offeror shall be presumed to be familiar with all specifications and
requirements of this RFP. The failure or omission to examine any
form, instrument or document shall in no way relieve offerors from
any obligation with respect to this proposal.
2.2 PROPOSAL VALIDITY
Proposals submitted hereunder shall be firm for 150 calendar days
from the due date unless otherwise qualified.
2.3 PROPOSAL CONTENT/FORMAT
To be considered responsive, proposals should address all items
identified in this section.
Please note: Some items require that the offeror provide a detailed
response and/or attachments. Failure to provide a complete response
may be grounds for rejection of proposal.
Furthermore, proposals should be prepared in such a way as to provide
a straightforward and concise discussion of the offeror's ability to
provide a system that can best satisfy the requirements herein and
the needs of the County and other local Ventura County law
enforcement agencies. Elaborate or unnecessarily lengthy documents
are discouraged.
Emphasis should be concentrated on conformance to the RFP
instructions, responsiveness to the RFP requirements and on
completeness and clarity of content.
In order to facilitate evaluation and comparison, proposals should be
submitted in the format described in this section. Format
instructions must be adhered to; all requirements and requests for
information in the proposal must be responded to; all requested data
must be supplied. Failure to comply with this requirement may be
cause for rejection.
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Answer on 8-1/2 x 11" sheets. Assemble your proposal in the following
order. Proposals should be numbered in a manner, of the offeror's own
choosing, that allows for easy reference. Submit 1 (one) original and
8 (eight) copies of your proposal. To conserve resources we ask that
proposals be duplexed when possible.
a. COVER LETTER/SIGNATURE ON PROPOSAL
A cover letter, which shall be considered an integral part of
the proposal, shall be signed by individual(s) who is/are
authorized to bind offeror(s) contractually. The signature(s)
must indicate the classification or position that the
individual(s) hold in the firm.
The cover letter shall designate a person or persons who may
be contacted during the period of evaluation with questions or
contract issues. Include name(s), title, address and telephone
number.
b. COMPANY PROFILE AND QUALIFICATIONS
Offerors shall state full name and address of offerors
organization. Include the address of any local branch
office(s) that will be directly responsible for servicing this
account. This should include the following facilities:
headquarters, sales, technical (service), and billing.
Provide a brief overview of your company's background.
Indicate the number of years your firm has been providing,
designing and/or supporting the type of service and/or
equipment proposed hereunder. Indicate the number of Photo
Mug-shot installations your firm has successfully implemented
(nationwide) in the last three years and/or the number of
projects involving detailed requirements analysis. Indicate
that number of installations for service population over
150,000.
c. PERSONNEL QUALIFICATIONS
1. Identify technical/engineering staff that will be
assigned to the County. Include resume.
2. Provide a resume detailing the experience, level of
expertise and qualifications of the Project Manager and
those individuals who will directly support and be
involved in meeting the day to day requirements of the
County.
3. Identify other key personnel and their position within
the organization.
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4. If you plan to sub-contract work, you must indicate the name
and address of each firm and the type of work or tasks they
will perform. Identify the personnel to be assigned, their
position, qualifications and representative experience.
d. FINANCIAL STATEMENT
Offerors must provide a current financial statement or latest
annual report. Offerors shall make a definitive statement regarding
their financial ability to perform the requirements hereunder.
e. REFERENCES
Please indicate the names and addresses of five recent customers
for whom you have or are providing similar services as proposed
hereunder. Preferably those using the version of the application
software and operating system you are proposing. Indicate the date
the system was installed. Use the following format:
Feel free to add more references and categories.
<TABLE>
<S> <C> <C> <C>
Name, Address Development Hardware/Software
Contact, Title Language or Database Software environment of
Phone Number Tools used used (RDBMS) clients & servers(s)
-------------- ----------- ----------------- --------------------
</TABLE>
f. PROPOSER UNDERSTANDING
Offerors may include an understanding of the County's needs or any
other information deemed necessary which may not be required in any
other section of the RFP.
g. TECHNICAL APPROACH
Offeror's response shall state on a point-by-point basis whether
proposal is in compliance with the specifications/requirements of
the RFP (Appendix "A"). Address each item in the order given,
identify each response by item number. Submit a full explanation
of, and justification for, any exemptions or deviations.
Offerors are encouraged to include technical materials (e.g.,
product data sheets, equipment specification summaries, and
equipment configuration diagrams) that support their technical
approach and are appropriate to respond fully to the questions
in the RFP.
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h. SOFTWARE SUMMARY
Provide a list of the software modules, with associated
version/release numbers, proposed to satisfy the functional
requirements. This list must include any utility or operating system
software required. If the proposing vendor is not the author of the
software, the proposal must provide the full name of the
manufacturing software vendor and the commercial name of the
package. The proposal must list the bid price for each software
package proposed.
1. SOFTWARE OPTIONS
In addition to the software required to satisfy the
functional requirements, the proposal should provide a list
of and bid price for any supplemental software that the
vendor recommends to more fully satisfy the functional
objective and requirements specified herein.
2. SOFTWARE WARRANTIES
Indicate length and scope of software warranties.
3. SOURCE CODE
Offerors shall make a definitive statement regarding the
availability of software source code. (i.e., third party
escrow agreement)
4. SOFTWARE ONGOING MAINTENANCE AND SUPPORT
Outline software maintenance plan options, coverage,
policies and terms. For telephone support/consultation
services indicate hours available. Where more than one
software maintenance contract level of service is available,
please explain the options fully and recommend the option
most appropriate for the Sheriff's Department.
The proposal must clearly indicate when the maintenance
contract begins and any software warranty period ends.
i. HARDWARE SUMMARY
Because the design/configuration of each offeror's system
determines their associated hardware/equipment requirements, the
County is
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requiring that proposals provide accurate sizing of critical
system components. Offeror shall describe the hardware platform,
storage, and equipment requirements for host computers and
workstation or client computers.
Indicate the extent to which each major component, including but
not limited to system RAM and disk, can be expanded to provide
additional capacity without the necessity to upgrade. Please
note also at what point system upgrades are necessary and
associated incrementals.
1. HARDWARE WARRANTIES
At minimum, for hardware/equipment, standard warranties
from equipment manufacturer(s) should be identified and
extended to the County.
2. HARDWARE EXTENDED MAINTENANCE
Outline hardware maintenance plan options, coverage,
policies and terms. For telephone support/consultation
services indicate hours available. Where more than one
hardware maintenance contract level of service is
available, please explain the options fully and recommend
the option most appropriate for the Sheriff's Department.
The proposal must clearly indicate when the maintenance
contract begins and any hardware warranty period ends.
3. SITE PREPARATION
If the hardware/equipment to be installed requires
special environmental considerations, Contractor shall
provide site preparation specifications.
J. DATA CONVERSION SERVICES
Discuss your capabilities and conversion plan.
K. SYSTEM DOCUMENTATION
The proposal must provide a brief description of all
documentation and manuals to be furnished to the County. This
list should include documentation for the hardware,
application programs, vendor packages, and training manuals.
It must indicate the date the users' guides and training
materials for the software were last updated and whether this
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documentation corresponds to the version of the software
proposed for delivery.
L. TRAINING
Provide a complete outline of your proposed training program
for system users and operations staff for optimum system
utilization. Address both initial and ongoing training,
including special training for on-site modifications of the
system (or portions thereof), user data base management, and
security.
The training plans should include course content, length of
time required, and ratio of hands-on practice to lecture time.
Indicate clearly whether initial training is available at
County's site or only at the offeror's and any limits to the
number of staff that can be trained under the plan. On-going
vendor training programs should also be described and priced.
M. IMPLEMENTATION SCHEDULE
The proposal must provide a detailed implementation schedule,
including a timetable for the complete implementation of the
system at the various sites. The schedule shall begin with
date of contract award and shall include but is not limited
to, planning, design, hardware installation, software
installation, initial training, data conversion, interface
program development, user acceptance testing period, and final
estimated "live date" for the total system.
Describe the approach you plan to use in implementing the
Photo Imaging System. Show major milestones as they relate to
the approach/plan. Indicate your ability to meet the County's
90 day project time frame.
N. COMPLIANCE WITH TERMS AND CONDITIONS
Offeror's response shall state on a POINT-BY-POINT basis
whether proposal is in compliance with the TERMS AND
CONDITIONS in Section 3 of this proposal.
Address each item in the order given, identify each response
by item number. Submit a full explanation of, and
justification for, any exemptions or deviations.
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O. COST PROPOSAL SUMMARY
In this section, the offeror shall provide costing information
for the entire project - design, construction, implementation.
All Costs are to be stated as "fixed price" amounts. All
"other costs" must be detailed.
Service components (i.e. design, project management,
installation, etc.) should be itemized by personnel, projected
hours and duration of assignment or task.
No additional charges (e.g., for transportation, out-of-pocket
expenses, etc.) will be allowed unless so specified herein.
Proposals must provide a summary of costs for all items of
expense to the County including the following:
* Project Management
* Software (show cost for each package)
* Hardware
* Installation
* Training
* Conversion, and interface programming
* Documentation
* Other costs (please specify)
* Annual Extended Maintenance for Hardware
* Software maintenance costs
* Payment/Performance Bond
* Other recurring costs (please specify)
Do not include tax. Hardware/equipment pricing should be on an
F.O.B. Destination basis.
P. PAYMENT TERMS
The County requires a payment schedule based on performance of
specific and measurable deliverables. Customary terms are Net
30 for work performed. The County will require a holdback of
25% of the contract monies until final acceptance and sign-off
of project. Offerors shall indicate their proposed payment
terms and identify and document critical success factors used
to measure deliverables and acceptable performance.
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2.4 SUBMITTAL DEADLINE
Completed proposals should be sealed and clearly marked "Request for
Proposal #4799, for Sheriff's Department Photo Imaging System," and
must be delivered no later than 4:00 p.m. on Thursday, March 11, 1999
to:
County of Ventura Purchasing Services
Government Center, Service Complex
800 S. Victoria Avenue
Ventura, CA 93009-3120
Please submit one original and eight (8) copies of the proposal.
Offerors may withdraw their proposals, at any time prior to the due
date and time, by submitting notification of withdrawal signed by the
offeror's authorized agent.
Proposals can not be changed or modified after the date and time
designated for receipt.
2.5 COSTS INCURRED IN RESPONDING
The County of Ventura will not pay any costs incurred in proposal
preparation, presentation, demonstration or negotiation, nor does it
commit to procure or contract for any services. All costs of proposal
preparation shall be borne by the offeror. It is understood that all
proposals, inquiries, and correspondence relating to this RFP and all
reports, charts, displays, schedules, exhibits, and other
documentation will become the property of the County of Ventura when
received by the County and may be considered public information under
applicable law. The County assumes no liability for any costs
incurred by offerors throughout the entire selection process.
2.6 AMENDMENTS
If it becomes evident that this RFP has to be amended, a formal
amendment will be issued to all prospective offerors. If necessary, a
new proposal due date will be established.
Oral communication from the County concerning the RFP is not binding
on the County and shall in no way excuse the successful offeror of
obligations set forth in this RFP.
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2.7 CONFIDENTIAL AND PROPRIETARY DATA
All materials received relative to this RFP will be kept
confidential, until such time, an award is made or the RFP is
cancelled, at which time all materials received will be made
available to the public.
If any part of the proposal is proprietary or confidential, the
offeror must so identify and so state; however, any information that
must be used by the evaluation team to aid in system selection cannot
be restricted from the public.
2.8 PROPOSAL REVIEW AND EVALUATION
a. VALIDATION
Proposals will be checked for the information required to
conform with this RFP. Absence of required information may be
cause for rejection.
b. EVALUATION
The successful offeror shall be chosen in accordance with, but
not limited to, the following criteria:
1. PROVEN PERFORMANCE
The offeror's background, experience, and stability of
their firm will be assessed. The evaluation will focus
on the firm's record of successful service and support
to accounts of comparable size and environment. The
ability of the offeror will be evaluated in terms of
product resources, technical resources, staffing, staff
experience and facilities.
Client references will be contacted and their responses
will become a part of the award review process.
2. SUPPORT
Emphasis will be placed on the ability of the offeror
to service and support the needs of the County.
Organizational structure, staffing plan and offeror's
method for meeting the requirements of this RFP in the
most efficient manner will be an important
consideration.
3. REQUIREMENT/SPECIFICATIONS
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The ability to meet the product specifications outlined
herein.
4. PRICE PERFORMANCE
Price is considered secondary to the above factors for
award in determining the most advantageous proposal
being offered to the County. Price will be evaluated by
a price analysis, which is defined as price
reasonableness for work performed. Price will be a
factor when proposals ranked under the above factors
are considered acceptable and fall within a competitive
range.
2.9 PRESENTATIONS
Offerors may be invited to make oral presentations to County and City
personnel. Due to the time frames associated with the RFP response,
offerors should be prepared to make oral presentations on short
notice. The offeror's representative(s) attending the oral
presentation should be qualified to respond to questions related to
system planning, design, construction and implementation.
2.10 SITE VISITS
The County reserves the right to schedule site visits to offeror's
facilities or a current operational site in order to assess the
capability and ability of the offeror to fulfill the contract.
2.11 ADDITIONAL INFORMATION
If during the evaluation process, the County is unable to determine
an offeror's ability to perform, the County has the option of
requesting any additional information which the County deems
necessary to determine the offeror's ability. The offeror will be
notified and permitted five working days to comply with any such
request.
2.12 ERRORS/DEFECTS IN PROPOSALS
If discrepancies between sections or other errors are found in a
proposal, the County may reject the proposal; however, the County
may, at its sole option, correct any arithmetical errors in price.
The County may waive any immaterial deviation or defect in a
proposal. The County's waiver of an immaterial deviation or defect
shall in no way modify the RFP documents or excuse the offeror from
full compliance with the RFP requirements, if awarded a contract.
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2.13 AWARD
Award will be by means of a written agreement with the successful
offeror. Award will be made to the offeror(s) whose proposal is the
most advantageous to the County from the standpoint of quality,
service, previous experience, price, ability to deliver or for any
other reason deemed by the purchasing agent to be determined in the
best interest of the County and as such will not be determined by
price alone.
The final award of a contract is subject to approval by the Ventura
County R.A.N. Board and the Ventura County Board of Supervisors. The
awarding of the contract is subject to approval as well as the
availability of funds.
While the County intends to enter a contract for these services, it
will not be bound to do so. The County reserves the right to reject
any or all proposals.
The County shall be the sole judge of the successful offers
hereunder. The County reserves the right to award a contract to other
than the offeror submitting the lowest total price and to negotiate
with any or all offerors. Offerors are advised that it is possible
that an award may be made without discussion or any contact
concerning the proposals received. Accordingly, proposals should
contain the most favorable terms from a price and technical
standpoint, which the vendor can submit to the County. DO NOT ASSUME
that you will be contacted or afforded an opportunity to clarify,
discuss, or revise your proposal.
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SECTION 3.0
GENERAL TERMS AND CONDITIONS
The County will require certain contractual obligations. These include, but
are not limited to the following:
3.1 REGULATION COMPLIANCE
All items supplied shall comply with all Federal, State and other
laws relative thereto. Contractor further agrees that the goods quoted
comply with all applicable Federal and State Occupational Safety and
Health Laws, Standards and Regulations, and that the seller will
indemnify and hold the buyer harmless for any failure to so conform.
All equipment and accessories shall conform to the standards of the
National Electrical Manufacturers Association (NEMA), Underwriters
Laboratories, Inc. (UL) or the local electrical testing station.
3.2 PERFORMANCE BOND
Performance and payment bonds are required. The bonds shall be for
50% of the final contract price. The required bonds must be received
at Ventura County Purchasing Services within ten (10) consecutive
days of receipt of purchase order. See Exhibit "B" for bond
requirements.
3.3 RESPONSIBILITY OF PROPOSER
The Contractor shall, prior to start of any work awarded hereby,
secure at Contractor's own expense all persons, employees and
equipment required to perform the contract requirements.
Contractor will be held fully responsible for performance of
subcontractors.
3.4 CONDITIONS FOR ACCEPTANCE
Contractor must demonstrate to the satisfaction of the County, that
the software/hardware delivered and installed meets all of the
manufacturers' published performance specifications.
INSTALLATION shall be confirmed through performance tests mutually
agreed to by both parties as being adequate for this purpose. Upon
completion of performance tests the County will begin ACCEPTANCE
TESTING.
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Acceptance testing is intended to ensure that the system components
provided hereunder operate in substantial accord with Manufacturer's
and/or Contractor's technical specifications, adequately perform as
warranted by Contractor, and evidences a satisfactory level of
performance reliability, prior to its acceptance by the County.
Formal sign-off of acceptance of a system component will take place
after 60 (sixty) days of error free processing.
System components shall not be accepted by the County and no final
charges associated with such system shall be paid by the County until
the system has satisfactorily completed the acceptance tests.
Prior to acceptance hereunder Contractor shall deliver software
documentation and user manuals and hardware/equipment user and
operating manuals.
3.5 COMMITMENTS, WARRANTY AND REPRESENTATIONS
The proposal submitted in response to this RFP will be included as
part of the final contract.
Proposers are cautioned that if a contract is awarded as a result of
this procurement process, any written commitment by an proposer
within the scope of this procurement shall be binding upon the
proposer whether or not incorporated into a contract document. Failure
of the vendor to fulfill any such commitment shall render the proposer
liable for liquated or other damages due the County under the terms
of the Contract. For the purpose of this procurement, a commitment
by a proposer includes:
Any warranty or representation made by proposer in a proposal as to
hardware or software performance, any other physical design,
functional characteristic or items described in any literature,
descriptions, drawings, or specifications accompanying or referred
to in a proposal.
Any modification of, or affirmation or representation as to the
above, which is made by a proposer in or during the course of
negotiation.
Any representation by a proposer in a proposal, supporting
document, or negotiations subsequent thereto as to services to be
performed, regardless of the fact that the duration of such
commitment may exceed the duration of the contract.
3.6 PERFORMANCE PERIOD
The Contractor shall perform/deliver the products and/or services
on or before
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the Completion Date specified in their response. TIME IS OF THE
ESSENCE IN THIS CONTRACT.
3.7 WARRANTIES
Notwithstanding the manufacturer's system warranties as applicable,
Contractor shall warrant and represent that:
a. the Software/Hardware and Services supplied hereunder will perform
substantially in accordance with its published specifications and
documentation for a period of one (1) year from the date the County
accepts such items. During such warranty period, all software
repairs or deficiencies noted by the County shall be reported to
the Contractor for resolution. Such repairs/deficiencies shall be
corrected by Contractor without any charge whatsoever to the County
and within a reasonable period of time.
b. it has title to the Software, that may be provided under this
contract, and/or the authority to grant licenses to use the third
party software.
c. its work hereunder shall be of professional quality and performed
consistent with generally accepted industry standards.
d. there exists no actual or potential conflict of interest concerning
the Services to be performed under this agreement. Contractor
represents that performance under this agreement does not require
the breach of any agreement or obligation to keep in confidence the
proprietary information of another party.
e. the hardware/software supplied hereunder shall provide fault-free
performance and fault-free result in the processing date and date
related data (including, but not limited to calculating, comparing
and sequencing) of any hardware, software and firmware products
delivered by Contractor and services provided under this contract,
individually or in combination, as the case may be from the
effective date of this contract. Also, the supplier warrants the
year 2000 calculations will be recognized and accommodated and will
not in any way, result in hardware, software or firmware failure. The
County, at its sole option, may require the Contractor, at any time,
to demonstrate the procedures it intends to follow in order to comply
with all the obligations contained herein.
The obligations contained herein apply to products provided by the
Contractor, its sub-contractor or any third party involved in the
creation of the products to be delivered to the County under this
contract. Failure to comply with any of the obligations contained
herein, may result in the
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County availing itself of all its rights under the law and under
this contract including, but not limited to, its rights pertaining
to termination or default.
The warranties contained herein are separate and discrete from any
other warranties specified in this contract, and are not subject to
any disclaimer or warranty or limitation of the suppliers liability
which may be specified in this contract, its appendices, its
schedules, its annexes or any document incorporated in this contract
by reference. Y2K compliance problems shall not be considered an act
of God.
3.8 SITE PREPARATION
a. If the system to be installed requires special environmental
considerations, Contractor shall provide site preparation
specifications for system listed in Exhibit within a reasonable
time upon request by the County, unless such specifications have
been included in the Contractor's proposal. These specifications
shall be in such detail as to ensure that the system, if installed
according to these specifications, shall operate efficiently, from
an environmental point of view and properly from a functional point
of view.
b. The County may prepare a site plan showing the location of each
item of system listed in Exhibit and detailing the associated
electrical power and environmental control facilities. If requested,
the Contractor will review and comment on the adequacy of the
County's plan, and shall be permitted free access to the site for
this purpose.
Alternatively, the Contractor may prepare the site plan, and will
be permitted free access to the site for this purpose.
c. The County will cause the site to be prepared in accordance with
the Contractor's written minimum site and environmental
specifications, unless the Contractor has agreed to be responsible
for such site preparation, on or before the Facility Readiness Date
specified in Exhibit .
d. Any subsequent alterations or modifications to the site which are
directly attributable to incomplete or erroneous specifications
provided by the Contractor and which involve additional expense
shall be made at the expense of the Contractor, to the extent that
such costs would not have been incurred had the complete and/or
correct specifications been initially provided.
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3.9 PATENT AND COPYRIGHT PROTECTION
The Contractor, at is own expense, shall defend any action brought
against the County to the extent that such action is based upon a claim
that the hardware/software or "system" supplied by the Contractor, or
the operation of such system pursuant to a current version of
Contractor-supplied operating software, infringes a United States
patent or copyright.
The Contractor shall pay those costs and damages finally awarded
against the County in any such action. Such defense and payment shall
be conditioned on the following:
a. That the Contractor shall be notified within a reasonable time in
writing by the County of any notice of such claim; and,
b. That the Contractor shall have the sole control of the defense of
any action on such claim and all negotiations for its settlement or
compromise.
Should the system, or the operation thereof, become, or in the
Contractor's opinion are likely to become, the subject of a claim of
infringement of a United States patent or copyright, the County shall
permit the Contractor at its option and expense either to procure for
the County the right to continue using the system, or to replace or
modify the same so that they become non-infringing.
If, in the sole opinion of the County, the return of such infringing
system makes the retention of other items of system acquired from the
Contractor under this contract impractical, the County shall then have
the option of terminating the contract, or applicable portions thereof,
without penalty or termination charge. The Contractor agrees to take
back such system and refund any sums the County has paid Contractor
less any reasonable amount for use or damage. Such indemnity by the
Contractor as to use of such system shall not apply to any infringement
arising out of the use or in combination with other items where such
infringement would not have occurred in the normal use for which the
system was developed.
3.10 RIGHTS IN DATA
The title to all original written material including programs and other
programming documentation originated and prepared pursuant to this
contract shall belong exclusively to the COUNTY OF VENTURA. No
documents prepared pursuant to this agreement or any modification
thereof will be copyrighted by the Contractor or by the County.
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3.11 TITLE TO EQUIPMENT
Title to the EQUIPMENT (IF ORDERED HEREUNDER) shall remain in the
Contractor until such time as the full purchase price and applicable
taxes are paid to the Contractor.
3.12 FORCE MAJEURE
Except for defaults of subcontractors, neither party shall be
responsible for delays or failures in performance resulting from acts
beyond the control of the offending party.
Such acts shall include but shall not be limited to acts of God, fire,
flood, earthquake, other natural disaster, nuclear accident, strike,
lockout, riot, freight embargo, public regulated utility, or
governmental statutes or regulations superimposed after the fact.
If a delay or failure in performance by the Contractor arises out of a
default of its subcontractor, and if such default arises out of causes
beyond the control of both the Contractor and subcontractor, and
without the fault or negligence of either of them, the Contractor shall
not be liable for damages of such delay or failure, unless the supplies
or services to be furnished by the subcontractor were obtainable from
other sources in sufficient time to permit the Contractor to meet the
required performance schedule.
3.13 INDEMNIFICATION/HOLD HARMLESS
The Contractor will indemnify, defend and hold harmless the County of
Ventura, its officers, agents, employees or representatives from all
liability for any loss, damage, or injury to persons or property
arising from or related to the performance of this agreement, including
without limitation all consequential damages and attorney's fees,
resulting from the Contractor's wrongful, reckless or negligent
performance hereunder.
3.14 INSURANCE PROVISIONS
A. CONTRACTOR, at its sole cost and expense, will obtain and maintain
in full force during the term of this contract the following types
of insurance:
1. Commercial General Liability "occurrence" coverage in the
minimum amount of $1,000,000 combined single limit (CSL) bodily
injury & property damage each occurrence and $2,000,000
aggregate, including personal injury, broad form property
damage, products/completed operations, broad form blanket
contractual and $100,000 fire legal liability.
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<PAGE>
2. Commercial Automobile Liability coverage in the minimum amount of
$1,000,000 CSI, bodily injury & property damage, including owned,
non-owned, and hired automobiles. Also to include
Uninsured/Underinsured Motorists coverage in the minimum amount
of $100,000 when there are owned vehicles.
3. Workers' Compensation coverage, in full compliance with
California statutory requirements, for all employees of
CONTRACTOR and Employer's Liability in the minimum amount of
$1,000,000.
B. All insurance required will be primary coverage as respects COUNTY
and any insurance or self-insurance maintained by COUNTY will be
excess of CONTRACTOR'S insurance coverage and will not contribute to
it.
C. COUNTY is to be notified immediately if any aggregate insurance limit
is exceeded. Additional coverage must be purchased to meet
requirements.
D. The County of Ventura, Its Boards, Agencies, Departments, Offices,
Employees, Agents, and Volunteers are to be named as Additional
Insured as respects work done by CONTRACTOR under the terms of this
contract on all policies required (except Workers' Compensation).
E. Contractor agrees to waive all rights of subrogation against the
County of Ventura, Its Boards, Agencies, Departments, Officers,
Employees, Agents and Volunteers for losses arising from work
performed by Contractor under the terms of this contract.
F. Policies will not be canceled, non-renewed or reduced in scope of
coverage until after sixty (60) days written notice has been given to
the County of Ventura, Risk Management Division.
G. CONTRACTOR agrees to provide COUNTY with the following insurance
documents on or before the effective date of this contract.
1. Certificates of Insurance for all required coverage.
2. Additional Insured endorsements.
3. 60 Days Notice Cancellation Clause endorsement.
Failure to provide these documents will be grounds for immediate
termination or suspension of this contract.
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<PAGE>
3.15 NON-APPROPRIATION OF FUNDS
County's obligation hereunder will be limited to the funds appropriated
by the Board of Supervisors for this purpose for each fiscal year in
which this contract is in effect. In the event that the Board of
Supervisors fails to so appropriate said funds, County's obligation
hereunder will terminate at the end of the fiscal year for which funds
were appropriated or at the end of the contract term, which ever occurs
first.
3.16 TAXES
The County is exempt from Federal excise taxes and no payment shall be
made for any personal property taxes levied on the Contractor or on any
taxes levied on employee wages. The County will only pay for any State
or local sales or use taxes on the services rendered or equipment,
parts supplied into the County pursuant to this contract.
3.17 INDEPENDENT CONTRACTOR
No relationship of employer and employee is created by this contract,
it being understood that Contractor is an independent contractor, and
neither Contractor nor any of the persons performing services for
Contractor pursuant to this contract, whether said person be member,
partner, employee, subcontractor, or otherwise, will have any claim
under this contract or otherwise against County for sick leave,
vacation pay, retirement benefits, social security, workers'
compensation, disability, unemployment insurance benefits, or employee
benefits of any kind.
It is further understood and agreed by the parties hereto that, except
as provided in this contract, Contractor in the performance of its
obligation hereunder is subject to the control or direction of County
merely as to the result to be accomplished by the services hereunder
agreed to be rendered and performed and not as to the means and methods
for accomplishing the results.
If, in the performance of this contract, any third persons are employed
by Contractor, such persons will be entirely and exclusively under
direction, supervision and control of Contractor. All terms of
employment, including hours, wages, working conditions, discipline,
hiring and discharging or any other terms of employment or requirements
of law, will be determined by Contractor, and County will have no right
or authority over such persons or the terms of such employment, except
as provided in this contract.
The Contractor will comply with all of the provisions of the Worker's
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Compensation Insurance and Safety Acts of the State of California, the
applicable provisions of Division 4 and 5 of the California Labor Code
and all amendments, thereto; and all similar State and Federal acts or
laws applicable; and will indemnify and hold harmless the County of
Ventura from and against all claims, demands, payments, suits, actions,
proceedings and judgements of every nature and description, including
attorney's fees and costs, presented, brought or recovered against the
County of Ventura, for or on account of any liability under any of said
Acts which may be incurred by reasons of any work to be performed under
this Contract.
3.18 CONTRACT MONITORING
The County shall have the right to review the work being performed by
the Contractor under this contract at any time during County's usual
working hours. Review, checking, approval or other action by the County
shall not relieve Contractor of Contractor's responsibility for the
accuracy and completeness of the work performed under this contract.
This contract shall be administered by the County's contract
administrator or his/her authorized representative.
3.19 EQUAL OPPORTUNITY
Contractor will not discriminate against any employee, or against any
applicant for such employment because of age, race, color, religion,
physical handicap, ancestry, gender or national origin. This provision
shall include, but not be limited to, the following: employment,
upgrading, demotion, or transfer, recruitment or recruitment
advertising, layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship.
3.20 INVESTIGATION AND RESEARCH
Contractor by investigation and research has acquired reasonable
knowledge of all conditions affecting the work to be done and labor
and material needed, and the execution of this contract is to be
based upon such investigation and research, and not upon any
representation made by the County or any of its officers, agents
or employees, except as provided herein.
3.21 TERMINATION
Upon termination or other expiration of this contract, each party will
assist the other party in the orderly termination of the contract and
the transfer of all assets, tangible and intangible, as may facilitate
the orderly, non-disrupted business continuation of each party. Prior
to the expiration of this contract, this contract may be terminated for
the convenience of both parties by mutual consent.
The County may terminate this contract under the provisions of, "Rights
and Remedies of County for Default" paragraph.
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3.22 CHANGES/ALTERATIONS
County may from time to time require changes in the scope of the
services required hereunder. Such changes, including any increase or
decrease in the amount of Contractor's compensation which are mutually
agreed upon by and between County and Contractor, shall be effective
when incorporated in written amendments to this contract.
3.23 CONFIDENTIALITY
Any reports, information, data, statistics, forms, procedures, systems,
studies and any other communication or form of knowledge given to or
prepared or assembled by Contractor under this contract which County
requests to be kept as confidential shall not be made available to
any individual or organization by Contractor without the prior written
approval of the County except as authorized by law.
3.24 RIGHTS AND REMEDIES OF COUNTY FOR DEFAULT
a. In the event any equipment, software, or service furnished by the
Contractor in the performance of this contract should fail to
conform to the specifications therefor, the County may reject the
same, and it shall thereupon become the duty of the Contractor to
reclaim and remove the same forthwith, without expense to the
County, and immediately to replace all such rejected equipment,
software, or service with others conforming to such specifications;
provided that should the Contractor fail, neglect or refuse to do so
the County shall thereupon have the right to purchase in the open
market, in lieu thereof, a corresponding quantity of any such
equipment, software, or service and to deduct from any moneys due or
that may thereafter become due to the Contractor the difference
between the price named in this contract and the actual cost thereof
to the County.
b. In the event the Contractor shall fail to make prompt delivery as
specified of any equipment, software, or service, the same
conditions as to the rights of the County to purchase in the open
market and to reimbursement set forth above shall apply, except
as otherwise provided, i.e. "Force Majeure".
c. In the event of the cancellation of this contract either in whole
or in part, by reason of the default or breach thereof by the
Contractor, any loss or damage sustained by the County, including
liquidated damages, in procuring any equipment, software or service
which the Contractor therein agreed to supply shall be borne and
paid for by the Contractor.
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d. The rights and remedies of the County provided above shall
not be exclusive and are in addition to any other rights and
remedies provided by law or under the contract.
3.25 GOVERNING LAW
The validity of this contract and any of its terms or provisions, as
well as the rights and duties of the parties under this contract, will
be construed pursuant to and in accordance with the laws of the State
of California.
3.26 SEVERABILITY OF CONTRACT
If any term of this contract is held by a court of competent jurisdiction
to be void or unenforceable, the remainder of the contract terms will
remain in full force and effect and will not be affected.
3.27 CUMULATIVE REMEDIES
The exercise or failure to exercise of legal rights and remedies by the
County of Ventura in the event of any default or breach hereunder will
not constitute a waiver or forfeiture of any other rights and remedies,
and will be without prejudice to the enforcement of any other right or
remedy available by law or authorized by this contract.
3.28 ASSIGNMENT
Contractor shall not assign this contract or any portion thereof without
prior written approval from the County. Any attempted assignment
without such prior consent may be cause for immediate termination.
3.29 TERMINATION OF CONTRACT
In the event of termination under this paragraph, Contractor shall be
paid for all work provided to the date of termination, as long as
such work meets the terms and conditions of this agreement. On
completion or termination of this agreement, County shall be entitled
to immediate possession of and Contractor shall furnish all
computations, correspondence and other pertinent data gathered or
computed by Contractor specifically for the services required hereunder
prior to such termination.
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Contractor hereby expressly waives any and all claims for damages or
compensation arising under this Agreement except as set forth in this
paragraph in the event of such termination.
The right of termination belonging to the County of Ventura may be
exercised without prejudice to any other remedy which it may be
entitled at law or under this agreement.
Upon termination or other expiration of this contract, each party will
assist the other party in the orderly termination of the contract and
the transfer of all assets, tangible and intangible, as may facilitate
the orderly, non-disrupted business continuation of each party.
The County at its sole option may terminate this agreement upon thirty
(30) days written notice with or without cause.
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<PAGE>
Appendix "A"
New Photo Imaging System Requirements
PLATFORMS AND ARCHITECTURE
1. The new system shall conform to Ventura County Information System
Department's and Ventura County Sheriff's Information Bureau's platforms
and architecture requirements. (CURRENT HARDWARE, SOFTWARE, DATA, AND
NETWORK ENVIRONMENTS(S) WILL BE DISCUSSED AT THE BIDDER'S CONFERENCE).
2. System shall be "open architecture", non-proprietary.
3. System shall be "Year 2000" compliant.
4. System's capture stations shall be NT 4.0: the retrieval stations shall
be NT 4.0 and WIN '95 compatible.
5. System shall have the ability to network preferably using Ethernet/TCP/IP.
6. System shall have API (Application Programmers Interface) tools for
interface with County Systems. System shall be API capable and work with
PowerBuilder.
DETENTION SERVICES
1. System shall have the capability of being able to interface with the
current and future Inmate Management System using API tools.
2. System shall have the capability of being able to capture color mug-shot
photographs during booking process and providing print out on booking
sheets as well as to provide a photograph on inmate armbands.
3. System shall interface with the demographics and photo imaging files with
current and future Inmate Management Systems and D.B.I. fingerprint system.
PHOTO SPECIFIC REQUIREMENTS
1. The system shall be "USER FRIENDLY". Minimizing the steps necessary in
preparing six-pack or larger photo line-ups.
2. Photographs shall be in JPEG format.
3. System shall be capable of being able to reduce or enlarge photographs
while keeping the original photo file intact.
4. System shall conform to all California Department of Justice (DOJ),
Federal and NIST Standards for mug-shot photographs.
5. System shall accept existing photographs (through data conversion).
6. System shall be capable of creating color or black and white six-pack
photographic line-ups.
7. We would like the system to have the capability of being able to view
multiple mug-shots at one time when selecting candidates for six-pack
line-ups, rather than having to go back and forth selecting one candidate
at a time.
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8. System shall have the capability of being able to print out an individual
color or black and white photograph while displaying a six-pack or
displaying a full page of photographs.
9. System shall have the ability to print out a photograph without
demographic descriptors or with descriptors that include but not
limited to Name, DOB, Booking #, B1# (Bureau of Identification Number),
HEIGHT, WEIGHT, HAIR COLOR, AND EYE COLOR.
10. System shall be capable of creating "Attempt to Locate" and "Wanted
Persons" posters.
11. System shall have the ability to modify templates (by "USER") for
"Attempt to Locate" or "Wanted Posters" that reflects each Agencies
own individual identification (Department's name, Chief's name etc.)
12. We would like the system to have the capability of being able to securely
E-mail photographs over the Internet.
13. We would like the system to have the capability of being able to export
photo images to internal or external networks, or other outside
communication links including CAL-PHOTO and MOBILE DATA terminals.
14. We would like the system to have the ability for the "USER" to out and
past photographs without changing the original photographic file.
15. System shall have the ability to easily compress photo image files for
transmission across radio and or cellular frequencies without degradation.
16. System shall have the capability of being able to capture photographs of
tatoos, marks, scars, or any other identifying characteristics.
17. We would like the system to have the capability of being able to import
additional information via TWAIN (i.e. weapons, vehicles, or residences.)
18. System shall have the ability to print out single color or black and
white photographs on 8-1/2 x 11-inch paper.
COMPOSITE SOFTWARE SPECIFIC
1. System shall include Composite software or allow for interface to
Composite Software.
2. Composite software shall be capable of creating photo realistic
composites of suspects.
3. System shall have capability of being able to search composite of
suspects to photo image database.
4. Composite software shall have capability of being able to build
composites that may be viewed and printed in black and white or
full color and to accurately depict skin, hair, lip and eye colors
or shape.
5. Composite software shall allow for imaging enhancement and editing
program for updating old photos, and enhancements of surveillance
videos.
6. Composite image program shall have capability of being able to add or
remove facial hair, hats, glasses, or temporary facial wounds.
7. System shall have capability of being able to accept captured video,
digital and scanned images.
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8. System shall include or allow for an interface to some type of Vehicle
I.D. system. System shall provide that the vehicle database of this
system have the capability of being able to search vehicles by feature,
text or V.I.N. (Vehicle Identification Number). The system shall also
accurately depict vehicles, colors, and display views of vehicles from
various angles, including front, rear, side and three-quarter views.
SEARCH ENGINES
1. The new Photo Imaging System shall have a search engine capable but not
limited of searching by: B1 #, NAME, AKA, MONIKER, PHYSICAL DESCRIPTION
INCLUDING BUT NOT LIMITED TO HEIGHT, WEIGHT, EYE COLOR, HAIR COLOR,
TATTOOS, MARKS AND SCARS.
2. We would like the new system to be able to search by: residence and
business address, and residence and business phone numbers.
3. The new Photo Imaging System shall have the ability to query and print
out photographs of gang members by their specific gang.
4. The system shall have the capability to interface with CAL-GANG and the
future CAL-PHOTO system and be compatible with CAL-PHOTO standards.
5. The new Photo Imaging System shall have the ability to search for tattoos
by their description.
6. We would like the system to have the capability to search tattoos by
location on a person's body, and whether the tattoo has been identified
as 'street gang', 'prison gang', or 'hate groups'.
PRINTER SPECIFIC REQUIREMENTS
1. The new photo imaging system shall have the ability to print out black
and white or color photographs using a variety of printers, including but
not limited to those printers commonly referred to as 'Bubble Jet',
'Ink-Jet', 'Laser', and or other generic plain paper printers.
MISCELLANEOUS REQUIREMENTS
1. The system shall have the ability to integrate photographs and or
information with other outside systems such as CAl-GANG and CAL-PHOTO
(future).
2. Capture stations shall have the capability to locally store and forward
during times of temporary network interruptions.
3. The server and work stations shall have remote 'boot/reboot' capability
for diagnostics.
HARDWARE ISSUES
1. All present capture and retrieval stations, remote and local, are to be
installed at their current sites. The retrieval sites shall have the
capability of being upgraded to capture stations at some future date.
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<PAGE>
2. Vendor shall properly configure and install all Photo Imaging Systems at
the direction of the Project Manager or his designee.
3. All capture stations will be standardized with respect to uniformed and
evenly dispersed lighting so all photographs maintain Federal, State and
NIST standards.
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<PAGE>
Exhibit "A"
GOVERNMENT CENTER COMPLEX
[MAP]
<PAGE>
Exhibit "B"
County of Ventura
CONTRACT BONDS
Before execution of the contract by the County, the Bidder shall file with the
County surety bonds satisfactory to the County in the amounts and for the
purposes noted below. Bonds shall be duly executed by a responsible corporate
Surety, authorized to issue such bonds in the State of California and secured
through an authorized agent with an office in California. The Bidder shall
pay all bond premiums, costs, and incidentals.
Each bond shall be signed by both the Bidder and Surety and the signature of
the authorized agent of the Surety shall be notarized.
The Bidder shall provide two good and sufficient surety bonds. The "Payment
Bond" (Material and Labor Bond) shall be for not less than 100% of the
contract price, to satisfy claims of material suppliers and of mechanics and
laborers employed by it on the work. The bond shall be maintained by the
Contractor in full force and effect until the work is accepted by the County,
and until all claims for materials and labor are paid, and shall otherwise
comply with the Civil Code.
The "Performance Bond" shall be for 100% of the contract price to guarantee
faithful performance of all work, within the time prescribed, in a manner
satisfactory to the County, and that all materials and workmanship will be
free from original or developed defects.
Should any bond become insufficient, the Contractor shall renew the bond
within 10 days after receiving notice from the County.
Should any Surety at any time be unsatisfactory to the County, notice will be
given to the contractor to that effect. No further payments shall be deemed
due or will be made under the contract until a new Surety shall qualify and
be accepted by the County.
Changes in the work, or extensions of time, made pursuant to the contract,
shall in no way release the Contractor or Surety from their obligations.
Notice of such changes or extensions shall be waived by the Surety.
The bonding company's Attorney-in-Fact shall have a power-of-attorney filed
with the Ventura County Clerk. The County Clerk charges a $2 fee for filing
the power-of-attorney. An acknowledgement by a Notary Public that the person
signing the bond is an Attorney-in-Fact for the bonding company shall be
attached to each bond.
The Materials and wages bond must remain in effect until the expiration of
six months after the period in which verified claims may be filed as provided
in Section 1192.1 of the code of Civil Procedure, and the performance bond
must be paid up and in effect for one year after the acceptance of the job by
the County.
<PAGE>
Bond No.______
SURETY BOND
PERFORMANCE AND PAYMENT
Whereas, the Board of Supervisors of the County of Ventura, State of
California, hereinafter called "Agency," and ______ ______ ______ ______
______ ____________, hereinafter called "Principal" have enter into a
contract whereby principal agrees to install and complete certain designated
work, which said contract dated __________, 19__ and identified as project _
____ ______ ______, is hereby referred to and made a part hereof; and
Whereas, said principal is required under the terms of said contract to
furnish a bond for the faithful performance of said contract.
Now, therefore, we the principal and the undersigned, as corporate
surety, are held and firmly bound unto Agency in the penal sum of ______
______ _______ ______ ______ Dollars ($ ______ ______) lawful money of the
United States, for the payment of which sum well and truly to be made, we
bind ourselves, our heirs, successors, executors and administrators, jointly
and severally, firmly by those presents.
The condition of this obligation is such that if the above bounded
principal, his heirs, executors, administrators, successors or assigns, will
in all things stand to and abide by, and well and truly keep and perform the
covenants, conditions and provisions in the said contract and any alteration
thereof made as therein provided on his or their part, to be kept and
performed at the time and in the manner therein specified, and in all
respects according to their true intent and meaning, and will indemnify and
save harmless Agency, its officers, agents and employees, and therein
stipulated, then this obligation will become null and void; otherwise it will
be and remain in full force and effect.
As a part if the obligation secured hereby and in addition to the face
amount specified therefore, there will be included costs and reasonable
expenses and fees, including reasonable attorney's fees, included by Agency
in successfully enforcing this obligation and, in the event Agency is the
prevailing party in a separate suit brought against Principal upon said
contract, incurred by agency in such separate suit, all to be taxed as costs
or awarded as damages, as appropriate, and included in any judgment rendered
in a suit brought upon this bond.
And, whereas, under the terms of said contract, principal is required
before entering upon the performance of the work, to file a good and
sufficient payment bond with the Agency to secure the claims to which
reference is made in Title 15 (commencing with Section 3082) of Part 4 of
Division 3 of the Civil Code of the State of California.
Now, therefore, said principal and the undersigned, as corporate
surety, are held firmly bound unto the Agency and all contractors,
subcontractors, laborers, materialmen and other persons employed in the
performance of the aforesaid contract and referred to in the aforesaid Civil
Code in the like sum of ______ ______ _______ ______ ______ Dollars ($
_____________) for materials furnished or labor thereon of any kind, or for
amounts due under the Unemployment Act with respect to such work or labor, or
for any amounts required to be deducted, withheld and paid over to the
Franchise Tax Board from wages of employees of the contractor and his
subcontractors pursuant to Section 18806 of the Revenue and Taxation Code,
that said surety will pay the same in an amount not exceeding the amount
herein above set forth, and also in case suit is brought upon this bond, will
pay, in addition to the face amount thereof, costs and reasonable expenses
and fees, including reasonable attorney's fees, incurred by Agency in
successfully enforcing such obligation, to be awarded and fixed by the court,
and to be taxed as costs and to be included in the judgment herein rendered.
It is hereby expressly stipulated and agreed that this bond will insure
to the benefit of any and all persons, companies and corporations entitled to
file claims under Title 15 (commencing with Section 3082) of Part 4 of
Division 3 of the Civil Code, so as to give a right of action to them or
their assigns in any suit brought upon this bond.
Should this condition of this bond be fully performed, then this
obligation will become null and void, otherwise, it will be and remain in
full force and effect.
<PAGE>
Surety Bond
Performance and Payment
Page 2
The surety hereby stipulates and agrees that no change, extension of
time, alteration or addition to the terms of said contract or the plans and
specifications accompanying the same will in any manner affect its obligation
on this bond, and it does hereby waive notice of any such change, extension,
alteration of addition.
In witness whereof, this instrument has been duly executed by the
principal and surely above named on __________ ____ 19__ _______.
THIS IS TO CERTIFY THAT THE ABOVE SURETY INSURER HAS BEEN
CERTIFIED AS SUCH; THAT THE CERTIFICATE OF AUTHORITY TO THE
ATTORNEY-IN-FACT IS OF RECORD IN THIS OFFICE, AND HAS NOT
BEEN SURRENDERED, REVOKED, CANCELED, ANNULLED OR SUSPENDED.
Richard D. Dean, County Clerk
By_____________________________
Deputy County Clerk
Date:__________________________
INDICATE COMPLETE ADDRESS OF SURETY TO
WHICH CORRESPONDENCE CONCERNING THIS
BOND SHOULD BE DIRECTED.
_______________________________ ______________________________________
(Name of Principal) (Name of Surety)
By_____________________________
Title _________________________
By____________________________________
(Attorney-in-Fact)
Address_______________________________
City__________________________________
Telephone No.___________Zip Code______
<PAGE>
Exhibit G
VENTURA COUNTY
TABLE OF CONTENTS
-----------------
COVER LETTER ________________________________________________________________ 5
COMPANY PROFILE & QUALIFICATIONS ____________________________________________ 6
ImageWare History _________________________________________________________ 7
C.R.I.M.E.S. Suite of Law Enforcement Products ____________________________ 8
SUSPECT ID -TM- _________________________________________________________ 8
CRIME LAB -TM- __________________________________________________________ 8
VEHICLE ID -TM- _________________________________________________________ 9
FACE ID -TM- ____________________________________________________________ 9
CRIME CAPTURE SYSTEM -TM- _______________________________________________ 9
Milestones ________________________________________________________________ 10
Notable Customers _________________________________________________________ 10
PERSONNEL QUALIFICATIONS ____________________________________________________ 10
ImageWare Executives ______________________________________________________ 10
Key Project Staff _________________________________________________________ 11
FINANCIAL STATEMENT _________________________________________________________ 18
REFERENCES __________________________________________________________________ 25
ARIZONA DEPARTMENT OF PUBLIC SAFETY _____________________________________ 25
LOS ANGELES COUNTY, CITY OF LAKEWOOD ____________________________________ 29
NEW YORK CITY POLICE DEPARTMENT _________________________________________ 32
HENEPIN COUNTY SHERIFF'S OFFICE (MINNEAPOLIS) ___________________________ 32
PIERCE COUNTY, WA _______________________________________________________ 32
Reference Contacts ________________________________________________________ 34
Other C.R.I.M.E.S. References _____________________________________________ 35
PROPOSER UNDERSTANDING ______________________________________________________ 36
<PAGE>
RESPONSE TO COUNTY OF VENTURA 07/27/99
RFP # 4799 PHOTO IMAGING SYSTEM
CENTRAL SERVER __________________________________________________________ 37
CAPTURE STATIONS ________________________________________________________ 38
INVESTIGATIVE WORKSTATION _______________________________________________ 40
TECHNICAL APPROACH __________________________________________________________ 42
Platforms and Architecture ________________________________________________ 42
Detention Services ________________________________________________________ 43
Photo Specific Requirements _______________________________________________ 43
Composite Software Specific _______________________________________________ 47
Search Engines ____________________________________________________________ 48
Printer Specific Requirements _____________________________________________ 49
Miscellaneous Requirements ________________________________________________ 49
Hardware Issues ___________________________________________________________ 49
Software Summary __________________________________________________________ 51
Software Warranties _______________________________________________________ 51
Source Code _______________________________________________________________ 51
Software On-Going Maintenance and Support _________________________________ 51
Hardware Summary ____________________________________________________________ 52
Hardware Warranties _______________________________________________________ 53
Hardware Maintenance ______________________________________________________ 54
Site Preparation __________________________________________________________ 54
Data Conversion Services ____________________________________________________ 55
System Documentation ________________________________________________________ 55
Training ____________________________________________________________________ 55
CRIME CAPTURE SYSTEM TRAINING ONLINE ____________________________________ 55
Implementation Schedule _____________________________________________________ 56
Approach to Project _______________________________________________________ 57
Compliance with Terms and Conditions ________________________________________ 60
IMAGEWARE SOFTWARE, INC. 2 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
3.1 Regulation Compliance _________________________________________________ 60
3.2 Performance Bond ______________________________________________________ 60
3.3 Responsibility of Proposer ____________________________________________ 60
3.4 Conditions For Acceptance _____________________________________________ 60
3.5 Commitments, Warranty and Representations _____________________________ 61
3.6 Performance Period ____________________________________________________ 61
3.7 Warranties ____________________________________________________________ 61
3.8 Site Preparation ______________________________________________________ 61
3.9 Patent and Copyright Protection _______________________________________ 62
3.10 Rights in Data _______________________________________________________ 62
3.11 Title to Equipment ___________________________________________________ 62
3.12 Force Majeure ________________________________________________________ 62
3.13 Indemnification/Hold Harmless ________________________________________ 62
3.14 Insurance Provisions _________________________________________________ 62
3.15 Non-Appropriation of Funds ___________________________________________ 62
3.16 Taxes ________________________________________________________________ 63
3.17 Independent Contractor _______________________________________________ 63
3.18 Contract Monitoring __________________________________________________ 63
3.19 Equal Opportunity ____________________________________________________ 63
3.20 Investigation and Research ___________________________________________ 63
3.21 Termination __________________________________________________________ 63
3.22 Changes/Alterations __________________________________________________ 63
3.23 Confidentiality ______________________________________________________ 63
3.24 Rights and Remedies of County of Default _____________________________ 64
3.25 Governing Law ________________________________________________________ 64
3.26 Severability of Contract _____________________________________________ 64
3
<PAGE>
3.27 Cumulative Remedies __________________________________________________ 64
3.28 Assignment ___________________________________________________________ 64
3.29 Termination of Contract ______________________________________________ 64
Cost Proposal Summary 'Exhibit A' ___________________________________________ 65
ASSUMPTIONS & RFP EXCEPTIONS ________________________________________________ 66
4
<PAGE>
COVER LETTER
[LOGO]
ImageWare Software, Inc.
10883 Thornmint Rd.
San Diego, CA 92127
County of Ventura
General Services Agent
Purchasing Services
800 Victoria Avenue
Ventura, CA 93009-3120
March 10, 1999
To: County of Ventura/Purchasing Services,
ImageWare Software, Inc. (IWS) is very pleased to be able to offer the Crime
Capture System-Registered Trademark- (CCS) in response to the Ventura County
RFP # 4799. Your interest in our company is appreciated and is a reflection
that our diligent work in developing state-of-the-art law enforcement
software is making a difference.
This past year has been a very successful one for both our company and our
clients. The state-wide photo imaging installation in Arizona is being highly
praised for its efficiency and effectiveness. As a direct result of our
efforts in Arizona, we have been awarded the booking contract for Las Vegas
Metro Police. In addition, we are less than thirty days away from funding a
$10,000,000 equity from a group of institutional investors led by J.P. Morgan.
We would be extremely pleased if the County of Ventura were to select our
product and Company as the one to carry them forward. We are confident that
our system will meet your needs and provide an easier path for expansion into
the future.
If you have any questions pertaining to this proposal or contract you may
contact myself at 619-673-8600 or Erik Carlgren, the project manager, at the
same number. We look forward to a successful conclusion to this opportunity
and a long term relationship with the County of Ventura.
Sincerely,
Jim Miller
President & CEO
ImageWare Software, Inc.
5
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COMPANY PROFILE & QUALIFICATIONS
ImageWare Software, Inc. a San Diego, California based company is a leader
and innovator in the emerging technology of PC-based digital imaging, with
its primary focus on law enforcement software. Our corporate offices are at
the following address. This same address is also used for sales, technical
services and billing.
IMAGEWARE SOFTWARE, INC.
10883 Thornmint Road
San Diego, CA 92127
Phone: 619-673-8600, 800-842-4199
FAX: 619-673-1770
ImageWare has, through its efforts, gained respect within the Law Enforcement
area and is quickly being recognized as a leader in the handling of large
mugshot databases as well as the powerful investigative software that runs
them. We were recently awarded a contract by the State of Arizona and the
system is meeting all of its expectations. The Arizona Department of Public
Safety enjoys a powerful network of photo and data information, with
extremely limited down time. It seamlessly interfaces with several disparate
systems and provides a smooth and synchronized data flow throughout. Very
recently, in partnership with NEC and PRC/Litton, IWS was awarded the digital
imaging contract for Las Vegas Metro PD.
One year ago ImageWare acquired XImage Corporation, a San Jose, California
based company also specializing in law enforcement software. XImage
Corporation is a company strong in the installation and management of very
large booking installations. The company has developed its products using Sun
SPARC servers and workstations on a UNIX operating system. It's flagship
installation is New York City Police Department as well as Henepin County,
MN (Minneapolis), Indianapolis PD and Portland Police Bureau. The NYC system,
spans 76 precincts in 5 boroughs, including 100 capture stations and
redundant central servers. XImage/ImageWare has a large customer support
staff with 24 hours a day, 7 days a week availability. A highly skilled
technical representative currently resides in Minneapolis, MN.
ImageWare and XImage combined to form a company that is strong, technically
proficient, and leading the way in the development of tools for the law
enforcement industry. The skills of one company compliment those of the
other. The strengths and experience of XImage will enable the new company to
bypass many pitfalls, during the introduction of new Windows based products
under the expertise of ImageWare. This merger, combined with the recent
financial backing of J.P. Morgan ensures the highest quality products and
services for many years to come.
6
<PAGE>
CCS runs on the Microsoft Windows operating system, specifically Windows 95,
98 and Windows NT 4.0. We configure systems using all IBM components,
ensuring our customers of state-of-the-art architecture, durability,
reliability. By teaming with IBM as a business partner, ImageWare can and
does offer the highest quality PC products, systems software, and customer
service available. PC platforms being used include multiple Pentium Pro
processor servers, redundant servers, Xeon processors and Pentium II
capture and investigate workstations. In many cases, current hardware can be
utilized and hardware may be purchased off existing County contracts.
Support is handled on a 24/7 basis with our support offices being in San
Diego. There is a one hour call back response time and 24 hour on-site
response time. Faster on-site response times can be negotiated. Servers and
workstation software can be maintained remotely using sophisticated IBM
Netfinity Management software. If a server goes down, it does not effect the
capture workstations. All capture stations have the ability to store data and
images locally until the server is back on-line.
IWS core products are Crime Capture System (CCS), and Face ID -Registered
Trademark- (FID). CCS is a powerful flexible and easy to use digital booking,
identification and retrieval system. Face ID -Registered Trademark- is a
state-of-the-art facial recognition and retrieval program that is re-defining
what a mugshot database is capable of. Face ID -Registered Trademark-
integrates with both ImageWare's and Ximage's booking systems, giving the
company a very distinct, and unique product line.
The proposed Crime Capture System (Digital Booking System) is one of five
modules in a suite called C.R.I.M.E.S. The other modules are Suspect
ID -Registered Trademark-, a photo-realistic composite program, Crime
Lab -Registered Trademark-, a fundamental enhancement and editing program,
Vehicle ID -Registered Trademark-, a photo-based vehicle searching program,
and Face ID -Registered Trademark-.
IMAGEWARE HISTORY
Incorporated in 1987, ImageWare initially focused on the entertainment
industry. The company's patented imaging technology was first used in photo
imaging kiosks at theme parks and tourist attractions in the U.S., Canada,
Mexico, Japan and the United Kingdom. The kiosks produced People
Postcards!-Registered Trademark- by superimposing customers' images onto
amusing or picturesque backgrounds.
At the 1992 COMDEX Show, ImageWare introduced its first retail product,
ImageWizard -Registered Trademark-. At the show, the revolutionary image
manipulation and processing program was nominated one of the "Best New
Software Programs" of the year. ImageWizard was the first application to
incorporate multiple image objects for fast and easy image enhancement and
editing. In early 1994, ImageWare released a companion program to ImageWizard
called MorphWizard -Registered Trademark-. A powerful morphing application,
MorphWizard allows users to manipulate
7
<PAGE>
and force transformations between multiple images. Both ImageWizard and
MorphWizard sold domestically and in Japan through Canon Sales Co.
Concurrent with the release of MorphWizard, ImageWare shifted its focus from
the entertainment and retail markets to the institutional law enforcement
areas. The C.R.I.M.E.S. (Crime Reduction, Image Management and Enhancement
System), software suite was unveiled in October 1994.
Since 1994, ImageWare has placed software in over 650 law enforcement
agencies around the country and internationally. Currently, there are over
100 departments using either XImage or ImageWare mug photo systems, with more
coming on-line every day.
C.R.I.M.E.S. SUITE OF LAW ENFORCEMENT PRODUCTS
C.R.I.M.E.S. is a modular family of affordable, easy-to-use
software applications that aid law enforcement with the criminal
investigative process. Currently there are five Windows -TM- based
C.R.I.M.E.S. modules; Suspect ID, Crime Lab, Vehicle ID, Face ID and the
Crime Capture System. The multiple module system is fully integrated so
information entered into one module is reflected in all others, thus
eliminating the time and expense required to interface programs designed by
different software companies.
Suspect ID -Registered Trademark-
Suspect ID is the composite module of the C.R.I.M.E.S. software
family. Using an online cognitive interview process, officers, witnesses and
victims can accurately create full-color, photo-realistic suspect composites
within minutes. The digital composites are constructed from catalogs of
facial features. The catalogs are comprised of actual photographs, not
hand-drawn sketches, so composites from Suspect ID look like people, not like
pencil sketches.
The Suspect ID module was designed specifically for use by law
enforcement agencies. Even officers with little or no computer knowledge or
artistic talent can complete a suspect composite simply by pointing and
clicking with a mouse. Suspect ID is a standard PC-based software application
that can be installed on a laptop computer and taken into the field, allowing
officers to conduct interviews before the witnesses' and victims' memories
fade. For rapid identification, officers can distribute completed composites
within minutes via radio, fax or e-mail.
CRIME LAB -Registered Trademark-
The second module of the C.R.I.M.E.S. family, Crime Lab, is a
sophisticated image enhancement and editing program used to fulfill a host of
investigative imaging needs such as updating old photos, creating
non-prejudicial line-ups, removing distracting backgrounds and
8
<PAGE>
enhancing surveillance videos. Crime Lab interfaces with each of
the modules to provide enhanced capability to each.
VEHICLE ID-TM-
Vehicle ID is a revolutionary photo-based software program that helps
officers quickly identify and disseminate vehicle information for the purpose
of locating a stolen car or a vehicle involved in a crime. Vehicle ID's
comprehensive database of over 1,000 vehicles can be searched by features,
description, or VIN (Vehicle Identification Number). To ensure a more
accurate identification, vehicles matching the query description can be
viewed from front, rear, side or three quarter angles. The program also
includes a custom paint shop for depicting the exact color of the vehicle. A
color copy of the suspect vehicle can then be produced and immediately
broadcast, printed or faxed to officers in the field to quickly apprehend
suspected criminals.
Information from NICB's (National Insurance Crime Bureau) VINassist-TM-
program has been incorporated into Vehicle ID, enabling officers to obtain
images of vehicles based on VIN translation codes. This feature helps
officers identify stolen vehicles in cases of switched VINs.
FACE ID-TM-
Face ID is a state-of-the-art facial recognition and retrieval program
that helps officers positively identify both unknown suspects and criminals
with multiple aliases. Suspect images that have been captured on a
surveillance video, suspect composite or photograph can be searched against
any digital database of faces. The search returns a group of images whose
facial characteristics closely resemble that of the search photograph. This
feature can also be used at the time of booking to immediately identify
criminals with multiple aliases. Face ID saves the officer tremendous amounts
of time when scanning through large databases. The ability to key in text
data descriptors in addition to the facial search makes searching large
databases possible.
CRIME CAPTURE SYSTEM-TM-
Crime Capture System is a flexible, easy-to-use, and affordable digital
imaging solution for automated capture, storage and retrieval of booking
images and related information. The Crime Capture System utilizes
off-the-shelf hardware that complies with open industry standards and easily
integrates with an agency's records or AFIS system (Automated Fingerprint
Identification System). Utilizing client/server architecture, the Crime
Capture System can operate on an array of systems ranging from a stand-alone
PC to a wide area network.
San Diego based ImageWare Software, Inc. is privately held.
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<PAGE>
MILESTONES
There are currently:
- over 3.5 million arrestees that have been booked using ImageWare systems
throughout North America
- over 4.5 million images stored on ImageWare systems worldwide
- over 150,000 lineups that have been created on ImageWare systems
- over 100,000 people booked in the first 4 months of operation using the
New York City PD ImageWare system
- over 1 million images stored in the state of Florida on ImageWare systems
- over 800,000 images stored in the state of Washington on ImageWare
systems &
- over 434,000 bookings stored on the Orange County, Florida ImageWare
system.
NOTABLE CUSTOMERS
- - Las Vegas Metro PD - Dakota County
- - Indianapolis PD - Orange County
- - King County (Seattle) - Clackamas County
- - Multnomah County (Portland) - Marion County
- - Sonoma County - Yolo County
PERSONNEL QUALIFICATIONS
IMAGEWARE EXECUTIVES
S. JAMES MILLER, JR., CHAIRMAN & CEO
Mr. Miller came to ImageWare in 1990 after 11 years at Oak Industries,
Inc. Most recently a Senior Vice President for the publicly traded company,
Mr. Miller also served as Chief Legal Officer, Chief Administrative Officer
and President of the company's Far East manufacturing subsidiaries. At Oak
Industries, Mr. Miller's responsibilities included business acquisitions,
divestitures and financing. He also headed the negotiation of technology
licensing arrangements. Mr. Miller holds a J.D. in Law (WITH HONORS) from the
University of San Diego School of Law, and a B.A. in History and Economics
(SUMMA CUM LAUDE) from the University of California at San Diego.
WAYNE G. WETHERELL, VICE PRESIDENT OF FINANCE & CFO
Prior to becoming ImageWare's Vice President of Finance and CFO, Mr.
Wetherell served in a similar capacity at Bilstein Corporation of America (a
subsidiary of the Krupp
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<PAGE>
Group) for nearly five years. Before joining Bilstein, he spent 10 years with
Oak Industries, Inc., where he served in various capacities, including
Director of Finance and Director of Financial Planning and Analysis. His
responsibilities included management reporting, financial and strategic
planning, and business development. Mr. Wetherell holds a M.S. in Finance
and a B.S. in Management from San Diego State University.
PAUL J. DEVERMANN, VICE PRESIDENT OF SALES & BUSINESS DEVELOPMENT
Prior to joining ImageWare in 1996, Mr. Devermann was the Managing Director
and Founding Partner of InTra-International Trade & Transactions, an
international consulting and trading company specializing in facilitating
business transactions between the U.S. and Japan. Prior to that,
Mr. Devermann held the position of Senior Vice President of the San Diego
Economic Development Corporation where he was responsible for marketing and
development from 1985 to 1990. Mr. Devermann spent the previous ten years
with Oak Communications in various capacities of sales, sales management,
marketing and business development positions. He holds a B.S. in Marketing
from Northern Illinois University and a M.B.A. from the University of Puget
Sound.
KEY PROJECT STAFF
Project Coordinator: ERIK CARLGREN
Telephone Number: (619) 673-8600
FAX Number: (619) 673-1770
<TABLE>
<CAPTION>
Name Years With Project Role
Company
- ------------------- -------------------- -------------------------
<S> <C> <C>
JOHN CANEPA 6 Software Developer
RENEE GUTIERREZ 4 Documentation & Testing
TRACY TOETTCHER 6 Training Manager
BILL IBBETSON 6 Director of R&D
</TABLE>
Other staff will be identified after contract award.
11
<PAGE>
WILLIAM J. IBBETSON
3520 MISSION MESA WAY
SAN DIEGO, CA 92120
(619) 582-0830
================================================================================
EMPLOYMENT IMAGEWARE SOFTWARE, INC., SAN DIEGO, CA
EXPERIENCE MARCH 1992 TO PRESENT
CHIEF TECHNICAL OFFICER
- Responsible for all technical aspects of the company.
- Direct technical solutions and industry positioning of
products.
MANAGER, RESEARCH AND DEVELOPMENT
- Manage software development team.
- Design software applications and utilities.
- Conduct new product feasibility studies.
- Analyze product/project costs and schedules.
PHOTO IMAGING SPECIALIST
- Develop patented imaging technology.
- Design digital image algorithms.
- Integrate imaging technologies into software applications.
INDEPENDENT CONSULTANT, SAN DIEGO, CA
JUNE 1987 TO PRESENT
ADMIT 1 TECHNOLOGIES
- Designed and developed graphic based screensaver.
- Created animation and imaging for screensaver.
RESOURCE SUPPLY, INC.
- Designed accounts payable/receivable database application.
- Created an Inventory Control System.
PUBLICATIONS - WROX PRESS - TECHNICAL EDITOR
Beginner's Guide to Visual C + +, January 1996
- VISUAL BASIC PROGRAMMER'S JOURNAL - CO AUTHOR
Animation Techniques in VB, February 1996
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<PAGE>
PATENTS - METHOD AND APPARATUS FOR THE ELECTRONIC TRANSMISSION OF
AN IMAGE FROM A PHOTO KIOSK - INVENTOR
Patent Pending
- IMAGEWARE'S PATENT PORTFOLIO - TECHNICAL LIAISON
U.S. Patent No. 5,345,313 - Image editing system
U.S. Patent No. 5,469,536 - Color masking system
U.S. Patent No. 5,577,179 - Object layering
U.S. Patent No. 5,343,386 - Electronically produced
postcards
================================================================================
SPECIALIZED - C/C+ + PROGRAMMING
SKILLS - MICROSOFT FOUNDATION CLASSES (MFC)
- VISUAL BASIC PROGRAMMING
- RDBMS DESIGN, INTEGRATION AND MANAGEMENT
- DIGITAL PHOTO IMAGING MANIPULATION/ENHANCEMENT
- NOVELL/NT SERVER CONFIGURATION, CONNECTIVITY AND
ADMINISTRATION
- INTERNET/INTRANET APPLICATION DEVELOPMENT
EDUCATION COLEMAN COLLEGE COMPUTER ELECTRONICS TECHNOLOGY
GRADUATE 1992 1990-1992
HONORS - TOP 5% OF CLASS COMPUTER HARDWARE SPECIALIST
DEAN'S LIST - 3.947 GPA
ADDITIONAL - NETSCAPE DEVELOPERS CONFERENCE
TRAINING - MICROSOFT MFC DEVELOPERS CONFERENCE
- MICROSOFT INTERACTIVE MULTIMEDIA CONFERENCE
13
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JOHN J. CANEPA
SENIOR SOFTWARE ENGINEER
SUMMARY OF EXPERIENCE
Five years experience in the imaging software industry. Senior developer for
windows based law enforcement applications. Designed user interface, database
search tools and data acquisition screens for digital booking and
investigative applications. Worked directly with the State of Arizona in
design, development and acceptance of the AZAFIS Mug Photo System.
EMPLOYMENT HISTORY
FEBRUARY 1993 TO PRESENT. SOFTWARE ENGINEER, IMAGEWARE SOFTWARE, INC.
Hired for quality assurance and software support. Moved into programming to
modify existing code for product updates. Experience using VB, C++, MFC,
ODBC, and SQL on Windows 3.1, Windows 95 and Windows NT. Developed data
acquisition applications for in house utilities. Designed algorithm to rotate
2D raster objects in 3D using OpenGL. Senior software engineer for the
development of the Crime Capture System (CCS). Experienced in developing user
interface, data entry and database query application using ODBC and MFC.
Developed multithreaded Windows 95/NT law enforcement investigative
application for searching UNIX booking database.
OCTOBER 1991 TO NOVEMBER 1992. MARKETING MANAGER, DESIGN DRAFTING AND
ENGINEERING, INC.
Designed and maintained customer contact management software and database.
Managed direct marketing for the sales of CAD/CAM software.
EDUCATION
B.A. Applied Mathematics, University of California, San Diego, 1993
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ERIK CARLGREN
NW SALES REPRESENTATIVE - PROJECT COORDINATOR
SUMMARY OF EXPERIENCE
Nine years experience in photo imaging, three of those in the law enforcement
industry. Technically oriented in sales and account management. Oversee all
phases of account development from identification of account and needs
assessment to contract negotiations.
EMPLOYMENT HISTORY
MAY 1996 TO PRESENT. SALES REP./PROJECT COORDINATOR, IMAGEWARE SOFTWARE, INC.
Hired originally as a sales representative for the Southeastern U.S.
Currently the representative for the Northwestern territories. Also handles
certain international accounts. Current responsibilities include systems
design, customer relations, sales and marketing. Responsible for accounts
from start to finish. Skilled in a multitude of Microsoft applications as
well as graphics programs and capabilities. Pays particular attention to
customers needs. Thoroughly trained in all ImageWare applications and
proficient with designs of disparaging systems and interfaces. Familiar with
state requirements and systems design.
OCTOBER 1992 TO APRIL 1996. TECHNICAL MANAGER, KING VISUAL TECHNOLOGY, INC.
Managed the digital photo department of fast paced professional photo lab.
Hired to build a digital imaging department and transition the company from a
traditional photo lab to a highly technical digital photo service. Required
to find a market, design, produce and print state-of-the-art digital photo
prints. Very fast paced and deadline oriented structure.
JUNE 1990 TO SEPTEMBER 1992. ACCOUNT MANAGER/DESIGNER, RYAN KING RENNINGER, INC.
Responsible for managing all aspects of marketing of accounts. Familiar with
most design applications. Managed handling of project from design through
printed piece. Wrote and designed marketing campaigns for Hecht's Co.,
Washington Bullets and the U.S. Navy.
EDUCATION
B.A. Printing, Rochester Institute of Technology, Rochester, NY 1990
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RENEE GUTIERREZ
TECHNICAL DOCUMENTATION DEVELOPER
SUMMARY OF EXPERIENCE
Ms. Gutierrez has 8 years experience in the computer software industry. She
has 7 years of documentation and user interface design experience with
extensive recent experience in the usability of law enforcement software.
EMPLOYMENT HISTORY
MAY 1995 TO PRESENT. IMAGEWARE SOFTWARE, INC.
- - Create software user manuals, including research, writing, and design.
Test software for usability and develop hypertext On-line Help.
Coordinate with clients and R&D and Marketing departments to design
print reports, user interface and icons for all law enforcement
applications.
- - Responsible for all Webmaster duties, including design and creation of
HTML pages, graphics, photo-imaging, and Web conferencing maintenance.
NOVEMBER 1994 TO PRESENT. INDEPENDENT CONTRACTOR
- - CASIO, INC. - Created software user manual and On-Line Help file for
Windows interface to the Casio B.O.S.S.
- - ABACUS DATA SYSTEMS - Created software user manuals for Windows based
legal/attorney software.
- - WINDOWS LINK, INC. - Created software user manual and On-Line Help file
for Windows interface to Royal and Sharp handheld organizers.
- - PERSONAL RESOURCE SYSTEMS - Created software user manual and On-Line
Help file for Windows Time Management software.
- - EAGLE INTERNATIONAL - Created software user manual and On-Line Help file
for Windows PIM.
- - KINGSLEY MACHINE COMPANY - Created software user manual and On-Line Help
file for Windows desktop publishing program. In addition created manual
for foil stamping hardware.
NOVEMBER 1994 TO MAY 1995. STELLCOM TECHNOLOGIES
Independent Contractor. Worked as a contract Technical Writer and Quality
Assurance Engineer.
- - EDITPRO CORPORATION - Created software user manual and On-Line Help file
for Windows program editor.
- - INTUIT - Performed Quality Assurance testing on in house Windows
referral program. Wrote training documentation and trained staff in use
of the Partners-TM- program.
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<PAGE>
- - HORIZONS TECHNOLOGY, INC. - Created documentation for CD Rom Maps
software and LAN auditing software.
JULY 1993 TO OCTOBER 1994. POLARIS SOFTWARE, INC.
- - Manager, Information Development. Created software user manuals,
including research, writing, and design. Tested software for usability
and developed hypertext On-line Help. Coordinated with Usability,
Development, and Marketing departments on design and implementation.
MARCH 1991 TO JULY 1993. MIDRANGE COMPUTING
- - Assistant Director Software Division. Coordinated all software sales,
technical support, and marketing. Senior technical writer of software
manuals. Administered technical support through diagnostics and
troubleshooting. Trained and supervised technical support and sales
staffs.
- - Assistant Manager, Business to Business Sales. Trained and supervised
staff in sales of technical manuals, software, and trade journal.
Coordinated trade shows and training seminars.
EDUCATION
B.A., English, University of Arizona, AZ, 1985
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<PAGE>
FINANCIAL STATEMENT
- --------------------------------------------------------------------------------
IWS has included financial statements from 1996, 1997 and through November of
1998. When reviewing the attached financials for November 30, 1998 several
issues should be noted. On the Consolidating Income Statement included in the
11 months, results are approximately $1 million of one time costs related to
the aquisition and integration of XImage operations into ImageWare. When
reviewing the 11/30/98 Balance Sheet, the fact is that IMAGEWARE IS (AS OF
3/1/99) LESS THAN THIRTY DAYS AWAY FROM FUNDING A $10,000,000 EQUITY FROM A
GROUP OF INSTITUTIONAL INVESTORS LED BY J.P. MORGAN. A summarized pro-forma
balance sheet is provided below which shows the 11/30/98 balance sheet
assuming the equity investment and the planned immediate use of funds for
debt and liabilities had already taken place.
<TABLE>
<CAPTION>
Balance Sheet 11/30/98 Actual Pro-Forma
--------- ----------
<S> <C> <C>
Cash 223,627 5,623,627
Other Current Assets 1,538,815 1,538,815
Fixed Assets 273,876 273,876
Other Assets 3,133,738 3,133,738
--------- ----------
Total Assets 5,170,056 10,570,056
Current Liabilities 5,305,564 1,555,564
Long Term Liabilities 674,059 674,059
--------- ----------
Total Liabilities 5,979,623 2,229,623
Stockholders Equity (809,567) 8,340,433
--------- ----------
Total Liabilities and S. E. 5,170,056 10,570,056
--------- ----------
</TABLE>
18
<PAGE>
REFERENCES
ImageWare Software, Inc. has proven its ability to successfully complete
projects of the size and magnitude as the Ventura County system. IWS has
installed investigative software in more than 650 police departments and
digital photo software in more than 100 departments throughout the world.
The needs of Ventura County are similar to those of many of our customers,
but not exact. Each individual agency varies in their requirements and the
following customers are just a few examples of how we met those needs.
ARIZONA DEPARTMENT OF PUBLIC SAFETY
DESCRIPTION OF INSTALLED SYSTEM AND ITS FEATURES:
Central Server is IBM Netfinity server, dual host cluster, with automatic
fail-over in case of one system failure. Shared disk array with RAID level 5
implemented. 15 county intake facilities, with both capture and
investigative Crime Capture System workstations. 2 additional sites at county
court facilities. Features include an interface with the Identix livescan
device, taking all demographic data, creating the record and populating the
data fields, making the image capture portion the only step required by the
operator. All information and images are immediately available for all
other investigative workstations on the network. Arizona DPS has also
recently issued a purchase order for the addition of Face ID-TM- to be added
to the central server. Each county can then purchase the client software and
conduct facial recognition searches using images or composites produced by
Suspect ID-TM-. Crime Lab-TM- was also included in each investigative
workstation.
FACT SHEET
The State of Arizona in an effort to consolidate images and booking
information, has contracted with ImageWare Software, Inc. to install a
statewide digital mugshot repository called Mug Photo Interface (MPI). In
those locations that are part of the system, the booking process begins at the
Identix livescan station where an operator captures the suspect's
fingerprints and enters required demographic and biographical information.
Once the information is entered into the livescan system, the data
automatically transfers to the MPI system via a common linking number. At
the MPI capture station, additional mandatory information is recorded, and
digital images of the suspect are taken. Upon completion of a record, the
information is immediately transmitted via the AZAFIS network to a central
repository housed at the Department of Public Safety. At this point, the
data is readily available for searching purposes by any agency in the state
which has access to the database.
An ImageWare supplied investigative station is used to perform several
functions including quick and advanced searches for querying the database,
mugbook searches and views for
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witness identification of a suspect, line-ups, and in the near future, facial
recognition which is used to identify unknown suspects and criminals.
ARIZONA MPI TECHNICAL BREAK DOWN
Initial Number of Capture Stations: 17
Initial Number of Investigative Stations: 17
Approximate Number of Bookings Per Year: 350,000
HARDWARE
Central Site: 2 IBM Netfinity Servers running in a clustered environment and
sharing a RAID level 5 array of 82 GB for database storage. Each server has
4 Pentium Pro Processors, 1 GB of RAM memory and 13 GB of internal system
disk space. The system drives are mirrored. If the active server fails to
reset a heartbeat, the failover takes place automatically, and the drive
array fails over to the control of the now active server. There is dial in
capability for diagnostic purposes. The operating system is Windows NT
Server 4.0 Enterprise Edition with Microsoft Cluster Server.
Capture & Investigative Stations: Each Investigative Station is an IBM 300XI
PC with 64MB RAM and 6.1 GB of hard disk storage. The capture camera is a
Pulnix TMC-73M with a Computar zoom lens. The camera and lens are mounted on
a Hitachi pan and tilt device. The capture card is an Integral Technology
MV-Pro. The camera is mounted on it's side to accommodate the NIST Best
Practice Recommendations and proprietary software does a rotation of the video
live feed before it is displayed by the graphics card. Printing and scanning
take place on Epson Stylus 800 printer and an Epson 636 Expressions scanner
(SCSI connection). The operating system is Windows NT Workstation 4.0. Each
capture and investigative station is connected to the central servers via a
wide area network utilizing Ethernet and TCP/IP protocol. Each station runs
client software that connects to the central server's database.
FOR IMMEDIATE RELEASE
ARIZONA DEPARTMENT OF PUBLIC SAFETY AWARDS STATEWIDE MUG PHOTO
INTERFACE CONTRACT TO IMAGEWARE SOFTWARE, INC.
IMAGEWARE'S CRIME CAPTURE SYSTEMS-TM- TO HELP ARIZONA LAW ENFORCEMENT
AGENCIES APPREHEND CRIMINALS.
San Diego, California - January 15, 1998 - After an extensive evaluation
process, the State of Arizona announced Wednesday that they had awarded the
Arizona Statewide Digital Mug Photo Interface Contract to ImageWare Software,
Inc. The contract is expected to exceed one million dollars and is the first
contract of its kind to be awarded for a statewide mugshot system. "We are
very
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pleased to provide Arizona law enforcement with a complete solution for
their mug photo needs," says Jim Miller, President and CEO of ImageWare
Software, Inc.. "We feel the Crime Capture System will provide a quantum
leap forward for the State."
Under the terms of the contract, the State of Arizona will utilize
ImageWare's Crime Capture System (CCS), a state of the art digital booking,
identification and retrieval program. The main CCS database will be housed at
the Arizona Department of Public Safety. Seventeen sites will be capable of
capturing mugshots, SMT (scars, marks, and tattoos) photos, and descriptive
data for each suspect they arrest. Each remote site will also receive an
investigative workstation capable of searching and viewing the mugshot
database and creating photo line-ups. Once information is entered into the
remote database, the central repository is immediately updated allowing all
agencies access to the most recent information. Officers and Detectives will
no longer have to spend hundreds of hours searching through file cabinets of
photographs to identify a suspect or generate a photo line-up, instead they
will use CCS's central repository and systematically search the digital
database of images for similarities between suspects, thus speeding up case
processing. The new CCS system will also interface directly with the existing
Arizona Automated Fingerprint Identification System (AZAFIS) network.
The State of Arizona and ImageWare have agreed to an aggressive
implementation schedule which will have the system fully operational by June
1998. Once the first phase is complete, there are plans to move forward with
the implementation of additional C.R.I.M.E.S.-TM- modules including:
Suspect ID-Registered Trademark- (a composite program), Crime Lab-Registered
Trademark- (an image enhancement and edit program), Vehicle ID-TM- (a vehicle
identification program), and what Ben Armstrong, the Lead Business Analyst
with the Maricopa County Sheriff's Office considers, "one of the most
promising law enforcement tools," Face ID-TM- (a facial recognition
program). All of these modules combined will create a fully integrated law
enforcement solution for the State of Arizona.
San Diego-based ImageWare Software, Inc. is a leader and innovator in PC
based digital imaging, with its primary focus on law enforcement software.
Through its growing family of C.R.I.M.E.S. software modules, ImageWare is
effectively assisting in the resolution of crime worldwide. Currently, the
five C.R.I.M.E.S. modules are being used by more than 500 law enforcement
agencies worldwide. ImageWare Software, Inc. is privately held.
# # #
THE ARIZONA REPUBLIC
POLICE SING PRAISES OF NEW STATEWIDE MUG SHOT SYSTEM
Published on Saturday, September 12, 1998
BYLINE BY JUDI VILLA, THE ARIZONA REPUBLIC
In seconds, a suspect's booking mug can be seen by law enforcement agencies
throughout the state. A few computer keystrokes, and a detective can have
more pictures than he'll ever need
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for a photographic lineup. And if there is no suspect, that same detective
can type in a physical description and get a list of potential bad guys in no
time.
Welcome to the Mug Photo Interface, a subsystem of the Arizona Automated
Fingerprint Identification System. MPI uses electronic imaging to capture mug
shot photos and transmit them immediately to a statewide image database
operated by the state Department of Public Safety. "It is going to
revolutionize (police work) just like fingerprints did," said Clyde Tess, a
crime lab supervisor with the Maricopa County Sheriff's Office. "It'll solve
cases faster. It'll help in identifying suspects faster. "If a suspect is
entered into the database in Phoenix then goes down to Tucson and commits a
crime, the victim can identify the suspect the same day. Before an agency
would have to send a photo or fax it. Faxes aren't always that good, and the
mail takes a day or two. This is instant."
The MPI system went online Thursday in 10 counties. The first booking mug was
entered by the Santa Cruz County Sheriff's Office in Nogales. "It's pretty
nice," said Ramon Villela, a detention officer in Nogales. "It's going to
make our jobs easier and faster, and the detectives are going to be able to
do lineups faster."
Arizona's program, funded by a grant from the Arizona Criminal Justice
Enhancement Fund, will be one of the most progressive in the country,
officials say. Although some cities, including San Diego and Boston, have
limited imaging databases, only Arkansas has a statewide system. And that one
collects information from only six sites. Seven more sites, including police
departments in Mesa, Tempe, Phoenix, Scottsdale and Glendale, will be added to
MPI by next summer. And by the end of this year, five sheriff's departments
that already have their own mug photo systems will be linked to the statewide
system. A few agencies, like the Chandler Police Department, have purchased
their own equipment to hook into the system.
"Here's a great thing," said Mark Hatcher, an identification supervisor for
the Mesa Police Department and chairman of the MPI Task Force. The task
force, a grass-roots effort with members from five police agencies in Arizona
has been working for two years to implement the technology. "This opens up
communication from Yuma County to Navajo County," Hatcher said.
"Geographically, they're at different ends of the state, but they can do a
search just like they were here at DPS."
The system standardizes the way mug shots are taken and stored, sets up a
"major clearinghouse" for all photos and allows investigators anywhere in the
state to search for, retrieve and print out mugs and suspect information
from virtually anywhere in the state. It also can be used to create photo
lineups and books of mug shots for victims to look through. "Say a suspect
does a robbery with a mask, and he's got a tattoo on his arm," Villela said.
"Detectives can take that picture of that tattoo and scan it into the system,
and it'll give you everybody that has that tattoo." The system also is capable
of tracking gang affiliations, weapons and registered sex offenders.
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LOS ANGELES COUNTY, CITY OF LAKEWOOD
ImageWare Software has great experience in the area of composite creation and
the identification of suspects using those composites. The most recent and
important news involves the facial recognition software, Face ID. This
software was created using algorithms developed from MIT research, which
ImageWare has the exclusive right to offer to the law enforcement industry.
The software describes a portion of the face of an individual mathematically,
from the eyebrows to the lips. This represents the majority of facial
features used to differentiate individuals and discounts such things as hair
length and style, eyeglasses, hats, and other adornments.
Face ID is presently installed at the Lakewood substation of the Los Angeles
Sheriff's Department, and was recently used to capture a carjacking suspect.
The victim gave a very accurate description to the Sheriff's Department, and
a composite was created using ImageWare's Suspect ID. This composite was used
to then search their mugshot database using Face ID). The returned search
results contained a suspect that the victim identified from a lineup. This
search took approximately 30 seconds to perform, and caused the
identification and apprehension of the suspect, and subsequently the District
Attorney's office has filed charges against the suspect. The press release of
this incident follows, along with a view of the composite and actual photo of
the suspect.
FOR IMMEDIATE RELEASE
LOS ANGELES SHERIFF'S DEPARTMENT IDENTIFIES SUSPECT
WITH NEW HIGH-TECH CRIME FIGHTING SOFTWARE
DETECTIVES UTILIZE FACE ID(TM) FACIAL RECOGNITION SOFTWARE
TO ARREST CAR-JACKING AND BATTERY SUSPECT.
San Diego, California November 3, 1997 -- Just three days after
installation of their newest crime fighting weapon, detectives with the Los
Angeles County Sheriff's Department arrested a car jacking and battery
suspect "that would never had been identified without Face ID(TM) facial
recognition software", according to Sergeant Bill Conley of the Los Angeles
Sheriff's Office. With no leads, frustrated detectives had given up on the
case weeks prior and considered it dead until the installation of Face ID.
Using a composite of the suspect, detectives employed the facial recognition
program to search their digital mugshot database for possible matches. Within
seconds the automated search results displayed photos in rank order that
were similar to those of the composite. Detectives investigated the matches,
created a photo-line-up and two witnesses positively identified Eduardo Ochoa
as the suspect. Ochoa was arrested on October 30, 1997 and is being held in
lieu of $125,000 bail. Sergeant
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Conley was amazed and commented, "Face ID is one of the most innovative
breakthroughs in law enforcement technology."
Face ID, one of the models of the C.R.I.M.E.S.-Registered Trademark- suite of
integrated law enforcement programs developed by ImageWare Software, Inc., is
a state-of-the-art facial recognition and retrieval program. Now,
investigators no longer have to spend hundreds of hours trying to identify a
suspect. Detectives can take a suspect composite created in ImageWare's
Suspect ID(TM) program, and seamlessly export it to Face ID, which in turn will
systematically search any digital database of booking images to identify
possible suspects. Similarly, a suspect's image caught on a bank or
convenience store surveillance video can be run against a digital photo
database for possible identification. With Face ID, officers will be able to
utilize this facial recognition technology at the time of booking to
immediately identify a criminal with multiple identities or outstanding
warrants.
San Diego-based ImageWare Software, Inc. is a leader and innovator in
PC-based digital imaging, with its primary focus on public sector and law
enforcement software. Through its growing family of modules, ImageWare is
effectively creating a fully integrated solution to assist in the resolution
of crime worldwide. Currently, the C.R.I.M.E.S. suite consists of five
modules: Suspect ID (facial composite module), Crime Lab(TM) (an image
enhancement and edit program), Vehicle ID(TM) (vehicle identification
program), Face ID (facial recognition application) and Crime Capture System
(digital booking module) which are being used by more than 500 law
enforcement agencies worldwide. ImageWare Software, Inc. is a privately held
company.
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LOS ANGELES SHERIFF'S DEPARTMENT IDENTIFIES SUSPECT
WITH NEW HIGH-TECH CRIME FIGHTING SOFTWARE
San Diego, California -- November 3, 1997 -- Just three days after
installation of ImageWare's Face ID-TM-, the program proved itself to be the
most effective high-tech crime fighting software available. Using a composite
of a suspect, detectives employed Face ID to conduct an automated comparison
search and produced a number of photos which closely resembled the suspect in
a car jacking and battery case. Both the victim and witness positively
identified the suspect who was ranked highest in the comparison search.
[PHOTO]
"The suspect would never had been
identified without Face ID(TM) facial
recognition software".
SERGEANT BILL CONLEY --
LOS ANGELES COUNTY SHERIFF'S
DEPARTMENT
<PAGE>
NEW YORK CITY POLICE DEPARTMENT
DESCRIPTION OF INSTALLED SYSTEM AND ITS FEATURES:
With over 400,000 bookings each year, the New York City Police Department is
the largest law enforcement agency in the world. The contract for booking
systems for the entire NYPD network clearly establishes ImageWare as the
leading company for mugshots. ImageWare was chosen for the high quality of
the system, the adaptability of the software with other technologies and its
ability to be scaled to the size of the project. The operating system is UNIX.
The New York City Police Department's booking system, spans 76 precincts in 5
boroughs, including 100 capture stations and redundant central servers.
ImageWare has a large customer support with 24 hours a day, 7 days a week
availability.
XImage worked as a subcontractor to the worldwide systems integrator, SAIC,
Science Applications International Corporation of McLean, VA. SAIC is an
established provider of computer and information solutions to governmental
agencies worldwide.
HENEPIN COUNTY SHERIFF'S OFFICE (MINNEAPOLIS)
DESCRIPTION OF INSTALLED SYSTEM AND ITS FEATURES:
This system is a UNIX installation with a single ImageBank server, but
servicing input and searching from 6 other agencies. There is also a Mail
Server within the system. There are a total of 18 workstation, 3 of which are
capture stations from within the Henepin County Sheriff's Office. The
database size is approximately 600,000 records at present. ImageWare has
recently received a purchase order from Henepin County to install Face
ID-TM- on the network. This will allow for the facial recognition of
subjects, based on a composite or image.
PIERCE COUNTY, WA
DESCRIPTION OF INSTALLED SYSTEM AND ITS FEATURES:
This system is currently a UNIX installation with a single ImageBank server,
but will be one of the first XImage installations to convert to the new CCS
Windows NT solution. This solution was chosen as a natural upgrade from their
existing system. They will enjoy lower maintenance costs, faster throughput,
more scaleability and a friendlier interface.
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33
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REFERENCE CONTACTS
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
REFERENCE AND CONTACT TOOL USED RDBMS ENVIRONMENT
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ARIZONA DEPARTMENT OF PUBLIC SAFETY C++ Sybase SQL Windows NT 4.0 Server
2310 N. 20th Ave. Anywhere Server Windows NT 4.0 clients
Phoenix, AZ 85005
CYNTHIA PELLIEN
PROJECT COORDINATOR
602-223-2401
- -------------------------------------------------------------------------------------------------
NEW YORK CITY POLICE DEPARTMENT C Sybase System 11 SUN Solaris Server
Other Police Plaza MISD Room 700 SCO UNIX Clients
New York, NY 10038
BRIAN GRIFFIN
212-374-5020
- -------------------------------------------------------------------------------------------------
PIERCE COUNTY SHERIFF'S OFFICE Switching Switching to CCS Soon to be Win NT 4.0
930 S. Tacoma Ave. to CCS,
Tacoma, WA 98402 C++
DAVE COTTON
253-798-7729
- -------------------------------------------------------------------------------------------------
LOS ANGELES COUNTY SHERIFF'S OFFICE - C++ Sybase SQL Windows NT 4.0 Server
City of Lakewood Anywhere Server Windows NT 4.0 clients
SGT. BILL CONLEY
562-866-9061
- -------------------------------------------------------------------------------------------------
FALLS TOWNSHIP PD C++ Sybase SQL Windows NT 4.0 Server
Anywhere Server Windows NT 4.0 clients
WYNNE CLOUD
215-949-9100
- -------------------------------------------------------------------------------------------------
CHANDLER POLICE DEPARTMENT C++ Sybase SQL Windows NT 4.0 Server
Anywhere Server Windows NT 4.0 clients
SGT. BRIAN POTTER
602-782-4501
- -------------------------------------------------------------------------------------------------
</TABLE>
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OTHER C.R.I.M.E.S. REFERENCES
AZ DPS Cyndy Pellien 602-223-2401
Los Angeles SO Sgt. Bill Conley 562-866-9061
Corona PD CA Danny Verdugo 909-279-3642
Raynham PD MA Lou Pacheco 508-824-2727
Independence PD KS Harry Smith 316-332-1700
Little Rock PD AR Chuck Ray 501-371-4660
Long Island Railroad Police Kevin Farrell 718-558-3346
Naval Investigative Service Brandon Armstrong 619-556-1386
E. Providence PD RI Capt Broadmeadow 401-435-7626
San Diego PD CA David Cavanaugh 619-531-2623
San Diego SO CA Mark Kelly 619-258-3100
Monroe SO NY Jim Beikirch 716-428-5432
Placentia PD CA Matt Reynolds 714-993-8164
Austin PD TX Cheryl Bowne 512-480-5145
Visalia PD CA Det Sharon Brown 209-738-3235
Wilson County SO TN Lt Bob White 615-444-1459
San Bernardino SO CA Dep Karen Rice 909-387-8812
Los Angeles PD CA Det Tom Barnhart 818-756-8553
Bullhead City PD AZ Capt Rodney Head 520-763-9200
Arlington PD TX Det Pat Smith 817-459-5710
New York City Police Department Lt. Brian Griffin 212-374-5020
Clackamas County Sheriff's Office Joanne LeBreun 503-650-3155
Stanislaus County Sheriff's Office Gordon Brusso 209-525-7279
Santa Ana Police Department Lt. George Saadeh 714-245-8410
Henepin County Sheriff's Dept Sheryl Loose 612-348-9648
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<PAGE>
PROPOSER UNDERSTANDING
- -------------------------------------------------------------------------------
ImageWare appreciates the needs and issues that concern Ventura County. We
also understand the importance of this decision and have done everything
possible in recommending the most complete, and robust investigative mugshot
solution available. It is a turn-key solution that has been designed to fit
your needs. The proposal has no hidden costs and leaves many options.
The proposed Crime Capture System (CCS) will include a powerful central mug
and data server that interfaces with both the County's VCJIS and inmate
management applications. All data will be synchronized throughout the network
and no duplicate entry is needed. The system includes software for 10 capture
stations and 11 investigative stations with the ability to add more as
necessary. The system will utilize the current cameras and subsystems, with
the exception of the capture card and possibly cables. Any printer that has
Windows NT drivers and any peripheral that is TWAIN compliant may be utilized.
The entire system is fully Year 2000 compliant and meets all ANSI/NIST
standards. The system is capable of transmitting standard NIST data packets
to the State and to CalPhoto. All requirements outlined in RFP #4799 will be
met unless expressly noted.
Facial Recognition can also be added to the server at a later date, without
the need for costly hardware upgrades or conversions. Face ID-Registered
Trademark- fully integrates with CCS and used in conjunction with the other
C.R.I.M.E.S. modules, your agencies will have a very powerful and effective
arsenal of tools to solve crime.
The proposal calls for two types of integration, the first type is to avoid
any duplicate entry throughout the system. CCS is capable of reading the same
exact text file that is currently being created for the population of the DBI
Tenprinter machine. Basically, a record starts at the inmate management or
VCJIS application and the necessary date is written to a file that both DBI
and ourselves can read. This file will populate the CCS data fields. Any
adds, edits or deletions within VCJIS will create a new text file and thus
will be carried through to CCS. The text file may be changed from the
existing one to provide additional demographic fields.
The second interface requires the vendor to develop an API that can be
incorporated into both VCJIS and the inmate management system. The purpose of
this API is to enable these two data systems to simply view and print the
mugshot that is associated with that particular record. ImageWare will
provide a single API that will accomplish this task. In other words, CCS will
provide a 'toolkit' or 'export.dll' that can be accessed by and written into
PowerBuilder or other third party software by the Ventura County MIS staff.
Included in the price of this custom API is a general site license for the
API. This license enables the API retrieval capability on all workstations
that access either VCJIS or the inmate management system. It does not,
however, include the additional Sybase licenses that make these workstations
concurrent.
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<PAGE>
The proposal also includes the conversion of the existing 183,000 images
(approx.) and data in proprietary TFP format. IWS will convert this database
using in-house technicians and does not foresee needing assistance from
either Printrac or Pinnacle.
The system components will connect to the existing network directly, with
each agency or the county being responsible to provide LAN connections for
the new equipment. The operating system for the central server will be
Microsoft Windows NT 4.0, and Windows NT Workstation for each capture
workstation. The protocol will be TCP/IP. All connections to either the
network or additional devices will be industry standard connections.
Maintenance will be provided for the system 7 days a week, 24 hours a day,
with 1 hour call back response, and 24 hour on-site response. Faster on-site
response times may be negotiated.
The C.R.I.M.E.S. suite of software is modular in design. It is possible to
add, upgrade, or replace software modules in the system with relative ease.
Modules included in the C.R.I.M.E.S. suite of software are Suspect ID, a
photo realistic composite program, Crime Lab, a sophisticated image
enhancement and editing program, Vehicle ID, a photo-based program to help
quickly identify vehicles, Crime Capture System, a flexible easy-to-use
digital booking system, and Face ID, a state-of-the-art facial recognition
and retrieval program.
The system will have the capability of interfacing with any other agency
electronically either via the network or modem, and send and receive
information from other cooperating criminal justice agencies as long as these
agencies comply with NIST standards for mugshot and SMT image transmission.
Data archive and backup can be accomplished on-line.
The Crime Capture System does include a store and forward ability, that is
transparent to the operator. The location capture station will display either
Online or Offline (to the central server), and if Offline, will start
accumulating data onto the local hard drive. When the network is again
available, the records are forwarded to the central server without any
operator intervention or downtime.
System security will make use of both operating system permissions as well
as database software security. This will allow access to certain functions
and data to be controlled by the system administrator. These privileges and
permissions will be given and controlled by user login. There will be an
administrative function available only to the system administrator, where
these permissions and privileges are maintained.
CENTRAL SERVER
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The central server system will consist of an IBM Netfinity 5500. A UPS will
protect the system from power fluctuations and momentary outages. The system
will have a redundant power supply. The server will be equipped with a modem
and remote diagnostic software, allowing for quicker response and problem
resolution. The server is a high performance 450 MHz Dual Pentium Pro
system, with a RAID V hot swap drive array and Mirrored OS. It is sized with
today's performance and tomorrow's growth in mind. Installing a RAID V system
allows the storage of business-critical data with confidence. The capture
stations are high performance systems as well, taking into account that end
user acceptance depends on system performance. The system also includes a DLT
tape drive for back-ups and a CD ROM Drive.
The central server will not execute any client applications, meaning all
searches, viewing, and printing or data from the mugshot database must be
accomplished via either a capture or investigative station. Only the server
portion of the ImageWare applications will execute from the central server
systems.
The central server Crime Capture application software will have the ability
to both receive and send photo mugshots using the NIST standard type 1, 2,
and 10 records. The software will also send and receive the appropriate NIST
message in acknowledgement of the receipt or transmittal. This method of data
transfer will be utilized for the DBI interface (if needed) and can
accomplish data transfer to the State and CalPhoto. A similar type transaction
or flat file transaction will serve as the VCJIS interface. A custom API
will also be provided to enable the viewing of images through both VCJIS and
the inmate management applications.
The central server will have an archive function available to allow the
off-loading of records, including images and demographic data, by date range
and control number. It is sized for the conversion of the existing 183,000
images and up to 15,000 records a year for 5 years.
The central server will log off any station that is presently logged in but
has not had activity for some user defined time period (e.g. 5 minutes).
The central server's RAID storage system will implement a level 5 method,
which provides a very high fault tolerant data storage system while not
degrading performance. A separate hardware controller, the IBM ServeRAID II
disk controller, will implement the RAID technology.
CAPTURE STATIONS
There will be 10 Capture Stations, each will consist of an IBM PC 300PL
computer with Pentium II processor, 64 MB RAM and 6.4 GB of internal hard
disk storage. Each capture station will be equipped with a CD ROM drive, 1.44
floppy disk drive, 17'' monitor and keyboard. The system will include a
network interface card and capture card for the camera sub-system. The
existing 8 camera subsystems will be utilized as well as the photo hardware
for the 2 copy stations (assuming the hardware is TWAIN compliant). The
system will meet
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or exceed all NIST standards for the collection of mugshot photos. Some
changes in the camera subsystem may be necessary, ie. (The camera must be put
on its side to correctly interface with the MVPro capture card. It may need
to be re-bracketed). Any costs that may be associated with utilizing existing
hardware will be outlined at contract signing, although very few, if any, are
expected.
Software included with the capture station will allow for the live video
viewing of the arrestee, with the ability to capture a still image of the
arrestee from this on-screen viewing.
The mug photo database can be searched using the arrestee's demographic
information, for example, last name and date of birth, to find other records
for this arrestee. If and when Face ID is added, the operator will also be
able to compare a new arrestee's photo with those previously stored in the
mug photo database strictly by facial characteristics. This feature
eliminates both aliases and duplicate images.
Each capture station will have the ability to store both images and
associated demographic data locally if the network connection is unavailable.
When the network is restored and the central server database is accessible,
those locally stored records will be transmitted to the central server.
The software will allow for a flag to be associated with each booking at the
time the mug photo is taken, with those flags being user definable including
arrests, juveniles, etc. All such flags necessary for the VENTURA COUNTY
SHERIFF'S OFFICE operations must be designated during the specifications
gathering phase.
The software will allow the operator to view the captured image and either
reject or accept it at that time. The system will accept an unlimited number
of photos per booking record.
All images taken for a particular booking will be associated with a specific
file, or record, and will store the date and time it was recorded. Other
booking records may be linked to this booking if this is a repeat offender.
The input of demographic, or descriptive data will be available from
user-maintained lists, organized in any order the customer chooses. The user
will also be able to input free form text comments, including unusual
characteristics. All these descriptive data fields will be searchable.
Initial data will be populated via the flat file interface with VCJIS. This
interface creates a synchronous data system with a smooth data flow and no
duplicate entry. All creates, edits or deletions in VCJIS will be carried
throughout the system.
Photos captured can be multiple views of the arrestee, and photos of all
scars, marks, and tattoos (SMT). Property, Evidence and Crime Scene
photographs can also be attached to each record. All photos taken will be
linked to the booking record. This record can be found in multiple ways;
searching by demographic data, using a photo and searching with Face ID, or
accessing the records by the booking number or other identifying numbers.
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The location of the scar, mark, or tattoo on the body will be chosen from a
user-maintained list of choices. There will be a description field for each
SMT, where any words on the tattoo can be entered as free form text
information, and other descriptive information about the SMT can be entered.
Whether a photo of the SMT is taken or not, the description of the SMT can be
entered.
INVESTIGATIVE WORKSTATION
The proposal includes CCS software for 11 investigative workstations. These
workstation may be provided by the county provided that they meet our
standard requirements. In addition we will also be providing two copies each
of the following investigative software, (Suspect ID, Vehicle ID and Crime
Lab) at no charge!
Searches may be accomplished using NCIC standard demographic codes, from user
maintained tables.
The software will create photo line-ups with a specified amount of images.
The Crime Capture System will retrieve and display the images of all subjects
with characteristics that match, or substantially match, those of the line-up
subject. The user will be able to select or reject from the images retrieved
up to twenty, that together with the subject's constitute the line-up. The
line-up will be random ordered, and may be saved for future retrieval. These
photo line-ups are also printable.
Portions of an image may be "roped" for enlargement for viewing purposes.
The print function is available for any image with its associated
demographic data.
The search function includes very flexible ad hoc inquiries, including
many boolean logic functions, including AND, OR, GREATER THAN, LESS THAN,
EQUAL TO, etc.
Each agency will be able to search the database and obtain information
about the total number of bookings by date, by officer ID, by charge code,
etc.
Any text fields entered into a booking record will be searchable,
including any comment fields.
Fields describing SMT data will be searchable.
Images of SMT are printable, either color or black and white.
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The search software will process hyphenated and/or multiple last, first,
and middle names correctly.
The search software will use "soundex" to find similar named individuals.
Investigative workstations will have the ability to scan photos into the
system, import them, and link them with booking records. For example, crime
scene photos can be imported into booking records, as well as weapons photos,
vehicle photos, residence photos, year book photos, etc.
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TECHNICAL APPROACH
- --------------------------------------------------------------------------------
(IWS ANSWERS IN BOLD/ITALICS)
NEW PHOTO IMAGING SYSTEM REQUIREMENTS
PLATFORMS AND ARCHITECTURE
1. The new system shall conform to Ventura County Information System
Department's and Ventura County Sheriffs Information Bureau's
platforms and architecture requirements. (CURRENT HARDWARE,
SOFTWARE, DATA, AND NETWORK ENVIRONMENT(S) WILL BE DISCUSSED AT THE
BIDDER'S CONFERENCE)
THIS REQUIREMENT WILL BE MET. CCS RUNS ON WINDOWS NT 4.0 AND THE
UNDERLYING DATABASE IS SYBASE. EXISTING HARDWARE WILL BE UTILIZED
EXCEPT WHERE EXPRESSLY NOTED.
2. System shall be 'open architecture', non-proprietary.
CCS IS AN OPEN ARCHITECTURE, ODBC COMPLIANT SYSTEMS.
3. System shall be 'Year'2000' compliant.
CCS AND ALL C.R.I.M.E.S. MODULAR SOFTWARE HAS BEEN TESTED AND
DEVELOPED TO BE YEAR 2000 COMPLIANT.
4. System's capture stations be NT 4.0; the retrieval stations shall
be NT 4.0 and WIN '95 compatible.
THIS REQUIREMENT WILL BE MET.
5. System shall have the ability to network, preferably using
Ethernet./TCP/IP.
THIS REQUIREMENT WILL BE MET.
6. System shall have API (Application Programmers Interface) tools for
interface with County Systems. System shall be API capable and work
with PowerBuilder.
IWS WILL PROVIDE A CUSTOM API THAT IS CAPABLE OF WORKING WITH
POWERBUILDER. THIS API WILL INCLUDE A SITE LICENSE THAT WILL
ENABLE IT TO BE USED BY ANY WORKSTATION CURRENTLY ACCESSING THE
VCJIS AND INMATE MANAGEMENT DATABASE.
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DETENTION SERVICES
1. System shall have the capability of being able to interface with
the current and future Inmate Management System using AP tools.
IWS WILL PROVIDE A SINGLE API THAT WILL ALLOW THE VENTURA COUNTY
MIS DEPARTMENT TO INCORPORATE IMAGE ENABLING WITHIN THE VCJIS AND
INMATE MANAGEMENT NETWORK. POWERBUILDER AS WELL AS OTHER THIRD
PARTY SOFTWARE CAN UTILIZE THIS 'EXPORT DLL'. THIS API SOLUTION
ALSO INCLUDES A SITE LICENSE ALLOWING ITS USE BY ANY VCJIS OR
INMATE MANAGEMENT WORKSTATION. ADDITIONAL SYBASE CONCURRENCY
LICENSES ARE NOT INCLUDED AND SHOULD BE DISCUSSED DURING CONTRACT
NEGOTIATION.
2. System shall have the capability of being able to capture color
mug-shot photographs during booking process and providing print out
on booking sheets as well as to provide a photograph on inmate
armbands.
CCS IS CAPABLE OF ALL OF THE ABOVE. PRINTERS ARE NOT INCLUDED IN
THIS QUOTE, HOWEVER, ANY WINDOWS NT COMPATIBLE PRINTER CAN BE
UTILIZED. SIX STANDARD PRINT FORMATS ARE INCLUDED WITH THE SYSTEM.
MINOR CHANGES ON THESE FORMATS SHOULD BE DISCUSSED AT CONTRACT
SIGNING AND WILL INCUR NO COST. ADDITIONAL PRINT FORMATS CAN BE
PURCHASED FOR $500.00. A BOOKING SHEET AND A WRISTBAND PRINT ARE
TWO OF THE SIX STANDARD PRINT FORMATS.
3. System shall interface with the demographics and photo imaging
files with current and future Inmate Management Systems and D.B.I.
fingerprint systems.
RECORDS WILL BE INITIATED IN EITHER VCJIS OR THE INMATE MANAGEMENT
APPLICATION, WHICH WILL FEED VCJIS. PORTIONS OF THIS DEMOGRAPHIC
DATA IS CURRENTLY BEING PASSED TO THE LIVESCAN MACHINE, VIA FILE
TRANSFER, ELIMINATING DUPLICATE ENTRY. IWS RECOMMENDS THAT A
SECOND FLAT FILE BE CREATED FROM VCJIS AND WRITTEN TO A DIRECTORY
THAT CCS CONSTANTLY MONITORS. THIS DATA MAY OR MAY NOT BE THE SAME
AS THE DATA NEEDED BY THE LIVESCAN SYSTEM.
BASICALLY, VCJIS, (UPON CREATION, EDIT OR DELETION) CREATES TWO
FLAT TEXT FILES. ONE TEXT FILE IS USED TO POPULATE THE LIVESCAN AND
THE SECOND IS USED TO POPULATE CCS. THESE TEXT FILES MAY OR MAY NOT
BE THE SAME, DEPENDING ON THE DATA THAT IS TRANSFERRED TO CCS.
IMAGEWARE DOES NOT SEE A NEED TO INTERFACE DIRECTLY WITH DBI. IF
DBI IS ACCEPTING THE SAME EXACT TEXT THAT CCS IS, AND AT THE SAME
EXACT TIME, THAN THESE TWO SYSTEMS WILL BE SYNCHRONIZED AS WELL AS
VCJIS. THIS SAID, CCS IS CAPABLE OF IMPORTING AND EXPORTING NIST
FILES AND INTEGRATING WITH DBI. INSTEAD OF VCJIS FEEDING BOTH CCS
AND LIVESCAN AT THE SAME TIME, VCJIS COULD FEED CCS WHICH THEN
FEEDS LIVESCAN OR VISA VERSA.
PHOTO SPECIFIC REQUIREMENTS
1. The system shall be 'USER FRIENDLY'. Minimizing the steps necessary
in preparing six-pack or larger photo line-ups.
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THE CRIME CAPTURE SYSTEM HAS A VERY EASY NAVIGATION METHOD.
FUNCTIONS ARE DISPLAYED ON THE FIRST SCREEN, AND THE USER PICKS A
FUNCTION. EACH SCREEN WITHIN THE FUNCTION ALWAYS INCLUDES THE
ABILITY TO GO TO THE PREVIOUS SCREEN OR TO GO TO THE MAIN MENU
SCREEN. NO TOOL BARS OR TEXT MENUS ARE REQUIRED. THE SYSTEM IS A
WINDOWS PRODUCT, AND MAKES FULL USE OF THE WINDOWS SCREENING
PROPERTIES. OUR ENGINEERS HAVE DESIGNED ALL OF OUR SOFTWARE WITH
NON-TECHNICAL USERS IN MIND. THE AMOUNT OF SCREENS NECESSARY ARE
KEPT TO AN ABSOLUTE MINIMUM. DROP DOWN MENUS. POP-UP WARNINGS AND
STANDARD WINDOWS FUNCTION FEATURES ARE ALL INHERENT. SIMPLE
BUTTONS AND ICONS MAKE IT VERY EASY TO LEARN AND OPERATE.
2. Photographs shall be in JPEG format.
THIS REQUIREMENT WILL BE MET.
3. System shall be capable of being able to reduce or enlarge
photographs while keeping the original photo file intact.
WITHIN CCS, IMAGES CAN BE 'ROPED' AND ZOOMED IN AS NECESSARY. THE
ORIGINAL PHOTO CANNOT BE EDITED OR SIZED BUT THE VIEWED AND PRINTED
IMAGES MAY BE SIZED AS NECESSARY.
4. System shall conform to all California Department of Justice (DOJ),
Federal and NIST Standards for mug-shot photographs.
CCS MEETS ALL CALIFORNIA DOJ AND FEDERAL NIST STANDARDS.
5. System shall accept existing photographs (through data conversion).
EXISTING TFP (PRINTRAC) IMAGES AND DATA WILL BE CONVERTED IMPORTED
INTO CCS. THESE IMAGES AND DATA WILL BE FULLY ACCESSIBLE.
6. System shall be capable of creating color or black and white
six-pack photographic line-ups.
CCS WILL CREATE PHOTO LINE-UPS WITH A SPECIFIED AMOUNT OF IMAGES.
THE CRIME CAPTURE SYSTEM WILL RETRIEVE AND DISPLAY THE IMAGES OF
ALL SUBJECTS WITH CHARACTERISTICS THAT MATCH, OR SUBSTANTIALLY
MATCH, THOSE OF THE LINE-UP SUBJECT. THE USER WILL BE ABLE TO
SELECT OR REJECT FROM THE IMAGES RETRIEVED, THAT TOGETHER WITH THE
SUBJECT'S CONSTITUTE THE LINE-UP. THE LINE-UP WILL BE RANDOM
ORDERED, AND MAY BE SAVED FOR FUTURE RETRIEVAL. THESE PHOTO
LINE-UPS ARE PRINTABLE IN COLOR OR BLACK & WHITE. IN ADDITION, WE
WILL BE PROVIDING, AT NO COST, TWO COPIES OF CRIME LAB IMAGE
EDITING SOFTWARE. THIS SOFTWARE IS CAPABLE OF REMOVING DISTRACTING
BACKGROUNDS AND COPYING SCARS OR TATTOOS FOR PASTING ON THE OTHER
SUBJECTS IN THE LINE-UP. THIS CREATES VERY NON-PREJUDICIAL LINE-UPS.
7. We would like the system to have the capability of being able to
view multiple mug-shots at one time when selecting candidates for
six-pack line-ups, rather than having to go back and forth
selecting one candidate at a time.
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CREATING A LINE-UP IS SIMPLE. CHOOSE THE KNOWN SUSPECT TO BE PLACED
IN A LINE-UP AND CLICK 'CREATE LINE-UP'. THIS WILL PROMPT CCS TO
RETURN THE IMAGES OF ALL PEOPLE WHO'S TEXT BASED PHYSICAL
CHARACTERISTICS MATCH THE KNOW SUSPECT. THE USER THEN, SIMPLY
SCROLLS DOWN THIS LIST OF RETURNED IMAGES, CHOOSING THE ONES TO BE
PLACED IN THE LINE-UP. ONCE THE PHOTOS ARE CHOSEN, THE LINE-UP CAN
BE SAVED AND PRINTED.
CCS PRINTS TWO DIFFERENT LINE-UPS, PUBLIC AND INTERNAL. PUBLIC
LINE-UPS INCLUDE NO TEXT INFORMATION, ONLY THE PHOTO. INTERNAL
LINE-UPS PRINT THE PHOTOS AS WELL AS THE NAMES AND ID NUMBERS OF
THE PEOPLE IN THE LINE-UP.
8. System shall have the capability of being able to print out an
individual color or black and white photograph while displaying a
six-pack or displaying a full page of photographs.
CCS HAS THIS CAPABILITY. A SIMPLE 'RIGHT CLICK' ON ANY IMAGE
ENABLES IT TO BE PRINTED.
9. System shall have the ability to print out a photograph without
demographic descriptors or with descriptors that include but not
limited to Name, DOB, Booking #, BI# (Bureau of Identification
Number), HEIGHT, WEIGHT, HAIR COLOR, AND EYE COLOR.
THIS REQUIREMENT WILL BE MET. 'RIGHT CLICKING' ON ANY IMAGE ALLOWS
YOU TO PRINT A SINGLE IMAGE WITH NO TEXT. PRINTING THROUGH THE
'PRINT MENU' ALLOWS YOU TO CHOOSE FROM A VARIETY OF TEMPLATES, EACH
WITH DIFFERENT TEXT ASSOCIATED. SIX STANDARD TEMPLATES ARE INCLUDED
WITH THIS PROPOSAL, ONE OF WHICH MEETS THE ABOVE CRITERIA.
10. System shall be capable of creating 'Attempt to Locate' and 'Wanted
Persons' poster.
THIS REQUIREMENT WILL BE MET. IN ADDITION, WE ARE INCLUDING TWO
COPIES OF SUSPECT ID (SID) COMPOSITE SOFTWARE. SID ALSO PRINTS
'WANTED POSTERS' OF DIGITAL COMPOSITE SUSPECTS.
11. System shall have the ability to modify templates (by 'USER') for
'Attempt to Locate' or 'Wanted Posters' that reflects each Agencies
own individual identification (Department's name, Chiefs name etc.)
MINOR CHANGES IN STANDARD PRINT FORMATS SHOULD BE OUTLINED AT
CONTRACT SIGNING. EACH PRINT FORMAT IS HELD LOCALLY ALLOWING
INDIVIDUAL AGENCIES TO PRINT INDIVIDUAL PRINT FORMATS.
12. We would like the system to have the capability of being able to
securely E-mail photographs over the Internet.
PHOTOS CAN BE EXPORTED IN A NUMBER OF FILE FORMATS. IMAGEWARE IS
NOT RESPONSIBLE FOR SECURITY OF THE PHOTOGRAPHS ONCE EXPORTED FROM
CCS AND OUTSIDE THE CCS NETWORK. CCS IS CAPABLE OF EXPORTING NIST
PACKAGES INCLUDING PHOTOGRAPHS TO THE STATE OVER A NETWORK OR
SECURE INTRA-NET.
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13. We would like the system to have the capability of being able to
export photo images to internal or external networks, or other
outside communication links including CAL-PHOTO and MOBILE DATA
terminals.
CCS IS COMPATIBLE WITH CAL-PHOTO. WHEN A LOCAL WEB-SERVER IS
ACQUIRED FOR THIS, CCS CAN EXPORT THE NEEDED DATA AND PHOTO
LOCATION FOR USE BY CAL-PHOTO. CCS IS AN OPEN ARCHITECTURE, ODBC
COMPLIANT SYSTEM. WHEN A MOBILE DATA SOLUTION IS ACQUIRED, WE
WILL WORK WITH THE SELECTED VENDOR TO PROVIDE A SOLUTION THAT CAN
SEND PHOTOS TO THE MOBILE DATA TERMINAL.
14. We would like the system to have the ability for the 'USER' to cut
and paste photographs without changing the original photographic
file.
ONCE A PHOTOGRAPH IS TAKEN IT CAN BE EXPORTED AS NECESSARY. THE
PHOTO CANNOT, HOWEVER, BE IMPORTED BACK INTO CCS TO REPLACE AN
ORIGINAL PHOTO. IT CAN BE ASSOCIATED TO THE RECORD AS AN EDITED
PHOTO. ORIGINAL PHOTOS CANNOT BE EDITED, UNLESS EXPORTED AND THEN
RE-IMPORTED AS EDITED PHOTOS. THESE EDITED PHOTOS DO NOT REPLACE
ORIGINALS.
15. System shall have the ability to easily compress photo image files
for transmission across radio and or cellular frequencies without
degradation.
THE THUMBNAILS IMAGES WITHING CCS CAN BE TRANSMITTED ACROSS RADIO
AND CELLULAR FREQUENCIES.
16. System shall have the capability of being able to capture
photographs of tattoos, marks, scars, or any other identifying
characteristics.
PHOTOS CAPTURED CAN BE MULTIPLE VIEWS OF THE ARRESTEE, AND PHOTOS
OF ALL SCARS, MARKS, AND TATTOOS (SMT). PROPERTY, EVIDENCE AND
CRIME SCENE PHOTOGRAPHS CAN ALSO BE ATTACHED TO EACH RECORD. ALL
PHOTOS TAKEN WILL BE LINKED TO THE BOOKING RECORD. THIS RECORD
CAN BE FOUND IN MULTIPLE WAYS; SEARCHING BY DEMOGRAPHIC DATA,
USING A PHOTO AND SEARCHING WITH FACE ID, OR ACCESSING THE RECORDS
BY THE BOOKING NUMBER OR OTHER IDENTIFYING NUMBERS.
THE LOCATION OF THE SCAR, MARK, OR TATTOO ON THE BODY WILL BE CHOSEN
FROM A USER-MAINTAINED LIST OF CHOICES. THERE WILL BE A DESCRIPTION
FIELD FOR EACH SMT, WHERE ANY WORDS ON THE TATTOO CAN BE ENTERED
AS FREE FORM TEXT INFORMATION, AND OTHER DESCRIPTIVE INFORMATION
ABOUT THE SMT CAN BE ENTERED. WHETHER A PHOTO OF THE SMT IS TAKEN
OR NOT, THE DESCRIPTION OF THE SMT CAN BE ENTERED.
17. We would like the system to have the capability of being able to
import additional information via TWAIN (i.e. weapons, vehicles,
or residences.)
CCS CAN IMPORT IMAGES FROM A NUMBER OF SOURCES, INCLUDING TWAIN
COMPLIANT DEVICES.
18. System shall have the ability to print out single color or black
and white photographs on 8-1/2 x 11-inch paper.
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THIS REQUIREMENT WILL BE MET. ANY PRINTER WITH A WINDOWS NT 4.0
DRIVER MAY BE UTILIZED. SIX STANDARD PRINT FORMATS ARE SHIPPED
WITH THE SYSTEM. ADDITIONAL FORMATS MAY BE PURCHASED. SMALL CHANGES
IN THE STANDARD FORMATS WILL BE DONE AT NO CHARGE.
COMPOSITE SOFTWARE SPECIFIC
1. System shall include Composite software or allow for interface to
Composite Software.
THE PROPOSAL INCLUDES TWO COPIES OF SUSPECT ID COMPOSITE
SOFTWARE AT NO COST.
2. Composite software shall be capable of creating photo realistic
composites of suspects.
SUSPECT ID CREATES COLOR AND B/W PHOTO REALISTIC COMPOSITES.
3. System shall have capability of being able to search composite of
suspects to photo image database.
SUSPECT ID COMPOSITES ARE COMPATIBLE WITH IMAGEWARE'S FACE ID
FACIAL RECOGNITION SOFTWARE. IF AND WHEN, VENTURA COUNTY ADDS
FACIAL RECOGNITION SOFTWARE TO THE MUG SERVER, COMPOSITES CAN EASILY
BE SEARCHED AGAINST THE BOOKING DATABASE.
FACE ID FACIAL RECOGNITION SOFTWARE CAN BE ADDED TO THE CCS SERVER
AT ANY TIME. THIS IS A VERY POWERFUL TOOL THAT HAS MANY APPLICATIONS.
AT THE TIME OF BOOKING, MUGSHOTS CAN BE SEARCHED AGAINST THE EXISTING
DATABASE TO FIND POTENTIAL ALIASES AND DUPLICATES. SURVEILLANCE
PHOTOS AND VIDEOS OF UNKNOWN SUSPECTS CAN BE SEARCHED AGAINST THE
MUG DATABASE TO FIND POSSIBLE MATCHES BASED ON FACIAL DATA ALONE.
ALSO, COMPOSITES GENERATED IN SUSPECT ID CAN BE SEARCHED AGAINST THE
MUG DATABASE TO FIND POTENTIAL SUSPECTS.
FACE ID INTEGRATES FULLY WITH CCS AND SHARES THE SAME DATA. NO
ADDITIONAL HARDWARE MAY BE NEEDED AND IMAGES ARE ENROLLED AS THEY
ARE BOOKED SO THERE IS NO CONVERSION COSTS.
4. Composite software shall have capability of being able to build
composites that may be viewed and printed in black and white or
full color and to accurately depict skin, hair, lip and eye colors
or shape.
THIS REQUIREMENT WILL BE MET.
5. Composite software shall allow for imaging enhancement and editing
program for updating old photos, and enhancements of surveillance
videos.
THIS REQUIREMENT WILL BE MET. TWO COPIES OF CRIME LAB, IMAGE
EDITING SOFTWARE, ARE INCLUDED WITH THIS SYSTEM AT NO COST.
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6. Composite image program shall have capability of being able to add
or remove facial hair.
THIS REQUIREMENT WILL BE MET.
7. System shall have capability of being able to accept captured video,
digital and scanned images.
THIS REQUIREMENT WILL BE MET. TWO COPIES OF CRIME LAB IMAGE
ENHANCEMENT SOFTWARE ARE INCLUDED IN THE PROPOSAL. CRIME LAB CAN BE
USED TO CAPTURE AND ENHANCE VIDEO IMAGES. IT INTERFACES WITH ALL THE
CRIMES MODULES TO ADD FURTHER CAPABILITIES TO EACH.
8. System shall include or allow for an interface to some type of
Vehicle I.D. system. System shall provide that the vehicle database of
this system have the capability of being able to search vehicles by
feature, text or V.I.N. (Vehicle Identification Number). The system
shall also accurately depict vehicles, colors, and display views of
vehicles from various angles, including front, rear, side and three-
quarter views.
TWO COPIES OF VEHICLE ID ARE INCLUDED IN THE PROPOSAL. VID MEETS
ALL OF THE ABOVE REQUIREMENTS AND ALSO INTERFACES WITH CRIME LAB TO
PROVIDE FOR DENTS, RUST, CRACKS, ETC.
SEARCH ENGINES
1. The new Photo Imaging System shall have a search engine capable but
not limited of searching by: BI#, NAME, AKA, MONIKER, PHYSICAL
DESCRIPTION INCLUDING BUT NOT LIMITED TO HEIGHT, WEIGHT, EYE COLOR,
HAIR COLOR, TATTOOS, MARKS AND SCARS.
THE CCS SEARCH ENGINE HAS THE CAPABILITY OF SEARCHING ON EVERY
FIELD THAT IS CAPTURED AND ANY COMBINATION OF THOSE FIELDS. THE USER
CAN ALSO PERFORM KEYWORD SEARCHES ON ALL S/M/T's AND ASSOCIATED
PHOTOGRAPHS AS WELL AS THE FREE TEXT FIELDS.
2. We would like the new system to be able to search by: residence and
business address, and residence and business phone numbers. Currently,
CCS does not search business addresses and phone numbers, however
this feature is planned for the next version of CCS.
3. The new Photo Imaging System shall have the ability to query and
print out photographs of gang members by their specific gang.
CCS IS DELIVERED WITH 4 USER DEFINABLE FIELDS. ONE OF THESE FIELDS
CAN BE ASSOCIATED TO GANG MEMBERS AND CAN THEN BE SEARCHED BY GANG
AFFILIATION. THIS REQUIREMENT WILL BE MET.
4. The system shall have the capability to interface with CAL-GANG and
the future CAL-PHOTO system and be compatible with CAL-PHOTO
standards. The new Photo Imaging System shall have the ability to
search for tattoos by
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their description.
CCS CAN EXPORT STANDARD NIST FILES OR B.BCT FILES TO BOTH CALGANG
AND CALPHOTO. THESE FILES CONTAIN DEMOGRAPHIC INFORMATION AND THE URL
OF THE PHOTO. TATTOO MAY BE SEARCHED BY DESCRIPTION AS WELL AS
LOCATION. FREE TEXT CAN BE ASSOCIATED WITH EACH TATTOO AND LATER
SEARCHED BY KEY-WORD QUERY.
6. We would like the system to have the capability to search tattoos by
location on a person's body, and whether the tattoo has been
identified as 'street gang', 'prison gang', 'hate groups'.
THIS REQUIREMENT WILL BE MET.
PRINTER SPECIFIC REQUIREMENTS
1. The new photo imaging system shall have the ability to print
out black and white or color photographs using a variety of
printers, including but not limited to those printers commonly
referred to as 'Bubble Jet', 'Ink-Jet', 'Laser', and or other generic
plain paper printers.
CCS IS CAPABLE OF UTILIZING ANY PRINTER THAT HAS A WINDOWS NT 4.0
PRINT DRIVER.
MISCELLANEOUS REQUIREMENTS
1. The system shall have the ability to integrate photographs and or
information with other outside systems such as CAL-GANG and CAL-PHOTO
(future).
WHEN VENTURA COUNTY IS READY, CCS CAN EXPORT THE FILE TYPE THAT IS
NEEDED BY BOTH CAL-GANG AND CAL-PHOTO. WE FULLY EXPECT VENTURA COUNTY
TO BE A FULL PARTICIPANT IN BOTH OF THESE PROJECTS.
2. Capture stations shall have the capability to locally store and
forward during times of temporary network interruptions.
THIS IS A VERY IMPORTANT FEATURE OF CCS. ALL CAPTURE STATIONS HAVE
THIS ABILITY.
3. The server and work stations shall have remote 'boot/reboot'
capability for diagnostics.
THE IS A KEY FEATURE OF THE IBM COMPONENTS AND MANAGEMENT SOFTWARE
THAT IS UTILIZED BY CCS. THE ENTIRE SYSTEM CAN BE DIAGNOSED REMOTELY
AND BROUGHT BACK ON-LINE WITH VERY MINIMAL DOWN TIME. THE NETFINITY
MANAGEMENT SOFTWARE IS INSTRUMENTAL IN KEEPING MAINTENANCE COSTS
DOWN AND THE SYSTEM UP AND RUNNING.
HARDWARE ISSUES
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1. All present capture and retrieval stations, remote and local, are
to be installed at their current sites. The retrieval sites have the
capability of being upgraded to capture stations at some future date.
WE UNDERSTAND THIS REQUIREMENT AND WILL COMPLY.
2. Vendor shall properly configure and install all Photo Imaging
Systems at the direction of the Project Manager or his designee.
THIS REQUIREMENT WILL BE MET.
3. All capture stations will be standardized with respect to uniformed
and evenly dispersed lighting so all photographs maintain Federal,
State and NIST standards.
ALL CAPTURE STATIONS WILL MEET OR EXCEED FEDERAL, STATE AND NIST
STANDARDS.
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SOFTWARE SUMMARY
Following is a list of all software included with this proposal. Prices on
this software as well as prices on additional software options are included
in the pricing spread sheet.
(1) Enterprise Server Win NT 4.0 (25 License)
(1) Sybase License Server 6.0 + 5 users
(1) Sybase License 6.0 (20 User)
(1) Systems Integration - Flat File Interface w/VCJIS
(1) Systems Integration - Custom API for Image Retrieval & Site License*
(11) CCS Investigative Display Software (Full)
(10) CCS Capture Station Software
(2) Suspect ID (Composite Software)
(2) Crime Lab (Image Editing Software)
(2) Vehicle ID
SOFTWARE WARRANTIES
All non-customized software has a full 1 Year warranty. There are some
maintenance costs in the first year. Costs associated with the first year of
service include custom software maintenance, and complete 24/7 customer
service. Software and hardware maintenance cost are calculated through five
years on the Pricing spread sheet.
SOURCE CODE
The latest versions of all CRIMES modules, including CCS will be put into an
escrow account. The specifics of this escrow agreement will be outlines at
contract signing.
SOFTWARE ON-GOING MAINTENANCE AND SUPPORT
Maintenance for the system software will be 7 days per week, 24 hours per
day, with all agencies in VENTURA COUNTY SHERIFF'S OFFICE having just one
toll-free number to call for service. ImageWare will meet the response times
as outlined in the RFP. Initial calls will be received by the IWS Help Desk.
If no one is available, a call back will be made within 1 hour. Within a 24
hour period, a hardware technician will be on-site to troubleshoot and
correct the problem. Faster on-site response times may be negotiated.
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If any installation within any agency will require access to restricted areas
by IWS employees, it is expected that information will be given to ImageWare
during contract negotiations. ImageWare will make any and all information
available to the VENTURA COUNTY SHERIFF'S OFFICE for each employee who must
have access to the restricted areas.
The equipment and software supplied as part of this proposal will be fully
guaranteed for a minimum period of 12 months. All prices quoted as part of
this proposal are guaranteed for a period of 12 months.
The central server comes complete with dial-in modem, and the IBM Netfinity
Manager software and clients installed on each supplied workstation. This
will enable the customer service rep to access, and actually 'take over'
workstations when necessary to diagnose and repair any problems.
Software support first level is via toll free number to phone support. This
customer service rep has the ability to escalate the problem up to level 2
support, which is an R&D engineer. If that person requires an on-site rep,
one will be dispatched. We also include IBM hardware support with each IBM
system. Sometimes, the ImageWare programmer just needs a set of hands and
eyes on-site, and an IBM technician will be dispatched. Dial-in access is
available to both levels 1 and 2, and using Netfinity Manager, many problems
can be diagnosed and resolved by 'taking over' the workstation that is having
problems, seeing the error happen, and resolving the situation immediately
via remote connection.
HARDWARE SUMMARY
Following is a list of all hardware included with this proposal. Prices on
this hardware as well as prices on additional hardware options are included
in the pricing spread sheet. Also listed is the recommended hardware
configuration for investigative workstations.
NETFINITY 5500 450MHZ DUAL PENTIUM SERVER
IBM Netfinity 5500 Pentium II 450MHz/512KB L2,256MB ECC,OPEN,32X,PCI/ISA
(Std) 10/100 PCI Ethernet
(Std) 2-Drop 16-bit SCSI Internal Cable
(Std) 32X Max IDE CD-ROM Drive
(Std) 450/100 MHz Pentium II Processor with 512 KB ECC L2 Cache
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Keyboard (Stealth Grey)
(Std) Integrated IDE Controller
(Std) Integrated PCI Ultra SCSI RAID Controller-dual channel
(Std) Mouse Stealth Grey
(Std) Netfinity 400W Hot-Swap Power Supply
(Std) Netfinity NetBAY3
(Std) Processor Complex Card
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- -------------------------------------------------------------------------------
(Std) S3 Trio64V2 Graphics - 1MB SGRAM
- -------------------------------------------------------------------------------
(Std) Systems Management Processor
- -------------------------------------------------------------------------------
IBM 20/40GB DLT Internal SCSI Tape Drive (FH)
- -------------------------------------------------------------------------------
IBM Netfinity 400W Hot-Swap Redundant Power Supply II (2 total)
- -------------------------------------------------------------------------------
IBM Netfinity 256MB SDRAM ECC RDIMM (Registered) (512MB total)
- -------------------------------------------------------------------------------
IBM Netfinity 9.1GB 10K Wide Ultra SCSI SL SCA-2HDD (4 total)
- -------------------------------------------------------------------------------
450/100MHz Pentium II Processor with 512KB ECC 1.2 Cache (2 total)
- -------------------------------------------------------------------------------
G74 - 17(15.9) in. Color Monitor, 69 KHz, Stealth Gray
- -------------------------------------------------------------------------------
OBI External V.34 Data/Fax Modem
- -------------------------------------------------------------------------------
Smart-UPS 1400-17 Min Runtime
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
CAPTURE HARDWARE (10)
- -------------------------------------------------------------------------------
IBM PC 300PL 6862 (4X4) 2
- -------------------------------------------------------------------------------
PC 300PL Pentium II 400MHz MMX/512KB, 64MB, 6.4GB, 4MB, 32X, 16bit, WinNT,
PCI/ISA
- -------------------------------------------------------------------------------
(Std) IBM 6.4GB EIDE Hard Drive
- -------------------------------------------------------------------------------
(Std) 10/100 PCI Ethernet WOL
- -------------------------------------------------------------------------------
(Std) 16-bit ISA Crystal Audio Integrated
- -------------------------------------------------------------------------------
(Std) 400/100MHz MMX Pentium II Processor with 512KB Pipeline B
- -------------------------------------------------------------------------------
(Std) 4MB Integrated SGRAM Video Memory
- -------------------------------------------------------------------------------
(Std) 64MB 60 ns NP SDRAM DIMM
- -------------------------------------------------------------------------------
(Std) CD-ROM Drive Internal 32X Max (Variable Speed)
- -------------------------------------------------------------------------------
(Std) IBM 1.44MB 3.5-inch Diskette Drive
- -------------------------------------------------------------------------------
(Std) IBM 104-key Rubber Dome Keyboard
- -------------------------------------------------------------------------------
(Std) Integrated IDE Controller
- -------------------------------------------------------------------------------
(Std) S3 Trio3D AGP Graphics Integrated
- -------------------------------------------------------------------------------
G74 - 17(15.9) in. Color Monitor, 69 KHz, Pearl White
- -------------------------------------------------------------------------------
Cable bundle (for camera sub-system)
- -------------------------------------------------------------------------------
Capture Card MVPro (for camera sub-system)
- -------------------------------------------------------------------------------
MINIMUM REQUIREMENTS FOR INVESTIGATIVE WORKSTATION HARDWARE
(Not included in price)
- -------------------------------------------------------------------------------
Pentium Processor Computer
- -------------------------------------------------------------------------------
32 MB RAM
- -------------------------------------------------------------------------------
CD-ROM Drive Internal 32X Max (Variable Speed)
- -------------------------------------------------------------------------------
Graphics card capable of at least 16,000 colors.
- -------------------------------------------------------------------------------
Monitor and graphics card with 600x800 resolution capability
- -------------------------------------------------------------------------------
HARDWARE WARRANTIES
All hardware that IWS supplies carries a full 1 Year warranty. IWS will not
support printers, hardware or camera sub-systems that are provided by the
County. If service is requested on any of this hardware, it can be discussed
at contract negotiations.
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HARDWARE MAINTENANCE
Maintenance for the system hardware will be 7 days per week, 24 hours per
day, with all agencies in VENTURA COUNTY SHERIFF'S OFFICE having just one
toll-free number to call for service. ImageWare will meet the response times
as outlined in the RFP. Initial calls will be received by the IWS Help Desk.
If no one is available, a call back will be made within 1 hour. Within a 24
hour period, a hardware technician will be on-site to troubleshoot and
correct the problem. Faster on-site response times may be negotiated.
If any installation within any agency will require access to restricted areas
by IWS employees, it is expected that information will be given to ImageWare
during contract negotiations. ImageWare will make any and all information
available to the VENTURA COUNTY SHERIFF'S OFFICE for each employee who must
have access to the restricted areas.
The equipment and hardware supplied as part of this proposal will be fully
guaranteed for a minimum period of 12 months. All prices quoted as part of
this proposal are guaranteed for a period of 12 months.
The central server comes complete with dial-in modem, and the IBM Netfinity
Manager software and clients installed on each supplied workstation. This
will enable the customer service rep to access, and actually 'take over'
workstations when necessary to diagnose and repair any problems.
Software support first level is via toll free number to phone support. This
customer service rep has the ability to escalate the problem up to level 2
support, which is an R&D engineer. If that person requires an on-site rep,
one will be dispatched. We also include IBM hardware support with each IBM
system. Sometimes, the ImageWare programmer just needs a set of hands and
eyes on-site, and an IBM technician will be dispatched. Dial-in access is
available to both levels 1 and 2, and using Netfinity Manager, many problems
can be diagnosed and resolved by 'taking over' the workstation that is having
problems, seeing the error happen, and resolving the situation immediately
via remote connection.
SITE PREPARATION
Capture room specifications are included on the following page. These
specifications are required to meet NIST compliance. Any deviation from these
specifications may bring the system out of compliance. ImageWare is not
responsible for meeting NIST requirements if these specification cannot be
met.
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DATA CONVERSION SERVICES
- ------------------------------------------------------------------------------
ImageWare will convert the existing TFP proprietary database at the cost
outlined in the Price spread sheet. The database must be supplied to IWS in
an agreed upon period of time and on an agreed upon media. This conversion
will be accomplished within the three month installation period and before
the acceptance period begins. ImageWare has successfully converted this type
of database on previous occasions and does not expect to enlist the support
of Printrac or third party suppliers like Pinnacle Technologies.
SYSTEM DOCUMENTATION
- ------------------------------------------------------------------------------
ImageWare will furnish the county with 22 copies of the CRIMES application
software documentation and manuals. Additionally, we will provide
manufacturer documentation on all hardware provided. All user and training
manuals will reflect the latest version of application software and the
version that is being installed. Additional copies may be purchased.
TRAINING
- ------------------------------------------------------------------------------
Training time is kept to a minimum with the Crime Capture System, as it is so
easy to use. 2 days on-site training is included with the price of the
system. Class size is limited to 15 and the class style is lecture. After the
training session, users have lab time for hands-on familiarization.
Training will be accomplished at each agency location, using their system
equipment. All handout materials and reference materials will be furnished.
It is recommended that at least one training session be video taped and
duplicated for each agency for on-going training purposes.
Follow-up training is available, either on-site or at the IWS facilities. The
length of each class is outlined below:
CRIME CAPTURE SYSTEM TRAINING OUTLINE
OBJECTIVE: By the end of the training session, students will know how to book
a suspect, search a database, use the mug book function and create photo
line-ups.
CLASS SIZE: Maximum 15 students
55
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<TABLE>
<CAPTION>
TRAINING OUTLINE:
<S> <C> <C>
I. Starting the program 5 minutes
II. New Bookings 90 minutes
a. Adding a New Booking
b. Searching for Matches
1. Linking Records
2. Unlinking Records
c. Viewing Records
d. Viewing Multiple Bookings
e. Editing and Deleting Records
f. Printing Individual Records
III. Searching 45 minutes
a. Quick Search
b. Advanced Search
c. Saving a Search
d. Running and Existing Search
e. Deleting and Existing Search
f. Printing Search Results
IV. Mug Book 30 minutes
a. Searching for Mugshot
b. Saving a Mug Book
c. Viewing an Existing Mug Book
d. Deleting a Mug Book
V. Photo Line-up 40 minutes
a. Creating a Photo Line-up
b. Saving a Photo Line-up
c. Viewing an Existing Photo Line-up
d. Deleting an Existing Photo Line-up
e. Printing a Photo Line-up
</TABLE>
IMPLEMENTATION SCHEDULE
- ------------------------------------------------------------------------------
A Project Manager will be named by ImageWare Software, Inc., to oversee and
manage the planning, monitoring, reporting, and acceptance of the system
outlined in the proposal if ImageWare is the successful vendor. This
person's resume will be supplied during contract negotiations. It is expected
that the VENTURA COUNTY SHERIFF'S OFFICE will also name a Project
Coordinator who will work with the IWS Project Manager, who will be
responsible for all tasks outlined as COUNTY responsibility on the task list.
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<PAGE>
APPROACH TO PROJECT
ImageWare has a well-defined, disciplined approach to program management
which includes:
- Attention to customer satisfaction
- Regular communications with customer via weekly status meeting, monthly
project status reports, and quarterly reviews
- Regularly scheduled status meetings with the project staff
ImageWare will avoid and mitigate risks by reviewing, prioritizing, and
monitoring key project risks throughout the project life cycle. Identified
project risks will be recorded and tracked to resolution. Identification of
risks and potential mitigation plans will be reviewed with the project staff
monthly, documented in the project reports, and presented to the VENTURA
COUNTY SHERIFF'S OFFICE's Project Coordinator during the project review. By
identifying risks early before they have impacted the project, the actual
impact to the project can be decreased, if not totally eliminated. An
inescapable fact of project management is that there are always risks. The
key to ensuring a successful project is to manage them. This means the
following must be done early, before the risk actually impacts the project:
- Identify risks (technical, schedule, and cost)
- Prioritize and quantify risks
- Assign responsibility
- Mitigate (determine mitigation action, responsible person, due date)
- Track Progress
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<TABLE>
<CAPTION>
- ------------------------ ---------------------------- ---------- -------------------
CUSTOMIZATION DEFINITION CUSTOMIZATION IMPLEMENTATION DEPLOYMENT MAINTENANCE SUPPORT
- ------------------------ ---------------------------- ---------- -------------------
<S> <C> <C> <C>
Phase 1: Tasks
- --------------
- - Database field definitions Phase 2: Tasks
- - Define field validation rules --------------
- - Define code tables - Implement customized database Phase 3: Tasks
- - Define print formats, Audit Trail - Implement field validation rules --------------
- Implement customized screens - Integration Phase 4: Tasks
- - Define Mandatory Fields - Implement Audit Trail reports - Installation --------------
- Training - HW & SW Maintenance
- - Site Surveys - Develop installation plan - System Acceptance - Enhancements &
- - Procure Components - Develop acceptance test document upgrades (Option)
- Develop training material
- Develop user manuals
Phase 1: Milestones
- -------------------
- - Specifications Review Phase 2: Milestones
- - Purchase Order Issued -------------------
- Ready-To-Ship Review Phase 3: Milestones
- Installation Schedule Review -------------------
- Site Reviews Phase 4: Milestones
Phase 1: Deliverables - Final System Acceptance -------------------
- --------------------- - Maint. Plan Review
- - Specifications Document Phase 3: Deliverables
- - Installation Schedule (preliminary) ----------------------
- - Purchase Order - Acceptance Test Plan Phase 3: Deliverables
- Installation Schedule ---------------------
- Site hardware Phase 4: Deliverables
- Site software ---------------------
- Training Material - Help Desk Incidence
- User Manual Statistics
- System Administration - Maint. Plan
Manual
</TABLE>
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COMPLIANCE WITH TERMS AND CONDITIONS
- -------------------------------------------------------------------------------
3.1 REGULATION COMPLIANCE
IWS will comply.
3.2 PERFORMANCE BOND
IWS will comply with the bond requirements as outlined in paragraph 3.2.
3.3 RESPONSIBILITY OF PROPOSER
IWS will comply.
3.4 CONDITIONS FOR ACCEPTANCE
The system final acceptance testing period will begin when the system is
installed, data conversion has been accomplished and all interfaces have been
accomplished. Final system acceptance will begin no more than 90 days from
contract signing. Final system acceptance will begin when IWS certifies that
the Equipment is ready for use. The system acceptance shall cover a period of
30 (thirty) days.
The system final acceptance testing period will be considered successful if
accuracy requirements are satisfied and if each device is operational for
ninety-eight percent (98%) of the schedule operating time during the
acceptance period, excluding downtime. Schedule downtime not to exceed 4
hours per calendar month.
Formal sign-off of acceptance of the system will take place immediately after
the successful completion of the system acceptance period.
The system shall not be accepted by the County and no final charges
associated with such system shall be paid by the County until the successful
completion of the system acceptance period.
Prior to acceptance hereunder IWS shall deliver software documentation and
user manuals and hardware/equipment user and operating manuals.
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<PAGE>
3.5 COMMITMENTS, WARRANTY AND REPRESENTATIONS
IWS agrees.
3.6 PERFORMANCE PERIOD
IWS shall perform/deliver the products and/or services on or before the
completion Date specified in the response, provided that conditions for site
preparation are met on time by Ventura County and that no cause beyond IWS's
reasonable control ("Force Majeure") has occurred.
3.7 WARRANTIES
a. IWS agrees. IWS warrants that the Software/Hardware supplied
hereunder will perform substantially in accordance with is published
specifications and documentation for a period of one (1) year from the date
the County accepts such items. IWS shall correct software repairs and
deficiencies reported by the County, without any charge to the County and
within a reasonable period of time.
b. IWS represents that has title to the Software and the authority
to grant licenses to use the third party software.
c. IWS agrees.
d. IWS confirms.
e. IWS confirms.
3.8 SITE PREPARATION
a. The system to be installed does not required any special
environmental considerations. IWS will work with the County to provide site
preparation specifications to ensure that the system shall operate
efficiently, from an environmental point of view and properly from a
functional point of view.
b. Exhibit B displays the optimized configuration for the capture
workstation to meet NIST compliance. IWS will work with the County to develop
a site plan.
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<PAGE>
c. IWS agrees to the preparation of the sites by the County in
accordance with the IWS's written minimum site and environmental
specifications, including electrical power and network installation.
d. IWS agrees.
3.9 PATENT AND COPYRIGHT PROTECTION
IWS agrees.
3.10 RIGHTS IN DATA
Source code utilized in C.R.I.M.E.S.-Registered Trademark- is already
covered by U.S. Patents, Copyrights and Trade Marks. In title, it is owned by
ImageWare Software, Inc.
3.11 TITLE TO EQUIPMENT
IWS agrees.
3.12 FORCE MAJEURE
IWS agrees.
3.13 INDEMNIFICATION/HOLD HARMLESS
IWS agrees.
3.14 INSURANCE PROVISIONS
IWS agrees to all the Insurance Provisions included in paragraph 3.14.
3.15 NON-APPROPRIATION OF FUNDS
IWS agrees.
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3.16 TAXES
IWS agrees.
3.17 INDEPENDENT CONTRACTOR
IWS agrees.
3.18 CONTRACT MONITORING
IWS agrees.
3.19 EQUAL OPPORTUNITY
IWS agrees.
3.20 INVESTIGATION AND RESEARCH
IWS agrees.
3.21 TERMINATION
IWS agrees.
3.22 CHANGES/ALTERATIONS
IWS agrees.
3.23 CONFIDENTIALITY
IWS agrees.
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3.24 RIGHTS AND REMEDIES OF COUNTY FOR DEFAULT
IWS agrees to all the rights and remedies included in paragraph 3.24.
3.25 GOVERNING LAW
IWS agrees.
3.26 SEVERABILITY OF CONTRACT
IWS agrees.
3.27 CUMULATIVE REMEDIES
IWS agrees.
3.28 ASSIGNMENT
IWS agrees.
3.29 TERMINATION OF CONTRACT
IWS agrees to all the clauses of this title providing that in the event
that the County terminates the Agreement without cause, IWS shall be paid for
the work provided to the date of termination, as long as such work meets the
terms and conditions of this Agreement, and in addition the County shall pay
the price specified in Exhibit A for all the equipment already purchased by
IWS to furnish this Agreement.
64
<PAGE>
COST PROPOSAL SUMMARY `EXHIBIT A'
- -------------------------------------------------------------------------------
65
<PAGE>
<TABLE>
<CAPTION>
DESCRIPTION QTY UNIT EXT TOTAL
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
NETFINITY 5500 450 MHZ DUAL PENTIUM SERVER
IBM Netfinity 5500 Pentium II 450MHz/512KB L2,256MB ECC, OPEN 32X,PCI/I 1 $7,436.25 $7,436.25
(Std) 10/100 PCI Ethernet
(Std) 2-Drop 16 bit SCSI Internal Cable
(Std) 32X Max IDE CD-ROM Drive
(Std) 450/100 MHz Pentium II Processor with 512KB, ECC L2 Cache
(Std) IBM 1.44 MB 3.5-inch Diskette Drive
(Std) IBM 104-key Keyboard (Stealth Grey)
(Std) Integrated IDE Controller
(Std) Integrated PCI Ultra SCSI RAID Controller-dual channel
(Std) Mouse Stealth Grey
(Std) Netfinity 400W Hot-Swap Power Supply
(Std) Netfinity NetBAY3
(Std) Processor Complex Card
(Std) S3 Trio64V2 Graphics - IBM SGRAM
(Std) Systems Management Processor
IBM 20/40GB DLT Internal SCSI Tape Drive (FH) 1 $2,937.50 $ 2,937.50
IBM Netfinity 400W Hot-Swap Redundant Power Supply II 1 $750.00 $750.00
IBM Netfinity 256MB SDRAM ECC RDIMM (Registered) 1 $1,187.50 $1,187.50
IBM Netfinity 9.1GB 10K Wide Ultra SCSI SL SCA-2HDD 4 $1,006.80 $4,027.20
450/100MHz Pentium II Processor with 512KB ECC L2 Cache 1 $1,498.75 $1,498.75
G74 - 17(15.9) in. Color Monitor, 69 KHz, Stealth Gray 1 $463.75 $463.75
OBI External V.3/1 Data/Fax Modem 1 $460.00 $460.00
Smart-UPS 1400-17 Min Runtime 1 $735.00 $735.00
SUBTOTAL $19,495.95
CAPTURE HARDWARE
IBM PC 300PL 6862 (4x4) 2
PC 300PL Pentium II 400MHz MMX/512KB, 64MB, 6.4GB, 4MB, 32X, 16bit, WinN 10 $1,776.00 $17,760.00
(Std) IBM 6.4GB EIDE Hard Drive
(Std) 10/100 PCI Ethernet WOL
(Std) 16-bit ISA Crystal Audio Integrated
(Std) 400/100MHz MMX Pentium II Processor with 512KB Pipeline B
(Std) 4MB Integrated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internal 32X Max (Variable Speed)
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
G74 - 17(15.9) in. Color Monitor, 69 KHz, Pearl White 10 $423.60 $4,236.00
Cable bundle 10 $187.50 $1,875.00
Capture Card MVPro 10 $837.50 $8,375.00
SUBTOTAL $32,246.00
SOFTWARE
CCS Investigative Display Software (Full) 11 $4,900.00 $53,900.00
CCS Capture Station Software 10 $8,000.00 $80,000.00
Suspect ID 2 $0.00 $0.00
Crime Lab 2 $0.00 $0.00
Vehicle ID 2 $0.00 $0.00
CUSTOM INTERFACE
Systems Integration - Flat File Interface w/ VCJIS 1 $5,000.00 $5,000.00
Systems Integration - Custom API for Image Retrieval & Site License 1 $17,000.00 $17,000.00
SUBTOTAL $155,900.00
TOTAL HARDWARE/SOFTWARE $207,641.95
</TABLE>
Page 1
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
SERVICES
Project Management 5 $ 900.00 $4,500.00
Conversion of Records from TFP 183000 $ 0.05 $9,150.00
SUBTOTAL $ 13,650.00
LICENSES
Enterprise Server Win NT 4.0 (25 License) 1 $4,056.75 $4,056.25
Sybase License Server+5 users 1 $1,248.75 $1,248.75
Sybase License 6.0 (20 User) 1 $3,243.75 $3,243.75
SUBTOTAL $ 8,548.75
SYSTEM SUBTOTAL $229,840.70
Shipping/Handling/Installation/Training $ 24,917.03
TOTAL PROPOSAL $254,757.73
DISCOUNT IF ORDERED WITHIN 30 DAYS $ 0.00
*Does NOT include the additional Sybase licenses for concurrency
WARRANTY
ImageWare offers a complete one year warranty
on all hardware and non-customized software.
There is a 90 Day Warranty on everything
MAINTENANCE PLAN
ImageWare Technical Support (Year 1) $ 15,300.00
Maintenance & Technical Support (Year 2) $ 37,375.55
Maintenance & Technical Support (Year 3) $ 37,375.55
Maintenance & Technical Support (Year 3) $ 37,375.55
Maintenance & Technical Support (Year 3) $ 37,375.55
</TABLE>
Page 2
<PAGE>
<TABLE>
<CAPTION>
OPTIONS
<S> <C>
CAMERA SUB-SYSTEMS
Hitachi HV-C20 Camera, NIST standards (3 chip) $4,885.65
Cosmicar/Pentax H 15ZME Zoom Lens $1,509.30
Hitachi KP-D50 Camera, NIST standards (single chip) $1,471.50
Computer Lens $1,147.50
3 point Lighting system $1,343.25
Pan and Tilt Camera mount $1,620.00
Reflective Pedestal $ 924.75
Cable bundle $ 202.50
NIST compliance capture software $1,500.00
Capture Card MVPro $ 904.50
Power Supply (Single Chip) $ 67.50
Power Supply (Three Chip) $ 202.50
INVESTIGATIVE HARDWARE
IBM PC 300PL 6862 (4x4) 2
PC 300PL Pentium II 400MHz MMX/512KB,64MB,6.4GB,4MB,
32X,16bit Audio, Win98,PC $1,758.00
(Std) IBM 6.4GB EIDE Hard Drive
(Std) 10/100 PCI Ethernet WOL
(Std) 16-bit ISA Crystal Audio Integrated
(Std) 400/100 MHz MMX Pentium II Processor with 512KB
Pipeline B
(Std) 4MB Integrated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internal 32X Max (Variable Speed)
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
G74 - 17(15.9) in. Color Monitor, 69 KHz, Pearl White $ 423.60
PRINTERS
Fargo ID Card Printer, 1 sided $4,900.00
Fargo ID Card Printer, 2 sided $9,500.00
Epson Stylus 850, color, 1440X720DPI $ 484.50
HP Laserjet B&W, 4000TN, 17PPM, 1200DPI $2,284.50
HP Laserjet B&W, 6P, 600DPI, 8PPM $1,140.00
HP 5M, Color Laser, 300DP, 3PPM $7,842.00
Lexmark Optra S B/W Laser Printer $1,638.00
Lexmark Optra SC Color Laser Printer $3,141.00
SOFTWARE
Suspect ID $2,000.00
Crime Lab $ 300.00
Vehicle ID $1,000.00
</TABLE>
Page 3
<PAGE>
ASSUMPTIONS & RFP EXCEPTIONS
- -------------------------------------------------------------------------------
- - ImageWare requests that the final acceptance period be 30 days with 98%
uptime.
- - ImageWare will install a CCS base system that will serve as the functional
prototype. One month prior to final acceptance testing, there will be a
review by IWS and the County Project Coordinator. This review is to iron
out any minor customization or changes that may or may not be necessary.
The County and IWS must agree to any modifications, and these modifications
will be made prior to final acceptance testing begins.
- - Any and all user defined and maintained lists will be the same throughout
the system, and those lists will be provided to ImageWare for initial
loading.
- - All necessary equipment to allow connection to the existing network will
be provided either by the County or each agency where the installation is
to be done. It is expected that there will be adequate ports available at
each remote site for the capture station and investigative workstation
installation and at the central server installation.
- - Source code utilized in C.R.I.M.E.S.-Registered Trademark- is already
covered by U.S. Patents, Copyrights and Trade Marks. In title, it is owned
by ImageWare Software, Inc.
- - ImageWare does not desire to take on any network configuration or
modifications.
- - ImageWare Software Inc. would like the Payment Terms to be part of the
contract negotiations, and would like to propose the following schedule:
30% upon issuance of Purchase Order;
45% upon installation of equipment; and
25% upon final system acceptance.
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SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT ("Agreement") is made as of the 7th day of
March, 1997, by and among IMAGEWARE SOFTWARE, INC., a California corporation
(the "Company"), and ATLUS CO., LTD., a Japanese corporation (the "Investor").
RECITALS:
A. Whereas, Atlus is in the business, among other things, of photoimaging,
computer games, software and related products and services.
B. Whereas, ISI is in the business, among other things, of imaging,
software and related products and services.
C. Whereas, the Investor desires to acquire an equity interest in the
Company and to obtain the right to use certain intellectual property
rights of the Company.
D. Whereas, the Company desires to sell to the Investor such equity
interests on the terms and conditions contained herein.
E. Whereas, the Investor and the Company are concurrently herewith entering
into a License Agreement (the "License Agreement") with respect to the
"Licensed Patents" and other "Intellectual Property" (as such terms are
defined in the License Agreement).
NOW THEREFORE, in consideration of the foregoing premises, and for good and
valuable consideration, the parties agree as follows:
AGREEMENT:
1. PURCHASE AND SALE OF STOCK.
Subject to the terms and conditions of this Agreement, the parties
agree that:
1.1 PHASE I SALE OF STOCK. Upon the Effective Date (as
defined in Section 8.12 hereof) of this Agreement, the Investor shall
purchase, and the Company shall issue and sell to the investor 179,654 shares
of the Company's common stock (collectively, with all other stock to be
issued and sold hereunder, the "Securities") in consideration for the payment
of five hundred thirty eight thousand nine hundred sixty one dollars
($538,961) (the "Phase I Purchase Amount"). The Phase I Purchase Amount shall
be paid by the Investor to the Company by wire transfer to the account
designated in writing by the Company, upon execution of this Agreement and a
stock certificate for such shares shall be delivered by the Company to the
Investor simultaneously therewith.
<PAGE>
1.2 PHASE II SALE OF STOCK. On or prior to November 3, 1997
(California time), the Company agrees to issue and sell, and the Investor
agrees to purchase an additional 833,333 shares of the Company's common stock
in consideration for the payment of two million five hundred thousand dollars
($2,500,000) (the "Phase II Purchase Amount"). By mutual agreement, the
Company and the Investor may agree to change the Phase II Purchase Amount, in
which case such new amount shall be the Phase II Purchase Amount and the
number of purchased shares shall proportionately be adjusted. The date of
such purchase and sale of Company's common stock (the "Phase II Date") shall
be designated by the Investor by giving written notice to the Company at
least five (5) business days prior to the Phase II Date designated therein;
provided that such Phase II Date shall occur on or prior to November 3, 1997.
The Phase II Purchase Amount shall be paid by the Investor to the Company by
wire transfer to the account designated in writing by the Company, and a
stock certificate for such shares shall be delivered by the Company to the
Investor simultaneously therewith. Notwithstanding anything to the contrary
contained herein, the Investor shall have the right, but not the obligation
to purchase any of the Company's common stock if (i) the Company fails to
fully comply with all terms and conditions hereof, (ii) any representation or
warranty proves to be inaccurate or misleading in any material respect, (iii)
the 1996 financial statements provided pursuant to Section 2.8 fail to
receive an unqualified opinion from Coopers & Lybrand, L.L.P. that such
financial statements present fairly and accurately, in all material respects,
the financial condition and results of operations of the Company, or (iv) the
Company fails to achieve the financial results in all material respects to
the pro-forma financial projections provided by the Company to the Investor
and attached hereto as Schedule III. If the Company meets all conditions
above in clauses (i) - (iv) by November 3, 1997 and the Investor fails to
purchase the shares of the Company's common stock by such date, then the
right of the Investor to purchase such shares of the Company's common stock
shall terminate on such date. For purposes of this Section 1.2, the Company
shall be deemed to have failed to achieve the financial projections if the
results for such period are less than sixty percent (60%) of such projected
results, as reasonably determined by the Investor.
1.3 WARRANTS. Prior to the date the Company effects an
underwritten initial public offering of its capital stock, the Company shall
offer, on a calendar quarterly basis, to the Investor the right to purchase a
certain number of warrants. Such number of warrants shall equal the positive
difference, if any, of (x) one-third (1/3) of the then outstanding number of
the Company's common stock (rounded to the nearest whole number) LESS (y) the
number of shares of the Company's common stock then held by the Investor.
Each warrant shall entitle the holder to purchase one share of the Company's
common stock at $4.00 per share and shall be exercisable from the date of
issuance and expire five (5) years after the issuance thereof. The Investor
shall pay to the Company $0.05 for each warrant share. For the avoidance of
doubt, the above calculations and offer to sell warrants to the Investor
shall occur each quarter (until the Company effects an underwritten initial
public offering) and the Investor shall have the right, but not the
obligation to purchase such warrants.
1.4 TERMS. The Securities shall, when issued by the Company
and payment made therefor by the Investor, all be fully-paid and
non-assessable, and issued in compliance with all applicable laws and
regulations.
2
<PAGE>
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. As of the date
hereof and as of the Effective Date, the Company hereby represents, and
warrants, to the Investor that:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The
Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of California and has all requisite
corporate power and authority to carry on its business as now conducted and
as proposed to be conducted. The Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the failure to
qualify would have a material adverse effect on its business or properties.
2.2 AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement, the performance of
all obligations of the Company hereunder and the authorization, issuance and
delivery of the Securities being sold hereunder have been taken, and this
Agreement constitutes a valid and legally binding obligation of the Company,
enforceable in accordance with its terms.
2.3 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in
violation or default of any provisions of its Articles of Incorporation or
Bylaws as amended and in effect on and as of the date of this Agreement or of
any material provision of any instrument or contract to which it is a party
or by which it is bound or, to is knowledge, of any material provision of any
federal or state judgement, writ, decree, order, statute, rule or
governmental regulation applicable to the Company. The copies of the Articles
of Incorporation and Bylaws and all amendments thereto, if any, of the
Company delivered to the Investor are and as of the Phase II Date shall be
true and correct and shall not have been amended. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in any such violation or be in conflict
with or constitute, with or without the passage of time and giving of notice,
either a default under any such provision, instrument or contract or an
event which results in the creation of any lien, charge or encumbrance upon
any assets of the Company.
2.4 PERMITS AND LEASES. To the best of its knowledge, the
Company has all permits and leases it requires to operate its business and
all such permits and leases are valid and in full force and effect.
2.5 USE OF PROCEEDS. The Company shall use substantially all
of the proceeds from the sale of the Securities for its general corporate
purposes, including without limitation, working capital, research and
development, marketing and promotion of its products and services and
protection of its property (including intellectual property rights).
2.6 CAPITAL STOCK. All the authorized capital stock of the
Company consists of fifty million (50,000,000) shares of $0.01 par value
common stock and four million (4,000,000) shares of $0.01 par value preferred
stock. As of the date hereof, three million two hundred fifty seven thousand
two hundred eighty eight (3,257,288) shares of common stock of the Company
are issued and outstanding, all of which are owned by the shareholders in
their respective amounts set forth in Exhibit A attached hereto. Three
hundred forty one thousand (341,000) shares of Series B Preferred Stock are
issued and outstanding, all of which are owned
3
<PAGE>
by the shareholders in their respective amounts set forth in Exhibit A.
Except for those options, warrants and convertible debt set forth in Exhibit
A attached hereto, there are no subscriptions, options, warrants, calls
commitments, pre-emptive rights or other rights of any kind outstanding for
the purchase of, or any securities convertible or exchangeable for, any
equity interests in the Company. There are no restrictions upon the voting or
transfer of any shares of common stock of the Company except as set forth in
this Agreement.
2.7 SUBSIDIARIES. The Company has no controlling interests in
any other corporations, partnerships or other entities.
2.8 FINANCIAL STATEMENTS. The audited financial statements,
including cash flow reports for fiscal years 1991 to 1995 provided by the
Company to the Investor (and attached hereto as Schedule I) and the unaudited
financial statements for calendar year 1996 provided by the Company to the
Investor (and attached hereto as Schedule II) were prepared in accordance
with generally accepted accounting principles, are true and accurate in all
material respects and present fairly the financial condition and results of
operations of the Company. There has been no material adverse change in the
business, financial condition, earnings or results of operations of the
Company since December 31, 1996 and the date of this Agreement.
2.9 LITIGATION AND PROCEEDINGS. No actions or claims of any
kind are pending, or, to the Company's knowledge, threatened against the
Company. There are no outstanding orders, writs, injunctions, liens, levies,
decrees or judgments against the Company or any of its assets.
2.10 PROPRIETARY RIGHTS. The Company has sole ownership and/or
the unrestricted, royalty-free right to use all trademarks, tradenames,
copyrights, patents, trade secrets, ideas, and other intellectual property it
uses in its business.
2.11 TAXES. All tax returns and all taxes required of the
Company by any jurisdiction, including, among others, income, sales and
payroll withholding taxes, have been timely filed and paid and no audits by
any jurisdiction are pending against the Company.
2.12 INSURANCE. The Company maintains adequate insurance
against all normal risks, including, among others, workers' compensation,
fire and casualty, theft and general liability.
2.13 BENEFIT PLANS. Other than the plan described on Schedule
IV, attached hereto, the Company has no benefit plans for employees covered
under ERISA.
2.14 ENVIRONMENT. The Company does not and has not ever used,
sold, transported or stored any hazardous substances. In this section
"hazardous substance" means any substance regulated or prohibited by any law
or government agency on the grounds it is hazardous, toxic, radioactive, or
otherwise a danger to health or the environment. To the best of its
knowledge, the Company has never owned or leased any real property on which
hazardous substances were used or stored at any time.
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2.15 INTELLECTUAL PROPERTY. The Company represents and
warrants that it has the unrestricted right to use, assign, license or
sublicense the Licensed Patents and other Intellectual Property (both such
terms as defined in the License Agreement and has the right and ability to
enter into the License Agreement and to grant the rights and licenses herein.
To the best of its knowledge, there are no legal actions or claims for
infringement against or challenging the validity of the Licensed Patents or
other Intellectual Property or otherwise challenging ISI's proprietary rights
in the Intellectual Property anywhere in the world. Except as otherwise
disclosed in the License Agreement, there are no liens, encumbrances,
security interests, licenses, assignments, or transfer of any interest in the
Licensed Patents or other Intellectual Property and there are no outstanding
orders, writs, injunctions, decrees or judgments against the Company or the
Intellectual Property.
2.16 MATERIAL AGREEMENTS. All material agreements of the
Company are listed and/or attached to Exhibit B attached hereto and there are
no other material agreements to which the Company is a party.
2.17 INFORMATION PROVIDED. All material information with
respect to the Company, its assets or its business operations or prospects
has been provided to the Investor, and all such information provided is true
and accurate in all material respects without any omissions which would make
such information misleading.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor
hereby represents and warrants to the Company that:
3.1 PURCHASE ENTIRELY FOR OWN ACCOUNT. It is acquiring the
Securities for Investment purposes and not for sale or with a view to
distribution of all or any part of the Securities.
3.2 DISCLOSURE OF INFORMATION. Investor has reviewed the
financial materials and other information provided to it by the Company.
Investor further represents that it has had an opportunity to ask questions
and receive answers from Company regarding the terms and conditions of the
Securities. The foregoing, however, does not limit or modify the
representations and warranties of the Company in Section 2 of this Agreement.
3.3 INVESTMENT RISK. Investor acknowledges that it is able to
understand the risk involved in the transaction contemplated by this
Agreement, that it has the ability to bear the economic risk of his
investment pursuant to this Agreement and that it is an "Accredited Investor"
as defined in Regulation D promulgated under the Securities Act of 1933 (the
"Act"). Investor has not been organized for the purpose of investing in
securities of the Company.
3.4 RESTRICTED SECURITIES. Investor understands that the
Securities it is purchasing are, and will be, characterized as "restricted
securities" under the federal securities laws inasmuch as they are being
acquired from the Company in a transaction not involving a public offering
and that under such laws and applicable regulations such securities may be
resold without registration under the Act only in certain limited
circumstances. In this connection,
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Investor represents that it is familiar with SEC Rule 144, as presently in
effect, and understands the resale limitations imposed thereby and by the Act.
3.5 LEGENDS. It is understood that the Securities may bear one or
all of the following legends:
(a) "The securities represented hereby have not been registered
under the Securities Act of 1933, or applicable state securities
laws, nor the securities laws of any other jurisdiction. They may
not be sold or transferred in the absence of an effective
registration statement under those securities laws unless pursuant
to an exemption to the registration requirements of those
securities laws."
(b) Any legend required by the blue sky laws of the
jurisdiction of which Investor is a resident or is otherwise
subject.
3.6 NON-U.S. PERSON. Investor represents that it is a Japanese
corporation and is not a U.S. Person as defined by Regulation S of the
U.S. Securities and Exchange Commission (the "SEC") as:
(1) Any natural person resident in the United States, its
territories or possessions;
(2) Any partnership or corporation organized or incorporated
under the laws of the United States;
(3) Any estate of which any executor or administrator is a
U.S. Person;
(4) Any trust of which any trustee is a U.S. Person;
(5) Any agency or branch of a foreign entity located in the
United States;
(6) Any non-discretionary account or similar account (other
than an estate or trust) held for the benefit of a U.S. Person;
(7) Any fiduciary organized, incorporated or (if an
individual) resident in the United States; and
(8) Any foreign entity organized or incorporated by a U.S.
Person principally for the purpose of investing in unregistered
securities, unless it is organized or incorporated and owned by
"Accredited Investors" (as defined in Regulation D of the SEC) who
are not natural persons, estates or trusts.
4. COVENANTS OF THE COMPANY. For such period as the Securities, in
whole or in part, remain outstanding and are held, directly or indirectly, by
the Investor, the Company covenants to the Investor as follows:
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4.1 FINANCIAL STATEMENTS, ETC. The Company, shall provide Investor
with audited financial statements prepared in accordance with generally
accepted accounting principals within seventy five (75) business days
after fiscal year end. The Company shall also provide the Investor with
monthly unaudited financial statements within thirty (30) business days
after month end. The Investor, or a person or persons selected by
Investor, upon three (3) business days' notice to the Company, at any
reasonable time during usual business hours, and at the Investor's sole
cost and expense, shall have the right to examine and make extracts from
the corporate and accounting books and records of the Company.
4.2 CORPORATE EXISTENCE AND TAXES. The Company shall maintain its
corporate existence in good standing, and shall pay all its taxes when
due except for taxes which the Company disputes.
4.3 ACTIONS REQUIRING CONSENT OF THE INVESTOR. Prior to the date
the Company effects an underwritten initial public offering of its
capital stock, the Company shall not take any of the following actions
without prior written consent of the Investor:
(a) Change the Articles of Incorporation or Bylaws of the
Company;
(b) Obtain a controlling interest in any other entity, except
that the Company shall have the right at any time to amend its
Articles of Incorporation to add anti-takeover provisions therein;
(c) Sell any Licensed Patent or other substantial
intellectual property right of the Company, except in the ordinary
course of business;
(d) Change the nature of the Company's business; or
(e) Encumber any material asset of the Company, except in the
ordinary course of business.
5. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
5.1 DEFINITIONS. For the purposes of this Section 5:
(a) The term "register," "registered," and "registration"
refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the
Act, and the declaration or ordering of effectiveness of such
registration statement or document;
(b) The term "Registrable Securities" means the Securities;
(c) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of common
stock which constitute "Registrable Securities" and which are
issued and outstanding at the time in question; and
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(d) The term "Holder" means any person owning or having the
right to acquire Registrable Securities or any permitted assignee
thereof.
5.2 COMPANY REGISTRATION. If (but without any obligation to do so)
the Company proposes to register any of its stock or other securities
under the Act in connection with the public offering of such securities
solely for cash (other than a registration relating solely to the sale
of securities to participants in a Company stock plan or a registration
on any form which does not include substantially the same information as
would be required to be included in a registration statement covering
the sale of the Registrable Securities), the Company shall, at such
time, promptly give the Investor written notice of such registration.
Upon the written request of the Investor given within twenty (20) days
after mailing of such notice by the Company, the Company shall, subject
to the provisions of this Section 5, cause to be registered under the
Act all of the Registrable Securities that each such Holder has
requested to be registered.
5.3 OBLIGATIONS OF THE COMPANY. Whenever the Company determines
to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best
efforts to cause such registration statement to become effective,
and, upon the request of the Holders of a majority of the
Registrable Securities registered thereunder, keep such
registration statement effective for up to one (1) year.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used
in connection with such registration statement as may be necessary
to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration
statement.
(c) Furnish to the Investor such number of copies of
prospectuses, including a preliminary prospectus, in conformity
with the requirements of the Act, and such other documents as they
may reasonably request in order to facilitate the disposition of
Registrable Securities owned by it.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be
reasonably requested by the Investor, provided that the Company
shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement,
in usual and customary form, with the managing underwriter of such
offering. The Investor participating in such underwriting shall
also enter into and perform its obligations under such an agreement.
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(f) Notify the Investor of Registrable Securities covered by
such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Act of the happening
of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then
existing.
(g) Furnish, at the request of the Investor when requesting
registration of Registrable Securities pursuant to this Section 5,
on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to
this Section 5, if such securities are being sold through
underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with
respect to such securities becomes effective, (i) an opinion, dated
such date, of the counsel representing the Company for the purposes
of such registration, in form and substance as is customarily given
to underwriters in an underwritten public offering, addressed to
the underwriters, if any, and to the Investor when requesting
registration of Registrable Securities and (ii) a letter dated such
date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an
underwritten public offering, addressed to the underwriters, if
any, and to the Investor when requesting registration of
Registrable Securities.
5.4 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 5
that the Investor shall furnish to the Company such information
regarding itself, the Registrable Securities held by it, and the
intended method of disposition of such securities as shall be required
to effect the registration of its Registrable Securities.
5.5 EXPENSES OF COMPANY REGISTRATION. The Company shall bear and
pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the
registrations pursuant to Section 5.2 for the Investor, including
(without limitation) all registration, filing, and qualification fees,
printers and accounting fees relating or appropriate thereto, but
excluding the fees and disbursements of counsel for the selling
Investor, underwriting discounts and commissions relating to Registrable
Securities.
5.6 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to
making available to the Investor the benefits of Rule 144 promulgated
under the Act and any other rule or regulation of the SEC that may at
any time permit a Holder to sell securities of the Company to the public
without registration, the Company agrees to:
(a) make and keep public information available, as those
terms are understood and defined in SEC Rule 144, at all times
after ninety (90) days after the effective date of the first
registration statement filed by the Company for the offering of its
securities to the general public;
9
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(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the Act and the
Securities Exchange Act of 1934 (the "1934 Act"); and
(c) furnish to the Investor, so long as the Investor owns any
Registrable Securities, forthwith upon request (1) a written
statement by the Company that it has complied with the reporting
requirements of SEC Rule 144 (at any time after ninety (90) days
after the effective date of the first registration statement filed
by the Company), the Act and the 1934 Act (at any time after it has
become subject to such reporting requirements), (ii) a copy of the
most recent annual or quarterly report of the Company and such
other reports and documents so filed by the Company, and (iii) such
other information as may be reasonably requested in availing the
Investor of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to
such form.
5.7 AMENDMENT OF REGISTRATION RIGHTS. Any provision of this
Section 5 may be amended and the observance thereof may be waived
(either generally or in a particular instance and either retroactively
or prospectively), only with the written consent of the Company and the
Holders of a majority of the Registrable Securities. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon
each Holder of any Securities purchased under this Agreement at the time
outstanding (including securities into which such securities are
convertible), each future Holder of all such Securities, and the
Company.
6. RIGHTS TO FUTURE PURCHASES OF SECURITIES.
6.1 RIGHT OF PARTICIPATION. In the event that the Company, at any
time and from time to time after the date of this Agreement and prior to
an event described in Section 6.3 below, desires to offer, directly or
indirectly, shares of its capital stock or securities exchangeable or
convertible into its capital stock ("Stock") to any persons (except
Stock offered pursuant to a merger or acquisition transaction in which
the Company purchases another entity or the business of substantially
all of the assets of another entity or offers of Stock pursuant to
options granted or to be granted under the Company's Employee Stock
Option Plan or its non-qualified Stock Option Plan, pursuant to which a
maximum of 500,000 shares, as adjusted for changes through merger,
consolidation, reorganization, recapitalization, stock dividend, stock
split or other change in corporate or capital structure, may be approved
by the Company's shareholders), then the Company shall send each such
time a written notice ("Notice") to the Investor, prior to or
contemporaneous with offering Stock to such persons, and in any event no
less than thirty (30) business days prior to the proposed closing date
of the sale of Stock. The Notice(s) shall describe the number of shares
of Stock offered and the purchase price and terms. Upon receipt of any
Notice, the Investor shall have the right ("Participation Right") to
purchase such number of shares of Stock being sold in the offering that
is the subject of the Notice, at the price and on the terms contained in
the Notice, as is computed by multiplying the total number of shares of
Stock being offered by a fraction, the numerator of which shall be the
number of Securities held by the Investor as of the date of the Notice
and the denominator of which shall be the number of outstanding shares
of Stock as of the date of the Notice.
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6.2 EXERCISE OF RIGHT. The Investor may exercise the Participation
Right by Notifying the Company in writing, within fifteen (15) business days
after the date of the Notice, of the Investor's desire to exercise its
Participation Right. The Investor must tender the funds and purchase its
proportionate share of the Stock on the date otherwise set for the closing of
the purchase, subject only to the closing of the purchase with the other
buyers. If the Investor does not exercise its right in the manner described
in this Section 6.2, the Participation Right will lapse with respect to that
offering.
6.3 TERM AND EXCEPTIONS TO PARTICIPATION RIGHT. The Participation
Right shall commence on the day of this Agreement and shall extend until, and
shall not apply to offers of the Company's securities subsequent to the first
to occur of the following: (i) a registration statement for an underwritten
public offering of the Company's securities being declared effective by the
SEC and (ii) the sale of all or substantially all of the assets, or the sale
of all of the voting securities of the Company.
7. RIGHTS OF NOTIFICATION. Company shall use its best efforts to give
written notice to the Investor at least fifteen (15) business days in advance
of, or at any time Company becomes aware of, any proposed transfer, sale,
assignment, disposition or encumbrance by any shareholder owning, directly or
indirectly, over five percent (5%) of the outstanding stock equity of the
Company.
8. MISCELLANEOUS.
8.1 SURVIVAL OF WARRANTIES. The warranties, representations and
covenants of the Company contained in or made pursuant to this Agreement
shall survive the execution and delivery of this Agreement for such period as
the Securities, in whole or in part, remain outstanding, and shall in no way
be affected by any investigation of the subject matter thereof made by or on
behalf of the Investor.
8.2 ENTIRE AGREEMENT; SUCCESSORS AND ASSIGNS. This Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof, and supersedes and replaces any and all prior agreements,
written or oral; but does not supersede the License Agreement and the
Technical and Marketing Assistance Letter of Understanding between the
parties. The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties. Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors
and assigns any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided in this Agreement.
8.3 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of California without regard to
conflicts of law principles.
8.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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8.5 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.6 NOTICES. Any notice required or permitted under this Agreement
shall be given in writing and shall be deemed effectively given upon personal
delivery to the party to be notified or three business days after deposit
with the United States Post Office by registered or certified mail, return
receipt requested, postage prepaid or other internationally reputable
overnight air courier service and addressed to the party to be notified at
the address indicated for such party indicated below, or at such other
address as such party may designated by ten (10) days' advance written notice
to the other parties.
If to the Company: ImageWare Software, Inc.
15373 Innovation Drive, Suite 120
San Diego, CA 92128
With a copy to: Nossaman, Guthner, Knox & Elliot, LLP
Attention: William Guthner, Esq.
445 South Figueroa St, 31st Floor
Los Angeles, CA 90071
If to Investor: Atlus Co., Ltd.
Attention: Mr. Minegishi
4-8 Kagurazaka, Shinjuku-ku
Tokyo, Japan
With a copy to: Latham & Watkins
Attention: Barry A. Sanders, Esq.
633 W. 5th Street
Los Angeles, CA 90071
8.7 FINDER'S FEE. Each party represents that it neither is nor
will be obligated for any finder's fee or commission in connection with this
transaction. Each party agrees to indemnify and to hold harmless the other
party from any liability for any commission or compensation in the nature of
a finder's fee (and the costs and expenses of defending against such
liability or asserted liability) for which it or any of its officers,
partners, employees, or representatives is responsible.
8.8 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only by written agreement of the parties.
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8.9 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provisions shall be
executed from this Agreement to the extent of such unenforceability and the
balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with the remaining terms.
8.10 ATTORNEY'S FEES. The prevailing party in an action or
proceeding between the parties arising out of or related to this Agreement
shall be entitled to recover all reasonable expenses, including without
limitation attorney's fees and costs, incurred in connection with any such
action or proceeding.
8.11 ARBITRATION. All disputes arising in connection with this
Agreement shall be finally settled by arbitration. The arbitration shall be
held in California and conducted in accordance with the Rules of the American
Arbitration Association. Judgment upon the award rendered may be entered in
any court having jurisdiction, or application may be made to such court for a
judicial acceptance of the award and an order or enforcement. Each party
shall bear its own expenses of the arbitration, but the arbitrator's fees and
costs shall be borne equally between the parties participating in the
arbitration. The member or members of the panel of arbitrators each shall be
familiar with the imaging and software industry.
8.12 LICENSE AGREEMENT AND TECHNICAL AND MARKETING ASSISTANCE
LETTER. Concurrently with the execution of this Agreement, the Company and
the Investor shall enter into a License Agreement for certain patents and
intellectual property and enter into a letter of understanding for mutual
technical and marketing assistance with respect to product development,
customization of products to local market, local marketing advice and
assistance with protection of the other party's intellectual property rights.
8.13 EFFECTIVE DATE. The "Effective Date" of this Agreement shall
be March 10, 1997 (California time).
[signature page to follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
IMAGEWARE SOFTWARE, INC. a California
Corporation
By: /s/ S. James Miller, Jr.
------------------------------------
Name: S. James Miller, Jr.
Title: Chairman & CEO
By:
------------------------------------
Name:
Title:
ATLUS CO., LTD., a Japanese corporation
By: /s/ Naoya Harano
------------------------------------
Name: Naoya Harano
Title: President
<PAGE>
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
AND LICENSE AGREEMENT
THIS AMENDMENT TO SECURITIES PURCHASE AGREEMENT AND LICENSE AGREEMENT
(the "Amendment"") is made and entered into effective as of August 17, 1998
by and between ImageWare Software, Inc., a California corporation (the
"Company") and Atlus Co., Ltd., a Japanese corporation ("Atlus"), with
reference to the following facts:
A. The Company and Atlus entered into the Securities Purchase Agreement
(the"Securities Agreement") dated March 7, 1997, which grants to Atlus
certain rights with respect to the Company's issuance of securities and
other corporate actions taken by the Company, and the License Agreement
dated March 7, 1997, as subsequently amended, (the "License Agreement"),
which grants a license to certain intellectual property of the Company
to Atlus.
B. The Company desires to offer (the "Offering") securities to raise
investment capital pursuant to the terms of a Private Placement
Memorandum dated on or about August 17, 1998, as may be amended or
supplemented, and Atlus desires for the Company to conduct the Offering.
C. The Company and Atlus desire to amend certain provisions of the
Securities Agreement and the License Agreement.
D. Atlus Dream Entertainment Co., Ltd., a subsidiary of Atlus, was a party
to a lawsuit (the "Lawsuit") filed in the United States District court
for the Central District of California against American Photo Booths,
Inc., SNK Corporation of America and SNK Corporation entitled ATLUS
DREAM ENTERTAINMENT CO., LTD. V. AMERICAN PHOTO BOOTHS, INC., SNK
CORPORATION OF AMERICA AND SNK CORPORATION, Case No. CV 97-8707 WJR
(RZx), relating to a patent licensed by the Company to Atlus pursuant to
the terms of the License Agreement, which Lawsuit has been dismissed.
E. The Company and Atlus entered into a Litigation Costs Agreement (the
"Litigation Costs Agreement") dated January 23, 1998 pursuant to which
Atlus agreed to indemnify the Company for certain costs and fees related
to the Lawsuit, and the Company and Atlus desire that the Company
reimburse Atlus for such legal fees and costs.
F. The Company and Atlus desire that the Company assign to Atlus two
patents owned by the Company and the Company obtain a license to use such
technology in areas outside of photo booth entertainment applications.
NOW, THEREFORE, in consideration of the foregoing premises and for good
and valuable consideration the sufficiency of which the parties acknowledge,
the parties agree as follows:
1. WARRANTS. Within thirty (30) days after the date of the closing
(the "Closing") of the Offering the Company shall issue to Atlus warrants
(the "Warrants") to purchase 430,000 shares of common stock of the Company at
an exercise price per share which is equivalent to the price per share of the
securities issued in the Offering. The Warrants shall be exercisable within
five (5) years
<PAGE>
of the date of their issuance. Paragraph 1.3 of the Securities Agreement shall
be deleted in its entirety and of no further effect as of the date of the
Closing.
2. CONSENT OF ATLUS. Atlus hereby consents to the Offering which will
include the Company's issuance of securities with rights, privileges and
preferences superior to the existing common and preferred stock of the
Company. Atlus also consents to any and all changes or amendments to the
Articles of Incorporation (including the Certificates of Determination) or
Bylaws of the Company necessary for or related to the Offering and covenants
that it will vote all of the voting securities of the Company over which it
has the power to vote in favor of such changes or amendments. Atlus hereby
ratifies its consent to any and all actions approved by the Board of
Directors of the Company for which Atlus's consent was required pursuant to
Paragraph 4.3 of the Securities Agreement. Paragraph 4.3 of the Securities
Agreement shall be deleted in its entirety and of no further effect as of the
date of this Amendment.
3. RIGHT OF PARTICIPATION AND NOTICE. This Amendment shall be deemed
to be notice by Atlus to the Company pursuant to Paragraphs 6.1 and 6.2 of
the Securities Agreement that Atlus has elected not to participate in the
Offering. Paragraphs 6.1, 6.2, 6.3 and 7 of the Securities Agreement shall be
deleted in their entirety and of no further effect as of the date of the
Closing.
4. REIMBURSEMENT OF COSTS AND FEES. Within thirty (30) days after the
Closing, the Company shall reimburse Atlus, in an amount not to exceed
$125,000.00, for costs and fees incurred by the Company which relate to the
Lawsuit for which Atlus has indemnified the Company pursuant to the terms of
the Litigation Costs Agreement.
5. ASSIGNMENT OF PATENTS. Within thirty (30) days after the Closing,
the Company will assign to Atlus all of its right, title and interest in
United States Patent No. 5,343,386 issued August 30, 1994, United States
Patent No. 5,345,313 issued September 9, 1994, United States Patent No.
5,687,306 issued November 11, 1997, and all continuation applications
accompanying such patents (collectively, the "Patents"). Prior to the
assignment of the Patents hereunder, the Company and Atlus shall enter into a
license agreement granting the Company a perpetual, worldwide, royalty-free
right to use the technology underlying the Patents in areas outside of photo
booth entertainment applications, which areas shall include the use of the
technology for the creation of driver's licenses, passports and
identification cards which can be dispensed from a kiosk. The License
Agreement shall be amended to delete any and all references to the Patents.
6. SECURITIES AGREEMENT AND LICENSE AGREEMENT. Except as amended
herein, all other terms and conditions of the Securities Agreement and
License Agreement shall remain in full force and effect.
7. MUTUAL RELEASES. The Company, on the one hand, and Atlus, on the
other, individually and collectively, for themselves and for their
predecessors, successors, attorneys, representatives, and assignees, hereby
fully and forever release and discharge the other, individually and
collectively, and their present and former officers, directors, employees,
representatives and attorneys, and
2
<PAGE>
predecessors, assignees and successors of each of them, from all claims,
actions, causes of action, demands, cross-claims, counter-claims,
obligations, contracts, indemnities, contributions, suits, debts, sums,
accounts, controversies, rights, damages, costs, attorney's fees, losses,
expenses and liabilities whatsoever, in law, equity or otherwise (contingent,
accrued, mature, direct, derivative, subrogated, personal, assigned,
discovered, undiscovered, inchoate or otherwise)(hereinafter "claims") which
either may now have or have had or which may hereafter accrue, individually,
collectively or otherwise in connection with, relating to or arising out of
the Lawsuit, the Securities Agreement, the License Agreement, or any other
event or occurrence having taken place before the date of this Amendment.
This release does not apply to obligations undertaken or reaffirmed by a
party hereto in the Section 1 through 5 above.
8. WAIVER OF SECTION 1542 OF THE CIVIL CODE. Section 1542 of the
California Civil Code provides:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected
his settlement with the debtor.
The Company and Atlus each expressly waive and relinquish any and all
rights and benefits which it may have under, or which may be conferred upon
it by the provisions of Section 1542 of the California Civil Code, as well as
any other similar state or federal statute or common law principle, to the
fullest extent it may lawfully waive such rights and benefits. The Company
and Atlus are each aware that it may hereafter discover claims in addition to
or different from those which it now knows or believes to exist, but it is
its intention to release any such claim without knowing of its existence.
The Company and Atlus are each aware that it may hereafter discover facts in
addition to or different from that which it now knows or believes to exist,
relating to released claims, but it is its intention to release any such
claim without knowing of such facts. This release shall remain in effect as a
full, complete and mutual release of all claims notwithstanding the discovery
hereafter of the existence of any presently unknown claims or facts.
9. CHOICE OF LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of California without reference to its
choice of law rules.
10. COUNTERPARTS. This Amendment may be executed in one or more
counterparts (and by facsimile), each of which shall be deemed an original,
but all of which, taken together, shall constitute one and the same
instrument.
3
<PAGE>
IN WITNESS WHEREOF, the Company and Atlus have executed this Amendment
as of the date first written above.
IMAGEWARE SOFTWARE, INC., a California
corporation
By: /s/ S. JAMES MILLER, Jr.
----------------------------------
S. James Miller, President and
Chief Executive Officer
By: /s/ ANNE HOVERSTEN
----------------------------------
Anne Hoversten, Secretary
ATLUS CO., LTD, a Japanese corporation
By: /s/ Naoya Harano
----------------------------------
Naoya Harano, President
By: /s/ Kunisuke Matsuki
----------------------------------
Kunisuke Matsuki, Secretary
<PAGE>
[LOGO]
NOTE
$700,000.00 SAN DIEGO , California JANUARY 15, 1998
On JULY 15, 1998, and as hereinafter provided, for value received, the
undersigned promises to pay to IMPERIAL BANK ("Bank") a California banking
corporation, or order, at its SAN DIEGO REGIONAL office, the principal sum of
$700,000.00 or such sums up to the maximum if so stated, as the Bank may now
or hereafter advance to or for the benefit of the undersigned in accordance
with the terms hereof, together with interest from date of disbursement or
N/A, whichever is later, on the unpaid principal balance / / at the rate of
___% per year /x/ at the rate of 2.000% per year in excess of the rate of
interest which Bank has announced as its prime lending rate (the "Prime
Rate"), which shall vary concurrently with any change in such Prime Rate, or
$250.00, whichever is greater. Interest shall be computed at the above rate
on the basis of the actual number of days during which the principal balance
is outstanding, divided by 360, which shall, for interest computation
purposes, be considered one year.
Interest shall be payable /x/ monthly / / quarterly / / included with
principal / / in addition to principal / / beginning FEBRUARY 15, 1998, and
if not so paid shall become a part of the principal. All payments shall be
applied first to any late charges owing, then to interest and the remainder,
if any, to principal. / / (if checked), Principal shall be payable in
installments of $ , or more, each installment on the day of each
, beginning . Advances not to exceed any unpaid balance owing
at any one time equal to the maximum amount specified above, may be made at
the option of Bank.
Any partial prepayment shall be applied to the installments, if any, in
inverse order of maturity. Should default be made in the payment of principal
or interest when due, or in the performance or observance, when due, of any
item, covenant or condition of any deed of trust, security agreement or other
agreement (including amendments or extensions thereof) securing or pertaining
to this note, at the option of the holder hereof and without notice or
demand, the entire balance of principal and accrued interest then remaining
unpaid shall (a) become immediately due and payable, and (b) thereafter bear
interest, until paid in full, at the increased rate of 5% per year in excess
of the rate provided for above, as it may vary from time to time.
Defaults shall include, but not be limited to, the failure of the
maker(s) to pay principal or interest when due; the filing as to each person
obligated hereon, whether as maker, co-maker, endorser or guarantor
(individually or collectively referred to as the "Obligor") of a voluntary or
involuntary petition under the provisions of the Federal Bankruptcy Act; the
issuance of any attachment or execution against any asset of any Obligor; the
death of any Obligor; or any deterioration of the financial condition of any
Obligor which results in the holder hereof considering itself, in good faith,
insecure.
If any installment payment, interest payment, principal payment or
principal balance payment due hereunder is delinquent ten or more days,
Obligor agrees to pay Bank a late charge in the amount of 5% of the payment
so due and unpaid, in addition to the payment; but nothing in this paragraph
is to be construed as any obligation on the part of the holder of this note
to accept payment of any payment past due or less than the total unpaid
principal balance after maturity.
If this note is not paid when due, each Obligor promises to pay all
costs and expenses of collection and reasonable attorneys fees incurred by the
holder hereof on account of such collection, plus interest at the rate
applicable to principal, whether or not suit is filed hereon. Each Obligor
shall be jointly and severally liable hereon and consents to renewals,
replacements and extensions of time for payment hereof, before, at, or after
maturity; consents to the acceptance, release or substitution of security for
this note; and waives demand and protest and the right to assert any statute
of limitations. Any married person who signs this note agrees that recourse
may be had against separate property for any obligations hereunder. The
indebtedness evidenced hereby shall be payable in lawful money of the United
States. In any action brought under or arising out of this note, each
Obligor, including successor(s) or assign(s) hereby consents to the
application of California law, to the jurisdiction of any competent court
within the State of California, and to service of process by any means
authorized by California law.
No single or partial exercise of any power hereunder, or under any deed
of trust, security agreement or other agreement in connection herewith shall
preclude other or further exercises thereof or the exercise of any other such
power. The holder hereof shall at all times have the right to proceed against
any portion of the security for this note in such order and in such manner as
such holder may consider appropriate, without waiving any rights with respect
to any of the security. Any delay or omission on the part of the holder
hereof in exercising any right hereunder, or under any deed of trust,
security agreement or other agreement, shall not operate as a waiver of such
right, or of any other right, under this note or any deed of trust, security
agreement or other agreement in connection herewith.
THIS NOTE IS SUBJECT TO THE TERMS AND CONDITIONS OF THE CREDIT TERMS AND
CONDITIONS AGREEMENT DATED JANUARY 15, 1998 AND ALL AMENDMENTS THERETO AND
REPLACEMENTS THEREFOR.
IMAGEWARE SOFTWARE, INC., A CALIFORNIA CORPORATION
- ------------------------ --------------------------------------------------
By: /s/ S. James Miller
- ------------------------ --------------------------------------------------
Chairman & CEO
- ------------------------ --------------------------------------------------
<PAGE>
[LOGO]
January 15, 1998
701 B Street
San Diego, California 92101
Subject: CREDIT TERMS AND CONDITIONS
Gentlemen:
To induce you (herein sometimes referred to as "you" and sometimes as "Bank")
to make loans to ImageWare Software, Inc. (herein called "Borrower"), and in
consideration of any loan or loans you, in your sole discretion, may make to
Borrower, Borrower warrants and agrees as follows:
A. Borrower Represents and Warrants that:
1. EXISTENCE AND RIGHTS. Borrower is a Corporation. Borrower is duly
organized and existing and in good standing under the laws of the State of
California, without limit as to the duration of its existence and is
authorized and in good standing to do business in the State of California;
Borrower has powers and adequate authority, rights and franchises to own its
property and to carry on its business as now conducted, and is duly qualified
and in good standing in each State in which the character of the properties
owned by it therein or the conduct of its business makes such qualification
necessary; and Borrower has the power and adequate authority to make and carry
out this Agreement. Borrower has no investment in any other business entity.
2. AGREEMENT AUTHORIZED. The execution, delivery and performance of this
Agreement are duly authorized and do not require the consent or approval of
any governmental body or other regulatory authority; are not in contravention
of or in conflict with any law or regulation or any term or provision of
Borrower's articles of incorporation, by-laws, or Articles of Association, as
the case may be, and this Agreement is the valid, binding and legally
enforceable obligation of Borrower in accordance with its terms.
3. NO CONFLICT. The execution, delivery and performance of this Agreement
are not in contravention of or in conflict with any agreement, indenture or
undertaking to which Borrower is a party or by which it or any of its
property may be bound or affected, and do not cause any lien, charge or other
encumbrance to be created or imposed upon any such property by reason thereof.
4. LITIGATION. There is no litigation or other proceeding pending or
threatened against or affecting Borrower, and Borrower is not in default with
respect to any order, writ, injunction, decree or demand of any court or
other governmental or regulatory authority. Borrower shall notify you in
writing of any future litigation threatened or initiated against, or
affecting Borrower.
5. FINANCIAL CONDITION. The balance sheet of Borrower as of November 30,
1997 and the related profit and loss statement for the quarter ended on that
date, a copy of which has heretofore been delivered to you by Borrower, and
all other statements and data submitted in writing by Borrower to you in
connection with this request for credit are true and correct, and said
balance sheet and profit and loss statement truly present the financial
condition of Borrower as of the date thereof and the results of operations
for the period covered thereby, and has been prepared in accordance with
generally accepted accounting principles on a basis consistently maintained.
Since such date there have been no material adverse changes in the ordinary
course of business. Borrower has no knowledge or any liabilities, contingent
or otherwise, at such date not reflected in said balance sheet, and Borrower
has not entered
<PAGE>
2
into any special commitments or substantial contracts which are not reflected
in said balance sheet, other than in the ordinary and normal course of its
business, which may have a materially adverse effect upon its financial
condition, operations or business as not conducted.
6. TITLE TO ASSETS. Borrower has good title to its assets, and the same
are not subject to any liens or encumbrances other than those permitted by
Section C.3 hereof.
7. TAX STATUS. Borrower has no liability for any delinquent state, local
or federal taxes, and, if Borrower has contracted with any government agency,
Borrower has no liability for renegotiation of profits.
8. TRADEMARKS, PATENTS. Borrower, as of the date hereof, possesses all
necessary trademarks, trade names, copyrights, patents, patent rights, and
licenses to conduct its business as now operated, without any known conflict
with the valid trademarks, trade names, copyrights, patents and license
rights of others.
9. REGULATION U. The proceeds of the notes have not been used to purchase
or carry margin stock (as defined within Regulation U of the Board of
Governors of the Federal Reserve system).
B. Borrower agrees that so long as it is indebted to you, under borrowings,
or other indebtedness, it will, unless you shall otherwise consent in writing:
1. RIGHTS AND FACILITIES. Maintain and preserve all rights, franchises and
other authority adequate for the conduct of its business; maintain its
properties, equipment and facilities in good order and repair; conduct its
business in an orderly manner without voluntary interruption and, if a
corporation or partnership, maintain and preserve its existence.
2. INSURANCE. Maintain public liability, property damage and workers'
compensation insurance and insurance on all its insurable property against
fire and other hazards with responsible insurance carriers to the extent
usually maintained by similar businesses and/or in the exercise of good
business judgment.
3. TAXES AND OTHER LIABILITIES. Pay and discharge, before the same become
delinquent and before penalties accrue thereon, all taxes, assessments and
governmental charges upon or against it or any of its properties, and all its
other liabilities at any time existing, except to the extent and so long as:
(a) The same are being contested in good faith and by appropriate
proceedings in such manner as not to cause any materially adverse effect
upon its financial condition or the loss of any right of redemption from
any sale thereunder; and
(b) It shall have set aside on its books reserves (segregated to the
extent required by generally accepted accounting practice) deemed by
it adequate with respect thereto.
4. RECORDS AND REPORTS. Maintain a standard and modern system of
accounting in accordance with generally accepted accounting principles on a
basis consistently maintained; permit your representatives to have access to,
and to examine its properties, books and records at all reasonable times
during normal business hours; and furnish you:
(a) As soon as available, and in any event within 30 days after the
close of each month of each fiscal year of Borrower, commencing with the
next ending, a consolidating balance sheet, profit and loss statement
and reconciliation of Borrower's capital accounts as of the close of
such period and covering operations for the portion of Borrower's fiscal
year ending on the last day of such period, all in reasonable detail and
stating in comparative form the figures for the corresponding date and
period in the previous fiscal year, prepared in
<PAGE>
3
accordance with generally accepted accounting principles on a basis
consistently maintained by Borrower and certified by an appropriate
officer of Borrower, subject, however, to year-end audit adjustments;
(b) As soon as available, and in any event within 90 days after the
close of each fiscal year of Borrower, a report of compilation of
Company as of the close of and for such fiscal year, all in reasonable
detail and stating in comparative form the figures as of the close of
and for the previous fiscal year, with the unqualified audit opinion of
accountants satisfactory to you;
(c) Promptly after the receipt thereof by Borrower, copies of any
detailed reports submitted to Borrower by independent accountants in
connection with each annual or interim compilation of the accounts of
Borrower made by such accountants.
(d) Promptly after the same are available, copies of all such proxy
statements, financial statements and reports as Borrower shall send to
its stockholders, if any, and copies of all reports which Borrower may
file with the Securities and Exchange Commission or any governmental
authority at any time substituted therefor; and
(e) Such other information relating to the affairs of Borrower as you
reasonably may request from time to time.
5. NOTICE OF DEFAULT. Promptly notify the Bank in writing of the
occurrence of any event of default hereunder or event which would be a
default upon the giving of notice and lapse of time.
C. Borrower agrees that so long as it is indebted to you, it will not,
without your written consent:
1. TYPE OF BUSINESS AND MANAGEMENT. Make any substantial change in the
character of its business; or make any change in its executive management.
2. OUTSIDE INDEBTEDNESS. Create, incur, assume or permit to exist any
indebtedness for borrowed moneys other than loans from you, moneys associated
with the XImage acquisition and purchase money indebtedness except obligations
now existing as shown in the financial statement dated November 30, 1997,
excluding those being refinanced by your bank; or sell or transfer, either
with or without recourse, any accounts or notes receivable or any moneys due
to become due.
3. LIENS AND ENCUMBRANCES. Create, incur, or assume any mortgage,
pledge, encumbrance, lien or charge of any kind, except purchase money liens,
upon any asset now owned or hereafter acquired by it, other than liens for
taxes not delinquent and liens in your favor.
4. LOANS, INVESTMENTS, SECONDARY LIABILITIES. Make any loans or
advances to any person or other entity other than in the ordinary course and
normal course of its business as now conducted or make any investment in the
securities of any person or other entity other than the United States
Government and municipal bonds; or guarantee or otherwise become liable upon
the obligation of any person or other entity, except by endorsement of
negotiable instruments for deposit or collection in the ordinary and normal
course of its business.
5. ACQUISITION OR SALE OF BUSINESS, MERGER OR CONSOLIDATION. Purchase
or otherwise acquire the assets or business of any person or other entity; or
liquidate, dissolve, merge or consolidate, or commence any proceedings
therefor; or sell any assets except XImage and in the ordinary and normal
course of its business as now conducted; or sell, lease, assign, or transfer
any substantial part of its business or fixed assets, or any property or
other assets necessary for the continuance of its business as now conducted,
including without limitation the selling of any property or other asset
accompanied by the leasing back of the same.
<PAGE>
4
6. DIVIDENDS, STOCK PAYMENTS. If a corporation, declare or pay any
dividend (other than dividends payable in common stock of Borrower and
dividends payable on the Series B Preferred Stock) or make any other
distribution on any of its capital stock now outstanding or hereafter issued
or purchase, redeem or retire any of such stock.
D. The occurrence of any of the following events of default shall, at
your option, terminate your commitment to lend and make all sums of principal
and interest then remaining unpaid on all Borrower's indebtedness to you
immediately due and payable, all without demand, presentment or notice, all
of which are hereby expressly waived:
1. FAILURE TO PAY. Failure to pay any installment of principal of or
interest on any indebtedness of Borrower to you.
2. BREACH OF COVENANT. Failure of Borrrower to perform any other term
or condition of this Letter of Inducement binding upon Borrower.
3. BREACH OF WARRANTY. Any of Borrrower's representations or
warranties made herein or any statement or certificate at any time given in
writing pursuant hereto or in connection herewith shall be false or
misleading in any material respect.
4. INSOLVENCY; RECEIVER OR TRUSTEE. Borrower shall become insolvent;
or admit its inability to pay its debts as they mature; or make an assignment
for the benefit of creditors; or apply for or consent to the appointment of a
receiver or trustee for it or for a substantial part of its property or
business.
5. JUDGMENTS, ATTACHMENTS. Any money judgment, writ or warrant of
attachment, or similar process shall be entered or filed against Borrower or
any of its assets and shall remain unvacated, unbonded or unstayed for a
period of 10 days or in any event later than five days prior to the date of
any proposed sale thereunder.
6. BANKRUPTCY. Bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings for relief under any bankruptcy law or any
law for the relief of debtors shall be instituted by or against Borrower and,
if instituted against it, shall be consented to.
E. Miscellaneous Provisions.
1. FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part of
Imperial Bank or any holder of Notes issued hereunder, in the exercise
of any power, right or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any
other right, power or privilege. All rights and remedies existing
under this agreement or any note issued in connection with a loan that
Imperial Bank may make hereunder, are cumulative to, and not exclusive
of, any rights or remedies otherwise available.
2. GUARANTOR REPORTING. Each guarantor to submit annual personal financial
statement and copy of their Federal Income Tax Return within 10 days of
filing.
IMAGEWARE SOFTWARE, INC.
BY: /s/ S. James Miller, Jr. Date: January 20, 1998
--------------------- ------------------
<PAGE>
MORTGAGE, ASSIGNMENT AND GRANT OF SECURITY INTEREST
WITH RESPECT TO PATENTS AND OTHER COLLATERAL
KNOW ALL MEN BY THESE PRESENTS, that for good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
undersigned, IMAGEWARE SOFTWARE, INC., a California corporation (the "Debtor"
or "Borrower"), having an office located at ___________________,
____________, does hereby irrevocably mortgage, pledge, assign and grant a
continuing security interest to IMPERIAL BANK, a California chartered bank
(the "Secured Party" or "Bank") having an office located at 701 B Street,
Suite 600, San Diego, California 92101, and to the Secured Party's successors
and assigns, in all right, title and interest of the Debtor, now owned or
hereafter acquired throughout the universe, in and to all of the collateral
described in Schedule A attached hereto including, without limitation, (a)
the "Patents" (as such term is defined in Schedule A attached hereto), and
(b) all accounts and accounts receivable generated by such Patents (all of
the foregoing collateral is hereinafter severally and collectively referred
to as the "Collateral"), as security for the payment and performance (whether
presently existing or hereafter arising) of any and all indebtedness and
obligations of the Debtor to the Bank (collectively, the "Obligations")
pursuant to the terms of (i) that certain Security and Loan Agreement dated
January 15, 1998, by and between the Debtor and the Secured Party, (ii) all
Credit Terms and Conditions between the Debtor and the Secured Party
(including, without limitation, the Credit Terms and Conditions dated January
15, 1998), (iii) that certain General Security Agreement dated January 15,
1998, by and between Debtor and Secured Party, (iv) all promissory notes of
the Debtor in favor of Secured Party (including, without limitation, that
certain Promissory Note dated January 15, 1998, in the original principal
amount of $700,000 made by the Debtor in favor of the Secured Party), and (v)
all other agreements and documents between the Debtor and Secured Party now
existing or hereafter entered into, as any of the foregoing may be amended,
modified, and/or restated from time to time (collectively, the "Loan
Documents"). The repayment of the Obligations are also secured by all other
personal property of the Debtor.
This Mortgage, Assignment and Grant of Security Interest With
Respect to Patents and Other Collateral is subject to all of the applicable
terms and conditions in the Loan Documents. Upon the occurrence of a default
or breach by the Debtor under any of the Loan Documents, the Bank may
exercise any and all rights and remedies of the Bank under the Loan
Documents, and the laws of the State of California and of the United States
of America and any other relevant jurisdictions.
The Debtor does hereby irrevocably appoint the Bank as the Debtor's
attorney in fact to do all acts and things permitted or contemplated by the
terms hereof and/or any of the Loan Documents. This power of attorney is
coupled with an interest and is irrevocable.
The Debtor agrees that if any person, corporation, partnership,
trust, limited liability company or other entity shall do or perform any acts
which the Bank believes infringes any right of the Debtor or any right of the
Bank to the extent granted hereby, then the Bank may and shall have the right
to take such steps and institute such suits or
<PAGE>
proceedings as the Bank may deem advisable or necessary to prevent such acts
and conduct and to secure damages and other relief by reason thereof and to
generally take such steps as may be advisable or necessary or proper for the
full protection of the rights of the parties, but the Bank shall not be
obligated to do any of the foregoing. The Bank may take such steps or
institute such suits or proceedings in its own name or in the name of the
Debtor or in the names of the parties jointly.
The Debtor shall have the duty (i) to file and prosecute opposition of
cancellation proceedings, and (ii) to renew all Patents. The Debtor shall
not abandon any Patent without the consent of Secured Party, which consent
may be withheld in the Secured Party's sole and absolute discretion.
This Mortgage, Assignment and Grant of Security Interest With Respect to
Patents and Other Collateral shall in all respects be subject to, construed in
accordance with and governed by, the laws of the State of California without
giving effect to that State's choice of law rules.
Debtor agrees that until all Obligations have been indefeasibly paid in
full to the Bank, (i) whenever Debtor files a Patent application or is issued
a Patent or otherwise obtains a Patent, Debtor shall give prompt notice
thereof to the Bank and (ii) upon the filing of any such Patent applications
and/or the issuance or acquisition of any Patent, Debtor shall promptly
execute and deliver a mortgage, assignment and grant of security interest
with respect to Patents and other collateral substantially identical to this
instrument or any other instrument or document reasonably requested by the
Bank and Debtor shall take any and all other actions reasonable requested by
the Bank to perfect the Bank's security interest in such Patent application
or Patent.
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
the 20th day of January 1998.
IMAGEWARE SOFTWARE, INC.
a California corporation
By: /s/ S. James Miller, Jr.
-------------------------
Its: Chairman & CEO
-------------------------
3
<PAGE>
DEBTOR: IMAGEWARE SOFTWARE, INC., A CALIFORNIA CORPORATION
SECURED PARTY: IMPERIAL BANK, A CALIFORNIA CHARTERED BANK
SCHEDULE A
All of the following personal property of Debtor whether presently existing
or hereafter created, written, produced, issued or acquired, (i)(a) all
patents and patent applications filed in the United States Patent and
Trademark Office, (including, without limitation, the patents and/or patent
applications listed on Schedule 1 attached hereto), and interests under
patent license agreements, including, without limitation, the inventions and
improvements described and claimed therein, (b) licenses pertaining to any
patent whether Debtor is licensor or licensee, (c) all income, royalties,
damages, payments, accounts and accounts receivable now or hereafter due
and/or payable under and with respect thereto, including, without limitation,
damages and payments for past, present or future infringements thereof, (d)
all rights corresponding thereto throughout the world in all jurisdictions in
which such patents have been issued or applied for, and (e) the reissues,
divisions, continuations, renewals, extensions and continuations-in-part with
any of the foregoing (all of the foregoing patents and applications and
interests under patent license agreements, together with the items described
in clauses (a) through (e) in this paragraph are sometimes herein
individually and collectively referred to as the "Patents"), and (ii) all
products and proceeds including, without limitation, insurance proceeds, of
any of the foregoing.
1 of 2
<PAGE>
DEBTOR: IMAGEWARE SOFTWARE, INC., A CALIFORNIA CORPORATION
SECURED PARTY: IMPERIAL BANK, A CALIFORNIA CHARTERED BANK
SCHEDULE 1
PATENTS
Patent or Date of
Application Number Description Issuance or Filing
------------------ ------------------
5,345,313 Image Editing for taking
a Background and Inserting
Part of Image Therein 9/6/94
5,469,536 Image Editing System Including
Masking Capability 11/21/95
5,577,179 Image Editing System 11/19/96
5,343,386 Apparatus for Making
Electronically Produced
Postcards and Method of
Operating Same 8/30/94
5,687,306 Image Editing System
Including Sizing Function 11/11/97
2 of 2
<PAGE>
ALL-PURPOSE ACKNOWLEDGMENT
- -------------------------------------------------------------------------------
State of California ) CAPACITY CLAIMED
County of San Diego ) BY SIGNER
-----------------------
On January 20, 1998 before me, ANNE M. HOVERSTEN / /INDIVIDUAL(S)
----------- -- ----------------- /X/CORPORATE ______________
DATE OFFICER(S) Chairman & CEO
personally appeared S. James Miller, Jr. --------------
-------------------- TITLE(S)
NAME(S) OF SIGNER(S) / /PARTNER(S)
/ /ATTORNEY-IN-FACT
/X/ personally known to me -OR- / /TRUSTEE(S)
/ / proved to me on the basis of satisfactory / /SUBSCRIBING WITNESS
evidence to be the person(s) whose name(s) / /GUARDIAN/CONSERVATOR
is/are subscribed to the within instrument / /OTHER:______________
and acknowledged to me that he/she/they _______________________
executed the same in his/her/their _______________________
authorized capacity(ies), and that by
his/her/their signature(s) on the
instrument the person(s), or the entity
upon behalf of which the person(s) acted,
executed the instrument.
Witness my hand and official seal.
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
/s/ Anne M. Hoversten
------------------------ Image Ware Software, Inc.
SIGNATURE OF NOTARY -------------------------------
[SEAL] -------------------------------
-------------------------------
- -------------------------------------------------------------------------------
OPTIONAL SECTION
THIS CERTIFICATE MUST BE TITLE OR TYPE OF DOCUMENT: Mortgage,
ATTACHED TO THE DOCUMENT --------------
DESCRIBED AT RIGHT: Assignment and Grant of Security Interest
- -------------------------- -----------------------------------------
With Respect to Copyrights and Other
-----------------------------------------
Collateral
----------
Though the data requested here is
not required by law, it could NUMBER OF PAGES_____ DATE OF DOCUMENT_____
prevent fraudulent reattachment of
this form.
SIGNER(S) OTHER THAN NAMED ABOVE xxx
---
- -------------------------------------------------------------------------------
<PAGE>
GENERAL SECURITY AGREEMENT
(TANGIBLE AND INTANGIBLE PERSONAL PROPERTY)
[LOGO]
This Agreement is executed on JANUARY 15, 1998 ,by
IMAGEWARE SOFTWARE, INC., A CALIFORNIA CORPORATION (hereinafter
called "Obligor").
In consideration of financial accommodations given, to be given or continued,
the Obligor grants to IMPERIAL BANK (hereinafter called "Bank") a security
interest in (a) all property (i) delivered to Bank by Obligor, (ii) which
shall be in Bank's possession or control in any matter or for any purpose,
(iii) described below, (iv) now owned or hereafter acquired by Obligor of the
type or class described below and/or in any supplementary schedule hereto, or
in any financing statement filed by Bank and executed by or on behalf of
Obligor; (b) all deposits accounts of Obligor at Bank and (c) the proceeds,
increase and products of such property, all accessions thereto, and all
property which Obligor may receive on account of such collateral which
Obligor will immediately deliver to Bank (collectively referred to as
"Collateral") to secure payment and performance of all of Obligor's present
or future debts or obligations to Bank, whether absolute or contingent
(hereafter referred to as "Debt"). Unless otherwise defined, words used
herein have the meanings given them in the California Uniform Commercial Code.
Collateral:
A. VEHICLE, VESSEL, AIRCRAFT:
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Identification License or
Year Make/Manufacturer Model and Serial No. Registration No. New or Used
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Engine or other equipment:_____________________________________________________
(FOR AIRCRAFT - ORIGINAL INK SIGNATURE ON COPY TO FAA)
B. DEPOSIT ACCOUNTS:
Type________________ Account Number________________ Amount $_________________
In name of______________________________ Depository___________________________
AND ALL EXTENSIONS OR RENEWALS THEREOF.
C. ACCOUNTS, INTANGIBLES AND OTHER: (DESCRIBE)
All personal property of Obligor (herein referred to as "Obligor" or
"Debtor") whether presently existing or hereafter created, written,
produced or acquired, including, but not limited to: (i) all accounts
receivable, accounts, chattel paper, contract rights (including, without
limitation, royalty agreements, license agreements and distribution
agreements), documents, instruments, money, deposit accounts and general
intangibles including, without limitation, returns, repossessions, books
and records relating thereto, and equipment containing said books and
records, all investment property including securities and securities
entitlements, (ii) all software, computer source codes and other computer
programs (collectively, the "Software Products"), and all common law and
statutory copyrights and copyright registrations, applications for
registration, now existing or hereafter arising, United States of America
and foreign, obtained or to be obtained on or in connection with the
Software Products, or any parts thereof or any underlying or component
elements of the Software Products together with the right to copyright and
all rights to renew or extend such copyrights and the right (but not the
obligation) of Bank (herein referred to as "Bank" or "Secured Party") to
sue in its own name and/or in the name of the Debtor for past, present and
future infringements of copyright, (iii) all goods including, without
limitation, equipment and inventory (including, without limitation, all
export inventory), (iv) all guarantees and other security therefor, (v) all
trademarks, service marks, trade names and service names and the goodwill
associated therewith, (vi) (a) all patents and patent applications filed in
the United States Patent and Trademark Office or any similar office of any
foreign jurisdiction, and interests under patent license agreements,
including, without limitation, the inventions and improvements described
and claimed therein, (b) licenses pertaining to any patent whether Debtor
is licensor or licensee, (c) all income, royalties, damages, payments,
accounts and accounts receivable now or hereafter due and/or payable under
and with respect thereto, including, without limitation, damages and
payments for past, present or future infringements thereof, (d) the right
(but not the obligation) to sue for past, present and future infringements
thereof, (e) all rights corresponding thereto throughout the world in all
jurisdictions in which such patents have been issued or applied for, and
(f) the reissues, divisions, continuations, renewals, extensions and
continuations-in-part with any of the foregoing (all of the foregoing
patents and applications and interests under patent license agreements,
together with the items described in clauses (a) through (f) in this
paragraph are sometimes herein individually and collectively referred to as
the "Patents"), and (vii) all products and proceeds including, without
limitation, insurance proceeds, of any of the foregoing.
The collateral not in Bank's possession will be located at: 15373
INNOVATION DRIVE, SUITE 120, SAN DIEGO, CA 92128
/ / If checked, the Obligor is executing this Agreement as an Accommodation
Debtor only and the Obligor's liability is limited to the security interest
granted in the Collateral described herein. The party being accommodated is
[STAMP] ("Borrower")
All the terms and provisions on page 2 hereof are incorporated herein as
though set forth in full, and constitute a part of this Agreement.
SEE ADDENDUM ATTACHED HERETO AND MADE A PART HEREOF BY THIS REFERENCE
<TABLE>
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Signature
Name (indicated title, if applicable) Address
<S> <C> <C>
IMAGEWARE SOFTWARE, INC., BY: /s/ S. JAMES MILLER, Jr. 15373 INNOVATION DRIVE, SUITE 120
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A CALIFORNIA CORPORATION SAN DIEGO, CA 92128
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Page 1 of 2
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SECURITY AGREEMENT (CONTINUED)
Obligor represents, warrants and agrees:
1. Obligor will immediately pay (a) any Debt when due, (b) Bank's costs of
collecting the Debt, of [illegible], insuring or realizing on Collateral,
and any expenditure of Bank pursuant hereto, including attorneys' fees and
expenses, with interest at the rate of 24% per year, or the rate applicable
to the Debt, whichever is less, from the date of expenditure, and (c) any
deficiency after realization of Collateral.
2. Obligor will use the proceeds of any loan that becomes Debt hereunder
for the purpose indicated on the application therefore, and will promptly
contract to purchase and pay the purchase price of any property which becomes
Collateral hereunder from the proceeds of any loan made for that purpose.
3. As to all Collateral in Obligor's possession (unless specifically
otherwise agreed to by Bank in writing), Obligor will:
(a) Have, or has, possession of the Collateral at the location disclosed
to Bank and will not remove the Collateral from the location.
(b) Keep the Collateral separate and identifiable.
(c) Maintain the Collateral in good and saleable condition, repair it if
necessary, clean, feed, shelter, water, medicate, fertilize, cultivate,
irrigate, prune and otherwise deal with the Collateral in all such ways
as are considered good practice by owners of like property, use it
lawfully and only as permitted by insurance policies, and permit Bank to
inspect the Collateral at any reasonable time.
(d) Not sell, contract to sell, lease, encumber or transfer the
Collateral (other than inventory Collateral) until the Debt has been
paid, even though Bank has a security interest in proceeds of such
Collateral.
4. As to Collateral which is inventory and accounts, Obligor:
(a) May, until notice from Bank, sell, lease or otherwise dispose of
inventory Collateral in the ordinary course of business only, and
collect the cash proceeds thereof.
(b) Will, upon notice from Bank, deposit all cash proceeds as received
in a demand deposit account with Bank, containing only such proceeds and
deliver statements identifying units of inventory disposed of, accounts
which gave rise to proceeds, and all acquisitions and returns of
inventory as required by Bank.
(c) Will receive in trust, schedule on forms satisfactory to the Bank
and deliver to Bank all non-cash proceeds other than inventory received
in trade.
(d) If not in default, may obtain release of Bank's interest in
individual units of inventory upon request, therefore, payment to Bank
of the release price of such units shown on any Collateral schedule
supplementary hereto, and compliance herewith as to proceeds thereof.
5. As to Collateral which are accounts, chattel paper, general intangibles
and proceeds described in 4(c) above, Obligor warrants, represents and
agrees:
(a) All such Collateral is genuine, enforceable in accordance with its
terms, free from default, prepayment, defense and conditions precedent
(except as disclosed to and accepted by Bank in writing), and is
supported by consecutively numbered invoices to, or rights against, the
debtors thereon. Obligor will supply Bank with duplicate invoices or
other evidence of Obligor's rights on Bank's request:
(b) All persons appearing to be obligated on such Collateral have
authority and capacity to contract;
(c) All chattel paper is in compliance with law as to form, content and
manner of preparation and execution and has been properly registered,
recorded, and/or filed to protect Obligor's interest thereunder;
(d) If an account debtor shall also be indebted to Obligor on another
obligation, any payment made by him not specifically designated to be
applied on any particular obligation shall be considered to be a payment
on the account in which Bank has a security interest. Should any
remittance include a payment not on an account, it shall be delivered to
Bank and, if no event of default has occurred, Bank shall pay Obligor
the amount of such payment;
(e) Obligor agrees not to compromise, settle or adjust any account or
renew or extend the time of payment thereof without Bank's prior
written consent.
6. Obligor owns all Collateral absolutely, and no other person has or
claims any interest in any Collateral, except as disclosed to and accepted by
Bank in writing. Obligor will defend any proceeding which may affect title to
or Bank's security interest in any Collateral, and will indemnify and hold
Bank free and harmless from all costs and expenses of Bank's defense.
7. Obligor will pay when due all existing or future charges, liens or
encumbrances on and all taxes and assessments now or hereafter imposed on or
affecting the Collateral and, if the Collateral is in Obligor's possession,
the realty on which the Collateral is located.
8. Obligor will insure the Collateral with Bank as loss payee in form and
amounts with companies, and against risks and liability satisfactory to Bank,
and hereby assigns such policies to Bank, agrees to deliver them to Bank at
Bank's request, and authorizes Bank to make any claim thereunder, to cancel
the insurance on Obligor's default, and to receive payment of and endorse any
instrument in payment of any loss or return premium. If Obligor should fail
to deliver the required policy or policies to the Bank, Bank may, at
Obligor's cost and expense, without any duty to do so, get and pay for
insurance naming as the insured, at Bank's option, either both Obligor and
Bank, or only Bank, and the cost thereof shall be secured by this Security
Agreement, and shall be repayable as provided in Paragraph 1 above.
9. Obligor will give Bank any information it requires. All information at
any time supplied to Bank by Obligor (including, but not limited to, the value
and condition of Collateral, financial statements, financing statements, and
statements made in documentary Collateral) is correct and complete, and
Obligor will notify Bank of any adverse change in such information. Obligor
will promptly notify Bank of any change of Obligor's residence, chief
executive office or mailing address.
10. Bank is irrevocably appointed Obligor's attorney-in-fact to do any act
which Obligor is obligated hereby to do, to exercise such rights as Obligor
may exercise, to use such equipment as Obligor might use, to enter Obligor's
premises to give notice of Bank's security interest, and to collect
Collateral and proceeds and to execute and file in Obligor's name any
financing statements and amendments thereto required to perfect Bank's
security interest hereunder, all to protect and preserve the Collateral and
Bank's rights hereunder. Bank may:
(a) Endorse, collect and receive delivery or payment of instruments and
documents constituting Collateral;
(b) Make extension agreements with respect to or affecting Collateral,
exchange it for other Collateral, release persons liable thereon or take
security for the payment thereof, and compromise disputes in connection
therewith;
(c) Use or operate Collateral for the purpose of preserving Collateral
or its value and for preserving or liquidating Collateral.
11. If more than one Obligor signs this Agreement, their liability is joint
and several. Any Obligor who is married agrees that recourse may be had
against separate property for the Debt. Discharge of any Obligor except for
full payment, or any extension, forbearance, change of rate of interest, or
acceptance, release or substitution of Collateral or any impairment or
suspension of Bank's rights against an Obligor, or any transfer of an
Obligor's interest to another shall not affect the liability of any other
Obligor. Until the Debt shall have been paid or performed in full, Bank's
rights shall continue even if the Debt is outlawed. All Obligors waive: (a)
any right to require Bank to proceed against any Obligor before any other, or
to pursue any other remedy; (b) presentment, protest and notice of protest,
demand and notice of nonpayment, demand or performance, notice of sale and
advertisement of sale; (c) any right to the benefit of or to direct the
application of any Collateral until the Debt shall have been paid; (d) and
any right of subrogation to Bank until Debt shall have been paid or performed
in full.
12. Upon default, at Bank's option, without demand or notice, all or any
part of the Debt shall immediately become due. Bank shall have all rights
given by law, and may sell, in one or more sales, Collateral in any county
where Bank has an office. Bank may purchase at such sale. Sales for cash or on
credit to a wholesaler, retailer or user of the Collateral, or at public or
private auction, are all to be considered commercially reasonable. Bank may
require Obligor to assemble the Collateral and make it available to Bank at
the entrance to the location of the Collateral, or a place designated by Bank.
Defaults shall include:
(a) Obligor's failure to pay or perform this or any agreement with
Bank or breach of any warranty herein, or Borrower's failure to pay or
perform any agreement with Bank.
(b) Any change in Obligor's or Borrower's financial condition which in
Bank's judgment impairs the prospect of Borrower's payment or
performance. (c) Any actual or reasonably anticipated deterioration of
the Collateral or in the market price thereof which causes it, in the
Bank's judgment, to become unsatisfactory as security.
(d) Any levy or seizure against Borrower or any of the Collateral.
(e) Death, termination of business, assignment for creditors,
insolvency, appointment of receiver, or the filing of any petition under
bankruptcy or debtor's relief laws of, by or against Obligor or
Borrower or any guarantor of the Debt.
(f) Any warranty or representation which is false or is believed in good
faith by Bank to be false.
13. Bank's acceptance of partial or delinquent payments or the failure of
Bank to exercise any right or remedy shall not waive any obligation of
Obligor or Borrower or right of Bank to modify this Agreement, or waive any
other similar default.
14. On transfer of all or any part of the Debt, Bank may transfer all or
any part of the Collateral. Bank may deliver all or any part of the
Collateral to any Obligor at any time. Any such transfer or delivery shall
discharge Bank from all liability and responsibility with respect to such
Collateral transferred or delivered. This Agreement benefits Bank's
successors and assigns and binds Obligor's heirs, legatees, personal
representatives, successors and assigns. Obligor agrees not to assert against
any assignee of Bank any claim or defense that may exist against Bank. Time
is of the essence. This Agreement and supplementary schedules hereto contain
the entire security agreement between Bank and Obligor. Obligor will execute
any additional agreements, assignments or documents reasonably required by
Bank to carry this Agreement into effect.
15. This Agreement shall be governed by and construed in accordance with the
laws of the State of California, to the jurisdiction of whose courts the
Obligor hereby agrees to submit. Obligor agrees that service of process may
be accomplished by any means authorized by California law. All words used
herein in the singular shall be considered to have been used in the plural
where the context and construction so require.
16. To the extent that Obligor acquires any trademarks, service marks,
trade names and service names and/or the goodwill associated therewith,
copyrights, patents and/or patent applications (collectively "Intellectual
Property"), Obligor shall give prompt notice thereof to Bank and shall take
any and all actions requested from time to time by Bank to perfect Obligor's
interest in such Intellectual Property and to perfect Bank's first priority
interest therein. Without limiting the generality of the foregoing, the
Obligor agrees as follows: Upon Obligor creating, writing, producing or
acquiring any software, computer source codes or other computer programs
(collectively, the "Software"), Obligor shall promptly register such Software
with the U.S. Copyright Office and to the extent Obligor's rights therein are
acquired from any third party, Obligor shall promptly upon such acquisition
file with the U.S. Copyright Office any and all documents necessary to
perfect Obligor's rights therein. Upon Obligor creating, writing, producing
or otherwise acquiring any Software, Obligor shall give prompt notice thereof
to Bank. Obligor shall execute and deliver to Bank any and all copyright
mortgages, UCC financing statements and other documents and instruments which
Bank may request in connection with the Bank perfecting its first priority
security interest in such Software.
Page 2 of 2
<PAGE>
PROMISSORY NOTE
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PRINCIPAL LOAN DATE MATURITY LOAN NO CALL COLLATERAL ACCOUNT OFFICER INITIALS
<S> <C> <C> <C> <C> <C> <C> <C> <C>
$500,000.00 09-18-1998 01-15-1999 711062569 622787 PD [ILLEGIBLE]
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References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan
or item.
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BORROWER: IMAGEWARE SOFTWARE, INC. LENDER: IMPERIAL BANK
15373 INNOVATION DRIVE, SUITE 120 SAN DIEGO REGIONAL OFFICE
SAN DIEGO, CA 92128 701 B STREET, SUITE 600
SAN DIEGO, CA 92112-4168
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PRINCIPAL AMOUNT: $500,000.00 INITIAL RATE: 10.500% DATE OF NOTE: SEPTEMBER 18, 1998
</TABLE>
PROMISE TO PAY. IMAGEWARE SOFTWARE, INC. ("BORROWER") PROMISES TO PAY TO
IMPERIAL BANK ("LENDER"), OR ORDER, IN LAWFUL MONEY OF THE UNITED STATES OF
AMERICA, THE PRINCIPAL AMOUNT OF FIVE HUNDRED THOUSAND & 00/100 DOLLARS
($500,000.00), TOGETHER WITH INTEREST ON THE UNPAID PRINCIPAL BALANCE FROM
SEPTEMBER 18, 1998, UNTIL PAID IN FULL.
PAYMENT. BORROWER WILL PAY THIS LOAN IN ONE PRINCIPAL PAYMENT OF $500,000.00
PLUS INTEREST ON JANUARY 15, 1999. THIS PAYMENT DUE JANUARY 15, 1999, WILL BE
FOR ALL PRINCIPAL AND ACCRUED INTEREST NOT YET PAID. IN ADDITION, BORROWER
WILL PAY REGULAR MONTHLY PAYMENTS OF ALL ACCRUED UNPAID INTEREST DUE AS OF
EACH PAYMENT DATE, BEGINNING OCTOBER 15, 1998, WITH ALL SUBSEQUENT INTEREST
PAYMENTS TO BE DUE ON THE SAME DAY OF EACH MONTH AFTER THAT. The annual
interest rate for this Note is computed on a 365/360 basis; that is, by
applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual
number of days the principal balance is outstanding. Borrower will pay Lender
at Lender's address shown above or at such other place as Lender may
designate in writing. Unless otherwise agreed or required by applicable law,
payments will be applied first to any unpaid collection costs and any late
charges, then to any unpaid interest, and any remaining amount to principal.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change
from time to time based on changes in an index which is the Imperial Bank
Prime Rate (the "Index"). The Prime Rate is the rate announced by Lender as
its Prime Rate of interest from time to time. Lender will tell Borrower the
current Index rate upon Borrower's request. Borrower understands that Lender
may make loans based on other rates as well. The interest rate change will
not occur more often than each day. THE INDEX CURRENTLY IS 8.500%. THE
INTEREST RATE TO BE APPLIED TO THE UNPAID PRINCIPAL BALANCE OF THIS NOTE WILL
BE AT A RATE OF 2,000 PERCENTAGE POINTS OVER THE INDEX, RESULTING IN AN
INITIAL RATE OF 10.500%. NOTICE: Under no circumstances will the interest
rate on this Note be more than the maximum rate allowed by applicable law.
PREPAYMENT: MINIMUM INTEREST CHARGE. In any event, even upon full prepayment
of this Note, Borrower understands that Lender is entitled to a MINIMUM
INTEREST CHARGE OF $250.00. Other than Borrower's obligation to pay any
minimum interest charge, Borrower may pay without penalty all or a portion of
the amount owed earlier than it is due. Early payments will not, unless
agreed to by Lender in writing, relieve Borrower of Borrower's obligation to
continue to make payments under the payment schedule. Rather, they will
reduce the principal balance due.
LATE CHARGE. If a payment is 10 DAYS OR MORE LATE, Borrower will be charged
5.000% OF THE UNPAID PORTION OF THE REGULARLY SCHEDULED PAYMENT.
DEFAULT. Borrower will be in default if any of the following happens: (a)
Borrower fails to make any payment when due. (b) Borrower breaks any promise
Borrower has made to Lender, or Borrower fails to comply with or to perform
when due any other term, obligation, covenant, or condition contained in this
Note or any agreement related to this Note, or in any other agreement or loan
Borrower has with Lender. (c) Any representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf is false or
misleading in any material respect either now or at the time made or
furnished. (d) Borrower becomes insolvent, a receiver is appointed for any
part of Borrower's property, Borrower makes an assignment for the benefit of
creditors, or any proceeding is commenced either by Borrower or against
Borrower under any bankruptcy or insolvency laws. (e) Any creditor tries to
take any of Borrower's property on or in which Lender has a lien or security
interest. This includes a garnishment of any of Borrower's accounts with
Lender. (f) Any guarantor dies or any of the other events described in this
default section occurs with respect to any guarantor of this Note. (g) A
material adverse change occurs in Borrower's financial condition, or Lender
believes the prospect of payment or performance of the indebtedness is
impaired. (h) Lender in good faith deems itself insecure.
If any default, other than a default in payment, is curable and if Borrower
has not been given a notice of a breach of the same provision of this Note
within the preceding twelve (12) months, it may be cured (and no event of
default will have occurred) if Borrower, after receiving written notice from
Lender demanding cure of such default: (a) cures the default within ten (10)
days; or (b) if the cure requires more than ten (10) days, immediately
initiates steps which Lender deems in Lender's sole discretion to be
sufficient to cure the default and thereafter continues and completes all
reasonable and necessary steps sufficient to produce compliance as soon as
reasonably practical.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, without
notice, and then Borrower will pay that amount. Upon Borrower's failure to
pay all amounts declared due pursuant to this section, including failure to
pay upon final maturity, Lender, at this option, may also, if permitted under
applicable law, do one or both of the following: (a) increase the variable
interest rate on this Note to 7.000 percentage points over the Index, and (b)
add any unpaid accrued interest to principal and such sum will bear interest
therefrom until paid at the rate provided in this Note (including any
increased rate). Lender may hire or pay someone else to help collect this
Note if Borrower does not pay. Borrower also will pay Lender that amount.
This includes, subject to any limits under applicable law, Lender's
attorneys' fees and Lender's legal expenses whether or not there is a
lawsuit, including attorneys' fees and legal expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or
injunction), appeals, and any anticipated post-judgment collection services.
Borrower also will pay any court costs, in addition to all other sums
provided by law. THIS NOTE HAS BEEN DELIVERED TO LENDER AND ACCEPTED BY
LENDER IN THE STATE OF CALIFORNIA. IF THERE IS A LAWSUIT, BORROWER AGREES
UPON LENDER'S REQUEST TO SUBMIT TO THE JURISDICTION OF THE COURTS OF LOS
ANGELES COUNTY, THE STATE OF CALIFORNIA. LENDER AND BORROWER HEREBY WAIVE THE
RIGHT TO ANY JURY TRIAL IF ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY
EITHER LENDER OR BORROWER AGAINST THE OTHER. (INITIAL HERE [ILLEGIBLE]). THIS
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $25.00 if Borrower
makes a payment on Borrower's loan and the check or preauthorized charge with
which Borrower pays is later dishonored.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest
in, and hereby assigns, conveys, delivers, pledges, and transfers to Lender
all Borrower's right, title and interest in and to, Borrower's accounts with
Lender (whether checking, savings, or some other account), including without
limitation all accounts held jointly with someone else and all accounts
Borrower may open in the future, excluding however all IRA and Keogh
accounts, and all trust accounts for which the grant of a security interest
would be prohibited by law. Borrower authorizes Lender, to the extent
permitted by applicable law, to charge or setoff all sums owing on this Note
against any and all such accounts.
CREDIT TERMS AND CONDITIONS AGREEMENT. This Note is subject to the provisions
of the Credit Terms and Conditions Agreement dated January 15, 1998 and all
amendments thereto and replacements therefor.
YEAR 2000 COMPLIANCE. Borrower affirmatively covenants that it will perform
all acts reasonably necessary to ensure that (a) Borrower and any business in
which Borrower holds a substantial interest, and (b) all customers, suppliers
and vendors that are material to Borrower's business, become Year 2000
Compliant in a timely manner. Such acts shall include, without limitation,
performing a comprehensive review and assessment of all Borrower's systems
and adopting a detailed plan, with itemized budget, for the remediation,
monitoring and testing of such systems. As used in this paragraph, "Year 2000
Compliant" shall mean, in regard to any entity, that all software, hardware,
firmware, equipment, goods or systems utilized by or material to the business
operations or financial condition of such entity, will properly perform date
sensitive functions before, during and after the year 2000. Borrower shall,
immediately upon request, provide to Bank such certifications or other
evidence of Borrower's compliance with the terms of this paragraph as Bank
may from time to time require.
REPRESENTATION REGARDING YEAR 2000 COMPLIANCE. Borrower and its subsidiaries,
as applicable, represent and warrant that they have reviewed the areas within
their operations and business which could be adversely affected by, and have
developed or are developing a program to address on a timely basis, the Year
2000 Problem and have made related appropriate inquiry of material suppliers
and vendors, and based on such review and program, the Year 2000 Problem will
not have a material adverse effect upon their financial condition, operations
or business as now conducted. "Year 2000 Problem" means the possibility that
any computer applications or equipment used by Borrower may be unable to
recognize and properly perform date sensitive functions involving certain
dates prior to and any dates on or after December 31, 1999.
<PAGE>
PAGE 2
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person
who signs, guarantees or endorses this Note, to the extent allowed by law,
waive any applicable statute of limitations, presentment, demand for payment,
protest and notice of dishonor. Upon any change in the terms of this Note,
and unless otherwise expressly stated in writing, no party who signs this
Note, whether as maker, guarantor, accommodation maker or endorser, shall be
released from liability. All such parties agree that Lender may renew or
extend (repeatedly and for any length of time) this loan, or release any
party or guarantor or collateral; or impair, fail to realize upon or perfect
Lender's security interest in the collateral; and take any other action deemed
necessary by Lender without the consent of or notice to anyone. All such
parties also agree that Lender may modify this loan without the consent of or
notice to anyone other than the party with whom the modification is made.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS
OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER
AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY
OF THE NOTE.
BORROWER:
IMAGEWARE SOFTWARE, INC.
By: /s/ [ILLEGIBLE]
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AUTHORIZED OFFICER
<PAGE>
GENERAL SECURITY AGREEMENT
IMPERIAL BANK (TANGIBLE AND INTANGIBLE PERSONAL PROPERTY)
Member FDIC
This Agreement is executed on SEPTEMBER 18, 1998 , by
XIMAGE CORPORATION (hereinafter called "Obligor").
In consideration of financial accommodations given, to be given or continued,
the Obligor grants to IMPERIAL BANK (hereinafter called "Bank") a security
interest in (a) all property (i) delivered to Bank by Obligor, (ii) which
shall be in Bank's possession or control in any matter or for any purpose,
(iii) described below, (iv) now owned or hereafter acquired by Obligor of the
type or class described below and/or in any supplementary schedule hereto, or
in any financing statement filed by Bank and executed by or on behalf of
Obligor; (b) all deposits accounts of Obligor at Bank and (c) the proceeds,
increase and products of such property, all accessions thereto, and all
property which Obligor may receive on account of such collateral which
Obligor will immediately deliver to Bank (collectively referred to as
"Collateral") to secure payment and performance of all of Obligor's present
or future debts or obligations to Bank, whether absolute or contingent
(hereafter referred to as "Debt"). Unless otherwise defined, words used
herein have the meanings given them in the California Uniform Commercial Code.
Collateral:
A. VEHICLE, VESSEL, AIRCRAFT:
- -------------------------------------------------------------------------------
Identification License or New or
Year Make/Manufacturer Model and Serial No. Registration No. Used
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Engine or other equipment: ____________________________________________________
(FOR AIRCRAFT - ORIGINAL INK SIGNATURE ON COPY TO FAA)
B. DEPOSIT ACCOUNTS:
Type_____________ Account Number______________________ Amount $_______________
In name of____________________________ Depository_____________________________
AND ALL EXTENSIONS OR RENEWALS THEREOF.
C. ACCOUNTS, INTANGIBLES AND (DESCRIBE)
All personal property, whether presently existing or hereafter created or
acquired, including but not limited to:
All accounts, chattel paper, documents, instruments, money, deposit
accounts and general intangibles including returns, repossessions, books
and records relating thereto, and equipment containing said books and
records. All investment property including securities and securities
entitlements. All goods including equipment and inventory. All proceeds
including, without limitation, insurance proceeds. All guarantees and
other security therefor.
The collateral not in Bank's possession will be located at: 10883 THORNMINT
ROAD, SAN DIEGO, CA. 92127
/ / If checked, the Obligor is executing this Agreement as an Accommodation
Debtor only and the Obligor's liability is limited to the security interest
granted in the Collateral described herein. The party being accommodated is
("Borrower").
All the terms and provisions on page 2 hereof are incorporated herein as
though set forth in full, and constitute a part of this Agreement.
Signature
Name (indicate title, if applicable) Address
XIMAGE CORPORATION 10883 THORNMINT ROAD
SAN DIEGO, CA. 92127
- ------------------ --------------------------------- --------------------
BY: [ILLEGIBLE]
- ------------------ --------------------------------- --------------------
AUTHORIZED OFFICER
- ------------------ --------------------------------- --------------------
<PAGE>
SECURITY AGREEMENT (CONTINUED)
Obligor represents, warrants and agrees:
1. Obligor will immediately pay (a) any Debt when due, (b) Bank's costs of
collecting the Debt, of [ILLEGIBLE], insuring or realizing on Collateral, and
any expenditure of Bank pursuant hereto, including attorneys' fees and
expenses, with interest at the rate of 24% per year, or the rate applicable
to the Debt, whichever is less, from the date of expenditure, and (c) any
deficiency after realization of Collateral.
2. Obligor will use the proceeds of any loan that becomes Debt hereunder
for the purpose indicated on the application therefore, and will promptly
contract to purchase and pay the purchase price of any property which becomes
Collateral hereunder from the proceeds of any loan made for that purpose.
3. As to all Collateral in Obligor's Possession (unless specifically
otherwise agreed to by Bank in writing), Obligor will:
(a) Have, or has, possession of the Collateral at the location disclosed
to Bank and will not remove the Collateral from the location.
(b) Keep the Collateral separate and identifiable.
(c) Maintain the Collateral in good and saleable condition, repair it if
necessary, clean, feed, shelter, water, medicate, fertilize, cultivate,
irrigate, prune and otherwise deal with the Collateral in all such ways as
are considered good practice by owners of like property, use it lawfully
and only as permitted by insurance policies, and permit Bank to inspect
the Collateral at any reasonable time.
(d) Not sell, contract to sell, lease, encumber or transfer the
Collateral (other than inventory Collateral) until the Debt has been
paid, even though Bank has a security interest in proceeds of such
Collateral.
4. As to Collateral which is inventory and accounts, Obligor:
(a) May, until notice from Bank, sell, lease or otherwise dispose of
inventory Collateral in the ordinary course of business only, and
collect the cash proceeds thereof.
(b) Will, upon notice from Bank, deposit all cash proceeds as received
in a demand deposit account with Bank, containing only such proceeds and
deliver statements identifying units of inventory disposed of, accounts
which gave rise to proceeds, and all acquisitions and returns of
inventory as required by Bank.
(c) Will receive in trust, schedule on forms satisfactory to the Bank
and deliver to Bank all non-cash proceeds other than inventory received
in trade.
(d) If not in default, may obtain release of Bank's interest in
individual units of inventory upon request, therefore, payment to Bank
of the release price of such units shown on any Collateral schedule
supplementary hereto, and compliance herewith as to proceeds thereof.
5. As to Collateral which are accounts, chattel paper, general intangibles
and proceeds described in 4(c) above, Obligor warrants, represents and agrees:
(a) All such Collateral is genuine, enforceable in accordance with its
terms, free from default, prepayment, defense and conditions precedent
(except as disclosed to and accepted by Bank in writing), and is
supported by consecutively numbered invoices to, or rights against, the
debtors thereon. Obligor will supply Bank with duplicate invoices or
other evidence of Obligor's rights on Bank's request;
(b) All persons appearing to be obligated on such Collateral have
authority and capacity to contract;
(c) All chattel paper is in compliance with law as to form, content and
manner of preparation and execution and has been properly registered,
recorded and/or filed to protect Obligor's interest thereunder;
(d) If an account debtor shall also be indebted to Obligor on another
obligation, any payment made by him not specifically designated to be
applied on any particular obligation shall be considered to be a payment
on the account in which Bank has a security interest. Should any
remittance include a payment not on an account, it shall be delivered to
Bank and, if no event of default has occurred, Bank shall pay Obligor
the amount of such payment;
(e) Obligor agrees not to compromise, settle or adjust any account or
renew or extend the time of payment thereof without Bank's prior written
consent.
6. Obligor owns all Collateral absolutely, and no other person has or claims
any interest in any Collateral, except as disclosed to and accepted by Bank in
writing. Obligor will defend any proceeding which may affect title to or
Bank's security interest in any Collateral, and will indemnify and hold Bank
free and harmless from all costs and expenses of Bank's defense.
7. Obligor will pay when due all existing or future charges, liens or
encumbrances on and all taxes and assessments now or hereafter imposed on or
affecting the Collateral and, if the Collateral is in Obligor's possession,
the realty on which the Collateral is located.
8. Obligor will insure the Collateral with Bank as loss payee in form and
amounts with companies, and against risks and liability satisfactory to Bank,
and hereby assigns such policies to Bank, agrees to deliver them to Bank at
Bank's request, and authorizes Bank to make any claim thereunder, to cancel
the insurance on Obligor's default, and to receive payment of and endorse any
instrument in payment of any loss or return premium. If Obligor should fail
to deliver the required policy or policies to the Bank, Bank may, at
Obligor's cost and expense, without any duty to do so, get and pay for
insurance naming as the insured, at Bank's option, either both Obligor and
Bank, or only Bank, and the cost thereof shall be secured by this Security
Agreement, and shall be repayable as provided in Paragraph 1 above.
9. Obligor will give Bank any information it requires. All information at any
time supplied to Bank by Obligor (including, but not limited to, the value
and condition of Collateral, financial statements, financing statements, and
statements made in documentary Collateral) is correct and complete, and
Obligor will notify Bank of any adverse change in such information. Obligor
will promptly notify Bank of any change of Obligor's residence, chief
executive office or mailing address.
10. Bank is irrevocably appointed Obligor's attorney-in-fact to do any act
which Obligor is obligated hereby to do, to exercise such rights as Obligor
may exercise, to use such equipment as Obligor might use, to enter Obligor's
premises to give notice of Bank's security interest, and to collect
Collateral and proceeds and to execute and file in Obligor's name any
financing statements and amendments thereto required to perfect Bank's
security interest hereunder, all to protect and preserve the Collateral and
Bank's rights hereunder. Bank may:
(a) Endorse, collect and receive delivery or payment of instruments and
documents constituting Collateral;
(b) Make extension agreements with respect to or affecting Collateral,
exchange it for other Collateral, release persons liable thereon or take
security for the payment thereof, and compromise disputes in connection
therewith;
(c) Use or operate Collateral for the purpose of preserving Collateral
or its value and for preserving or liquidating Collateral.
11. If more than one Obligor signs this Agreement, their liability is joint
and several. Any Obligor who is married agrees that recourse may be had
against separate property for the Debt. Discharge of any Obligor except for
full payment, or any extension, forbearance, change of rate of interest, or
acceptance, release or substitution of Collateral or any impairment or
suspension of Bank's rights against an Obligor, or any transfer of an
Obligor's interest to another shall not affect the liability of any other
Obligor. Until the Debt shall have been paid or performed in full, Bank's
rights shall continue even if the Debt is outlawed. All Obligors waive: (a)
any right to require Bank to proceed against any Obligor before any other, or
to pursue any other remedy; (b) presentment, protest and notice of protest,
demand and notice of nonpayment, demand or performance, notice of sale, and
advertisement of sale; (c) any right to the benefit of or to direct the
application of any Collateral until the Debt shall have been paid; (d) and
any right of subrogation to Bank until Debt shall have been paid or performed
in full.
12. Upon default, at Bank's option, without demand or notice, all or any part
of the Debt shall immediately become due. Bank shall have all rights given by
law, and may sell, in one or more sales, Collateral in any county where Bank
has an office. Bank may purchase at such sale. Sales for cash or on credit to
a wholesaler, retailer or user of the Collateral, or at public or private
auction, are all to be considered commercially reasonable. Bank may require
Obligor to assemble the Collateral and make it available to Bank at the
entrance to the location of the Collateral, or a place designated by Bank.
Defaults shall include:
(a) Obligor's failure to pay or perform this or any agreement with Bank
or breach of any warranty herein, or Borrower's failure to pay or perform
any agreement with Bank.
(b) Any change in Obligor's or Borrower's financial condition which in
Bank's judgment impairs the prospect of Borrower's payment or
performance.
(c) Any actual or reasonably anticipated deterioration of the Collateral
or in the market price thereof which causes it, in Bank's judgment, to
become unsatisfactory as security.
(d) Any levy or seizure against Borrower or any of the Collateral.
(e) Death, termination of business, assignment for creditors,
insolvency, appointment of receiver, or the filing of any petition under
bankruptcy or debtor's relief laws of, by or against Obligor or Borrower
or any guarantor of the Debt.
(f) Any warranty or representation which is false or is believed in good
faith by Bank to be false.
13. Bank's acceptance of partial or delinquent payments or the failure of
Bank to exercise any right or remedy shall not waive any obligation of
Obligor or Borrower or right of Bank to modify this Agreement, or waive any
other similar default.
14. On transfer of all or any part of the Debt, Bank may transfer all or
any part of the Collateral. Bank may deliver all or any part of the
Collateral to any Obligor at any time. Any such transfer or delivery shall
discharge Bank from all liability and responsibility with respect to such
Collateral transferred or delivered. This Agreement benefits Bank's
successors and assigns and binds Obligor's heirs, legatees, personal
representatives, successors and assigns. Obligor agrees not to assert against
any assignee of Bank any claim or defense that may exist against Bank. Time
is of the essence. This Agreement and supplementary schedules hereto contain
the entire security agreement between Bank and Obligor. Obligor will execute
any additional agreements, assignments or documents reasonably required by
Bank to carry this Agreement into effect.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of California, to the jurisdiction of whose courts the
Obligor hereby agrees to submit. Obligor agrees that service of process may
be accomplished by any means authorized by California law. All words used
herein in the singular shall be considered to have been used in the plural
where the context and construction so require.
16. To the extent that Obligor acquires any trademarks, service marks,
trade names and service names and/or the goodwill associated therewith,
copyrights, patents and/or patent applications (collectively "Intellectual
Property"), Obligor shall give prompt notice thereof to Bank and shall take
any and all actions requested from time to time by Bank to perfect Obligor's
interest in such Intellectual Property and to perfect Bank's first priority
interest therein. Without limiting the generality of the foregoing, the
Obligor agrees as follows: Upon Obligor creating, writing, producing or
acquiring any software, computer source codes or other computer programs
(collectively, the "Software"). Obligor shall promptly register such Software
with the U.S. Copyright Office and to the extent Obligor's rights therein are
acquired from any third party, Obligor shall promptly upon such acquisition
file with the U.S. Copyright Office any and all documents necessary to
perfect Obligor's rights therein. Upon Obligor creating, writing, producing
or otherwise acquiring any Software, Obligor shall give prompt notice thereof
to Bank. Obligor shall execute and deliver to Bank any and all copyright
mortgages, UCC financing statements and other documents and instruments which
Bank may request in connection with the Bank perfecting its first priority
security interest in such Software.
<PAGE>
THIS PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND IT MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR ANY EXEMPTION THEREFROM UNDER SAID ACT AND SUCH LAWS AND THE
RESPECTIVE RULES AND REGULATIONS THEREUNDER.
IMAGEWARE SOFTWARE, INC.
8.0% Convertible Note due June 15, 2000
$267,500 June 15, 1995
FOR VALUE RECEIVED, the undersigned ImageWare Software, Inc., a
corporation organized and existing under the laws of the State of California
(herein called the "Company"), hereby promises to pay to S. James Miller,
Jr., or order, the principal sum of Two Hundred Sixty Seven Thousand and Five
Hundred Dollars ($267,500) on June 15, 2000 with interest (computed on the
basis of a 360-day year and 30-day month) on the unpaid balance thereof at
the rate of 8.0% per annum from the date hereof, payable monthly on the last
day of each quarter, commencing on September 30, 1995, until the prinicpal
hereof shall have become due and payable or shall have been paid. At the
option of either the Company or the holder of this Note, interest may be
allowed to accrue and be added to principal, rather than be paid.
Payment of both principal and interest are to be made at the address
shown on the Company's books or at such other place as the holder hereof
shall designate to the Company in writing, in lawful money of the United
States of America.
This Note and any other promissory notes with identical terms shall, at
the option of the holder, be prepaid prorata to the extent of 20% of the
Company's pre-tax income earned subsequent to June 30, 1995.
In the event that interest or principal on this Note is not paid when
due, then the principal and accrued interest of this Note may be declared
immediately due and payable by the holder hereof. The Company agrees to pay,
and save the holder hereof harmless against any liability for, any expenses
arising in connection with the enforcement by the holder hereof of any of
its rights under this Note.
This Note shall be convertible into securities of the Company as follows:
The principal amount of this Note plus accrued but unpaid interest
thereon shall be convertible, at the option of the holder thereof, at any
time after date hereof, into Units of Series B Preferred Stock, ("Preferred
Stock") and Common Stock Purchase Warrants ("Warrants") of the Company of the
type sold to purchasers in the $1,250,000 Unit
<PAGE>
offering made pursuant to a Confidential Private Placement Memorandum dated
April 10, 1995, at $2.50 per Unit, subject to adjustment.
The conversion of this Note into Units shall be effected by the
surrender of this Note, duly endorsed in blank, at the office of the
Corporation, with written notice to the Corporation of the election to
convert the same and shall state therein the name or names in which the
securities included in the Units are to be issued. The Corporation shall, as
soon as practicable thereafter, issue and deliver to such holder certificates
of Preferred Stock and Warrants into which the Note was converted.
The Conversion Price of the Preferred Stock and the Exercise Price of
the Warrrants included in the Units shall be subject to adjustment from time
to time as follows:
In the event the Corporation should at any time or from to time after
the date of the issuance of any shares of Preferred Stock or Warrants fix a
record date for the effectuation of a split or subdivision of the outstanding
shares of Common Stock or the determination of holders of Common Stock
entitled to received a dividend or other distribution payable in additional
shares of Common Stock or other securities or rights or other securities or
rights convertible into, or entitling the holder thereof to receive directly
or indirectly, additional shares of Common Stock (hereinafter referred to as
"Common Stock Equivalents") without payment of any consideration by such
holder for the additional shares of Common Stock or the Common Stock
Equivalents (including the additional shares of Common Stock issuable upon
conversion or exercise thereof), then, as of such record date (or the date of
such dividend distribution, split or subdivision if no record date is fixed),
the Conversion Price of the Preferred Stock and the Exercise Price of the
Warrants shall be appropriately decreased so that the number of shares of
Common Stock issuable on conversion of each share of such Preferred Stock or
exercise of each Warrant shall be increased in proportion to such increase in
the aggregate number of shares of Common Stock outstanding and those issuable
with respect to Common Stock Equivalents or other rights or securities of the
Corporation.
If the number of shares of Common Stock outstanding at any time after
the date of the issuance of any shares of Preferred Stock and Warrants is
decreased by a combination of the outstanding shares of Common Stock, then,
following the record date of such combination, the Conversion Price of the
Preferred Stock and the Exercise Price of the Warrants shall be appropriately
increased so that the number of shares of Common Stock issuable on conversion
of each share of such series shall be decreased in proportion to such
decrease in outstanding shares.
In the event the Corporation shall declare a distribution with respect
to the outstanding shares of Common Stock payable in securities of other
persons, evidences of indebtedness issued by the Corporation or other
persons, assets or options or rights not referred to above, then, in each
such case for the purpose of this paragraph, the holders of the Preferred
Stock and the Warrants shall be entitled to a proportionate share of any such
distribution as though they were the holders of the number of shares of
Common Stock of
<PAGE>
the Corporation into which their shares of Preferred Stock are convertible or
their Warrants are exercisable as of the record date fixed for the
determination of the holders of Common Stock of the Corporation entitled to
received such distribution.
If at any time or from time to time there shall be a capital
reorganization of the Corporation or any reclassification of the Common Stock
or in case of the consolidation or merger of the Corporation with any other
person or entity or in case of any sale, conveyance or disposition of all or
substantially all of the assets of the Corporation to an affiliate of the
Corporation (other than a subdivision, combination or Event of Liquidation or
Sale as provided for elsewhere herein), the Corporation and the person or
entity formed by such consolidation or resulting from such capital
reorganization, reclassification of capital stock or merger, as the case may
be, shall make provision in the articles or certificate of incorporation or
other governing instruments of such person such that each share of Preferred
Stock shall thereafter be convertible and each Warrant shall thereafter be
exercisable only into the kind of and amount of shares of stock, other
securities, cash and other property receivable upon such capital
reorganization, reclassification of capital stock, consolidation, merger,
sale, converyance or disposition, as the case may be, by a holder of the
number of shares of Common Stock into which such shares of Preferred Stock
were convertible or Warrants were exercisable immediately prior to such
capital reorganzation, reclassification of capital stock, consolidation,
merger, sale, conveyance or disposition. In any such case, appropriate
adjustment shall be made in the application of the provisions of this
paragraph with respect to the rights of the holders of the Preferred Stock
and the holders of the Warrants after such capital reorganization,
reclassification of capital stock, consolidation, merger, sale, conveyance or
disposition to the end that the provisions of this paragraph (including
adjustment of the Conversion Price of the Preferred Stock and the Exercise
Price of the Warrants then in effect and the number of shares purchasable
upon conversion of the Preferred Stock or exercise of the Warrant) shall be
applicable after that event as nearly equivalent as may be practicable.
This Note shall be construed and enforced in accordance with the laws of
the State of California.
IMAGEWARE SOFTWARE, INC.
By: /s/ S. James Miller
--------------------------------
S. James Miller, Jr., President and CEO
<PAGE>
CONVERTIBLE PROMISSORY NOTE
$1,250,000.00 November 10, 1999
San Diego, California
FOR VALUE RECEIVED, ImageWare Software, Inc., a California corporation
("Maker"), promises to pay to Naoya Harano ("Holder"), or order, at the address
of Holder as set forth on the signature page hereof, or such other place as
Holder may from time to time designate, the principal amount of One Million Two
Hundred Fifty Thousand Dollars ($1,250,000.00), with interest on such amount
until paid, at the rate set forth below and payable as follows:
INTEREST RATE
The amount of outstanding principal shall bear interest at the rate of ten
percent (10%) per annum. Interest shall accrue on the principal balance from
and after November 10, 1999 and shall be calculated on the basis of a 365-day
year.
PAYMENT
A payment of interest only shall be paid annually on each anniversary of
the date of this Note; provided, however, if the Maker does not make such
payment, the amount equivalent to the interest accrued hereunder as of each
anniversary date shall be added to the principal and shall accrue interest at
the rate of ten percent (10%) per annum. All outstanding principal and accrued
and unpaid interest shall be payable upon the earlier of (a) February 10, 2001
or (b) within five business (5) days after the closing of the initial
underwritten public offering of Maker's common stock pursuant to a registration
statement under the Securities Act of 1933.
Any payment hereunder shall be applied first to expenses of collection, if
any, then to accrued interest, and the balance, if any, shall be then applied to
reduction of principal. All amounts due hereunder shall be paid in lawful money
of the United States of America.
CONVERSION OPTION
If the outstanding principal and accrued and unpaid interest due hereunder
has not been paid on or before April 1, 2000 (the "Exercise Date"), then Holder
may, at its option, at any time and from time to time, elect to convert (the
"Conversion Right") all or a portion of the then outstanding principal and
accrued and unpaid interest and any other amount due hereunder into shares of
the Common Stock (the "Shares") of Maker at $1.00 (the "Conversion Price") per
Share. Notwithstanding the section entitled "ADJUSTMENTS TO THE CONVERSION
PRICE" below, it is the intent of the Maker and the Holder that the Conversion
Price is on a post-split basis after the 5.275 to 1 reverse stock split which is
anticipated to occur prior to Maker's filing of a registration statement for its
initial public offering of securities. The Conversion Right shall be
exercisable by written notice to Maker by Holder at any time after the Exercise
Date.
<PAGE>
In order to effect the Conversion Right, Holder shall deliver a copy of the
fully executed Notice of Conversion (the form of which is attached hereto) to
Maker for the Shares and surrender this Note, duly endorsed, along with a copy
of the Notice of Conversion, as soon as practicable thereafter. Upon receipt by
Maker of the Notice of Conversion from Holder, Maker shall promptly send a
confirmation to Holder stating that the Notice of Conversion has been received
and the date upon which Maker expects to deliver the Shares upon conversion. No
fractional Shares shall be issued upon conversion.
The Shares shall not be registered under the Securities Act of 1933, as
amended (the "Securities Act"), and shall be subject to restrictions on transfer
as imposed by the Securities Act and/or state securities laws. The Holder shall
have the same registration rights with respect to the Shares as have been
granted to Holder in the Stock Purchase Warrant between Holder and Maker of even
date herewith.
Holder represents, warrants and covenants that (i) Holder has had, and
continues to have, access to detailed information with respect to the business,
financial condition, results of operations and prospects of Maker; (ii) Holder
has received or has been provided access to all material information concerning
an investment in Maker represented by the Conversion Right and the Shares; (iii)
as a result of Holder's study of the aforementioned information and Holder's
prior overall experience in financial matters, and Holder's familiarity with the
nature of businesses such as Maker, Holder is properly able to evaluate the
capital structure of Maker, the business of Maker, and the risks inherent
therein; (iv) Holder has been given the opportunity to obtain any additional
information or documents from, and to ask questions and receive answers of, the
officers, directors and representatives of Maker to the extent necessary to
evaluate the merits and risks related to an investment in Maker represented by
the Conversion Right and the Shares; (v) Holder's investment in securities of
Maker pursuant hereto is consistent, in both nature and amount, with Holder's
overall investment program and financial condition; (vi) Holder's financial
condition is such that Holder can afford to bear the economic risk of holding
securities and to suffer a complete loss of Holder's investment in Maker
represented by the Conversion Right and the Shares; and (v) Holder presently
qualifies and will as of the date of the Conversion Right qualify as an
"accredited investor" within the meaning of Regulation D of the rules and
regulations promulgated under the Securities Act.
ADJUSTMENTS TO THE CONVERSION PRICE
The Conversion Price shall be subject to adjustment from time to time only
as follows:
(a) If at any time on or after the date of this Note, the number of
outstanding shares of Common Stock of Maker is increased by a stock split, stock
dividend, combination, reclassification or other similar event, the Conversion
Price shall be proportionately reduced, or if the number of outstanding shares
of Common Stock is decreased by a reverse stock split, combination or
reclassification of shares, or other similar event, the Conversion Price shall
be proportionately increased.
2
<PAGE>
(b) In case the Maker shall make or issue, or shall fix a record date for
the determination of eligible holders entitled to receive, a dividend or other
distribution with respect to the shares payable in (i) securities of the Maker
(other than Shares of Common Stock) or (ii) assets (excluding cash dividends
paid or payable solely out of retained earnings), then in each case, the holder
of this Note on conversion hereof at any time after the consummation, effective
date or record date of such event, shall receive, in addition to the Shares
issuable on such conversion prior to such date, the securities or other assets
of the Maker to which such holder would have been entitled upon such date if
such holder had converted this Note immediately prior thereto (all subject to
further adjustment as provided in this Note).
(c) In case of any merger of the Maker with or into any other corporation,
entity or person, or any other corporate reorganization, in which the Maker
shall not be the continuing or surviving entity of such reorganization or
merger, or any sale of all or substantially all of the assets of the Maker (any
such transaction being hereinafter referred to as a "Reorganization"), then, in
each case, (i) the holder of this Note shall be provided with written notice of
the proposed Reorganization at least thirty (30) days prior to the proposed
Reorganization date, and (ii) the holder of this Note, on conversion hereof at
any time after the consummation or effective date of such Reorganization (the
"Reorganization Effective Date"), shall receive, in lieu of the Shares issuable
on such conversion prior to the Reorganization Effective Date, the stock and
other securities and property (including cash) to which such Holder would have
been entitled upon the Reorganization Effective Date if such Holder had
converted this Note immediately prior thereto (all subject to further adjustment
as provided in this Note).
(d) In case of any adjustment or readjustment in the price or kind of
securities issuable on the conversion of this Note, the Maker will promptly give
written notice thereof to the holder of this Note setting forth such adjustment
or readjustment and showing in reasonable detail the computation of such
adjustment.
(e) The Maker will not, by amendment of its Articles of Incorporation or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Note,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the holder of this Note against dilution or other
impairment. Without limiting the generality of the foregoing, the Maker (a)
will at all times reserve and keep available a number of its authorized Shares
of Common Stock, free from all preemptive rights therein, which will be
sufficient to permit the conversion of this Note and (b) shall take all such
action as may be necessary or appropriate in order that all Shares as may be
issued pursuant to the conversion of this Note will, upon issuance, be duty and
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issue thereof.
DEFAULT/ACCELERATION
3
<PAGE>
If any one or more of the following events shall occur (hereinafter called
an "Event of Default"), namely: (i) default shall be made in the payment of any
amount owning hereunder when due; or (ii) the Maker shall become insolvent, or
shall be unable to pay its debts as they mature; or shall admit in writing its
inability to pay its debts as they mature; or shall make an assignment for the
benefit of its creditors; or shall file or commence or have filed or commenced
against it any proceeding for any relief under any bankruptcy or insolvency law
or any law or laws relating to the relief of debtors, readjustment of
indebtedness, reorganizations, compositions or extensions (and in the case of an
in voluntary proceeding, the same shall not be dismissed or stayed within sixty
(60) days thereof), THEN, upon the occurrence of any such Event of Default,
Holder at its election, and without presentment, demand, notice of any kind, all
of which are expressly waived by Maker, may declare the entire outstanding
balance of principal and interest thereon immediately due and payable; provided,
however, that upon the occurrence of an Event of Default described in clause
(ii) above, all amounts due hereunder shall become immediately and automatically
due and payable without any requirement of notice or other action by Holder.
NO WAIVER BY HOLDER
The acceptance by Holder of any payment under this Note after the date such
payment is due, or the failure to declare an Event of Default as herein
provided, shall not constitute a waiver of any of the terms of this Note or the
right to require the prompt payment when due of future or succeeding payments or
to declare an Event of Default for any failure to so pay or for any other
default. The acceptance by Holder of a payment of a portion of any installment
at any time that such installment is due in full shall not cure or excuse the
default caused by the failure to pay such installment in full and shall not
constitute a waiver of the right to require full payment when due of all future
or succeeding installments.
ATTORNEYS' FEES AND COSTS
In the event Holder takes any action to enforce any provision of this Note,
either through legal proceedings or otherwise, Maker promises to immediately
reimburse Holder for reasonable attorneys' fees and all other costs and expenses
so incurred. Maker shall also reimburse Holder for all attorneys' fees and
costs reasonably incurred in the representation of Holder in any bankruptcy,
insolvency, reorganization or other debtor-relief proceeding of or relating to
Maker or any security for the obligations hereunder, or for any action to
enforce any judgment rendered hereon or relating to enforcement hereof.
WAIVERS
The Maker, endorsers, guarantors and sureties of this Note hereby waive
diligence, demand, presentment, protest and demand and notice of such protest,
demand, dishonor and non-payment of this Note; expressly agree that this Note,
or any payment or performance or other term hereunder, may be renewed, modified
or extended from time to time and at any time; and consent to the acceptance or
release of security for this Note or the release of any party or guarantor, all
without
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<PAGE>
in any way affecting their liability and waive the right to plead any and all
statutes of limitations as a defense to any demand on this Note, or on any
guaranty thereof, or to any agreement to pay the same to the full extent
permissible by law.
MAXIMUM INTEREST
In no event whatsoever shall the amount paid, or agreed to be paid, to
Holder for the use, forbearance or detention of money to be loaned hereunder or
otherwise, or for the performance or payment of any covenant or obligation
contained herein, exceed the maximum amount permissible under applicable law.
If from any circumstance whatsoever fulfillment of any provision hereof exceeds
the limit of validity prescribed by law, then, IPSO FACTO, the obligation to be
fulfilled shall be reduced to the limit of such validity, and if from any such
circumstance Holder shall ever receive as interest under this Note or otherwise
an amount that would exceed the highest lawful rate, such amount that would be
excessive interest shall be applied to the reduction of the principal amount
owing hereunder (without charge for prepayment) and not to the payment of
interest, or if such excessive interest exceeds the unpaid balance of principal,
such excess shall be refunded to Maker.
PREPAYMENT
Maker may prepay this Note in full or in part at any time without premium.
No partial prepayment shall release Maker from thereafter tendering required
payments until the Note is paid in full. Upon any election by Maker to prepay
this Note, Holder shall have the right to accept such prepayment or elect to
convert the amount sought to be prepaid. If such prepayment is made prior to
the Exercise Date, Holder shall retain the right to purchase shares in the
amount of such prepayment at the Conversion Price provided Holder exercises such
right within 30 days after the Exercise Date.
BINDING ON SUCCESSORS
The terms of this Note shall inure to the benefit of and bind the parties
hereto and their heirs, legatees, devisees, representatives, successors and
assigns. As used herein the term "Maker" shall include the undersigned Maker
and any other person or entity who may subsequently become liable for the
payment hereof. The term "Holder" shall include the named Holder as well as any
other person or entity to whom this Note or any interest in this Note is
conveyed, transferred or assigned.
AUTHORITY TO BIND
Each person signing this Note on behalf of Maker represents and warrants
that he has full authority to do so and that this Note binds the corporation.
TIME OF ESSENCE
It is agreed that time is of the essence as to every term, condition and
provision of this Note.
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<PAGE>
NOTICE
All notices, demands and other communications required or permitted
hereunder shall be in writing and shall be deemed effective the earliest of (i)
actual delivery if delivered by personal delivery, (ii) three (3) days following
deposit, first class postage prepaid, with the United States mail, (iii) upon
the earliest to occur, if sent by certified postage prepaid mail, of three (3)
days following deposit thereof in the United States mail or receipt (or refusal
to accept delivery), or (iv) on the next business day after timely and proper
deposit with an overnight air courier with request for next business day
delivery. For purposes of notice, the address of Maker shall be as set forth on
the signature page hereof and the address of the Holder shall be as set forth on
the signature page hereof; provided, however, that any party shall have the
right to change its address for notice hereunder to any other location by giving
notice to the other party in the manner set forth above.
SEVERABILITY
Every provision hereof is intended to be several and if any provision is
determined by a court of competent jurisdiction to be illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall not affect
the other provisions hereof, which shall remain binding and enforceable.
MODIFICATION
This Note may not be changed or modified orally, nor may any right or
provision hereof be waived orally, but in each instance only by an instrument in
writing signed by the party against which enforcement of such change,
modification or waiver is sought.
REMEDIES CUMULATIVE
Each and every right, remedy and power hereby granted to Holder or allowed
it by law or other agreement shall be cumulative and not exclusive and may be
exercised by Holder from time to time.
CURRENCY CONVERSION
It is the intent of the Maker and Holder that the principal of this Note be
subject to adjustment based upon the fluctuation of the rate of exchange between
U.S. dollars and Japanese yen between the date hereof and the date of repayment
of the principal hereunder. It is agreed that the rate of exchange between U.S.
dollars and Japanese yen as of the date of this Note is 104.55 Japanese yen per
U.S. dollar, and therefore the original principal amount of this Note of
$1,250,000.00 is as of the date hereof equal to 130,687,500 Japanese yen (the
"Original Yen Amount"). Thus, the principal amount of this Note shall be
adjusted as of the time of final payment hereunder so that the amount repaid
hereunder in U.S. dollars shall equal, based upon the foreign exchange rate
published in the Wall Street Journal on such repayment date setting forth the
foreign
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<PAGE>
exchange rate as of the business day proceeding the date of repayment, the
Original Yen Amount. Maker and Holder acknowledge that such adjustment may
either increase or decrease the principal amount owing hereunder as of the
date of repayment.
IMPERIAL BANK LOAN
Maker shall use its best efforts to obtain the consent of Imperial Bank to
permit Maker to grant to Holder a security interest in the assets of Maker to
secure Maker's obligations to Holder hereunder and shall make a written request
to Imperial Bank for such consent within 45 days from the date of this Note and
will provide a copy of such written request to Holder. During the term of this
Note, upon notice by Holder to Maker of Holder's desire to pay off in full and
receive an assignment of Maker's outstanding obligation to Imperial Bank under
Maker's existing line of credit with Imperial Bank, Maker shall cooperate with
Holder (which shall not include any expenditure of funds) to cause Imperial Bank
to permit such repayment and assignment.
GOVERNING LAW
This Note shall be governed by and construed under the internal laws of
the State of California. This Note shall be deemed made and entered into in
San Diego County, California.
HOLDER: MAKER:
ImageWare Software, Inc., a California
corporation
____________________________________ By:____________________________________
Naoya Harano S. James Miller, Jr., President
ADDRESS: ADDRESS:
____________________________________ 10883 Thornmint Road
____________________________________ San Diego, California 92127
____________________________________ Attn: S. James Miller, Jr.
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<PAGE>
NOTICE OF CONVERSION
The undersigned hereby irrevocably elects to convert $________________ principal
amount of the Convertible Promissory Note dated November 10, 1999 (the "Note")
issued by ImageWare Software, Inc. ("Maker"), plus all accrued and unpaid
interest on such principal amount (i.e. $______________), into shares of common
stock ("Common Stock") of Maker according to the conditions of the Note, as of
the date written below. If securities are to be issued in the name of a person
other than the undersigned, the undersigned will pay all transfer taxes payable
with respect thereto.
The undersigned represents and warrants that al offers and sales by the
undersigned of the securities issuable to the undersigned upon conversion of
the Note shall be made pursuant to registration of the Common Stock under the
Securities Act of 1933, as amended (the "Act"), or pursuant to an exemption from
registration under the Act.
In the event of partial exercise, please reissue an appropriate Note(s) for the
principal balance which shall not have been converted.
Date of Conversion:__________________________
Applicable Conversion Price:__________________
Number of Shares of
Common Stock to be Issued:_____________________
Signature:__________________________________
Name:_____________________________________
Address:___________________________________
ACKNOWLEDGED AND AGREED:
IMAGEWARE SOFTWARE, INC.
By:_________________________
Name:_______________________
Title:______________________ Date:__________________________________
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<PAGE>
Exhibit 10.36
THIS PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND IT MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR ANY EXEMPTION THEREFROM UNDER SAID ACT AND SUCH LAWS AND THE
RESPECTIVE RULES AND REGULATIONS THEREUNDER.
IMAGEWARE SOFTWARE, INC.
8.0% Convertible Note due June 15, 2000
$255,000 June 15, 1995
FOR VALUE RECEIVED, the undersigned ImageWare Software, Inc., a
corporation organized and existing under the laws of the State of California
(herein called the "Company"), hereby promises to pay to Patrick J. Downs, or
order, the principal sum of Two Hundred Fifty-Five Thousand Dollars
($255,000) on June 15, 2000 with interest (computed on the basis of a 360-day
year and 30-day month) on the unpaid balance thereof at the rate of 8.0% per
annum from the date hereof, payable monthly on the last day of each quarter,
commencing on September 30, 1995, until the principal hereof shall have
become due and payable or shall have been paid. At the option of either the
Company or the holder of this Note, interest may be allowed to accrue and be
added to principal, rather than be paid.
Payment of both principal and interest are to be made at the address
shown on the Company's books or at such other place as the holder hereof
shall designate to the Company in writing, in lawful money of the United
States of America.
This Note and any other promissory notes with identical terms shall, at
the option of the holder, be prepaid prorata to the extent of 20% of the
Company's pre-tax income earned subsequent to June 30, 1995.
In the event that interest or principal on this Note is not paid when
due, then the principal and accrued interest of this Note may be declared
immediately due and payable by the holder hereof. The Company agrees to pay,
and save the holder hereof harmless against any liability for, any expenses
arising in connection with the enforcement by the holder hereof of any of
its rights under this Note.
This Note shall be convertible into securities of the Company as follows:
The principal amount of this Note plus accrued but unpaid interest
thereon shall be convertible, at the option of the holder thereof, at any
time after date hereof, into Units of Series B Preferred Stock ("Preferred
Stock") and Common Stock Purchase Warrants ("Warrants") of the Company of the
type sold to purchasers in the $1,250,000 Unit
<PAGE>
offering made pursuant to a Confidential Private Placement Memorandum dated
April 10, 1995, at $2.50 per Unit, subject to adjustment.
The conversion of this Note into Units shall be effected by the surrender
of this Note, duly endorsed in blank, at the office of the Corporation, with
written notice to the Corporation of the election to convert the same and
shall state therein the name or names in which the securities included in the
Units are to be issued. The Corporation shall, as soon as practicable
thereafter, issue and deliver to such holder certificates of Preferred Stock
and Warrants into which the Note was converted.
The Conversion Price of the Preferred Stock and the Exercise Price of
the Warrants included in the Units shall be subject to adjustment from time
to time as follows:
In the event the Corporation should at any time or from time to time
after the date of the issuance of any shares of Preferred Stock or Warrants
fix a record date for the effectuation of a split or subdivision of the
outstanding shares of Common Stock or the determination of holders of Common
Stock entitled to receive a dividend or other distribution payable in
additional shares of Common Stock or other securities or rights convertible
into, or entitling the holder thereof to receive directly or indirectly,
additional shares of Common Stock (hereinafter referred to as "Common Stock
Equivalents") without payment of any consideration by such holder for the
additional shares of Common Stock or the Common Stock Equivalents (including
the additional shares of Common Stock issuable upon conversion or exercise
thereof), then, as of such record date (or the date of such dividend
distribution, split or subdivision if no record date is fixed), the Conversion
Price of the Preferred Stock and the Exercise Price of the Warrants shall be
appropriately decreased so that the number of shares of Common Stock issuable
on conversion of each share of such Preferred Stock or exercise of each
Warrant shall be increased in proportion to such increase in the aggregate
number of shares of Common Stock outstanding and those issuable with respect
to Common Stock Equivalents or other rights or securities of the Corporation.
If the number of shares of Common Stock outstanding at any time after
the date of the issuance of any shares of Preferred Stock and Warrants is
decreased by a combination of the outstanding shares of Common Stock, then,
following the record date of such combination, the Conversion Price of the
Preferred Stock and the Exercise Price of the Warrants shall be appropriately
increased so that the number of shares of Common Stock issuable on conversion
of each share of such series shall be decreased in proportion to such
decrease in outstanding shares.
In the event the Corporation shall declare a distribution with respect
to the outstanding shares of Common Stock payable in securities of other
persons, evidences of indebtedness issued by the Corporation or other
persons, assets or options or rights not referred to above, then, in each
such case for the purpose of this paragraph, the holders of the Preferred
Stock and the Warrants shall be entitled to a proportionate share of any such
distribution as though they were the holders of the number of shares of
Common Stock of
<PAGE>
the Corporation into which their shares of Preferred Stock are convertible or
their Warrants are exercisable as of the record date fixed for the
determination of the holders of Common Stock of the Corporation entitled to
received such distribution.
If at any time or from time to time there shall be a capital
reorganization of the Corporation or any reclassification of the Common Stock
or in case of the consolidation or merger of the Corporation with any other
person or entity or in case of any sale, conveyance or disposition of all or
substantially all of the assets of the Corporation to an affiliate of the
Corporation (other than a subdivision, combination or Event of Liquidation or
Sale as provided for elsewhere herein), the Corporation and the person or
entity formed by such consolidation or resulting from such capital
reorganization, reclassification of capital stock or merger, as the case may
be, shall make provision in the articles or certificate of incorporation or
other governing instruments of such person such that each share of Preferred
Stock shall thereafter be convertible and each Warrant shall thereafter be
exercisable only into the kind and amount of shares of stock, other
securities, cash and other property receivable upon such capital
reorganization, reclassification of capital stock, consolidation, merger,
sale, conveyance or disposition, as the case may be, by a holder of the
number of shares of Common Stock into which such shares of Preferred Stock
were convertible or Warrants were exercisable immediately prior to such
capital reorganization, reclassification of capital stock, consolidation,
merger, sale, conveyance or disposition. In any such case, appropriate
adjustment shall be made in the application of the provisions of this
paragraph with respect to the rights of the holders of the Preferred Stock
and the holders of the Warrants after such capital reorganization,
reclassification of capital stock, consolidation, merger, sale, conveyance or
disposition to the end that the provisions of this paragraph (including
adjustment of the Conversion Price of the Preferred Stock and the Exercise
Price of the Warrants then in effect and the number of shares purchasable
upon conversion of the Preferred Stock or exercise of the Warrant) shall be
applicable after that event as nearly equivalent as may be practicable.
This Note shall be construed and enforced in accordance with the laws of
the State of California.
IMAGEWARE SOFTWARE, INC.
By: /s/ S. James Miller, Jr.
--------------------------------
S. James Miller, Jr., President
and CEO
<PAGE>
THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND ITS SALE HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1993. NEITHER THIS WARRANT
NOR THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF NOR ANY INTEREST
THEREIN MAY BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM.
Void after November 10, 2004
STOCK PURCHASE WARRANT
This Stock Purchase Warrant ("Warrant") is issued, for good and valuable
consideration, receipt of which is hereby acknowledged, to Naoya Harano (the
"Purchaser"), by ImageWare Software, Inc., a California corporation (the
"Company").
1. PURCHASE OF SHARES; PURCHASE PRICE. Subject to the terms and
conditions hereinafter set forth, the holder of this Warrant is entitled, upon
surrender of this Warrant at the office of the Company at 10833 Thornmint Road,
San Diego, California 92127 (or at such other place as the Company shall notify
the holder hereof in writing), to purchase from the Company 125,000 shares of
Common Stock for $6.00 per share. The shares of Common Stock of the Company
issuable upon exercise of this Warrant are hereinafter referred to as the
"Shares." Notwithstanding the provisions of Section 4 or 5 below, it is the
intent of the Company and the Purchaser that the amount of warrants to purchase
shares of Common Stock being granted hereunder and the $6.00 per share exercise
price are on a post-split basis after the 5.275 to 1 reverse stock split which
is anticipated to occur prior to the Company's filing of a registration
statement for its initial public offering of securities. If such reverse stock
split does not occur, the amount of warrants granted hereunder and the exercise
price will be adjusted accordingly.
2. EXERCISE PERIOD. This Warrant is exercisable at any time after
January 1, 2001 and before 5:00 P.M., San Diego, California time, on November
10, 2004, at which time this Warrant shall expire.
3. METHOD OF EXERCISE. During the period this Warrant remains
outstanding and exercisable in accordance with Section 2 above, the holder may
exercise this Warrant, in whole or in part, by:
a. surrendering this Warrant, together with a duly executed copy of
the form of Subscription attached hereto to the Secretary of the Company at its
principal offices; and
b. paying to the Company an amount equal to the aggregate Exercise
Price of the number of Shares being purchased.
<PAGE>
4. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES. The number of
Shares purchasable upon exercise of this Warrant and the Exercise Price shall be
subject to adjustment from time to time only as follows:
a. The Exercise Price of this Warrant and the number of Shares
issuable upon exercise of this Warrant shall be appropriately adjusted to
reflect any stock dividend, stock split, combination of shares of stock,
reclassification, recapitalization or other similar event affecting the number
of outstanding shares of Common Stock, as follows:
i. The Exercise Price in effect at the time of such event shall
be adjusted so that it shall equal the price determined by multiplying the
Exercise Price by a fraction, the denominator of which shall be the number of
shares of Common Stock outstanding immediately after giving effect to such
event, and of which the numerator shall be the number of shares of Common Stock
outstanding immediately prior to such event. Such adjustment shall be made
successively whenever any event specified above shall occur.
ii. Whenever the Exercise Price payable upon exercise of this
Warrant is adjusted pursuant to subparagraph (i) above, the number of Shares
purchasable upon exercise of this Warrant shall simultaneously be adjusted by
multiplying the number of Shares initially issuable upon exercise of this
Warrant by the initial Exercise Price in effect on the date hereof and dividing
the product so obtained by the Exercise Price, as adjusted.
b. In case the Company shall make or issue, or shall fix a record
date for the determination of eligible holders entitled to receive, a dividend
or other distribution with respect to the shares payable in (i) securities of
the Company (other than Shares of Common Stock) or (ii) assets (excluding cash
dividends paid or payable solely out of retained earnings), then in each case,
the holder of this Warrant on exercise hereof at any time after the
consummation, effective date or record date of such event, shall receive, in
addition to the Shares issuable on such exercise prior to such date, the
securities or other assets of the Company to which such holder would have been
entitled upon such date if such holder had exercised this Warrant immediately
prior thereto (all subject to further adjustment as provided in this Warrant).
c. In case of any merger of the Company with or into any other
corporation, entity or person, or any other corporate reorganization, in which
the Company shall not be the continuing or surviving entity of such
reorganization or merger, or any sale of all or substantially all of the assets
of the Company (any such transaction being hereinafter referred to as a
"Reorganization"), then, in each case, (i) the holder of this Warrant shall be
provided with written notice of the proposed Reorganization at least thirty (30)
days prior to the proposed Reorganization date, and (ii) the holder of this
Warrant, on exercise hereof at any time after the consummation or effective date
of such Reorganization (the "Effective Date"), shall receive, in lieu of the
Shares issuable on such exercise prior to the Effective Date, the stock and
other securities and property (including cash) to which such Holder would have
been entitled upon the Effective Date if such
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<PAGE>
Holder had exercised this Warrant immediately prior thereto (all subject to
further adjustment as provided in this Warrant).
d. In case of any adjustment or readjustment in the price or kind of
securities issuable on the exercise of this Warrant, the Company will promptly
give written notice thereof to the holder of this Warrant in the form of a
certificate, certified and confirmed by the Board of Directors of the Company,
setting forth such adjustment or readjustment and showing in reasonable detail
the computation of such adjustment.
5. DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the holder of this
Warrant against dilution or other impairment. Without limiting the generality
of the foregoing, the Company (a) will at all times reserve and keep available a
number of its authorized Shares of Common Stock, free from all preemptive rights
therein, which will be sufficient to permit the exercise of this Warrant and (b)
shall take all such action as may be necessary or appropriate in order that all
Shares as may be issued pursuant to the exercise of this Warrant will, upon
issuance, be duty and validly issued, fully paid and nonassessable and free from
all taxes, liens and charges with respect to the issue thereof.
6. PRE-EXERCISE RIGHTS. Prior to exercise of this Warrant, the holder
shall not be entitled to any rights of a shareholder with respect to the Shares,
including (without limitation) the right to vote such Shares, receive dividends
or other distributions thereon, exercise preemptive rights or be notified of
shareholder meetings, and such holder shall not be entitled to any notice or
other communication concerning the business or affairs of the Company, except as
set forth herein.
7. RESTRICTED SECURITIES. The holder understands that this Warrant and
the Shares purchasable hereunder constitute "restricted securities" under the
federal securities laws inasmuch as they have been, or will be, acquired from
the Company in transactions not involving a public offering and accordingly may
not, under such laws and applicable regulations, be resold or transferred
without registration under the Securities Act of 1933, as amended, or an
applicable exemption from registration. The holder further acknowledges that
the Shares and any other securities issued upon exercise of this Warrant shall
bear a legend substantially in the form of the legend appearing on the face
hereof.
8. CERTIFICATION OF INVESTMENT PURPOSE. Unless a current registration
statement under the Securities Act of 1933, as amended (the "Act"), shall be in
effect with respect to the offer and sale of the securities to be issued upon
exercise of this Warrant, the holder of this Warrant covenants and agrees that,
at the time of exercise hereof, such holder will deliver to the Company a
written certification that the securities acquired by the holder upon exercise
hereof are for the account of
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<PAGE>
the holder, are being acquired for investment purposes only and are not being
acquired with a view to, or for sale in connection with, any public distribution
thereof.
9. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS.
a. The Holder agrees that prior to making any disposition of the
Warrants or the Shares, the Holder shall give written notice to the Company
describing briefly the manner in which any such proposed disposition is to be
made; and no such disposition shall be made if the Company has notified the
Holder that in the opinion of counsel reasonably satisfactory to the Holder a
registration statement or other notification or post-effective amendment thereto
(hereinafter collectively a "Registration Statement") under the Act is required
with respect to such disposition and no such Registration Statement has been
filed by the Company with, and declared effective, by the Securities and
Exchange Commission.
b. (i) At any time commencing after the closing of the Company's
initial public offering of its securities and prior to November 30, 2003, the
Company will, as promptly as practicable (but in any event within 60 days),
after written request by a person or persons holding (or having the right to
acquire by virtue of holding the Warrants) at least 50% of the Shares which have
been (or may be) issued upon exercise of all of the Warrants that were issued to
the shareholders of XImage upon the acquisition of XImage by ImageWare, prepare
and file at the Company's expense a Registration Statement with the Commission
and appropriate Blue Sky authorities sufficient to permit the public offering of
the Shares (but not the Warrants) and will use its best efforts through its
officers, directors, auditors and counsel, in all matters necessary or
advisable, to cause such Registration Statement to become effective as promptly
as practicable and to keep such registration effective for a period of the
lesser of 90 days or the date of completion of the distribution described in the
Registration Statement; provided, however, that the Company shall only be
obligated to file one such Registration Statement under this Section 9(b)(i).
(ii) Whenever during the period ending on November 30, 2003,
the Company proposes to file with the Commission a Registration Statement (other
than as to securities issued pursuant to an employee benefit plan or as to a
transaction subject to Rule 145 promulgated under the Act or which a form S-4
Registration Statement could be used), it shall, promptly prior to each such
filing, give written notice of such proposed filing to the Holder and each
holder of Shares at their respective addresses as they appear on the records of
the Company, and shall offer to include and shall include in such filing any
proposed disposition of the Shares (but not the Warrants) upon receipt by the
Company, within 20 days after such written notice is given, of a request
therefor setting forth the facts with respect to such proposed disposition and
all other information with respect to such person reasonably necessary to be
included in such Registration Statement. If the registration for which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise as part of the written notice given
pursuant to this Section. In such event, the right of any Holder or holder of
Shares to registration pursuant to Section 9(b)(i) shall be conditioned upon the
participation in such underwriting of the Holder or holder of Shares, and the
inclusion of their Shares in the underwriting shall be limited to the extent
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<PAGE>
provided herein. All Holders or holders of Shares proposing to distribute their
Shares through such underwriting shall enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by
the Company. Notwithstanding any other provision of this Section 9(b), if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, such underwriter may limit the amount
of securities to be included in the registration and underwriting by the holders
of Company securities exercising "piggyback" registration rights (including the
Holder and each holder of Shares). The Company shall so advise all such holders
of Company securities exercising "piggyback" registration rights, and the number
of shares of such securities that may be included in the registration and
underwriting shall be allocated among all of such holders, in proportion, as
nearly as practicable, to the respective amounts of securities requested by such
holders to be included in such registration statement. Any securities excluded
or withdrawn from such registration and underwriting shall not be transferred
prior to one hundred twenty (120) days after the effective date of the
registration statement relating thereto, or such shorter period of time as the
underwriters may require.
(iii) In the event that any such Registration Statement is
utilized for a public offering of any of the Shares to be received upon exercise
of the Warrants pursuant to this Section 9, the Holder may elect to pay the
Exercise Price of the Warrants to the Company out of the proceeds of the sale of
the Shares pursuant to the Registration Statement concurrently with the closing
of such sale of the Shares. In such event, (1) the Shares will not be issued by
the Company until they are sold, and (2) the Shares will not be delivered to the
purchaser of such Shares until satisfactory provision is made for paying the
Warrant Price to the Company with respect to such Shares.
c. All fees, disbursements and out-of-pocket expenses (other than
the Holder's brokerage fees and commissions and legal fees of counsel to the
Holder, if any) in connection with the filing of any Registration Statement
under Section 9(b) (or obtaining the opinion of counsel and any no-action
position of the Commission with respect to sales under Rule 144) and in
complying with applicable securities and Blue Sky laws shall be borne by the
Company. The Company at its expense will supply any Holder and any holder of
Shares with copies of such Registration Statement and the prospectus included
therein and other related documents any opinions and no-action letters in such
quantities as may be reasonably requested by the Holder or holder of Shares.
d. The Company shall not be required by this Section 9 to file such
Registration Statement if, in the opinion of counsel for the Holders and holders
of Shares and the Company (or, should they not agree, in the opinion of another
counsel experienced in securities law matters acceptable to counsel for such
holders and the Company), the proposed transfer as to which such Registration
Statement is requested is exempt from applicable federal and state securities
laws under Rule 144 promulgated under the Act.
e. The provisions of this Section 9 and Section 10 hereof shall
apply to the extent as provided herein if the Company chooses to file an
Offering Statement under Regulation A promulgated under the Act.
5
<PAGE>
f. The Company agrees that until all Shares have been sold under a
Registration Statement or pursuant to Rule 144 under the Act, it will use its
best efforts to keep current in filing all materials required to be filed with
the Commission in order to permit the holders of such securities to sell the
same under Rule 144.
g. The Company shall be entitled, for a reasonable period of time
which in no event shall exceed 60 days (i) to postpone the filing of a
Registration Statement or any amendment or supplement thereto or to the
prospectus relating thereto otherwise required, or (ii) to suspend effectiveness
of the Registration Statement, if the Company (a) determines, in its reasonable
judgment, that the registration or sale of the Shares would materially interfere
with any pending or proposed financing, acquisition, corporate reorganization or
other material transaction involving the Company or any of its subsidiaries, and
(b) promptly gives those persons exercising their registration right hereunder
written notice of such determination.
h. The Company may require those persons exercising their
registration rights hereunder to furnish to the Company such information
regarding the distribution of such Shares as the Company may from time to time
request in writing and such other information as may be legally required in
connection with such registration.
i. At any time when a prospectus relating to a sale of the Shares is
required to be delivered under the Act, there occurs an event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of the Shares, such prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, then the Company will promptly make available to any Holder any
such supplement of amendment. Each Holder agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
the preceding sentence hereof, such Holder will forthwith discontinue
disposition of Shares pursuant to the Registration Statement covering such
Shares until the Holder's receipt of the copies of the supplemented or amended
prospectus, and, if so directed by the Company, the Holder will deliver to the
Company all copies, other than permanent file copies then in the Holder's
possession of the prospectus covering such Shares current at the time of receipt
of such notice. If such amendments or supplements are not made by the Company
within ten (10) days of such notice by the Company or if in the opinion of
counsel to the Holders such amendments or supplements to the prospectus, if
made, are insufficient in light of the requirements of the Act and other
applicable law, the Holders shall not be deemed to have exercised their demand
registration rights pursuant to Section 9(b)(i) herein.
10. INDEMNIFICATION.
a. In the event of the filing of any Registration Statement with
respect to the Shares pursuant to Section 9 hereof, the Company agrees to
indemnify and hold harmless the Holder or any holder of Shares and each person,
if any, who controls the Holder or any holder of Shares
6
<PAGE>
within the meaning of the Act, against any losses, claims, damages or
liabilities, joint or several (which shall, for all purposes of this Agreement,
include, but not be limited to, all costs of defense and investigation and all
attorneys' fees), to which the Holder or any holder of Shares or controlling
person may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any such Registration Statement or Prospectus included
therein, or amendment or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such Registration Statement or Prospectus or amendment or
supplement thereto in reliance upon, and in conformity with, written
information furnished to the Company by such Holder, the holder of such Shares
or the underwriters of such offering specifically for use in the preparation
thereof. This indemnity will be in addition to any liability which the Company
may otherwise have.
b. The Holders and the holders of Shares agree that they will
indemnify and hold harmless the Company, each other person referred to in
subparts (1), (2) and (3) of Section 11(a) of the Act in respect of the
Registration Statement and each person, if any, who controls the Company within
the meaning of the Act, against any losses, claims, damages or liabilities
(which shall, for all purposes of this Agreement, include but not be limited to,
all costs of defense and investigation and all attorneys' fees) to which the
Company or any such director, officer or controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect hereof) arise out of or are based upon any
untrue statement of any material fact contained in such Registration Statement
or Prospectus included therein, or amendment or supplement thereto, or arise out
of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in such Registration Statement or Prospectus included therein, or amendment or
supplement thereto in reliance upon, and in conformity with, written information
furnished to the Company by the Holder or holder of Shares specifically for use
in the preparation thereof, this indemnity agreement will be in addition to any
liability which the Holder or holder of Shares may otherwise have.
c. Promptly after receipt by an indemnified party under this Section
10 of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 10, notify the indemnifying party of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
otherwise than as to the a particular item as to which indemnification is then
being sought solely pursuant to this Section 10. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
in, and, to the extent that it may wish, jointly with any other indemnifying
party similarly
7
<PAGE>
notified, reasonably assume the defense thereof, subject to the provisions
herein stated, and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying party
will not be liable to such indemnified party under this Section 10 for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof, other than reasonable costs of
investigation, unless the indemnifying party shall not pursue the action to its
final conclusion. The indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall not be at the expense of the
indemnifying party if the indemnifying party has assumed the defense of the
action with counsel reasonably satisfactory to the indemnified party; provided
that if the indemnified party is a Holder or a holder of Shares or a person who
controls a Holder or a holder of Shares within the meaning of the Act, the fees
and expenses of such counsel shall be at the expenses of the indemnifying party
if (i) the employment of such counsel has been specifically authorized in
writing by the indemnifying party or (ii) the named parties to any such action,
including any impleaded parties, include both a Holder or a holder of Shares or
such controlling person and the indemnifying party and a Holder or a holder of
Shares or such controlling person shall have been advised by such counsel that
there may be one or more legal defenses available to a Holder or a holder of
Shares or controlling person which are not available to or in conflict with any
legal defenses which may be available to the indemnifying party (in which case
the indemnifying party shall not have the right to assume the defense of such
action on behalf of a Holder or a holder of Shares or such controlling person,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys for the Holders, the holders of the
Shares and controlling persons, which firm shall be designated in writing by a
majority in interest of such holders and controlling persons based upon the
value of the securities included in the Registration Statement). No settlement
of any action against an indemnified party shall be made without the consent of
the indemnified and the indemnifying parties, which shall not be unreasonably
withheld in light of all factors of importance to such parties.
11. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is
lost, stolen, mutilated or destroyed, the Company shall, upon receipt of a
reasonable agreement to indemnify the Company, and, in the case of a mutilated
warrant, upon the surrender thereof, issue in the name requested a new warrant
of like denomination and tenor as the Warrant so lost, stolen, mutilated or
destroyed.
12. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the holders
hereof and their respective successors and permitted assigns.
13. GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the substantive laws of the State of California without regard
to principles of conflicts of laws.
8
<PAGE>
14. STATUS OF HOLDER. The holder represents and warrants that the holder
is not an affiliate of, or related party to, any underwriter or broker-dealer,
and acknowledges that the Company is issuing this Warrant in reliance upon such
representation and warranty of holder.
Dated: November 10, 1999 IMAGEWARE SOFTWARE, INC.
By:_____________________________________
S. James Miller, Jr., President
________________________________________
Naoya Harano
9
<PAGE>
SUBSCRIPTION
ImageWare Software, Inc.
Attention: Corporate Secretary
The undersigned hereby elects to purchase, pursuant to the provisions of
the Stock Purchase Warrant issued by ImageWare Software, Inc. and held by the
undersigned, ______________ shares of Common Stock of ImageWare Software, Inc.
Payment of the purchase price per Share required under such Warrant
accompanies this Subscription.
The undersigned hereby represents and warrants that the undersigned is
acquiring such shares for his own account, for investment purposes only and not
for resale or with a view to distribution of such Shares or any part thereof.
Date: ___________
Signature: _________________________
Address: ___________________________
_____________________________
Name in which Shares should be registered:
- ------------------------------------------
10
<PAGE>
THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND IT HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. NEITHER THIS WARRANT NOR THE SECURITIES
ISSUABLE UPON THE EXERCISE HEREOF NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD
OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM.
Void after April 10, 2000
STOCK PURCHASE WARRANT
This Stock Purchase Warrant ("Warrant") is issued, for good and valuable
consideration, receipt of which is hereby acknowledged, to Torrey Pines
Securities, (the "Purchaser"), by ImageWare Software, Inc., a California
corporation (the "Company").
1. PURCHASE OF SHARES; PURCHASE PRICE. Subject to the terms and
conditions hereinafter set forth, the holder of this Warrant is entitled, upon
surrender of this Warrant at the office of the Company at 15373 Innovation
Drive, San Diego, California 92128 (or at such other place as the Company shall
notify the holder hereof in writing), to purchase from the Company 11,250 shares
of Common Stock for $2.50 per share. The shares of Common Stock of the Company
issuable upon exercise of this Warrant are hereinafter referred to as the
"Shares".
2. EXERCISE PERIOD. This Warrant is exercisable at any time from
July 31, 1995 until 5 o'clock PM, San Diego, California time on April 10, 2000,
at which time this Warrant shall expire.
3. METHOD OF EXERCISE. During the period this Warrant remains
outstanding and exercisable in accordance with Section 2 above, the holder may
exercise this Warrant in whole or in part, by:
(a) surrendering this Warrant, together with a duly executed
copy of the form of Subscription attached hereto to the Secretary of the Company
at its principal offices; and
(b) paying to the Company an amount equal to the aggregate
Exercise Price of the number of Shares being purchased.
4. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES. The number of
Shares purchasable upon exercise of this Warrant and the Exercise Price shall be
subject to adjustment from time to time only as follows:
(a) The Exercise Price of this Warrant and the number of Shares
issuable upon exercise of this Warrant shall be appropriately adjusted to
reflect any stock
<PAGE>
dividend, stock split, combination of shares of stock, reclassification,
recapitalization or other similar event affecting the number of outstanding
shares of Common Stock, as follows:
(i) The Exercise Price in effect at the time of such
event shall be adjusted so that it shall equal the price determined by
multiplying the Exercise Price by a fraction, the denominator of which shall be
the number of shares of Common Stock outstanding immediately after giving effect
to such event, and of which the numerator shall be the number of shares of
Common Stock outstanding immediately prior to such event. Such adjustment shall
be made successively whenever any event specified above shall occur.
(ii) Whenever the Exercise Price payable upon exercise of
this Warrant is adjusted pursuant to subparagraph (i) above, the number of
Shares purchasable upon exercise of this Warrant shall simultaneously be
adjusted by multiplying the number of Shares initially issuable upon exercise of
this Warrant by the initial Exercise Price in effect on the date hereof and
dividing the product so obtained by the Exercise Price, as adjusted.
(b) In case the Company shall make or issue, or shall fix a
record date for the determination of eligible holders entitled to receive, a
dividend or other distribution with respect to the shares payable in (i)
securities of the Company (other than Shares of Common Stock) or (ii) assets
(excluding cash dividends paid or payable solely out of retained earnings), then
in each case, the holder of this Warrant on exercise hereof at any time after
the consummation, effective date or record date of such event, shall receive, in
addition to the Shares issuable on such exercise prior to such date, the
securities or other assets of the Company to which such holder would have been
entitled upon such date if such holder had exercised this Warrant immediately
prior thereto (all subject to further adjustment as provided in this Warrant).
(c) In case of any merger of the Company with or into any
other corporation, entity or person, or any other corporate reorganization,
in which the Company shall not be the continuing or surviving entity of such
reorganization or merger, or any sales of all or substantially all of the
assets of the Company (any such transaction being hereinafter referred to as
a "Reorganization"), then, in each case, (i) the holder of this Warrant shall
be provided with written notice of the proposed Reorganization at least
thirty (30) days prior to the proposed Reorganization date, and (ii) the
holder of this Warrant, on exercise hereof at any time after the consummation
or effective date of such Reorganization (the "Effective Date"), shall
receive, in lieu of the Shares issuable on such exercise prior to the
Effective Date, the stock and other securities and property (including cash)
to which such Holder would have been entitled upon the Effective Date if such
Holder had exercised this Warrant immediately prior thereto (all subject to
further adjustment as provided in this Warrant).
<PAGE>
(d) In case of any adjustment or readjustment in the price or
kind of securities issuable on the exercise of this Warrant, the Company will
promptly give written notice thereof to the holder of this Warrant in the form
of a certificate, certified and confirmed by the Board of Directors of the
Company, setting forth such adjustment or readjustment and showing in reasonable
detail the computation of such adjustment.
5. DILUTION OR IMPAIRMENT. The Company will not, by amendment of
its Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance of performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the holder of this
Warrant against dilution or other impairment. Without limiting the generality
of the foregoing, the Company (a) will at all times reserve and keep available a
number of its authorized Shares of Common Stock, free from all preemptive rights
therein, which will be sufficient to permit the exercise of this Warrant and (b)
shall take all such action as may be necessary or appropriate in order that all
Shares as may be issued pursuant to the exercise of this Warrant will, upon
issuance, be duly and validly issued, fully paid and nonassessable and free from
all taxes, liens and charges with respect to the issue thereof.
6. PRE-EXERCISE RIGHTS. Prior to exercise of this Warrant, the
holder shall not be entitled to any rights of a shareholder with respect to the
Shares, including (without limitation) the right to vote such Shares, receive
dividends or other distributions thereon, exercise preemptive rights or be
notified of shareholder meetings, and such holder shall not be entitled to any
notice or other communication concerning the business or affairs of the Company,
except as set forth herein.
7. RESTRICTED SECURITIES. The holder understands that this
Warrant and the Shares purchasable hereunder constitute "restricted
securities" under the federal securities laws inasmuch as they have been, or
will be, acquired from the Company in transactions not involving a public
offering and accordingly may not, under such laws and applicable regulations,
be resold or transferred without registration under the Securities Act of
1933, as amended, or an applicable exemption from registration. The holder
further acknowledges that the Shares and any other securities issued upon
exercise of this Warrant shall bear a legend substantially in the form of the
legend appearing on the face hereof.
8. CERTIFICATION OF INVESTMENT PURPOSE. Unless a current
registration statement under the Securities Act of 1933, as amended (the
"Act"), shall be in effect with respect to the offer and sale of the securities
to be issued upon exercise of this Warrant, the holder of this Warrant covenants
and agrees that, at the time of exercise hereof, such holder will deliver to the
Company a written certification that the securities acquired by the holder upon
exercise hereof are for the account of the holder, are being acquired for
investment purposes only and are not being acquired with a view to, or for sale
in connection with, any public distribution thereof.
<PAGE>
9. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS.
(a) The Holder agrees that prior to making any disposition of
the Warrants or the Shares, the Holder shall give written notice to the Company
describing briefly the manner in which any such proposed disposition is to be
made; and no such disposition shall be made if the Company has notified the
Holder that in the opinion of counsel reasonably satisfactory to the Holder a
registration statement or other notification or post-effective amendment thereto
(hereinafter collectively a "Registration Statement") under the Act is required
with respect to such disposition and no such Registration Statement has been
filed by the Company with, and declared effective, if necessary.
10. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is
lost, stolen, mutilated or destroyed, the Company shall, upon receipt of a
reasonable agreement to indemnify the Company, and, in the case of a mutilated
warrant, upon the surrender thereof, issue in the name requested a new warrant
of like denomination and tenor as the Warrant so lost, stolen, mutilated or
destroyed.
11. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the holders
hereof and their respective successors and permitted assigns.
12. GOVERNING LAW. This Warrant shall be governed by and construed
in accordance with the substantive laws of the State of California without
regard to principles of conflicts of laws.
Date: July 31, 1995 IMAGEWARE SOFTWARE, INC.
By: /s/ S. JAMES MILLER, Jr.
-------------------------------
S. JAMES MILLER, JR.,
PRESIDENT, CEO
<PAGE>
SUBSCRIPTION
ImageWare Software, Inc.
Attn: Corporate Secretary
The undersigned hereby elects to purchase, pursuant to the provisions of
the Stock Purchase Warrant issued by ImageWare Software, Inc. and held by the
undersigned, ________ Shares of Common Stock of ImageWare Software, Inc.
Payment of the purchase price per Share required under such Warrant,
accompanies this Subscription.
The undersigned hereby represents and warrants that the undersigned is
acquiring such shares for its own account, for investment purposes only and not
for resale or with a view to distribution of such Shares or any part thereof.
DATE:
---------------
SIGNATURE:
------------------------------
ADDRESS:
--------------------------------
--------------------------------
NAME IN WHICH SHARES SHOULD BE REGISTERED:
- ---------------------------------------------
- ---------------------------------------------
- ---------------------------------------------
<PAGE>
THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND ITS SALE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. NEITHER THIS WARRANT NOR THE
SECURITIES ISSUABLE UPON THE EXERCISE HEREOF NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM.
Merger Warrant No.39 Void after January 20, 2002
IMAGEWARE SOFTWARE, INC.
MERGER WARRANT
(Initially to Purchase 13,000 Shares of Common Stock)
This Merger Warrant (the "Warrant") is issued, for good and valuable
consideration, receipt of which is hereby acknowledged, to _______________ by
ImageWare Software, Inc., a California corporation (the "Company").
1. PURCHASE OF SHARES; PURCHASE PRICE. Subject to the terms and conditions
hereinafter set forth, the holder of this Warrant ("Holder") is entitled,
upon surrender of this Warrant at the office of the Company at 15373
Innovation Drive, San Diego, California 92128 (or at such other place as the
Company shall notify the holder hereof in writing), to purchase from the
Company Thirteen Thousand (13,000) shares of Common Stock of the Company at a
purchase price equal to the lesser of $4.00 per share, or the price at which
the Company sells its Common Stock (or the equivalent per share price if
other equity securities are sold, e.g., Preferred Stock) in the Company's
first financing following the Merger transaction involving the Company and
XImage Corporation. The shares of Common stock of the Company issuable upon
exercise of this Warrant are hereinafter referred to as the "Shares".
The Company shall send the Holder written notice of the per share price at
which the Company sells its securities in such first financing within ten
days after such sale is consummated.
2. EXERCISE PERIOD. This Warrant is exercisable at any time from the date
hereof until 5 o'clock P.M., San Diego, California time on January 20, 2002,
at which time this Warrant shall expire.
3. METHOD OF EXERCISE. During the period this Warrant remains outstanding
and exercisable in accordance with Section 2 above, the holder may exercise
this Warrant, in whole or in part, by:
(a) surrendering this Warrant, together with a duly executed copy of the
form of Subscription attached hereto, to the Secretary of the Company at its
principal offices; and
-1-
<PAGE>
(b) paying to the Company an amount equal to the aggregate Exercise
Price of the number of Shares being purchased; provided that the Holder may
elect to pay the Exercise Price of the Warrants to the Company out of the
proceeds of the sale of the Shares, when sold, in which event, (i) the Shares
will not be issued by the Company until they are sold, and (ii) the Shares
will not be delivered to the purchaser of such Shares until satisfactory
provision is made for paying the Warrant Price to the Company with respect to
such Shares.
4. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES. The number of Shares
purchasable upon exercise of this Warrant and the Exercise Price shall be
subject to adjustment from time to time only as follows:
(a) The Exercise Price of this Warrant and the number of Shares issuable
upon exercise of this Warrant shall be appropriately adjusted to reflect any
stock dividend, stock split, combination of shares of stock,
reclassification, recapitalization or other similar event affecting the
number of outstanding shares of Common Stock, as follows:
(i) The Exercise Price in effect at the time of such event shall be
adjusted so that it shall equal the price determined by multiplying the
Exercise Price by a fraction, the numerator of which shall be the number of
shares of Common Stock of the Company outstanding immediately prior to such
event and the denominator of which shall be the number of shares of Common
Stock of the Company outstanding immediately after giving effect to such
event. Such adjustment shall be made successively whenever any event
specified above shall occur.
(ii) Whenever the Exercise Price payable upon exercise of this
Warrant is adjusted pursuant to subparagraph (i) above, the number of Shares
purchasable upon exercise of this Warrant shall simultaneously be adjusted by
multiplying the number of Shares initially issuable upon exercise of this
Warrant by the initial Exercise Price in effect on the date hereof and
dividing the product so obtained by the Exercise Price, as adjusted.
(b) In case the Company shall make or issue, or shall fix a record date
for the determination of eligible holders entitled to receive, a dividend or
other distribution with respect to the shares payable in (i) securities of
the Company (other than Shares of Common Stock) or (ii) assets (excluding
cash dividends paid or payable solely out of retained earnings), then in each
case, the holder of this Warrant on exercise hereof at any time after the
consummation, effective date or record date of such event, shall receive, in
addition to the Shares issuable on such exercise prior to such date, the
securities or other assets of the Company to which such holder would have
been entitled upon such date if such holder had exercised this Warrant
immediately prior thereto (all subject to further adjustment as provided in
this Warrant).
(c) In case of any merger of the Company with or into any other
corporation, entity or person, or any corporate reorganization, in which the
Company shall not be the continuing or surviving entity of such reorganization
or merger, or any sale of all or substantially all of the assets of the
Company (and such transaction being hereinafter referred to as a
"Reorganization"), then, in each case, (i) the holder of this Warrant shall
be provided with written notice of the
-2-
<PAGE>
proposed Reorganization at least thirty (30) days prior to the proposed
Reorganization date, and (ii) the holder of this Warrant, on exercise hereof
at any time after the consummation or effective date of such Reorganization
(the "Effective Date"), shall receive, in lieu of the Shares issuable on such
exercise prior to the Effective Date, the stock and other securities and
property (including cash) to which such Holder would have been entitled upon
the Effective Date if such Holder had exercised this Warrant immediately
prior thereto (all subject to further adjustment as provided in this Warrant).
(d) In case of any adjustment or readjustment in the price or kind of
securities issuable on the exercise of this Warrant, the Company will
promptly give written notice thereof to the holder of this Warrant in the
form of a certificate, certified and confirmed by the Board of Directors of
the Company, setting forth such adjustment or readjustment and showing in
reasonable detail the computation of such adjustment.
5. DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms of this Warrant, but will at all times in good faith assist in
the carrying out of all such terms and in the taking of all such action as
may be necessary or appropriate in order to protect the rights of the holder
of this Warrant against dilution or other impairment. Without limiting the
generality of the foregoing, the Company (a) will at all times reserve and
keep available a number of its authorized Shares of Common Stock, free from
all preemptive rights therein, which will be sufficient to permit the
exercise of this Warrant and (b) shall take all such action as may be
necessary or appropriate in order that all Shares as may be issued pursuant
to the exercise of this Warrant will, upon issuance, be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issue thereof.
6. PRE-EXERCISE RIGHTS. Prior to the exercise of this Warrant, the holder
shall not be entitled to any rights of a shareholder with respect to the
Shares, including (without limitation) the right to vote such Shares, receive
dividends or other distributions thereon, exercise preemptive rights or be
notified of shareholder meetings, and such holder shall not be entitled to
any notice or other communication concerning the business or affairs of the
Company, except as set forth herein.
7. RESTRICTED SECURITIES. The holder understands that this Warrant and the
Shares purchasable hereunder constitute "restricted securities" under the
federal securities laws inasmuch as they have been, or will be, acquired from
the Company in transactions not involving a public offering and accordingly
may not, under such laws and applicable regulations, be resold or transferred
without registration under the Securities Act of 1933, as amended, or an
applicable exemption from registration. The holder further acknowledges that
the Shares and any other securities issued upon exercise of this Warrant
shall bear a legend substantially in the form of the legend appearing on the
face hereof.
-3-
<PAGE>
8. CERTIFICATION OF INVESTMENT PURPOSE. Unless a current registration
statement under the Securities Act of 1933, as amended (the "Act"), shall be
in effect with respect to the offer and sale of the securities to be issued
upon exercise of this Warrant, the holder of this Warrant covenants and
agrees that, at the time of exercise hereof, such holder will deliver to the
Company a written certification that the securities acquired by the holder
upon exercise hereof are for the account of the holder, are being acquired
for investment purposes only and are not being acquired with a view to, or
for sale in connection with, any public distribution thereof.
9. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS.
(a) The Holder agrees that prior to making any disposition of the
Warrants or the Shares, the Holder shall give written notice to the Company
describing briefly the manner in which any such proposed disposition is to be
made; and no such disposition shall be made if the Company has notified the
Holder that in the opinion of its counsel, a registration statement or
post-effective amendment thereto (hereinafter collectively a "Registration
Statement") under the Act is required with respect to such disposition and no
such Registration Statement has been filed by the Company with, and declared
effective by, the Securities and Exchange Commission (the "Commission").
(b) (i) At any time commencing after the closing of the Company's
initial public offering of its securities and prior to November 30, 2003, the
Company will, as promptly as practicable (but in any event within 60 days),
after written request by a person or persons holding (or having the right to
acquire by virtue of holding the Warrants) at least 50% of the Shares which
have been (or may be) issued upon exercise of all of the Warrants that were
issued to the shareholders of XImage upon the acquisition of XImage by
ImageWare, prepare and file at the Company's expense a Registration Statement
with the Commission and appropriate Blue Sky authorities sufficient to permit
the public offering of the Shares (but not the Warrants) and will use its best
efforts through its officers, directors, auditors and counsel, in all matters
necessary or advisable, to cause such Registration Statement to become
effective as promptly as practicable and to keep such registration effective
for a period of the lesser of 90 days or the date of completion of the
distribution described in the Registration Statement; provided, however, that
the Company shall only be obligated to file one such Registration Statement
under this Section 9(b)(i).
(ii) Whenever during the period ending on November 30, 2003, the
Company proposes to file with the Commission a Registration Statement (other
than as to securities issued pursuant to an employee benefit plan or as to a
transaction subject to Rule 145 promulgated under the Act or which a form S-4
Registration Statement could be used), it shall, promptly prior to each such
filing, give written notice of such proposed filing to the Holder and each
holder of Shares at their respective addresses as they appear on the records
of the Company, and shall offer to include and shall include in such filing
any proposed disposition of the Shares (but not the Warrants) upon receipt by
the Company, within 20 days after such written notice is given, of a request
therefor setting forth the facts with respect to such proposed disposition
and all other information with respect to such person reasonably necessary to
be included in such Registration Statement. If the registration for which the
Company gives notice is for a registered public
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<PAGE>
offering involving an underwriting, the Company shall so advise as part of
the written notice given pursuant to this Section. In such event, the right
of any Holder or holder of Shares to registration pursuant to Section 9(b)(i)
shall be conditioned upon the participation in such underwriting of the
Holder or holder of Shares, and the inclusion of their Shares in the
underwriting shall be limited to the extent provided herein. All Holders or
holders of Shares proposing to distribute their Shares through such
underwriting shall enter into an underwriting agreement in customary form
with the managing underwriter selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 9(b), if the managing
underwriter determines that marketing factors require a limitation of the
number of shares to be underwritten, such underwriter may limit the amount of
securities to be included in the registration and underwriting by the holders
of Company securities exercising "piggyback" registration rights (including
the Holder and each holder of Shares). The Company shall so advise all such
holders of Company securities exercising "piggyback" registration rights, and
the number of shares of such securities that may be included in the
registration and underwriting shall be allocated among all of such holders,
in proportion, as nearly as practicable, to the respective amounts of
securities requested by such holders to be included in such registration
statement. Any securities excluded or withdrawn from such registration and
underwriting shall not be transferred prior to one hundred twenty (120) days
after the effective date of the registration statement relating thereto, or
such shorter period of time as the underwriters may require.
(iii) In the event that any such Registration Statement is utilized
for a public offering of any of the Shares to be received upon exercise of
the Warrants pursuant to this Section 9, the Holder may elect to pay the
Exercise Price of the Warrants to the Company out of the proceeds of the sale
of the Shares pursuant to the Registration Statement concurrently with the
closing of such sale of the Shares. In such event, (1) the Shares will not be
issued by the Company until they are sold, and (2) the Shares will not be
delivered to the purchaser of such Shares until satisfactory provision is
made for paying the Warrant Price to the Company with respect to such Shares.
(c) All fees, disbursements and out-of-pocket expenses (other than the
Holder's brokerage fees and commissions and legal fees of counsel to the
Holder, if any) in connection with the filing of any Registration statement
under Section 9(b) (or obtaining the opinion of counsel and any no-action
position of the Commission with respect to sales under Rule 144) and in
complying with applicable securities and Blue Sky laws shall be borne by the
Company. The Company at its expense will supply any Holder and any holder of
Shares with copies of such Registration Statement and the prospectus included
therein and other related documents any opinions and no-action letters in
such quantities as may be reasonably requested by the Holder or holder of
Shares.
(d) The Company shall not be required by this Section 9 to file such
Registration Statement if, in the opinion of counsel for the Holders and
holders of Shares and the Company (or, should they not agree, in the opinion
of another counsel experienced in securities law matters acceptable to
counsel for such holders and the Company), the proposed transfer as to which
such Registration Statement is requested is exempt from applicable federal
and state securities laws under Rule 144 promulgated under the Act.
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<PAGE>
(e) The provisions of this Section 9 and Section 10 hereof shall apply
to the extent as provided herein if the Company chooses to file an Offering
Statement under Regulation A promulgated under the Act.
(f) The Company agrees that until all Shares have been sold under a
Registration Statement or pursuant to Rule 144 under the Act, it will use its
best efforts to keep current in filing all materials required to be filed with
the Commission in order to permit the holders of such securities to sell the
same under Rule 144.
(g) The Company shall be entitled, for a reasonable period of time
which in no event shall exceed 60 days (i) to postpone the filing of a
Registration Statement or any amendment or supplement thereto or to the
prospectus relating thereto otherwise required, or (ii) to suspend
effectiveness of the Registration Statement, if the Company (a) determines,
in its reasonable judgment, that the registration or sale of the Shares would
materially interfere with any pending or proposed financing, acquisition,
corporate reorganization or other material transaction involving the Company
or any of its subsidiaries, and (b) promptly gives those persons exercising
their registration right hereunder written notice of such determination.
(h) The Company may require those persons exercising their
registration rights hereunder to furnish to the Company such information
regarding the distribution of such Shares as the Company may from time to
time request in writing and such other information as may be legally required
in connection with such registration.
(i) At any time when a prospectus relating to a sale of the Shares is
required to be delivered under the Act, there occurs an event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of the Shares, such prospectus will
not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, then the Company will promptly make
available to any Holder any such supplement of amendment. Each Holder agrees
that, upon receipt of any notice from the Company of the happening of any
event of the kind described in the preceding sentence hereof, such Holder will
forthwith discontinue disposition of Shares pursuant to the Registration
Statement covering such Shares until the Holder's receipt of the copies of
the supplemented or amended prospectus, and, if so directed by the Company,
the Holder will deliver to the Company all copies, other than permanent file
copies then in the Holder's possession, of the prospectus covering such
Shares current at the time of receipt of such notice. If such amendments or
supplements are not made by the Company within ten (10) days of such notice
by the Company or if in the opinion of counsel to the Holders such amendments
or supplements to the prospectus, if made, are insufficient in light of the
requirements of the Act and other applicable law, the Holders shall not be
deemed to have exercised their demand registration rights pursuant to Section
9(b)(i) herein.
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<PAGE>
10. INDEMNIFICATION.
(a) In the event of the filing of any Registration Statement with
respect to the Shares pursuant to Section 9 hereof, the Company agrees to
indemnify and hold harmless the Holder or any holder of Shares and each
person, if any, who controls the Holder or any holder of Shares within the
meaning of the Act, against any losses, claims, damages or liabilities, joint
or several (which shall, for all purposes of this Agreement, include, but not
be limited to, all costs of defense and investigation and all attorneys'
fees), to which the Holder or any holder of Shares or controlling person may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any such Registration Statement or Prospectus included
therein, or amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement or
Prospectus or amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to the Company by such Holder,
the holder of such Shares or the underwriters of such offering specifically
for use in the preparation thereof. This indemnity will be in addition to any
liability which the Company may otherwise have.
(b) The Holders and the holders of Shares agree that they will
indemnify and hold harmless the Company, each other person referred to in
subparts (1), (2) and (3) of Section 11(a) of the Act in respect of the
Registration Statement and each person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages or
liabilities (which shall, for all purposes of this Agreement, include but not
be limited to, all costs of defense and investigation and all attorneys'
fees) to which the Company or any such director, officer or controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect hereof) arise out of or
are based upon any untrue statement of any material fact contained in such
Registration Statement or Prospectus included therein, or amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but in
each case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in such Registration
Statement or Prospectus included therein, or amendment or supplement thereto
in reliance upon, and in conformity with, written information furnished to
the Company by the Holder or holder of Shares specifically for use in the
preparation thereof. This indemnity agreement will be in addition to any
liability which the Holder or holder of Shares may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
10 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 10, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
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<PAGE>
the indemnifying party from any liability which it may have to any
indemnified party otherwise than as to the particular item as to which
indemnification is then being sought solely pursuant to this Section 10. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified,
reasonably assume the defense thereof, subject to the provisions herein
stated, and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this Section 10 for
any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof, other than reasonable costs of
investigation, unless the indemnifying party shall not pursue the action to
its final conclusion. The indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall not be at the
expense of the indemnifying party if the indemnifying party has assumed the
defense of the action with counsel reasonably satisfactory to the indemnified
party; provided that if the indemnified party is a Holder or a holder of
Shares or a person who controls a Holder or a holder of Shares within the
meaning of the Act, the fees and expenses of such counsel shall be at the
expense of the indemnifying party if (i) the employment of such counsel has
been specifically authorized in writing by the indemnifying party of (ii) the
named parties to any such action, including any impleaded parties, include
both a Holder or a holder of Shares or such controlling person and the
indemnifying party and a Holder or a holder of Shares or such controlling
person shall have been advised by such counsel that there may be one or more
legal defenses available to a Holder or a holder of Shares or controlling
person which are not available to or in conflict with any legal defenses
which may be available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such
action on behalf of a Holder or a holder of Shares or such controlling
person, it being understood, however, that the indemnifying party shall not,
in connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys for the Holders, the holders of
the Shares and controlling persons, which firm shall be designated in writing
by a majority in interest of such holders and controlling persons based upon
the value of the securities included in the Registration Statement). No
settlement of any action against an indemnified party shall be made without
the consent of the indemnified and the indemnifying parties, which shall not
be unreasonably withheld in light of all factors of importance to such
parties.
11. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost,
stolen, mutilated or destroyed, the Company shall, upon receipt of a
reasonable agreement to indemnify the Company, and, in the case of a
mutilated warrant, upon the surrender thereof, issue in the name requested a
new warrant of like denomination and tenor as the Warrant so lost, stolen,
mutilated or destroyed.
12. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant shall
inure to the benefit of, and be binding upon, the Company and the holders
hereof and their respective successors and permitted assigns.
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<PAGE>
13. GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the substantive laws of the State of California without
regard to principles of conflicts of laws.
January 21, 1998 IMAGEWARE SOFTWARE, INC.
By:
-------------------------------
S. James Miller, Jr., President
By:
-------------------------------
Anne Hoversten, Seecretary
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<PAGE>
SUBSCRIPTION
ImageWare Software, Inc.
Attention: Corporate Secretary
The undersigned hereby elects to purchase, pursuant to the provisions of
this Merger Warrant issued by ImageWare Software, Inc. and held by the
undersigned, ________________ shares of Common Stock of ImageWare Software,
Inc. ("Shares").
Payment of the purchase price for such Shares provided in such Warrant
accompanies this Subscription, unless payment for the Shares is made from the
proceeds of the sale of the Shares, as permitted by Section 3(b) or Section
9(b)(iii) of the Merger Warrant.
The Undersigned hereby represents and warrants that the undersigned is
acquiring such Shares for its own account, for investment purposes only and
not for resale or with a view to distribution of such Shares or any part
thereof.
Date:
--------------------------
Signature:
-------------------------------
Address:
-------------------------------
-------------------------------
Name in which Shares should be registered:
- -------------------------------
Address (if other than above):
- -------------------------------
- -------------------------------
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<PAGE>
THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND ITS SALE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. NEITHER THIS WARRANT NOR THE
SECURITIES ISSUABLE UPON THE EXERCISE HEREOF NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM.
Void after September 30, 2004
IMAGEWARE SOFTWARE, INC.
WARRANT
(Purchase 5,000 Shares of Common Stock)
This Warrant (the "Warrant") is issued, for good and valuable
consideration, receipt of which is hereby acknowledged, to _______________ by
ImageWare Software, Inc., a California corporation (the "Company").
1. PURCHASE OF SHARES; PURCHASE PRICE. Subject to the terms and conditions
hereinafter set forth, the holder of this Warrant ("Holder") is entitled,
upon surrender of this Warrant at the office of the Company at 10883
Thornmint Road, San Diego, CA 92127 (or at such other place as the Company
shall notify the holder hereof in writing), to purchase from the Company Five
Thousand (5,000) shares of Common Stock of the Company at a purchase price
equal to the lesser of $1.50 per share. The shares of Common stock of the
Company issuable upon exercise of this Warrant are hereinafter referred to as
the "Shares".
The Company shall send the Holder written notice of the per share price at
which the Company sells its securities in such first financing within ten
days after such sale is consummated.
2. EXERCISE PERIOD. This Warrant is exercisable at any time from the date
hereof until 5 o'clock P.M., San Diego, California time on September 30,
2004, at which time this Warrant shall expire.
3. METHOD OF EXERCISE. During the period this Warrant remains outstanding
and exercisable in accordance with Section 2 above, the holder may exercise
this Warrant, in whole or in part, by:
(a) surrendering this Warrant, together with a duly executed copy of the
form of Subscription attached hereto, to the Secretary of the Company at its
principal offices; and
<PAGE>
(b) paying to the Company an amount equal to the aggregate Exercise
Price of the number of Shares being purchased; provided that the Holder may
elect to pay the Exercise Price of the Warrants to the Company out of the
proceeds of the sale of the Shares, when sold, in which event, (i) the Shares
will not be issued by the Company until they are sold, and (ii) the Shares
will not be delivered to the purchaser of such Shares until satisfactory
provision is made for paying the Warrant Price to the Company with respect to
such Shares.
4. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES. The number of Shares
purchasable upon exercise of this Warrant and the Exercise Price shall be
subject to adjustment from time to time only as follows:
(a) The Exercise Price of this Warrant and the number of Shares issuable
upon exercise of this Warrant shall be appropriately adjusted to reflect any
stock dividend, stock split, combination of shares of stock,
reclassification, recapitalization or other similar event affecting the
number of outstanding shares of Common Stock, as follows:
(i) The Exercise Price in effect at the time of such event shall be
adjusted so that it shall equal the price determined by multiplying the
Exercise Price by a fraction, the numerator of which shall be the number of
shares of Common Stock of the Company outstanding immediately prior to such
event and the denominator of which shall be the number of shares of Common
Stock of the Company outstanding immediately after giving effect to such
event. Such adjustment shall be made successively whenever any event
specified above shall occur.
(ii) Whenever the Exercise Price payable upon exercise of this
Warrant is adjusted pursuant to subparagraph (i) above, the number of Shares
purchasable upon exercise of this Warrant shall simultaneously be adjusted by
multiplying the number of Shares initially issuable upon exercise of this
Warrant by the initial Exercise Price in effect on the date hereof and
dividing the product so obtained by the Exercise Price, as adjusted.
(b) In case the Company shall make or issue, or shall fix a record date
for the determination of eligible holders entitled to receive, a dividend or
other distribution with respect to the shares payable in (i) securities of
the Company (other than Shares of Common Stock) or (ii) assets (excluding
cash dividends paid or payable solely out of retained earnings), then in each
case, the holder of this Warrant on exercise hereof at any time after the
consummation, effective date or record date of such event, shall receive, in
addition to the Shares issuable on such exercise prior to such date, the
securities or other assets of the Company to which such holder would have
been entitled upon such date if such holder had exercised this Warrant
immediately prior thereto (all subject to further adjustment as provided in
this Warrant).
(c) In case of any merger of the Company with or into any other
corporation, entity or person, or any corporate reorganization, in which the
Company shall not be the continuing or surviving entity of such
reorganization or merger, or any sale of all or substantially all of the
assets of the Company (and such transaction being hereinafter referred to as
a "Reorganization"), then, in each case, (i) the holder of this Warrant shall
be provided with written notice of the proposed Reorganization at least
thirty (30) days prior to the proposed Reorganization date, and
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<PAGE>
(ii) the holder of this Warrant, on exercise hereof at any time after the
consummation or effective date of such Reorganization (the "Effective Date"),
shall receive, in lieu of the Shares issuable on such exercise prior to the
Effective Date, the stock and other securities and property (including cash)
to which such Holder would have been entitled upon the Effective Date if such
Holder had exercised this Warrant immediately prior thereto (all subject to
further adjustment as provided in this Warrant).
(d) In case of any adjustment or readjustment in the price or kind of
securities issuable on the exercise of this Warrant, the Company will
promptly give written notice thereof to the holder of this Warrant in the
form of a certificate, certified and confirmed by the Board of Directors of
the Company, setting forth such adjustment or readjustment and showing in
reasonable detail the computation of such adjustment.
5. DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms of this Warrant, but will at all times in good faith assist in
the carrying out of all such terms and in the taking of all such action as
may be necessary or appropriate in order to protect the rights of the holder
of this Warrant against dilution or other impairment. Without limiting the
generality of the foregoing, the Company (a) will at all times reserve and
keep available a number of its authorized Shares of Common Stock, free from
all preemptive rights therein, which will be sufficient to permit the
exercise of this Warrant and (b) shall take all such action as may be
necessary or appropriate in order that all Shares as may be issued pursuant
to the exercise of this Warrant will, upon issuance, be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issue thereof.
6. PRE-EXERCISE RIGHTS. Prior to the exercise of this Warrant, the holder
shall not be entitled to any rights of a shareholder with respect to the
Shares, including (without limitation) the right to vote such Shares, receive
dividends or other distributions thereon, exercise preemptive rights or be
notified of shareholder meetings, and such holder shall not be entitled to
any notice or other communication concerning the business or affairs of the
Company, except as set forth herein.
7. RESTRICTED SECURITIES. The holder understands that this Warrant and the
Shares purchasable hereunder constitute "restricted securities" under the
federal securities laws inasmuch as they have been, or will be, acquired from
the Company in transactions not involving a public offering and accordingly
may not, under such laws and applicable regulations, be resold or transferred
without registration under the Securities Act of 1933, as amended, or an
applicable exemption from registration. The holder further acknowledges that
the Shares and any other securities issued upon exercise of this Warrant
shall bear a legend substantially in the form of the legend appearing on the
face hereof.
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<PAGE>
8. CERTIFICATION OF INVESTMENT PURPOSE. Unless a current registration
statement under the Securities Act of 1933, as amended (the "Act"), shall be
in effect with respect to the offer and sale of the securities to be issued
upon exercise of this Warrant, the holder of this Warrant covenants and
agrees that, at the time of exercise hereof, such holder will deliver to the
Company a written certification that the securities acquired by the holder
upon exercise hereof are for the account of the holder, are being acquired
for investment purposes only and are not being acquired with a view to, or
for sale in connection with, any public distribution thereof.
9. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS.
(a) The Holder agrees that prior to making any disposition of the
Warrants or the Shares, the Holder shall give written notice to the Company
describing briefly the manner in which any such proposed disposition is to be
made; and no such disposition shall be made if the Company has notified the
Holder that in the opinion of its counsel, a registration statement or
post-effective amendment thereto (hereinafter collectively a "Registration
Statement") under the Act is required with respect to such disposition and no
such Registration Statement has been filed by the Company with, and declared
effective by, the Securities and Exchange Commission (the "Commission").
(b)(i) Whenever during the period ending on August 16, 2002, the Company
proposes to file with the Commission a Registration Statement (other than as
to securities issued pursuant to an employee benefit plan or as to a
transaction subject to Rule 145 promulgated under the Act or which a form S-4
Registration Statement could be used), it shall, promptly prior to each such
filing, give written notice of such proposed filing to the Holder and each
holder of Shares at their respective addresses as they appear on the records
of the Company, and shall offer to include and shall include in such filing
any proposed disposition of the Shares (but not the Warrants) upon receipt by
the Company, within 20 days after such written notice is given, of a request
therefor setting forth the facts with respect to such proposed disposition
and all other information with respect to such person reasonably necessary to
be included in such Registration Statement. If the registration for which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise as part of the written notice given
pursuant to this Section. In such event, the right of any Holder or holder of
Shares to registration pursuant to Section 9(b)(i) shall be conditioned upon
the participation in such underwriting of the Holder or holder of Shares, and
the inclusion of their Shares in the underwriting shall be limited to the
extent provided herein. All Holders or holders of Shares proposing to
distribute their Shares through such underwriting shall enter into an
underwriting agreement in customary form with the managing underwriter
selected for such underwriting by the Company. Notwithstanding any other
provision of this Section 9(b), if the managing underwriter determines that
marketing factors require a limitation of the number of shares to be
underwritten, such underwriter may limit the amount of securities to be
included in the registration and underwriting by the holders of Company
securities exercising "piggyback" registration rights (including the Holder
and each holder of Shares). The Company shall so advise all such holders of
Company securities exercising "piggyback" registration rights, and the
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<PAGE>
number of shares of such securities that may be included in the registration
and underwriting shall be allocated among all of such holders, in proportion,
as nearly as practicable, to the respective amounts of securities requested
by such holders to be included in such registration statement. Any securities
excluded or withdrawn from such registration and underwriting shall not be
transferred prior to one hundred twenty (120) days after the effective date
of the registration statement relating thereto, or such shorter period of
time as the underwriters may require.
(ii) In the event that any such Registration Statement is utilized
for a public offering of any of the Shares to be received upon exercise of
the Warrants pursuant to this Section 9, the Holder may elect to pay the
Exercise Price of the Warrants to the Company out of the proceeds of the sale
of the Shares pursuant to the Registration Statement concurrently with the
closing of such sale of the Shares. In such event, (1) the Shares will not be
issued by the Company until they are sold, and (2) the Shares will not be
delivered to the purchaser of such Shares until satisfactory provision is
made for paying the Warrant Price to the Company with respect to such Shares.
(c) All fees, disbursements and out-of-pocket expenses (other than the
Holder's brokerage fees and commissions and legal fees of counsel to the
Holder, if any) in connection with the filing of any Registration statement
under Section 9(b) (or obtaining the opinion of counsel and any no-action
position of the Commission with respect to sales under Rule 144) and in
complying with applicable securities and Blue Sky laws shall be borne by the
Company. The Company at its expense will supply any Holder and any holder of
Shares with copies of such Registration Statement and the prospectus included
therein and other related documents any opinions and no-action letters in
such quantities as may be reasonably requested by the Holder or holder of
Shares.
(d) The Company shall not be required by this Section 9 to file such
Registration Statement if, in the opinion of counsel for the Holders and
holders of Shares and the Company (or, should they not agree, in the opinion
of another counsel experienced in securities law matters acceptable to
counsel for such holders and the Company), the proposed transfer as to which
such Registration Statement is requested is exempt from applicable federal
and state securities laws under Rule 144 promulgated under the Act.
(e) The provisions of this Section 9 and Section 10 hereof shall apply
to the extent as provided herein if the Company chooses to file an Offering
Statement under Regulation A promulgated under the Act.
(f) The Company agrees that until all shares have been sold under a
Registration Statement or pursuant to Rule 144 under the Act, it will use its
best efforts to keep current in filing all materials required to be filed
with the Commission in order to permit the holders of such securities to sell
the same under Rule 144.
(g) The Company shall be entitled, for a reasonable period of time which
in no event shall exceed 60 days (i) to postpone the filing of a Registration
Statement or any amendment or supplement thereto or to the prospectus
relating thereto otherwise required, or (ii) to suspend
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<PAGE>
effectiveness of the Registration Statement, if the Company (a) determines,
in its reasonable judgment, that the registration or sale of the Shares would
materially interfere with any pending or proposed financing, acquisition,
corporate reorganization or other material transaction involving the Company
or any of its subsidiaries, and (b) promptly gives those persons exercising
their registration right hereunder written notice of such determination.
(h) The Company may require those persons exercising their registration
rights hereunder to furnish to the Company such information regarding the
distribution of such Shares as the Company may from time to time request in
writing and such other information as may be legally required in connection
with such registration.
(i) At any time when a prospectus relating to a sale of the Shares is
required to be delivered under the Act, there occurs an event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of the Shares, such prospectus will
not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, then the Company will promptly make
available to any Holder any such supplement of amendment. Each Holder agrees
that, upon receipt of any notice from the Company of the happening of any
event of the kind described in the preceding sentence hereof, such Holder
will forthwith discontinue disposition of Shares pursuant to the Registration
Statement covering such Shares until the Holder's receipt of the copies of
the supplemented or amended prospectus, and, if so directed by the Company,
the Holder will deliver to the Company all copies, other than permanent file
copies then in the Holder's possession, of the prospectus covering such
Shares current at the time of receipt of such notice. If such amendments or
supplements are not made by the Company within ten (10) days of such notice
by the Company or if in the opinion of counsel to the Holders such amendments
or supplements to the prospectus, if made, are insufficient in light of the
requirements of the Act and other applicable law, the Holders shall not be
deemed to have exercised their demand registration rights pursuant to Section
9(b)(i) herein.
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<PAGE>
10. INDEMNIFICATION.
(a) In the event of the filing of any Registration Statement with
respect to the Shares pursuant to Section 9 hereof, the Company agrees to
indemnify and hold harmless the Holder or any holder of Shares and each
person, if any, who controls the Holder or any holder of Shares within the
meaning of the Act, against any losses, claims, damages or liabilities, joint
or several (which shall, for all purposes of this Agreement, include, but not
be limited to, all costs of defense and investigation and all attorneys'
fees), to which the Holder or any holder of Shares or controlling person may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any such Registration Statement or Prospectus included
therein, or amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement or
Prospectus or amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to the Company by such Holder,
the holder of such Shares or the underwriters of such offering specifically
for use in the preparation thereof. This indemnity will be in addition to any
liability which the Company may otherwise have.
(b) The Holders and the holders of Shares agree that they will
indemnify and hold harmless the Company, each other person referred to in
subparts (1), (2) and (3) of Section 11(a) of the Act in respect of the
Registration Statement and each person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages or
liabilities (which shall, for all purposes of this Agreement, include but not
be limited to, all costs of defense and investigation and all attorneys'
fees) to which the Company or any such director, officer or controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect hereof) arise out of or
are based upon any untrue statement of any material fact contained in such
Registration Statement or Prospectus included therein, or amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but in
each case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in such Registration
Statement or Prospectus included therein, or amendment or supplement thereto
in reliance upon, and in conformity with, written information furnished to
the Company by the Holder or holder of Shares specifically for use in the
preparation thereof. This indemnity agreement will be in affiliation to any
liability which the Holder or holder of Shares may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
10 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 10, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not
relieve
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<PAGE>
the indemnifying party from any liability which it may have to any
indemnified party otherwise than as to the particular item as to which
indemnification is then being sought solely pursuant to this Section 10. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified,
reasonably assume the defense thereof, subject to the provisions herein
stated, and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this Section 10 for
any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof, other than reasonable costs of
investigation, unless the indemnifying party shall not pursue the action to
its final conclusion. The indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall not be at the
expense of the indemnifying party if the indemnifying party has assumed the
defense of the action with counsel reasonably satisfactory to the indemnified
party; provided that if the indemnified party is a Holder or a holder of
Shares or a person who controls a Holder or a holder of Shares within the
meaning of the Act, the fees and expenses of such counsel shall be at the
expense of the indemnifying party if (i) the employment of such counsel has
been specifically authorized in writing by the indemnifying party or (ii) the
named parties to any such action, including any impleaded parties, include
both a Holder or a holder of Shares or such controlling person and the
indemnifying party and a Holder or a holder of shares or such controlling
person shall have been advised by such counsel that there may be one or more
legal defenses available to a Holder or a holder of Shares or controlling
person which are not available to or in conflict with any legal defenses
which may be available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such
action on behalf of a Holder or a holder of Shares or such controlling
person, it being understood, however, that the indemnifying party shall not,
in connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses
of more than one separate firm or attorneys for the Holders, the holders of
the Shares and controlling persons, which firm shall be designated in writing
by a majority in interest of such holders and controlling persons based upon
the value of the securities included in the Registration Statement). No
settlement of any action against an indemnified party shall be made without
the consent of the indemnified and the indemnifying parties, which shall not
be unreasonably withheld in light of all factors of importance to such
parties.
11. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost,
stolen, mutilated or destroyed, the Company shall, upon receipt of a
reasonable agreement to indemnify the Company, and, in the case of a
mutilated warrant, upon the surrender thereof, issue in the name requested a
new warrant of like denomination and tenor as the Warrant so lost, stolen,
mutilated or destroyed.
12. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant shall
inure to the benefit of, and be binding upon, the Company and the holders
hereof and their respective successors and permitted assigns.
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<PAGE>
13. GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the substantive laws of the State of California without
regard to principles of conflicts of laws.
September 30, 1999 IMAGEWARE SOFTWARE, INC.
By: /s/ S. James Miller, Jr.
------------------------------------
S. James Miller, Jr., President
By: /s/ Anne Hoversten
------------------------------------
Anne Hoversten, Secretary
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<PAGE>
SUBSCRIPTION
ImageWare Software, Inc.
Attention: Corporate Secretary
The undersigned hereby elects to purchase, pursuant to the provisions of
this Merger Warrant issued by ImageWare Software, Inc. and held by the
undersigned, ____________ shares of Common Stock of ImageWare Software, Inc.
("Shares").
Payment of the purchase price for such Shares provided in such Warrant
accompanies this Subscription, unless payment for the Shares is made from the
proceeds of the sale of the Shares, as permitted by Section 3(b) or Section
9(b)(ii) of the Merger Warrant.
The undersigned hereby represents and warrants that the undersigned is
acquiring such Shares for its own account, for investment purposes only and
not for resale or with a view to distribution of such Shares or any part
thereof.
Date:
------------------------------
Signature:
-----------------------------
Address:
-----------------------------
-----------------------------
Name in which Shares should be registered:
- -----------------------------------
Address (if other than above):
- -----------------------------------
- -----------------------------------
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<PAGE>
THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND ITS SALE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1993. NEITHER THIS WARRANT NOR THE
SECURITIES ISSUABLE UPON THE EXERCISE HEREOF NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM.
Void after June 30, 2000
STOCK PURCHASE WARRANT
This Stock Purchase Warrant ("Warrant") is issued, for good and valuable
consideration, receipt of which is hereby acknowledged, to _______________ (the
"Purchaser"), by ImageWare Software, Inc., a California
corporation (the "Company").
1. PURCHASE OF SHARES; PURCHASE PRICE. Subject to the terms and
conditions hereinafter set forth, the holder of this Warrant is entitled,
upon surrender of this Warrant at the office of the Company at 15373
Innovation Drive, San Diego, California 92128 (or at such other place as the
Company shall notify the holder hereof in writing), to purchase from the
Company 50,000 shares of Common Stock for $2.50 per share. The shares of
Common stock of the Company issuable upon exercise of this Warrant are
hereinafter referred to as the "Shares."
2. EXERCISE PERIOD. This Warrant is exercisable at any time from July
1, 1995 until 5 o'clock P.M., San Diego, California time on June 30, 2000, at
which time this Warrant shall expire.
3. METHOD OF EXERCISE. During the period this Warrant remains
outstanding and exercisable in accordance with Section 2 above, the holder
may exercise this Warrant, in whole or in part, by:
(a) surrendering this Warrant, together with a duly executed copy
of the form of Subscription attached hereto to the Secretary of the Company
at its principal offices; and
(b) paying to the Company an amount equal to the aggregate
Exercise Price of the number of Shares being purchased.
4. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES. The number of
Shares purchasable upon exercise of this Warrant and the Exercise Price shall
be subject to adjustment from time to time only as follows:
<PAGE>
(a) The Exercise Price of this Warrant and the number of Shares
issuable upon exercise of this Warrant shall be appropriately adjusted to
reflect any stock dividend, stock split, combination of shares of stock,
reclassification, recapitalization or other similar event affecting the
number of outstanding shares of Common Stock, as follows:
(i) The Exercise Price in effect at the time of such event
shall be adjusted so that it shall equal the price determined by multiplying
the Exercise Price by a fraction, the denominator of which shall be the
number of shares of Common Stock outstanding immediately after giving effect
to such event, and of which the numerator shall be the number of shares of
Common Stock outstanding immediately prior to such event. Such adjustment
shall be made successively whenever any event specified above shall occur.
(ii) Whenever the Exercise Price payable upon exercise of this
Warrant is adjusted pursuant to subparagraph (i) above, the number of Shares
purchasable upon exercise of this Warrant shall simultaneously be adjusted by
multiplying the number of Shares initially issuable upon exercise of this
Warrant by the initial Exercise Price in effect on the date hereof and
dividing the product so obtained by the Exercise Price, as adjusted.
(b) In case the Company shall make or issue, or shall fix a record
date for the determination of eligible holders entitled to receive, a
dividend or other distribution with respect to the shares payable in (i)
securities of the Company (other than Shares of Common Stock) or (ii) assets
(excluding cash dividends paid or payable solely out of retained earnings),
then in each case, the holder of this Warrant on exercise hereof at any time
after the consummation, effective date or record date of such event, shall
receive, in addition to the Shares issuable on such exercise prior to such
date, the securities or other assets of the Company to which such holder
would have been entitled upon such date if such holder had exercised this
Warrant immediately prior thereto (all subject to further adjustment as
provided in this Warrant).
(c) In case of any merger of the Company with or into any other
corporation, entity or person, or any other corporate reorganization, in
which the Company shall not be the continuing or surviving entity or such
reorganization or merger, or any sale of all or substantially all of the
assets of the Company (any such transaction being hereinafter referred to as
a "Reorganization"), then, in each case, (i) the holder of this Warrant shall
be provided with written notice of the proposed Reorganization at least
thirty (30) days prior to the proposed Reorganization date, and (ii) the
holder of this Warrant, on exercise hereof at any time after the consummation
or effective date of such Reorganization (the "Effective Date"), shall
receive, in lieu of the Shares issuable on such exercise prior to the
Effective Date, the stock and other securities and property (including cash)
to which such Holder would have been entitled upon the Effective Date if such
Holder has exercised this Warrant immediately prior thereto (all subject to
further adjustment as provided in this Warrant).
2
<PAGE>
(d) In case of any adjustment or readjustment in the price or kind
of securities issuable on the exercise of this Warrant, the Company will
promptly give written notice thereof to the holder of this Warrant in the
form of a certificate, certified and confirmed by the Board of Directors of
the Company, setting forth such adjustment or readjustment and showing in
reasonable detail the computation of such adjustment.
5. DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms of this Warrant, but will at all times in good faith assist in
the carrying out of all such terms and in the taking of all such action as
may be necessary or appropriate in order to protect the rights of the holder
of this Warrant against dilution or other impairment. Without limiting the
generality of the foregoing, the Company (a) will at all times reserve and
keep available a number of its authorized Shares of Common Stock, free from
all preemptive rights therein, which will be sufficient to permit the
exercise of this Warrant and (b) shall take all such action as may be
necessary or appropriate in order that all Shares as may be issued pursuant
to the exercise of this Warrant will, upon issuance, be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issue thereof.
6. PRE-EXERCISE RIGHTS. Prior to the exercise of this Warrant, the
holder shall not be entitled to any rights of a shareholder with respect to
the Shares, including (without limitation) the right to vote such Shares,
receive dividends or other distributions thereon, exercise preemptive rights
or be notified of shareholder meetings, and such holder shall not be entitled
to any notice or other communication concerning the business or affairs of
the Company, except as set forth herein.
7. RESTRICTED SECURITIES. The holder understands that this Warrant
and the Shares purchasable hereunder constitute "restricted securities" under
the federal securities laws inasmuch as they have been, or will be, acquired
from the Company in transactions not involving a public offering and
accordingly may not, under such laws and applicable regulations, be resold or
transferred without registration under the Securities Act of 1933, as
amended, or an applicable exemption from registration. The holder further
acknowledges that the Shares and any other securities issued upon exercise of
this Warrant shall bear a legend substantially in the form of the legend
appearing on the face hereof.
8. CERTIFICATION OF INVESTMENT PURPOSE. Unless a current registration
statement under the Securities Act of 1933, as amended (the "Act"), shall be
in effect with respect to the offer and sale of the securities to be issued
upon exercise of this Warrant, the holder of this Warrant covenants and
agrees that, at the time of exercise hereof, such holder will deliver to the
Company a written certification that the securities acquired by the holder
upon exercise hereof are for the account of the holder, are being acquired
for investment purposes only and are not being acquired with a view to, or
for sale in connection with, any public distribution thereof.
3
<PAGE>
9. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS.
(a) The Holder agrees that prior to making any disposition of the
Warrants or the Shares, the Holder shall give written notice to the Company
describing briefly the manner in which any such proposed disposition is to be
made; and no such disposition shall be made if the Company has notified the
Holder that in the opinion of counsel reasonable satisfactory to the Holder a
registration statement or other notification or post-effective amendment
thereto (hereinafter collectively a "Registration Statement") under the Act
is required with respect to such disposition and no such Registration
Statement has been filed by the Company with, and declared effective, if
necessary.
10. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is
lost, stolen, mutilated or destroyed, the Company shall, upon receipt of a
reasonable agreement to indemnify the Company, and, in the case of a
mutilated warrant, upon the surrender thereof, issue in the name requested a
new warrant of like denomination and tenor as the Warrant so lost, stolen,
mutilated or destroyed.
11. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and the
holders hereof and their respective successors and permitted assigns.
12. GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the substantive laws of the State of California without
regard to principles of conflicts of laws.
Dated: July 1, 1995 IMAGEWARE SOFTWARE, INC.
By: /s/ S. James Miller, Jr.
--------------------------------
S. James Miller, Jr., President
4
<PAGE>
SUBSCRIPTION
ImageWare Software, Inc.
Attention: Corporate Secretary
The undersigned hereby elects to purchase, pursuant to the provisions of
the Stock Purchase Warrant issued by ImageWare Software, Inc. and held by the
undersigned, _________ shares of Common Stock of ImageWare Software, Inc.
Payment of the purchase price per Share required under such Warrant
accompanies this Subscription.
The undersigned hereby represents and warrants that the undersigned is
acquiring such shares for his own account, for investment purposes only and
not for resale or with a view to distribution of such Shares or any part
thereof.
Date:
------------------------
Signature:
-----------------------------
Address:
-----------------------------
-----------------------------
Name in which Shares should be registered:
------------------------
5
<PAGE>
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH
ACT OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY
TO THE CORPORATION AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANT TO PURCHASE STOCK
Corporation: IMAGEWARE SOFTWARE, INC. A CALIFORNIA CORPORATION
Number of Shares: 17,500
Class of Stock: COMMON
Initial Exercise Price: $4.00 PER SHARE
Issue Date: JANUARY 15, 1998
Expiration Date: JANUARY 15, 2003 (SUBJECT TO ARTICLE 4.1)
THIS WARRANT CERTIFIES THAT, in consideration of the payment of $1.00
and for other good and valuable consideration, IMPERIAL BANK or registered
assignee ("Holder") is entitled to purchase the number of fully paid and
nonassessable shares of the class of securities (the "Shares") of the
corporation (the "Company") at the initial exercise price per Share (the
"Warrant Price") all as set forth above and as adjusted pursuant to Article 2
of this Warrant, subject to the provisions and upon the terms and conditions
set forth of this Warrant.
ARTICLE 1. EXERCISE
1.1 METHOD OF EXERCISE. Holder may exercise this Warrant by delivering
this Warrant and a duly executed Notice of Exercise in substantially the form
attached as Appendix 1 to the principal office of the Company. Unless Holder
is exercising the conversion right set forth in Section 1.2, Holder shall
also deliver to the Company a check for the aggregate Warrant Price for the
Shares being purchased.
1.2 CONVERSION RIGHT. In lieu of exercising this Warrant as specified
in Section 1.1, Holder may from time to time convert this Warrant, in whole
or in part, into a number of Shares determined by dividing (a) the aggregate
fair market value of the Shares or other securities otherwise issuable upon
exercise of this Warrant minus the aggregate Warrant Price of such Shares by
(b) the fair market value of one Share. The fair market value of the Shares
shall be determined pursuant to Section 1.5.
1.3 ALTERNATIVE STOCK APPRECIATION RIGHT. At Holder's option, the
Company shall pay Holder the fair market value of the Shares issuable upon
conversion of this Warrant pursuant to Section 1.2 in cash in lieu of such
Shares.
1.4 RIGHT TO PUT WARRANT. At Holder's option, in lieu of exercising its
rights as set forth in Sections 1.1, 1.2, or 1.3, Holder shall have the right
to require the Company to purchase the Warrant under the circumstances set
forth on Exhibit A.
<PAGE>
1.5 FAIR MARKET VALUE. If the Shares are traded regularly in a public
market, the fair market value of the Shares shall be the closing price of the
shares (or the closing price of the Company's stock into which the Shares are
convertible) reported for the business day immediately before Holder delivers
its Notice of Exercise to the Company. If the Shares are not regularly traded
in a public market, the Board of Directors of the Company shall determine
fair market value in its reasonable good faith judgment. The foregoing
notwithstanding, if Holder advises the Board of Directors in writing that
Holder disagrees with such determination, then the Company and Holder shall
promptly agree upon a reputable investment banking firm to undertake such
valuation. If the valuation of such investment banking firm is greater than
that determined by the Board of Directors, then all fees and expenses of such
investment banking firm shall be paid by the Company. In all other
circumstances, such fees and expenses shall be paid by Holder.
1.6 DELIVERY OF CERTIFICATE AND NEW WARRANT. Promptly after Holder
exercises or converts this Warrant, the Company shall deliver to Holder
certificates for the Shares acquired and, if this Warrant has not been fully
exercised or converted and has not expired, a new Warrant representing the
Shares not so acquired.
1.7 REPLACEMENT OF WARRANTS. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of
an indemnity agreement reasonably satisfactory in form and amount to the
Company or, in the case of mutilation, or surrender and cancellation of this
Warrant, the Company at its expense shall execute and deliver, in lieu of
this Warrant, a new warrant of like tenor.
1.8 REPURCHASE ON SALE, MERGER, OR CONSOLIDATION OF THE COMPANY.
1.8.1. "ACQUISITION". For the purpose of this Warrant,
"Acquisition" means any sale, license, or other disposition of all or
substantially all of the assets (including intellectual property) of the
Company, or any reorganization, consolidation, or merger of the Company where
the holders of the Company's securities before the transaction beneficially
own less than 50% of the outstanding voting securities of the surviving
entity after the transaction.
1.8.2. ASSUMPTION OF WARRANT. If upon the closing of any
Acquisition the successor entity assumes the obligations of this Warrant,
then this Warrant shall be exercisable for the same securities, cash, and
property as would be payable for the Shares issuable upon exercise of the
unexercised portion of this Warrant as if such Shares were outstanding on the
record date for the Acquisition and subsequent closing. The Warrant Price
shall be adjusted accordingly. The Company shall use reasonable efforts to
cause the surviving corporation to assume the obligations of this Warrant.
1.8.3. NONASSUMPTION. If upon the closing of any Acquisition the
successor entity does not assume the obligations of this Warrant and Holder
has not otherwise exercised this Warrant in full, then the unexercised
portion of this Warrant shall be deemed to have been automatically converted
pursuant to Section 1.2 and thereafter Holder shall participate in the
Acquisition on the same terms as other holders of the same class of
securities of the Company.
<PAGE>
1.8.4. PURCHASE RIGHT. Notwithstanding the foregoing, at the
election of Holder, the Company shall purchase the unexercised portion of
this Warrant for cash upon the closing of any Acquisition for an amount equal
to (a) the fair market value of any consideration that would have been
received by Holder in consideration of the Shares had Holder exercised the
unexercised portion of this Warrant immediately before the record date for
determining the shareholders entitled to participate in the proceeds of the
Acquisition, less (b) the aggregate Warrant Price of the Shares, but in no
event less than zero.
ARTICLE 2. ADJUSTMENTS TO THE SHARES.
2.1 STOCK DIVIDENDS, SPLITS, ETC. If the Company declares or pays a
dividend on its common stock payable in common stock, or other securities,
subdivides the outstanding common stock into a greater amount of common
stock, then upon exercise of this Warrant, for each Share acquired, Holder
shall receive, without cost to Holder, the total number and kind of
securities to which Holder would have been entitled had Holder owned the
Shares of record as of the date the dividend or subdivision occurred.
2.2 RECLASSIFICATION, EXCHANGE OR SUBSTITUTION. Upon any
reclassification, exchange, substitution, or other event that results in a
change of the number and/or class of the securities issuable upon exercise or
conversion of this Warrant, Holder shall be entitled to receive, upon
exercise or conversion of this Warrant, the number and kind of securities and
property that Holder would have received for the Shares if this Warrant had
been exercised immediately before such reclassification, exchange,
substitution, or other event. Such an event shall include any automatic
conversion of the outstanding or issuable securities of the Company of the
same class or series as the Shares to common stock pursuant to the terms of
the Company's Articles of Incorporation upon the closing of a registered
public offering of the Company's common stock. The Company or its successor
shall promptly issue to Holder a new Warrant for such new securities or other
property. The new Warrant shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in
this Article 2 including, without limitation, adjustments to the Warrant
Price and to the number of securities or property issuable upon exercise of
the new Warrant. The provisions of this Section 2.2 shall similarly apply to
successive reclassifications, exchanges, substitutions, or other events.
2.3 ADJUSTMENTS FOR COMBINATIONS, ETC. If the outstanding Shares are
combined or consolidated, by reclassification or otherwise, into a lesser
number of shares, the Warrant Price shall be proportionately increased.
2.4 ADJUSTMENTS FOR DILUTING ISSUANCES. The Warrant Price and the
number of Shares issuable upon exercise of this Warrant shall be subject to
adjustment, from time to time, in the manner set forth on Exhibit B, if
attached, in the event of Diluting Issuances (as defined on Exhibit B).
2.5 NO IMPAIRMENT. The Company shall not, by amendment of its Articles
of Incorporation or through a reorganization, transfer of assets,
consolidation, merger, dissolution, issue, or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms to be observed or performed under this Warrant by the Company,
but shall at all times in good faith assist in carrying out all the
provisions of this Article 2 and in taking all such action as may be
necessary or appropriate to protect Holder's rights under this Article
against impairment. If the Company takes any action affecting the Shares or
its common stock other than as described above that adversely affects
Holder's rights
<PAGE>
under this Warrant, the Warrant Price shall be adjusted downward and the
number of Shares issuable upon exercise of this Warrant shall be adjusted
upward in such a manner that the aggregate Warrant Price of this Warrant is
unchanged.
2.6 CERTIFICATE AS TO ADJUSTMENTS. Upon each adjustment of the Warrant
Price, the Company at its expense shall promptly compute such adjustment, and
furnish Holder with a certificate of its Chief Financial Officer setting
forth such adjustment and the facts upon which such adjustment is based. The
Company shall, upon written request, furnish Holder a certificate setting
forth the Warrant Price in effect upon the date thereof and the series of
adjustments leading to such Warrant Price.
ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1 REPRESENTATIONS AND WARRANTIES. The Company hereby represents and
warrants to the Holder as follows:
(a) The initial Warrant Price referenced on the first page of
this Warrant is not greater than the fair market value of the Shares as of
the date of this Warrant.
(b) All Shares which may be issued upon the exercise of the
purchase right represented by this Warrant, and all securities, if any,
issuable upon conversion of the Shares, shall, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable, and free of any
liens and encumbrances except for restrictions on transfer provided for
herein or under applicable federal and state securities laws.
3.2 NOTICE OF CERTAIN EVENTS. If the Company proposes at any time (a)
to declare any dividend or distribution upon its common stock, whether in
cash, property, stock, or other securities and whether or not a regular cash
dividend; (b) to offer for subscription pro rata to the holders of any class
or series of its stock any additional shares of stock of any class or series
or other rights; (c) to effect any reclassification or recapitalization of
common stock; (d) to merge or consolidate with or into any other corporation,
or sell, lease, license, or convey all or substantially all of its assets, or
to liquidate, dissolve or wind up; or (e) offer holders of registration
rights the opportunity to participate in an underwritten public offering of
the company's securities for cash, then, in connection with each such event,
the Company shall give Holder (1) at least 20 days prior written notice of
the date on which a record will be taken for such dividend, distribution, or
subscription rights (and specifying the date on which the holders of common
stock will be entitled thereto) or for determining rights to vote, if any, in
respect of the matters referred to in (c) and (d) above; (2) in the case of
the matters referred to in (c) and (d) above at least 20 days prior written
notice of the date when the same will take place (and specifying the date on
which the holders of common stock will be entitled to exchange their common
stock for securities or other property deliverable upon the occurrence of
such event); and (3) in the case of the matter referred to in (e) above, the
same notice as is given to the holders of such registration rights.
3.3 INFORMATION RIGHTS. So long as the Holder holds this Warrant and/or
any of the Shares, the Company shall deliver to the Holder (a) promptly after
mailing, copies of all communiques to the shareholders of the Company, (b)
within ninety (90) days after the end of each fiscal year of the Company, the
annual audited financial statements of the Company certified by independent
public accountants of
<PAGE>
recognized standing and (c) within forty-five (45) days after the end of each
of the first three quarters of each fiscal year, the Company's quarterly,
unaudited financial statements.
3.4 REGISTRATION UNDER SECURITIES ACT OF 1933, AS AMENDED. The Company
agrees that the Shares shall be subject to the registration rights set forth
on Exhibit C.
ARTICLE 4. MISCELLANEOUS.
4.1 TERM: NOTICE OF EXPIRATION. This Warrant is exercisable, in whole
or in part, at any time and from time to time on or before the Expiration
Date set forth above. The Company shall give Holder written notice of
Holder's right to exercise this Warrant in the form attached as Appendix 2
not more than 90 days and not less than 30 days before the Expiration Date.
If the notice is not so given, the Expiration Date shall automatically be
extended until 30 days after the date the Company delivers the notice to
Holder.
4.2 LEGENDS. This Warrant and the Shares (and the securities issuable,
directly or indirectly, upon conversion of the Shares, if any) shall be
imprinted with a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO
RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
CORPORATION AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
4.3 COMPLIANCE WITH SECURITIES LAWS ON TRANSFER. This Warrant and the
Shares issuable upon exercise this Warrant (and the securities issuable,
directly or indirectly, upon conversion of the Shares, if any) may not be
transferred or assigned in whole or in part without compliance with
applicable federal and state securities laws by the transferor and the
transferee (including, without limitation, the delivery of investment
representation letters and legal opinions reasonably satisfactory to the
Company). The Company shall not require Holder to provide an opinion of
counsel if the transfer is to an affiliate of Holder or if there is no
material question as to the availability of current information as referenced
in Rule 144(c), Holder represents that it has complied with Rule 144(d) and
(e) in reasonable detail, the selling broker represents that it has complied
with Rule 144(f), and the Company is provided with a copy of Holder's notice
of proposed sale.
4.4 TRANSFER PROCEDURE. Subject to the provisions of Section 4.2,
Holder may transfer all or part of this Warrant or the Shares issuable upon
exercise of this Warrant (or the securities issuable, directly or indirectly,
upon conversion of the Shares, if any) by giving the Company notice of the
portion of the Warrant being transferred setting forth the name, address and
taxpayer identification number of the transferee and surrendering this
Warrant to the Company for reissuance to the transferee(s) (and Holder, if
applicable). Unless the Company is filing financial information with the SEC
pursuant to the Securities Exchange Act of 1934, the Company shall have the
right to refuse to transfer any portion of this Warrant to any person who
directly competes with the Company.
4.5 NOTICES. All notices and other communications from the Company to
the Holder, or vice versa, shall be deemed delivered and effective when given
personally or mailed by first-class registered or
<PAGE>
certified mail, postage prepaid, at such address as may have been furnished
to the Company or the Holder, as the case may be, in writing by the Company
or such Holder from time to time.
4.6 WAIVER. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
4.7 ATTORNEYS' FEES. In the event of any dispute between the parties
concerning the terms and provisions of this Warrant, the party prevailing in
such dispute shall be entitled to collect from the other party all costs
incurred in such dispute, including reasonable attorneys' fees.
4.8 GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
its principles regarding conflicts of law.
IMAGEWARE SOFTWARE, INC.
By: /s/ S. James Miller, Jr.
--------------------------------
Name: S. James Miller, Jr.
--------------------------------
Title: Chairman & CEO
--------------------------------
<PAGE>
APPENDIX 1
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase __________ shares of
Common Stock of ImageWare Software, Inc. pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase price of such
shares in full.
1. The undersigned hereby elects to convert the attached Warrant in to
Shares/cash [strike one] in the manner specified in the Warrant. This
conversion is exercised with respect to __________ of the Shares covered by
the Warrant
[Strike paragraph that does not apply.]
2. Please issue a certificate or certificates representing said shares
in the name of the undersigned or in such other name as is specified below:
Chief Financial Officer
Controllers Department
Imperial Bank
P.O. Box 92991
Los Angeles, CA 90009
3. The undersigned represents it is acquiring the shares solely for
its own account and not as a nominee for any other party and not with a view
toward the resale or distribution thereof except in compliance with
applicable securities laws.
IMPERIAL BANK
- ------------------------------
(Signature)
- ------------------------------
(Date)
<PAGE>
APPENDIX 2
NOTICE THAT WARRANT IS ABOUT TO EXPIRE
________________, _____
Chief Financial Officer
Controllers Department
Imperial Bank
P.O. Box 92991
Los Angeles, CA 90009
Gentleperson:
This is to advise you that the Warrant issued to you described below
will expire on January 15, 2003.
Issuer:
Issue Date: January 15, 1998
Class of Security Issuable: Common
Exercise Price Per Share: $4.00
Number of Shares Issuable: 17,500
Procedure for Exercise:
Please contact Wayne Wetherell at (619) 673-8600 with any questions you
may have concerning exercise of the Warrant. This is your only notice of
pending expiration.
IMAGEWARE SOFTWARE, INC.
By:
--------------------------
Its:
--------------------------
<PAGE>
EXHIBIT A
PUT RIGHT
Subject to the succeeding sentence, upon written notice to the Company,
Holder shall have the right (the "Put Right") to require that the Company
purchase the Warrant from Holder in consideration of the Company's payment to
Holder (due seven days after receipt of Holders's written notice) of $35,000.
The foregoing notwithstanding, Holder may only exercise the Put Right during
the first to occur of the following periods:
1. On or after January 15, 2001; or
2. The six-month period ending on the Expiration Date; or
3. The 20 day period ending on the closing of the merger,
consolidation or sale of assets of the Company; or
4. The 20 day period ending on the liquidation, dissolution or winding
up of the Company.
<PAGE>
EXHIBIT B
IMPERIAL BANK
ANTIDILUTION AGREEMENT
This Antidilution Agreement is entered into as of January 15, 1998, by
and between Imperial Bank or Imperial Bancorp, at their option, ("Purchaser")
and ImageWare Software, Inc. ("the Company").
RECITALS
A. Concurrently with the execution of this Antidilution Agreement, the
Purchaser is purchasing from the Company a Warrant to Purchase Stock (the
"Warrant") pursuant to which Purchaser has the right to acquire from the
Company the Shares (as defined in the Warrant).
B. By this Antidilution Agreement, the Purchaser and the Company
desire to set forth the adjustment in the number of Shares issuable upon
exercise of the Warrant as a result of a Diluting Issuance (as defined in
Exhibit A to the Warrant).
C. Capitalized terms used herein shall have the same meaning as set
forth in the Warrant.
NOW, THEREFORE, in consideration of the mutual promises, covenants
and conditions hereinafter set forth, the parties hereto mutually agree as
follows:
1. DEFINITIONS. As used in this Antidilution Agreement, the
following terms have the following respective meanings:
(a) "Option" means any right, option or warrant to subscribe for,
purchase or otherwise acquire common stock or Convertible Securities.
(b) "Convertible Securities" means any evidences of indebtedness,
shares of stock or other securities directly or indirectly convertible into
or exchangeable for common stock.
(c) "Issue" means to grant, issue, sell, assume or fix a record date
for determining persons entitled to receive any security (including Options),
whichever of the foregoing is the first to occur.
(d) "Additional Common Shares" means all common stock (including
reissued shares) Issued (or deemed to be issued pursuant to Section 2) after
the date of the Warrant. Additional Common Shares does not include, however,
any common stock Issued in a transaction described in Sections 2.1 and 2.2 of
the Warrant; any common stock Issued upon conversion of preferred stock
outstanding on the date of the Warrant; the Shares; or common stock Issued as
incentive or in a nonfinancing transaction to employees, officers, directors
or consultants to the Company.
<PAGE>
(e) The shares of common stock ultimately Issuable upon exercise of an
Option (including the shares of common stock ultimately Issuable upon
conversion or exercise of a Convertible Security Issuable pursuant to an
Option) are deemed to be Issued when the Option is Issued. The shares of
common stock ultimately Issuable upon conversion or exercise of a Convertible
Security (other than a Convertible Security Issued pursuant to an Option)
shall be deemed Issued upon Issuance of the Convertible Security.
2. DEEMED ISSUANCE OF ADDITIONAL COMMON SHARES. The shares of common
stock ultimately Issuable upon exercise of an Option (including the shares of
common stock ultimately Issuable upon conversion or exercise of a Convertible
Security Issuable pursuant to an Option) are deemed to be Issued when the
Option is Issued. The shares of common stock ultimately Issuable upon
conversion or exercise of a Convertible Security (other than a Convertible
Security Issued pursuant to an Option) shall be deemed Issued upon Issuance
of the Convertible Security. The maximum amount of common stock Issuable is
determined without regard to any future adjustments permitted under the
instrument creating the Options or Convertible Securities.
3. ADJUSTMENT OF WARRANT PRICE FOR DILUTING ISSUANCES.
3.1 RATCHET ADJUSTMENT. If the Company issues Additional Common
Shares after the date of the Warrant and the consideration per Additional
Common Share (determined pursuant to Section 9) is less than the Warrant
Price in effect immediately before such Issue (a "Diluting Issuance"), the
Warrant Price shall be reduced to the lesser of:
(a) the amount of such consideration per Additional Common Share;
or
(b) if the Company's common stock is traded on a national
securities exchange or the National Association of Securities Dealers
Automated Quotation System, the last reported bid or sale price of the
Company's common stock on the first trading day following a public
announcement of the Issuance.
3.2 ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment of the
Warrant Price, the number of Shares Issuable upon exercise of the Warrant
shall be increased to equal the quotient obtained by dividing (a) the product
resulting from multiplying (i) the number of Shares Issuable upon exercise of
the Warrant and (ii) the Warrant Price, in each case as in effect immediately
before such adjustment, by (b) the adjusted Warrant Price.
3.3 SECURITIES DEEMED OUTSTANDING. For the purpose of this
Section 3, all securities Issuable upon exercise of any outstanding
Convertible Securities or Options, Warrants, or other rights to acquire
securities of the Company shall be deemed to be outstanding.
4. NO ADJUSTMENT FOR ISSUANCES FOLLOWING DEEMED ISSUANCES. No
adjustment to the Warrant Price shall be made upon the exercise of Options or
conversion of Convertible Securities.
<PAGE>
5. ADJUSTMENT FOLLOWING CHANGES IN TERMS OF OPTIONS OR CONVERTIBLE
SECURITIES. If the consideration payable to, or the amount of common stock
Issuable by, the Company increases or decreases, respectively, pursuant to
the terms of any outstanding Options or Convertible Securities, the Warrant
Price shall be recomputed to reflect such increase or decrease. The
recomputation shall be made as of the time of the Issuance of the Options or
Convertible Securities. Any changes in the Warrant Price that occurred after
such Issuance because other Additional Common Shares were Issued or deemed
Issued shall also be recomputed.
6. RECOMPUTATION UPON EXPIRATION OF OPTIONS OR CONVERTIBLE SECURITIES.
The Warrant Price computed upon the original Issue of any Options or
Convertible Securities, and any subsequent adjustments based thereon, shall
be recomputed when any Options or rights of conversion under Convertible
Securities expire without having been exercised. In the case of Convertible
Securities or Options for common stock, the Warrant Price shall be recomputed
as if the only Additional Common Shares Issued were the shares of common
stock actually Issued upon the exercise of such securities, if any, and as if
the only consideration received therefor was the consideration actually
received upon the Issue, exercise or conversion of the Options or Convertible
Securities. In the case of Options for Convertible Securities, the Warrant
Price shall be recomputed as if the only Convertible Securities Issued were
the Convertible Securities actually Issued upon the exercise thereof, if any,
and as if the only consideration received therefor was the consideration
actually received by the Company (determined pursuant to Section 9), if any,
upon the Issue of the Options for the Convertible Securities.
7. LIMIT ON READJUSTMENTS. No readjustment of the Warrant Price
pursuant to Sections 5 or 6 shall increase the Warrant Price more than the
amount of any decrease made in respect of the Issue of any Options or
Convertible Securities.
8. 30 DAY OPTIONS. In the case of any Options that expire by their
terms not more than 30 days after the date of Issue thereof, no adjustment of
the Warrant Price shall be made until the expiration or exercise of all such
Options.
9. COMPUTATION OF CONSIDERATION. The consideration received by the
Company for the Issue of any Additional Common Shares shall be computed as
follows:
(a) CASH shall be valued at the amount of cash received by the
Corporation, excluding amounts paid or payable for accrued interest or
accrued dividends.
(b) PROPERTY. Property, other than cash, shall be computed at the fair
market value thereof at the time of the Issue as determined in good faith by
the Board of Directors of the Company.
(c) MIXED CONSIDERATION. The consideration for Additional Common
Shares Issued together with other property of the Company for consideration
that covers both shall be determined in good faith by the Board of Directors.
(d) OPTIONS AND CONVERTIBLE SECURITIES. The consideration per
Additional Common Share for Options and Convertible Securities shall be
determined by dividing:
<PAGE>
(i) the total amount, if any, received or receivable by the
Company for the Issue of the Options or Convertible Securities, plus the
minimum amount of additional consideration (as set forth in the instruments
relating thereto, without regard to any provision contained therein for a
subsequent adjustment of such consideration) payable to the Company upon
exercise of the Options or conversion of the Convertible Securities, by
(ii) the maximum amount of common stock (as set forth in the
instruments relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such number) ultimately Issuable upon
the exercise of such Options or the conversion of such Convertible Securities.
10. GENERAL.
10.1 GOVERNING LAW. This Antidilution Agreement shall be governed
in all respects by the laws of the State of California as such laws are
applied to agreements between California residents entered into and to be
performed entirely within California.
10.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
10.3 ENTIRE AGREEMENT. Except as set forth below, this
Antidilution Agreement and the other documents delivered pursuant hereto
constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof.
10.4 NOTICES, ETC. All notices and other communications required
or permitted hereunder shall be in writing and shall be mailed by first class
mail, postage prepaid, certified or registered mail, return receipt
requested, addressed (a) if to the Purchaser at Purchaser's address as set
forth below, or at such other address as Purchaser shall have furnished to
the Company in writing, or (b) if to the Company, at the Company's address
set forth below, or at such address as the Company shall have furnished to
the Purchaser in writing.
10.5 SEVERABILITY. In case any provision of this Antidilution
Agreement shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions of this Antidilution Agreement
shall not in any way be affected or impaired thereby.
10.6 TITLES AND SUBTITLES. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are
not to be considered in construing this Antidilution Agreement.
10.7 COUNTERPARTS. This Antidilution Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of
which together shall constitute one instrument.
<PAGE>
PURCHASER ISSUER
IMPERIAL BANK or IMPERIAL BANCORP IMAGEWARE SOFTWARE, INC.
By: /s/ Stephen M. Cusato By: /s/ S. James Miller, Jr.
-------------------------- --------------------------
Name: Stephen M. Cusato Name: S. James Miller, Jr.
-------------------------- --------------------------
Title: Senior Vice Pres. Title: Chairman & CEO
-------------------------- --------------------------
<PAGE>
EXHIBIT C
REGISTRATION RIGHTS
The Shares shall be deemed "registrable securities" or otherwise
entitled to "piggy back" registration rights in accordance with the terms of
the following agreement (the "Agreement") between the Company and its
investor(s):
APRIL 10, 1995 PRIVATE PLACEMENT OF IMAGEWARE SOFTWARE, INC.
SERIES B PREFERRED STOCK AND COMMON STOCK PURCHASE WARRANTS
The Company agrees that no amendments will be made to the Agreement
which would have an adverse impact on Holder's registration thereunder
without the consent of Holder. By acceptance of the Warrant to which this
Exhibit C is attached, Holder shall not be deemed to be a party to the
Agreement, but solely entitled to the registration rights created thereby.
<PAGE>
REGISTRATION RIGHTS AGREEMENTS
This Registration Rights Agreement (the "Agreement") is dated as of
February ___, 1999 by and between R Squared Limited, an Irish corporation
("Holder"), and ImageWare Software, Inc., a California corporation (the
"Company").
RECITALS
A. The Company is concurrently issuing Holder a warrant (the
"Warrant") to purchase 1,710,686 shares of Series C Convertible Preferred
Stock ("Series C Preferred"), which is convertible into shares of the
Company's Common Stock (the "Common Stock"), or, alternatively, to purchase
shares of Common Stock directly in connection with the Holder's loan of
$500,000 to the Company; provided, however, the Warrant shall be
automatically cancelled and of no further effect if the Company obtains
equity financing (the "Financing") from institutional investors of $7,500,000
or more on or before April 10, 1999 or as such date is extended pursuant to
that Securities Purchase Agreement as of the date herewith between Holder and
the Company (the "Securities Purchase Agreement").
B. Holder and the Company desire to enter into this Agreement for the
purpose of inducing Holder to make that loan to the Company. This Agreement
shall immediately terminate on the date when the Company obtains the
Financing if the Company obtains the Financing on or before April 10, 1999 or
as such date is extended pursuant to the Securities Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants herein contained and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS
As used herein, the following terms shall have the following
meanings:
AFFILIATE. The term "Affiliate" with respect to any
Shareholder shall mean any person or entity directly or indirectly
controlling, controlled by or under common control with that Shareholder
(for purposes of this definition, "control" as used with respect to a
person or entity, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of
-1-
<PAGE>
management and policies of such person or entity, whether by ownership
of voting securities, by contract or otherwise).
COMMON STOCK. The term "Common Stock" shall mean the Common
Stock of the Company, par value $0.01 per share.
EXCHANGE ACT. The term "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended.
FULLY-DILUTED COMMON STOCK. The term "Fully-Diluted Common
Stock" shall mean all of the outstanding Common Stock of the Company,
assuming conversion, exercise or exchange of all outstanding
convertible, exercisable or exchangeable securities, options, warrants
and similar instruments into or for Common Stock (regardless of whether
such convertibles securities are then convertible, exercisable or
exchangeable). As provided in Section 3.5, all such calculations shall
be appropriately adjusted for stock splits, stock dividends and other
similar events as described therein.
PREFERRED STOCK. The term "Preferred Stock" shall mean the
Series C Preferred Stock of the Company, par value $0.01 per share.
QUALIFIED IPO. The term "Qualified IPO" shall mean a public
offering of the Company's Common Stock under the Securities Act which
results in gross proceeds to the Company in of not less than $10 million
at an offering price per share (as constituted on the date hereof) of
not less than $5.00.
REGISTRABLE SECURITIES. The term "Registrable Securities"
shall mean shares of Company's Common Stock issued upon any one or more
conversions of Preferred Stock issued to the Holder in connection with
the Warrant; PROVIDED, HOWEVER, that a Registrable Security shall cease
to be a Registrable Security at such time that (i) the Registrable
Security has been effectively registered under the Securities Act and
disposed of in accordance with registration statement covering it or
(ii) has been sold to the public pursuant to Rule 144 (or any similar
provision then in force) under the Securities Act and any legend
required under federal or state securities laws has been removed from
the certificate representing such Registrable Security.
RELATED PARTY. The term "Related Party" shall mean (i) with
respect to the Holder, any parent, controlling stockholder, general
partner, controlling member or two-thirds (2/3) or more owned subsidiary
of the Holder, or (ii) with respect to the Holder, a trust, corporation,
partnership, limited liability company or other entity, the
beneficiaries, stockholders, partners,
-2-
<PAGE>
members, owners or persons holding a two-thirds (2/3) or more
controlling interest of which consist of the Holder and/or such other
persons or entities referred to in the immediately preceding clause (i).
SECURITIES ACT. The term "Securities Act" shall mean the
Securities Act of 1933, as amended.
SHARES. The term "Shares" shall mean shares of Common Stock
issued or issuable upon the conversion of the Series C Preferred Stock.
2. REGISTRATION RIGHTS
2.1 PIGGYBACK REGISTRATION RIGHTS
(a) RIGHT TO PIGGYBACK. Subject to Sections 2.1(b) and 2.1(c)
below, whenever the Company proposes to register any shares of Common
Stock (or securities convertible into or exchangeable for, or options to
purchase, Common Stock) with the Securities and Exchange Commission (the
"Commission") under the Securities Act (other than pursuant to a
Registration on Form S-4 or S-8, or any successor forms thereto) (a
"Piggyback Registration"), the Company (i) will give written notice to
Holder at least 30 days prior to the anticipated filing date of its
intention to effect such a registration, which notice will specify the
proposed offering price, the kind and number of securities proposed to
be registered, the distribution arrangements and such other information
that at the time would be appropriate to include in such notice, and
(ii) will, subject to Section 2.1(c) below, include in such Piggyback
Registration all Registrable Securities with respect to which the
Company has received written requests for inclusion therein within 20
days after the date of the Company's notice. Except as may otherwise be
provided in this Agreement, Registrable Securities with respect to which
such request for Registration has been received will be registered by
the Company and offered to the public in a Piggyback Registration
pursuant to this Section 2 on terms and conditions at least as favorable
as those applicable to the registration of shares of Common Stock to be
sold by the Company and by any other person selling under such Piggyback
Registration.
(b) NUMBER OF PIGGYBACK REGISTRATIONS. Holder shall be
entitled to unlimited Piggyback Registrations, and the expenses of each
(including the fees and expenses of counsel for the Holder in accordance
with Section 2.5(b) below) shall be borne by the Company in accordance
with the provisions of Section 2.5 hereof.
-3-
<PAGE>
(c) PRIORITY ON PIGGYBACK REGISTRATIONS. If the managing
underwriter or underwriters, if any, advise the Holder in writing that
in its or their reasonable opinion or, in the case of a Piggyback
Registration not being underwritten, the Company shall reasonably
determine (and notify the Holder of such determination), after
consultation with an investment banker of nationally recognized
standing, that the number or kind of securities proposed to be sold in
such registration (including Registrable Securities to be included
pursuant to Section 2.1(a) above) is inconsistent with that which can be
sold in such registration without having a material effect on the
success of the offering (including, without limitation, an impact on the
selling price or the number of securities that any participant may
sell), the Company will include in such registration the number of
securities, if any, which, in the opinion of such underwriter or
underwriters, or the Company, as the case may be, can be sold as
follows: (i) first, the shares the Company proposes to sell, and (ii)
second, the Registrable Securities requested to be included in such
registration by the Holder.
(d) SELECTION OF UNDERWRITERS. If any Piggyback Registration
is an underwritten offering, the Company will (i) select a managing
underwriter or underwriters to administer the offering, which managing
underwriter or underwriters will be of nationally recognized standing,
and (ii) determine the terms under which such underwriting shall take
place.
2.2 REGISTRATION PROCEDURES. With respect to any Piggyback
Registration (generically, a "Registration"), the Company shall, subject to
Sections 2.1(c), as expeditiously as practicable:
(a) prepare and file with the Commission, within 90 days
after mailing the applicable Notice, a registration statement or
registration statements (the "Registration Statement") relating to the
applicable Registration on any appropriate form under the Securities
Act, which form shall be available for the sale of the Registrable
Securities in accordance with the intended method or methods of
distribution thereof; PROVIDED, HOWEVER, that the Company will include
in any Registration Statement on a form other than Form S-1 all
information that the Holder shall reasonably request and shall include
all financial statements required by the Commission to be filed
therewith, cooperate and assist in any filings required to be made with
the National Association of Securities Dealers, Inc. ("NASD") or any
securities exchange or the NASDAQ, and use its best efforts to cause
such Registration Statement to become effective; PROVIDED FURTHER, that
before filing a Registration Statement or prospectus related thereto (a
"Prospectus") or any amendments or supplements thereto, the Company will
furnish to the Holder covered by such Registration Statement and the
underwriters, if any, copies of all such
-4-
<PAGE>
documents proposed to be filed, which documents will be subject to the
reasonable review of such Holder and underwriters and their respective
counsel, and the Company will not file any Registration Statement or
amendment thereto or any Prospectus or any supplement thereto to which
the stockholders of a majority of the Registrable Securities covered by
such Registration Statement or the underwriters, if any, shall
reasonably object;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep each Registration Statement effective for the
applicable period, or such shorter period which will terminate when all
Registrable Securities covered by such Registration Statement have been
sold; cause each Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered
by such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement
to the Prospectus; the Company shall not be deemed to have used its best
efforts to keep a Registration Statement effective during the applicable
period if it voluntarily takes any action that would result in the
Holder covered thereby not being able to sell such Registrable
Securities during that period unless such action is required under
applicable law, provided that the foregoing shall not apply to actions
taken by the Company in good faith and for valid business reasons,
including, without limitation, the acquisition or divestiture of assets,
so long as the Company promptly thereafter complies with the
requirements of Section 2.2(k) below, if applicable;
(c) notify the Holder and the managing underwriters, if any,
promptly, and (if requested by any such person or entity) confirm such
advice in writing, (A) when the Prospectus or any Prospectus supplement
or post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same has
become effective, (B) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus or for
additional information, (C) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose, (D) if at any time
the representaitons and warranties of the Company contemplated by
Section 2.2(n) below cease to be true and correct, (E) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose and
(F) of the happening of any event which makes any statement
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made in the Registration Statement, the Prospectus or any document
incorporated therein by reference untrue or which requires the making of any
changes in the Registration Statement, the Prospectus or any document
incorporated therein by reference in order to make the statements therein not
misleading;
(d) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(e) if requested by the managing underwriter or underwriters or a holder
of Registrable Securities being sold in connection with an underwritten
offering, promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters and the holders of a
majority of the Registrable Securities being sold agree should be included
therein relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to the
number of Registrable Securities being sold to such underwriters, the
purchase price being paid therefor by such underwriters and with respect to
any other terms of the underwritten offering of the Registrable Securities to
be sold in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as notified of the matters to
be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each managing underwriter and, if requested by the
holders of a majority of the Registrable Securities being sold, to Holder,
without charge, at least one signed copy of the Registration Statement and
any amendment thereto, including financial statements and schedules, all
documents incorporated therein by reference and all exhibits (including those
incorporated by reference);
(g) deliver to Holder and the underwriters, if any, without charge, as
many copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as Holder and underwriters may reasonably
request; the Company consents to the use of each Prospectus or any amendment
or supplement thereto by each of the selling stockholders and the
underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or
supplement thereto;
(h) prior to any public offering of Registrable Securities, register or
qualify or cooperate with the selling stockholders, the underwriters, if any,
and their respective counsel in connection with the registration or
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qualification of such Registrable Securities for the offer and sale under the
securities or "Blue Sky" laws of such jurisdictions as any seller or
underwriter reasonably requests in writing, considering the amount of
Registrable Securities proposed to be sold in each such jurisdiction, and do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by
the Registration Statement; PROVIDED, HOWEVER, that the Company will not be
required to qualify generally to do business in any jurisdiction where it is
not then so qualified or to take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling stockholders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing
any restrictive legends and in such denominations and registered in such
names as the managing underwriters may request at least two business days
prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by
the applicable Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by Section 2.2(c)(F)
above, prepare a supplement or post-effective amendment to the Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(l) cause all Registrable Securities covered by any Registration
Statement to be listed on each securities exchange on which similar
securities issued by the Company are then listed, or cause such Registrable
Securities to be authorized for trading on the NASDAQ National Market System
if any similar securities issued by the Company are then so authorized, if
requested by the holders of a majority of such Registrable Securities or the
managing underwriters, if any;
(m) provide a CUSIP number for all Registrable Securities, not later
than the effective date of the applicable Registration Statement;
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(n) enter into such agreements (including an underwriting agreement) and
take all such other actions in connection therewith in order to facilitate
the disposition of such Registrable Securities as shall be reasonably
necessary, and in connection therewith, (A) make such representations and
warranties to the Holder and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in primary
underwritten offerings; (B) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any, and
the holders of a majority of the Registrable Securities being sold) addressed
to Holder and the underwriters, if any, covering the matters customarily
covered in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by Holder and underwriters; (C) obtain
"cold comfort" letters and updates thereof from the Company's independent
certified public accountants addressed to the underwriters, if any, such
letters to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters by underwriters in connection with primary
underwritten offerings; (D) if an underwriting agreement is entered into, the
same shall set forth in full the indemnification provisions and procedures
set forth in Section 2.4 below with respect to all parties to be indemnified
pursuant to said Section; and (E) the Company shall deliver such documents
and certificates as may be requested by the holders of a majority of the
Registrable Securities being sold and the managing underwriters, if any, to
evidence compliance with Section 2.2(c)(F) above and with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Company. The above shall be done at each closing under such
underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection during normal business hours by a
representative of the holders of a majority of the Registrable Securities,
any underwriter participating in any disposition pursuant to such
Registration, and any attorney or accountant retained by the representative
or underwriter, all financial and other records, and pertinent corporate
documents of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with such
Registration Statement; PROVIDED, HOWEVER, that any records, information or
documents that are designated by the Company in writing as confidential shall
be kept confidential by such persons unless disclosure of such records,
information or documents is required by court or administrative order or any
regulatory body having jurisdiction;
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(p) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make earnings statements satisfying
the provisions of Section II(a) of the Securities Act generally available to
its security holders no later than 45 days after the end of any 12-month
period (or 90 days, if such period is a fiscal year) (A) commencing at the
end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm or best efforts underwritten offering, or (B) if not
sold to underwriters in such an offering, beginning with the first month of
the Company's first fiscal quarter commencing after the effective date of the
Registration Statement, which statements shall cover said 12-month periods;
and
(q) promptly prior to the filing of any document that is to be
incorporated by reference into any Registration Statement or Prospectus
(after initial filing of the Registration Statement), provide copies of such
document to counsel to the Holder and to the managing underwriters, if any,
make the Company's representatives available for discussion of such document
and make such changes in such document prior to the filing thereof as counsel
for the Holder or underwriters may reasonably request.
The Company may require each seller of Registrable Securities as to
which any Registration is being effected to furnish to the Company such
information regarding the proposed distribution of such securities as the
Company may from time to time reasonably request in writing.
Holder agrees by acquisition of Registrable Securities that, upon
receipt of any notice from the Company of the happening of any event of the
kind described in Section 2.2(c)(F), Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the Registration Statement
until Holder's receipt of copies of the supplemented or amended Prospectus as
contemplated by Section 2.2(k), or until it is advised in writing (the
"Advice") by the Company that the use of the Prospectus may be resumed, and
has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus, and, if so directed by the
Company, Holder will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Holder's possession, of
the Prospectus covering such Registrable Securities. In the event the Company
shall give any such notice, the six-month time period referred to in Sections
2.1(b) shall be extended by the number of days during the period from and
including the date of the giving of such notice to and including the date
when each seller of Registrable Securities covered by such Registration
Statement shall have received the copies of the supplemented or amended
prospectus contemplated by Section 2.2(c)(F) or the Advice.
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2.3 REGISTRATION EXPENSES.
(a) GENERALLY. All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, including,
without limitation, all registration and filing fees, the fees and expenses
of the counsel and accountants for the Company (including the expenses of any
"cold comfort" letters and special audits required by or incident to the
performance of such persons), all other costs and expenses of the Company
incident to the preparation, printing and filing under the Securities Act of
the Registration Statement (and all amendments and supplements thereto) and
furnishing copies thereof and of the Prospectus included therein, the costs
and expenses incurred by the Company in connection with the qualification of
the Registrable Securities under the state securities or "Blue Sky" laws of
various jurisdictions, the costs and expenses associated with filings
required to be made with the NASD and any securities exchange or the NASDAQ
(including, if applicable, the fees and expenses of any "qualified
independent underwriter" and its counsel as may be required by the rules and
regulations thereof), the costs and expenses of listing the Registrable
Securities for trading on a national securities exchange or authorizing them
for trading on the NASDAQ National Market System and all other costs and
expenses incurred by the Company in connection with any Registration
hereunder; PROVIDED, HOWEVER, that, except as otherwise provided in Section
2.3(b) below, the Company shall not bear the costs and expenses of any
selling Holder for underwriters' commissions, brokerage fees or transfer
taxes, or the fees and expenses of any counsel, accountants or other
representative retained by any selling Holder.
(b) COUNSEL AND OUT-OF-POCKET FEES. Notwithstanding Section 2.3(a)
above, in connection with each Registration hereunder, the Company will
reimburse the selling stockholders for the reasonable fees and disbursements
of not more than one counsel, which counsel shall be chosen by the holders of
a majority of the Registrable Securities covered by the Registration.
2.4 INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify, to
the full extent permitted by law, Holder, its officers, directors and agents
and each person who controls such Holder within the meaning of the Securities
Act and the Exchange Act (each, an "Indemnified Holder"), against all losses,
claims, damages, liabilities and expenses caused by any untrue or alleged
untrue statement of a material fact contained in any Registration Statement,
Prospectus or preliminary Prospectus, or any omission or alleged
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<PAGE>
omission to state therein a material fact necessary to make the statements
therein (in the case of a Prospectus or any preliminary Prospectus, in light
of the circumstances under which they were made) not misleading, except to
the extent that such untrue statement or omission is caused by any
information with respect to such Indemnified Holder furnished in writing to
the Company by such Indemnified Holder or its representative expressly for
use therein. The Company will also indemnify underwriters, selling brokers,
dealer managers and similar securities industry professionals participating
in the distribution, their officers and directors and each person who
controls such persons (within the meaning of the Securities Act) to the same
extent as provided above with respect to Indemnified Holders; PROVIDED,
HOWEVER, that if pursuant to an underwritten public offering of Registrable
Securities, the Company and any underwriters enter into an underwriting or
purchase agreement relating to such offering that contains provisions
relating to indemnification and contribution between the Company and such
underwriters, such provisions shall be deemed to govern indemnification and
contribution as between the Company and such underwriters.
2.5 INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. In connection
with any Registration, Holder shall furnish to the Company in writing such
information with respect to the Holder as the Company reasonably requests for
use in connection with any Registration Statement, Prospectus or preliminary
Prospectus, and agrees to indemnify, to the full extent permitted by law, the
Company, the directors and the officers of the Company signing the
Registration Statement and each person who controls the Company (within the
meaning of the Securities Act and the Exchange Act) against any losses,
claims, damages, liabilities and expenses resulting from any untrue statement
of a material fact or any omission to state a material fact required to be
stated therein or necessary to make the statements in the Registration
Statement, Prospectus or preliminary Prospectus (in the case of the
Prospectus or any preliminary Prospectus, in light of the circumstances under
which they were made) not misleading, to the extent, and only to the extent,
that such untrue statement or omission is caused by any information with
respect to the Holder so furnished in writing by the Holder or its
representative specifically for inclusion therein. In no event shall the
liability of any selling Holder hereunder be greater in amount than the
dollar amount of the proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation. The
Company shall be entitled to receive indemnities from underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided above with
respect to information with respect to such persons or entities so furnished
in writing by such persons or entities or their representatives specifically
for inclusion in any Registration Statement, Prospectus or preliminary
Prospectus.
2.6 CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person or entity entitled
to indemnification hereunder will (i) give prompt written notice to the
indemnifying
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party after the receipt by the indemnified party of a written notice of the
commencement of any action, suit, proceeding or investigation or threat
thereof made in writing for which such indemnified party will claim
indemnification or contribution pursuant to this Agreement; PROVIDED,
HOWEVER, that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under the
preceding Section 2.4(a) except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest may exist
between such indemnified and indemnifying parties with respect to such claim,
permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. Whether or not such
defense is assumed by the indemnifying party, the indemnifying party will not
be subject to any liability for any settlement made without its consent (but
such consent will not be unreasonably withheld). No indemnifying party will
be required to consent to the entry of any judgment or to enter into any
settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff of a release from all liability in respect of
such claim or litigation. An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel in any one jurisdiction for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels.
2.7 CONTRIBUTION. If for any reason the indemnification provided
for in the preceding Section 2.4(a) is unavailable to an indemnified party as
contemplated by such Section, then the indemnifying party, in lieu of
indemnification, shall contribute to the amount paid or payable by the
indemnified party as a result of such loss, claim, damage, liability or
expense in such proportion as is appropriate to reflect not only the relative
benefits received by the indemnified party and the indemnifying party, but
also the relative fault of the indemnified party and the indemnifying party,
as well as any other relevant equitable considerations; PROVIDED, HOWEVER,
that no selling stockholder shall be required to contribute in an amount
greater than the difference between the net proceeds received by the Holder
with respect to the sale of Registrable Securities and all amounts already
contributed by the Holder with respect to such claims, including amounts paid
for any legal or other fees or expenses incurred by the Holder.
2.8 RULE 144. The Company agrees that at all times after it has
filed a registration statement pursuant to the requirements of the Securities
Act relating to any class of equity securities of the Company, it will file
in a timely manner all reports required to be filed by it pursuant to the
Securities Act and the Exchange Act and will take such further action as any
Holder may reasonably request in order that such
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Holder may effect sales of Registrable Securities pursuant to Rule 144. At
any reasonable time and upon request of Holder, the Company will furnish the
Holder with such information as may be necessary to enable the Holder to
effect sales of Common Stock pursuant to Rule 144 under the Securities Act
and will deliver to such Holder a written statement as to whether it has
complied with such requirements. Notwithstanding the foregoing, the Company
may deregister any class of its equity securities under Section 12 of the
Exchange Act or suspend its duty to file reports with respect to any class of
its securities pursuant to Section 15(d) of the Exchange Act if it is then
permitted to do so pursuant to the Exchange Act and the rules and regulations
thereunder.
2.9 PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. Holder may not
participate in any underwritten registrations hereunder unless Holder (i)
agrees to sell its Registrable Securities on the basis provided in any
underwriting arrangements approved by the Company, and (ii) accurately
completes in a timely manner and executes all questionnaires, powers of
attorney, underwriting agreements and other documents customarily required
under the terms of such underwriting arrangements.
3. DEFINITIONS
3.1 SPECIFIC PERFORMANCE, ETC. The Company and Holder, in addition
to being entitled to exercise all rights provided herein, in the Company's
Certificate of Incorporation or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. Each party agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
3.2 NOTICES. All notices, requests, demands and other
communications which are required or may be given under this Agreement shall
be in writing and shall be deemed to have been duly received when received if
personally delivered; when transmitted if transmitted by telecopy, electronic
or digital transmission method; the day after it is sent, if sent for next
day delivery to a domestic address by recognized overnight delivery service
(e.g., Federal Express); and upon receipt, if sent by certified or registered
mail, return receipt requested. In each case notice shall be sent to:
If to Holder:
R Squared Limited
c/o Royal Bank of Canada Trust Co. (Cayman Limited)
P.O. Box 1586
Cardinal Avenue, George Town
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Grand Cayman
Cayman Island, B.W.I.
Attn: Mr. Robin Garnham
With a Copy to:
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
650 Town Center Drive, 4th. Floor
Costa Mesa, California 92626-1925
Attn: John J. Giovannone, Esquire
Telecopy: (714) 513-5130
If to Company:
ImageWare Software, Inc.
10883 Thornmint Road
San Diego, California 92127
Attn: Chief Executive Officer
Telecopy: (619) 673-0291
With a Copy to:
LUCE, FORWARD, HAMILTON & SCRIPPS LLP
600 West Broadway, Suite 2600
San Diego, California 92101
Attn: Robert G. Copeland, Esquire
Telecopy: (619) 232-8311
or to such other place and with such other copies as any party may designate
as to itself by written notice to the others.
3.3 ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS. This Agreement
constitutes the entire agreement among the parties pertaining to the subject
matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties
hereto. The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers of or
consents to departures from the provisions hereof may not be given unless
approved in writing by the Company and Holder. No action taken pursuant to
this Agreement, including, without limitation, any investigation by or on
behalf of any party, shall be deemed to constitute a waiver by the party
taking such
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action. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as waiver of any preceding or
succeeding breach and no failure by any party to exercise any right or
privilege hereunder shall be deemed a waiver of such party's rights or
privileges hereunder or shall be deemed a waiver of such party's rights to
exercise the same at any subsequent time or times hereunder.
3.4 TERMINATION. This Agreement shall terminate and cease to be
of any further force or effect upon the date (i) the Company obtains the
Financing on or before April 10, 1999, or as such date is extended pursuant
to the Securities Purchase Agreement, or (ii) the Company merges with and
into another corporation or other entity where, upon consummation of the
merger, the holders of the Company's voting stock immediately prior to the
merger will hold less than 50% of the voting stock of the surviving
corporation immediately after the merger.
3.5 RECAPITALIZATIONS, EXCHANGE, ETC. AFFECTING THE COMPANY'S
STOCK. The provisions of this Agreement shall apply, to the full extent set
forth herein with respect to the Shares and to any and all shares of capital
stock of the Company that may be issued in respect of, in exchange for, or in
substitution of the Shares and shall be appropriately adjusted for any stock
dividends, splits, reverse splits, combinations, recapitalizations and the
like occurring after the date hereof.
3.6 MULTIPLE COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
3.7 HEADINGS. The headings of the Articles and Sections herein
are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
3.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California;
provided, however, that if any law or laws of such state shall require or
permit the application of the laws of any other state or other jurisdiction,
such law or laws shall be disregarded with the result that the remaining laws
of the State of California shall nonetheless apply.
3.9 CONSTRUCTION. Differences in language as between similar
provisions covering similar matters may reflect differences in style rather
than a different substantive intent and should be construed accordingly.
3.10 EXPENSES. Except as otherwise specified in this Agreement,
each party hereto shall pay its own legal, accounting, out-of-pocket and
other expenses incident to this Agreement and to any action taken by such
party in preparation for carrying this Agreement into effect.
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3.11 INVALIDITY. In the event that any one or more of the
provisions contained in this Agreement or in any other document or instrument
referred to herein, shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, then to the maximum extent permitted by law,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement or any other such document or instrument.
3.12 CUMULATIVE REMEDIES. All rights and remedies of either party
hereto are cumulative of each other and of every other right or remedy such
party may otherwise have at law or in equity, and the exercise of one or more
rights or remedies shall not prejudice or impair the concurrent or subsequent
exercise of other rights or remedies.
WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
(the "Company")
IMAGEWARE SOFTWARE, INC.,
a California corporation
By: /s/ S. James Miller Jr.
------------------------------
Name: S. JAMES MILLER JR.
------------------------------
Title: Chairman & CEO
--------------------
("Holder")
R SQUARED LIMITED,
an Irish corporation
By: /s/ M.P. AP P. Stradling
------------------------------
Name: M.P. AP P. STRADLING
------------------------------
Title: Director
------------------------------
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Exhibit 10.44
THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND ITS SALE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1993. NEITHER THIS WARRANT NOR THE
SECURITIES ISSUABLE UPON THE EXERCISE HEREOF NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM.
Warrant No._______ Void after May 31, 1998
STOCK PURCHASE PURCHASE WARRANT
(Initially to Purchase __________ Shares of Common Stock)
This Stock Purchase Warrant ("Warrant") is issued, for good and valuable
consideration, receipt of which is hereby acknowledged, to ___________________
______________________________________________________________________________
by ImageWare Software, Inc., a California corporation (the "Company").
1. PURCHASE OF SHARES; PURCHASE PRICE. Subject to the terms and
conditions hereinafter set forth, the holder of this Warrant is entitled,
upon surrender of this Warrant at the office of the Company at 15373
Innovation Drive, San Diego, California 92128 (or at such other place as the
Company shall notify the holder hereof in writing), to purchase from the
Company ____________ shares of Common Stock of the Company at a purchase
price of $4.00 per share. The shares of Common stock of the Company issuable
upon exercise of this Warrant are hereinafter referred to as the "Shares."
2. EXERCISE PERIOD. This Warrant is exercisable at any time from the
date hereof until 5 o'clock P.M., San Diego, California time on May 31, 1998,
at which time this Warrant shall expire.
3. METHOD OF EXERCISE. During the period this Warrant remains
outstanding and exercisable in accordance with Section 2 above, the holder
may exercise this Warrant, in whole or in part, by:
(a) surrendering this Warrant, together with a duly executed copy
of the form of Subscription attached hereto, to the Secretary of the Company
at its principal offices; and
(b) paying to the Company an amount equal to the aggregate Exercise
Price of the number of Shares being purchased.
4. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES. The number of
Shares purchasable upon exercise of this Warrant and the Exercise Price shall
be subject to adjustment from time to time only as follows:
<PAGE>
(a) The Exercise Price of this Warrant and the number of Shares
issuable upon exercise of this Warrant shall be appropriately adjusted to
reflect any stock dividend, stock split, combination of shares of stock,
reclassification, recapitalization or other similar event affecting the
number of outstanding shares of Common Stock, as follows:
(i) The Exercise Price in effect at the time of such event
shall be adjusted so that it shall equal the price determined by multiplying
the Exercise Price by a fraction, the denominator of which shall be the
number of shares of Common Stock outstanding immediately after giving effect
to such event, and of which the numerator shall be the number of shares of
Common Stock outstanding immediately prior to such event. Such adjustment
shall be made successively whenever any event specified above shall occur.
(ii) Whenever the Exercise Price payable upon exercise of this
Warrant is adjusted pursuant to subparagraph (i) above, the number of Shares
purchasable upon exercise of this Warrant shall simultaneously be adjusted by
multiplying the number of Shares initially issuable upon exercise of this
Warrant by the initial Exercise Price in effect on the date hereof and
dividing the product so obtained by the Exercise Price, as adjusted.
(b) In case the Company shall make or issue, or shall fix a record
date for the determination of eligible holders entitled to receive, a
dividend or other distribution with respect to the shares payable in (i)
securities of the Company (other than Shares of Common Stock) or (ii) assets
(excluding cash dividends paid or payable solely out of retained earnings),
then in each case, the holder of this Warrant on exercise hereof at any time
after the consummation, effective date or record date of such event, shall
receive, in addition to the Shares issuable on such exercise prior to such
date, the securities or other assets of the Company to which such holder
would have been entitled upon such date if such holder had exercised this
Warrant immediately prior thereto (all subject to further adjustment as
provided in this Warrant).
(c) In case of any merger of the Company with or into any other
corporation, entity or person, or any other corporate reorganization, in
which the Company shall not be the continuing or surviving entity of such
reorganization or merger, or any sale of all or substantially all of the
assets of the Company (any such transaction being hereinafter referred to as
a "Reorganization"), then, in each case, (i) the holder of this Warrant shall
be provided with written notice of the proposed Reorganization at least
thirty (30) days prior to the proposed Reorganization date, and (ii) the
holder of this Warrant, on exercise hereof at any time after the consummation
or effective date of such Reorganization (the "Effective Date"), shall
receive, in lieu of the Shares issuable on such exercise prior to the
Effective Date, the stock and other securities and property (including cash)
to which such Holder would have been entitled upon the Effective Date if such
Holder had exercised this Warrant immediately prior thereto (all subject to
further adjustment as provided in this Warrant).
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(d) In case of any adjustment or readjustment in the price or kind
of securities issuable on the exercise of this Warrant, the Company will
promptly give written notice thereof to the holder of this Warrant in the
form of a certificate, certified and confirmed by the Board of Directors of
the Company, setting forth such adjustment or readjustment and showing in
reasonable detail the computation of such adjustment.
5. REDEMPTION. The Company may redeem this Warrant at any time after
the Company's Common Stock has become publicly traded, at a redemption price
of $.05 per each share of the Company's Common Stock which is issuable upon
exercise of this Warrant, by mailing written notice of such redemption and
the effective date thereof (the "Redemption Date") to the holder of this
Warrant at the address for such holder as reflected on the books of the
Company, at least 30 days prior to the Redemption Date, in the event that the
average of the closing bid price for the Company's Common Stock in the
over-the-counter market or on any stock exchange for any 20 consecutive
trading days equals or exceeds $8.00 per share as reported by any reputable
and recognized reporting service. Unless this Warrant is exercised, it shall
terminate on the Redemption Date, and upon presentation hereof at the offices
of the Company, the holder hereof shall receive the redemption price payable
by check issued by the Company.
6. DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms of this Warrant, but will at all times in good faith assist in
the carrying out of all such terms and in the taking of all such action as
may be necessary or appropriate in order to protect the rights of the holder
of this Warrant against dilution or other impairment. Without limiting the
generality of the foregoing, the Company (a) will at all times reserve and
keep available a number of its authorized Shares of Common Stock, free from
all preemptive rights therein, which will be sufficient to permit the
exercise of this Warrant and (b) shall take all such action as may be
necessary or appropriate in order that all Shares as may be issued pursuant
to the exercise of this Warrant will, upon issuance, be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issue thereof.
7. PRE-EXERCISE RIGHTS. Prior to exercise of this Warrant, the holder
shall not be entitled to any rights of a shareholder with respect to the
Shares, including (without limitation) the right to vote such Shares, receive
dividends or other distributions thereon, exercise preemptive rights or be
notified of shareholder meetings, and such holder shall not be entitled to
any notice or other communication concerning the business or affairs of the
Company, except as set forth herein.
8. RESTRICTED SECURITIES. The holder understands that this Warrant
and the Shares purchasable hereunder constitute "restricted securities" under
the federal securities laws inasmuch as they have been, or will be, acquired
from the Company in transactions not involving a public offering and
accordingly may not, under such laws and applicable regulations, be resold or
transferred without registration under the Securities Act of 1933, as
amended, or an applicable exemption from registration. The holder further
acknowledges that the Shares and any other
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securities issued upon exercise of this Warrant shall bear a legend
substantially in the form of the legend appearing on the face hereof.
9. CERTIFICATION OF INVESTMENT PURPOSE. Unless a current registration
statement under the Securities Act of 1933, as amended (the "Act"), shall be
in effect with respect to the offer and sale of the securities to be issued
upon exercise of this Warrant, the holder of this Warrant covenants and
agrees that, at the time of exercise hereof, such holder will deliver to the
Company a written certification that the securities acquired by the holder
upon exercise hereof are for the account of the holder, are being acquired
for investment purposes only and are not being acquired with a view to, or
for sale in connection with, any public distribution thereof.
10. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS.
(a) The Holder agrees that prior to making any disposition of
the Warrants or the Shares, the Holder shall give written notice to the
Company describing briefly the manner in which any such proposed disposition
is to be made; and no such disposition shall be made if the Company has
notified the Holder that in the opinion of its counsel, a registration
statement or other notification or post-effective amendment thereto
(hereinafter collectively a "Registration Statement") under the Act is
required with respect to such disposition and no such Registration Statement
has been filed by the Company with, and declared effective, if necessary, by,
the Securities and Exchange Commission (the "Commission").
(b) (i) At any time commencing six months after the closing of
the Company's initial public offering of its securities and prior to May 31,
2000, the Company will, as promptly as practicable (but in any event within
60 days), after written request by a person or persons holding (or having the
right to acquire by virtue of holding the Warrants) at least 50% of the
Shares which have been (or may be) issued upon exercise of the Warrants,
prepare and file at such Holders' expense a Registration Statement with the
Commission and appropriate Blue Sky authorities sufficient to permit the
public offering of the Shares (but not Warrants) and will use its best
efforts, at such Holders' expense, through its officer, directors, auditors
and counsel, in all matters necessary or advisable, to cause such
Registration Statement to become effective as promptly as practicable and to
keep such registration effective for a period of the lesser of 90 days or the
date of completion of the distribution described in the Registration
Statement; provided, however, that the Company shall only be obligated to
file one such Registration Statement under this Section 11(b)(i).
(ii) Whenever during the period ending on May 31, 2000, the
Company proposes to file with the Commission a Registration Statement (other
than as to securities issued pursuant to an employee benefit plan or as to a
transaction subject to Rule 145 promulgated under the Act or which a form S-4
Registration Statement could be used), it shall, promptly prior to each such
filing, give written notice of such proposed filing to the Holder and each
holder of Shares at their respective addresses as they appear on the records
of the Company, and shall offer to include and shall include in such filing
any proposed disposition of the Shares (but not the Warrants) upon receipt by
the Company, within 20 days after such written notice is given, of a request
therefor setting forth the facts with respect to such proposed disposition
and
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all other information with respect to such person reasonably necessary to be
included in such Registration Statement. If the registration for which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise as part of the written notice given
pursuant to this Section. In such event, the right of any Holder or holder of
Shares to registration pursuant to Section 11(b)(i) shall be conditioned upon
such holder's participation in such underwriting, and the inclusion of Shares
in the underwriting shall be limited to the extent provided herein. All
holders proposing to distribute their Shares through such underwriting shall
(together with the Company and the other holders distributing their Shares
through such underwriting) enter into an underwriting agreement in customary
form with the managing underwriter selected for such underwriting by the
Company. Notwithstanding any other provision of this Section, if the managing
underwriter determines that marketing factors require a limitation of the
number of shares to be underwritten, such underwriter may limit the amount of
securities to be included in the registration and underwriting by the holders
of Company securities exercising "piggyback" registration rights (including
the Holder and each holder of Warrants and Shares). The Company shall so
advise all such holders, and the number of shares of such securities that may
be included in the registration and underwriting shall be allocated among all
of such holders, in proportion, as nearly as practicable, to the respective
amounts of securities requested to be included in such registration held by
such holders at the time of filing the registration statement, no security
holder other than one exercising a demand registration right shall have
superior rights with respect to inclusion in a registration than those of the
Holder and each holder of Warrants and Shares and if any party is granted
such superior rights hereafter the Holder and each holder of Warrants and
Shares shall be deemed to be automatically granted similar rights. The
Company shall advise all such holders of any such limitations and of the
number of securities that may be included in the Registration Statement. Any
securities excluded or withdrawn from such underwriting shall not be
transferred prior to one hundred twenty (120) days after the effective date
of the registration statement relating thereto, or such shorter period of
time as the underwriters may require.
(iii) In the event that any such Registration Statement is utilized
for a public offering of any of the Shares to be received upon exercise of
the Warrants pursuant to this Section 10, the Holder may elect to pay the
Exercise Price of the Warrants to the Company out of the proceeds of the sale
of the Shares pursuant to the Registration Statement concurrently with the
closing of such sale of the Shares; provided that if such sale is not closed
within 90 days of the effective date of such Registration Statement, then the
Holder shall be obligated to pay the Exercise Price of the Warrants to the
Company on such 90th day.
(c) All fees, disbursements and out-of-pocket expenses (other than the
Holder's brokerage fees and commissions and legal fees of counsel to the
Holder, if any) in connection with the filing of any Registration statement
under Section 10(b) (or obtaining the opinion of counsel and any no-action
position of the Commission with respect to sales under Rule 144) and in
complying with applicable securities and Blue Sky laws shall be borne by the
Company. The Company at its expense will supply any Holder and any holder of
Shares with copies of such Registration Statement and the prospectus included
therein and other related documents any opinions and no-action letters in
such quantities as may be reasonably requested by the Holder or holder of
Shares.
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(d) The Company shall not be required by this Section 10 to file such
Registration Statement if, in the opinion of counsel for the Holders and
holders of Shares and the Company (or, should they not agree, in the opinion
of another counsel experienced in securities law matters acceptable to counsel
for such holders and the Company), the proposed transfer as to which such
Registration Statement is requested is exempt from applicable federal and
state securities laws under Rule 144 under the Act.
(e) The provisions of this Section 10 and Section 11 hereof shall apply
to the extent as provided herein if the Company chooses to file an Offering
Statement under Regulation A promulgated under the Act.
(f) The Company agrees that until all Shares have been sold under a
Registration Statement or pursuant to Rule 144 under the Act, it will use its
best efforts to keep current in filing all materials required to be filed
with the Commission in order to permit the holders of such securities to sell
the same under Rule 144.
(g) The Company shall be entitled, for a reasonable period of time which
in no event shall exceed 60 days (i) to postpone the filing of a Registration
Statement or any amendment or supplement thereto or to the prospectus
relating thereto otherwise required, or (ii) to suspend effectiveness of the
Registration Statement, if the Company (a) determines, in its reasonable
judgment, that the registration or sale of the Shares would materially
interfere with any pending or proposed financing, acquisition, corporate
reorganization or other material transaction involving the Company or any of
its subsidiaries, and (b) promptly gives those persons exercising their
registration right hereunder written notice of such determination.
(h) The Company may require those persons exercising their registration
right hereunder to furnish to the Company such information regarding the
distribution of such Shares as the Company may from time to time request in
writing and such other information as may be legally required in connection
with such registration.
(i) At any time when a prospectus relating to a sale of the Shares is
required to be delivered under the Act, there occurs an event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of the Shares, such prospectus will
not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, the Company will promptly make available
to any Holder any such supplement of amendment. Each Holder agrees that, upon
receipt of any notice from the Company of the happening of any event of the
kind described in the preceding sentence hereof, such Holder will forthwith
discontinue disposition of Shares pursuant to the Registration Statement
covering such Shares until the Holder's receipt of the copies of the
supplemented or amended prospectus, and, if so directed by the Company, the
Holder will deliver to the Company all copies, other than permanent file
copies then in the Holder's possession, of the prospectus covering such
Shares current at the time of receipt of such notice. If such amendments or
supplements are not made by the Company within ten (10) days of such notice
by the Company or if in the opinion of counsel to the Holders such amendments
or supplements to the prospectus, if made, are insufficient in
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light of the requirements of the Act and other applicable law, the Holders
shall not be deemed to have exercised their demand registration rights
pursuant to Section 10(b)(i) herein.
11. INDEMNIFICATION.
(a) In the event of the filing of any Registration Statement with
respect to the Shares pursuant to Section 10 hereof, the Company agrees to
indemnify and hold harmless the Holder or any holder of Shares and each
person, if any, who controls the Holder or any holder of Shares within the
meaning of the Act, against any losses, claims, damages or liabilities, joint
or several (which shall, for all purposes of this Agreement, include, but not
be limited to, all costs of defense and investigation and all attorneys'
fees), to which the Holder or any holder of Shares or controlling person may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any such Registration Statement or Prospectus included
therein, or amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement or
Prospectus or amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to the Company by such Holder,
the holder of such Shares or the underwriters of such offering specifically
for use in the preparation thereof. This indemnity will be in addition to any
liability which the Company may otherwise have.
(b) The Holders and the holders of Shares agree that they will
indemnify and hold harmless the Company, each other person referred to in
subparts (1), (2) and (3) of Section 10(a) of the Act in respect of the
Registration Statement and each person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages or
liabilities (which shall, for all purposes of this Agreement, include but not
be limited to, all costs of defense and investigation and all attorneys'
fees) to which the Company or any such director, officer or controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect hereof) arise out of or
are based upon any untrue statement of any material fact contained in such
Registration Statement or Prospectus included therein, or amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but in
each case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in such Registration
Statement or Prospectus included therein, or amendment or supplement thereto
in reliance upon, and in conformity with, written information furnished to
the Company by the Holder or holder of Shares specifically for use in the
preparation thereof. This indemnity agreement will be in addition to any
liability which the Holder or holder of Shares may otherwise have.
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(c) Promptly after receipt by any indemnified party under this
Section 11 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 11, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying
party will not relieve the indemnifying party from any liability which it may
have to any indemnified party otherwise than as to the particular item as to
which indemnification is then being sought solely pursuant to this Section
11. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified,
reasonably assume the defense thereof, subject to the provisions herein
stated, and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this Section 11 for
any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof, other than reasonable costs of
investigation, unless the indemnifying party shall not pursue the action to
its final conclusion. The indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall not be at the
expense of the indemnifying party if the indemnifying party has assumed the
defense of the action with counsel reasonably satisfactory to the indemnified
party; provided that if the indemnified party is a Holder or a holder of
Shares or a person who controls a Holder or a holder of Shares within the
meaning of the Act, the fees and expenses of such counsel shall be at the
expense of the indemnifying party if (i) the employment of such counsel has
been specifically authorized in writing by the indemnifying party or (ii) the
named parties to any such action, including any impleaded parties, include
both a Holder or a holder of Shares or such controlling person and the
indemnifying party and a Holder or a holder of Shares or such controlling
person shall have been advised by such counsel that there may be one or more
legal defenses available to a Holder or a holder of Shares or controlling
person which are not available to or in conflict with any legal defenses
which may be available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such
action on behalf of a Holder or a holder of Shares or such controlling
person, it being understood, however, that the indemnifying party shall not
have the right to assume the defense of such action on behalf of a Holder or
a holder of Shares or controlling person, it being understood, however, that
the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys for the Holders, the holders of the Shares and controlling persons,
which firm shall be designated in writing by a majority in interest of such
holders and controlling persons based upon the value of the securities
included in the Registration Statement). No settlement of any action against
an indemnified party shall be made without the consent of the indemnified and
the indemnifying parties, which shall not be unreasonably withheld in light
of all factors of importance to such parties.
12. CONTRIBUTION. In order to provide for just and equitable
contribution under the Act in any case in which (a) a Holder or any holder of
the Shares or controlling person makes a claim for indemnification pursuant
to Section 11 hereof, but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced
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in such case notwithstanding the fact that the express provisions of Section
11 hereof provide for indemnification in such case, or (b) contribution under
the Act may be required on the part of any Holder or any holder of the Shares
or controlling person, then the Company and any Holder or any such holder of
the Shares or controlling person shall contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (which shall, for
all purposes of this Warrant, include, but not be limited to, all costs of
defense and investigation and all attorneys' fees), in either such case
(after contribution from others) on the basis of (c) the relative benefits
received by the Company on the one hand and the Holder or holder of the
Shares, as the case may be, on the other, or (d) if the allocation provided
by clause (c) is not permitted by applicable law, on the basis of relative
fault as well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged ommision to state a material fact relates to information supplied by
the Company on the one hand or a Holder or holder of Shares or controlling
person on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and such holders of such securities and such controlling persons
agree that it would not be just and equitable if contribution pursuant to
this Section 12 were determined by pro rata allocation or by any other method
which does not take account of the equitable considerations referred to in
this Section 12. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this Section 12 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of Section
10(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
13. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost,
stolen, mutilated or destroyed, the Company shall, upon receipt of a
reasonable agreement to indemnify the Company, and, in the case of a
mutilated warrant, upon the surrender thereof, issue in the name requested a
new warrant of like denomination and tenor as the Warrant so lost, stolen,
mutilated or destroyed.
14. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant shall
inure to the benefit of, and by binding upon, the Company and the holders
hereof and their respective successors and permitted assigns.
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15. GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the substantive laws of the State of California without
regard to principles of conflicts of laws.
IMAGEWARE SOFTWARE, INC.
BY:
-------------------------------
S. James Miller, Jr., President
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SUBSCRIPTION
ImageWare Software, Inc.
Attention: Corporate Secretary
The undersigned hereby elects to purchase pursuant to the provisions of
this Common Stock Purchase Warrant issued by ImageWare Software, Inc. and
held by the undersigned, ___________ shares of Common Stock of ImageWare
SoftWare, Inc.
Payment of the purchase price per Share required under such Warrant
accompanies this Subscription.
The undersigned hereby represents and warrants that the undersigned is
acquiring such shares for its own account, for investment purposes only and
not for resale or with a view to distribution of such Shares or any part
thereof.
Date:
--------------------
Signature:
-----------------------------------
Address:
-----------------------------------
-----------------------------------
Name in which Shares should be registered:
--------------------
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[LETTERHEAD]
January 20, 1997
Mr. Doug Stuart
ImageWare Software, Inc.
15373 Innovation Drive
Suite 120
San Diego, CA 92128
RE: NICB/IMAGEWARE RELATIONSHIP AGREEMENT
Dear Mr. Stuart:
I have requested that our Law Department review your letter sent to me and
dated January 9, 1997. Consistent with their clarifications, I can agree to
the following listed points, in addition to the confidentiality agreement
executed by both parties.
1. In good faith consultation with the National Insurance Crime Bureau
(NICB), ImageWare Software (IWS) will design and develop software
programs which support the reduction of vehicle theft and insurance
related fraud. IWS understands that the NICB may only provide
information for inclusion in such software programs for use exclusively
by local, state and federal law enforcement entities. The NICB may allow
its data for inclusion with other entities subject to approval on a
case-by-case basis.
2. IWS will give credit to the NICB by name as participating in the
development of such programs. This credit will appear in each program
and on all promotional materials.
3. The NICB will work and cooperate with IWS on the development of these
programs. Each party wil maintain the confidentiality of information
regarding the design and development of these programs.
4. The NICB will provide IWS with relevant data, in appropriate form, for
inclusion in these program upon the execution of an appropriate
licensing agreement. The parties will determine such relevant data at a
later date.
5. The NICB will assist IWS in the proliferation of the programs by
providing liaison with the appropriate federal and state law enforcement
agencies, and the insurance and automobile industries.
<PAGE>
Mr. Doug Stuart
January 20, 1997
Page 2
6. IWS will retain all proprietary rights, title and interest, including
trademarks, servicemarks and copyrights in the programs created. The
NICB will retain any trademarks, service marks and copyrights associated
with data and programs it provides to IWS for inclusion in these
programs.
I am enclosing a copy of the executed Confidentiality Agreement which you
provided to me. I am also enclosing a Confidentiality Agreement which the
NICB requires IWS to execute. Please forward me a copy of the fully executed
Confidentiality Agreement at your earliest convenience.
Sincerely,
/s/ Rolland R. Smith
Rolland R. Smith
Vice President, Chief Information Officer
Enclosures
Accepted and agreed:
/s/ Doug Stuart
- ---------------------------------
Doug Stuart
<PAGE>
EXHIBIT 10.46
LICENSE AGREEMENT
THIS AGREEMENT is made this 7th day of March 1997, by and between
IMAGEWARE SOFTWARE INC., a corporation organized under the laws of the State
of California, United States of America ("U.S.A.") and having offices at
15373 Innovation Drive, Suite No. 120, San Diego, California, U.S.A.
(hereinafter called "ISI"), and ATLUS CO., LTD., a corporation organized
under the laws of Japan, and having offices at 4-8 Kagurazaka, Shinjuku-ku,
Tokyo, JAPAN ("Atlus").
W I T N E S S E T H
WHEREAS, Atlus is in the business, among other things, of photoimaging,
computer games, software and other related products and services and has
expertise in developing and marketing such products and services in Japan and
other countries, and would like to use certain of the patents and technology
of ISI in connection with certain of its products and services, including
without limitation its "Print Club" products and services (as such products
and services may hereafter be modified, amended, replaced or substituted from
time to time).
WHEREAS, ISI is in the business, among other things, of imaging,
software and other related products and services and has expertise in
developing and marketing such products and services in the United States and
other countries.
WHEREAS, pursuant to the Securities Purchase Agreement between Atlus
and ISI, dated of even date herewith (the "Securities Purchase Agreement"),
Atlus will purchase, subject to the terms and conditions therein, a certain
amount of ISI's common stock.
NOW, THEREFORE, in consideration of the above premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
1.1 "Copyrighted Materials" shall mean all material authored, published
or distributed by ISI in which ISI holds or asserts an existing copyright and
which are related to the development or use of the Licensed Patents as they
relate to the field of use for Atlus' developed or acquired products.
1.2 "Direct Expenses" shall mean and include all out-of-pocket
expenses incurred by a party hereto in furnishing to the other party the
information and services provided for in this Agreement. Such Direct Expenses
shall include, but are not limited to, living and travel expenses of
personnel of one party traveling for the benefit of the other party.
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1.3 "Intellectual Property" shall mean and include the Licensed
Patents, Copyrighted Materials, Know-How and other proprietary rights of ISI
related to or connected with the developments, use or exploitation of the
Licensed Patents (including without limitation all applications,
registrations and utility models related thereto) as they relate to the field
of use or Atlus' developed or acquired products.
1.4 "Know-How" shall mean and include all processes, inventions,
designs, data, discoveries, trade secrets or other secret or proprietary
information which are presently or in the future become the property or
proprietary rights of ISI and which relate to or are connected with the
development, use or exploitation of the Licensed Patents as they relate to
the field of use or Atlus' developed or acquired products.
1.5 "Licensed Patents" shall mean and include (i) those patents listed
on Exhibit I, attached hereto, which may from time to time be amended by
mutual agreement of the parties; (ii) all patents (including patent
applications), worldwide, pertaining to the subject matter of the patents
described above in clause (i); and (iii) all patents covered under Article 5
hereof; together with all divisions, reissues, continuations, substitutes,
renewals and extensions thereof.
1.6 "Licensed Territory" shall mean each and every country or territory
worldwide in which ISI has rights in the Intellectual Property.
ARTICLE 2. GRANT OF RIGHTS
2.1 In consideration of the payments to be made hereunder, ISI hereby
grants to Atlus, subject to the terms of this Agreement, the non-royalty
bearing, full-term right and license, to develop, modify, use and exploit the
Licensed Patents and other Intellectual Property (other than the Copyrighted
Materials) in and throughout the Licensed Territory. The grant of license
hereunder shall be exclusive, worldwide, with respect to the use of the
Licensed Patents or other Intellectual Property in connection with any Print
Club products and services and similar or competing products or services and
shall be non-exclusive with respect to the use of the Licensed Patents or
other Intellectual Property in connection with other products.
2.2 In consideration of the payments to be made hereunder, ISI hereby
grants to Atlus, subject to the terms of this Agreement, the non-royalty
bearing, non-exclusive, full-term right and license, to use, reproduce, copy,
publish, translate and modify the Copyrighted Materials in connection with
the use, promotion, marketing and sale of the products using the Intellectual
Property in the Licensed Territory as it relates to the field of use for
Atlus' developed or acquired products.
2.3 With respect to any new patents, technologies, developments or
inventions of ISI (whether patentable or not) which are not covered by
Article 5 hereof (collectively, the "New Technology"), ISI shall first offer
to Atlus the rights to license and use any such New
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Technology. Upon the development of any New Technology, ISI shall give notice
of such New Technology to Atlus and shall furnish to Atlus all accompanying
materials and information, including but not limited to software, charts,
drawings, applications of such technology, supporting documentation,
formulas, specifications and marketing information in connection with such
New Technology and Atlus shall have thirty (30) days in which to analyze and
study the merits and usefulness of such New Technology. If Atlus determines,
within such thirty (30) day period, that it would like to use and license
such New Technology, the parties shall enter into good faith negotiations to
reach an agreement with respect to the license and exploitation of such New
Technology. If an agreement is not reached within ninety (90) days after
entering into such negotiations, ISI shall have the right to enter into
negotiations to license such New Technology to other parties, provided that
such license is not on terms and conditions more favorable than that offered
to Atlus. Prior thereto, ISI shall not discuss or negotiate with any other
party in connection with the New Technology. If at any time ISI enters into
an agreement with any other party with respect to the license or use of any
New Technology, then ISI shall also offer to Atlus the right, without
obligation on the part of Atlus, to (i) enter into an agreement with respect
to such New Technology on similar terms or conditions or (ii) modify any
existing agreement to reflect any more favorable terms and conditions given
to such other party.
2.4 Atlus shall have the right, at any time, to assign or sublicense
all or any portion of its rights and interests hereunder to any affiliate or
subsidiary of Atlus.
ARTICLE 3. LICENSING
In consideration of the above grants and covenants contained herein.
Atlus shall pay to ISI, a one-time licensing fee in the gross amount of One
Million Nine Hundred Sixty One Thousand Thirty Nine Dollars ($1,961,039) to
be paid concurrently with the payment of the Phase I Purchase Amount pursuant
to, and as such term is defined in, the Securities Purchase Agreement.
ARTICLE 4. TECHNICAL INFORMATION AND ASSISTANCE
4.1 ISI shall from time to time, upon the request of Atlus, furnish to
Atlus information and specifications as to formulas, design, engineering,
manufacturing, marketing and other operations, processes, or experience
incidental to the development, use or exploitation of the Intellectual
Property licensed herein as it relates to the field of use for Atlus'
developed or acquired products. Such information shall be that in current use
by ISI and shall include any software, drawings, design sheets, bills of
material, photographs, photostats, Know-How or other information, including
designs and specifications relating to manufacturing equipment, tools and
fixtures, for such development, use and exploitation of the Intellectual
Property.
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4.2 ISI shall, at reasonable times during business hours, receive
persons designated by Atlus at its facilities in the United States for the
purpose of educating and training such persons with respect to the
Intellectual Property.
4.3 All services of ISI's personnel to Atlus, including services
related to the transfer of information, contacts, pursuant to Sections 4.1
and 4.2 above, shall be scheduled so as not unreasonably to interfere with
the normal course of ISI's business.
ARTICLE 5. FUTURE DEVELOPMENTS
5.1 ISI agrees that, to the extent permitted by law, it will promptly
notify the other of, and furnish to Atlus full information in writing
covering, any improvements, developments, inventions, changes or innovations
to the Intellectual Property or any portion thereof, together with any
information concerning improvements in the manufacture, technology,
functionality, marketing or servicing of products incorporating the
Intellectual Property which would be useful to Atlus. ISI agrees that any
such improvements, developments, inventions, changes or innovations to the
Intellectual Property shall be deemed Intellectual Property covered by this
Agreement in which Atlus shall have the right to use and exploit. ISI agrees
that, if such improvements, developments, inventions, changes or innovations
shall involve or include patentable subject matter, then if ISI files for or
secures any patent or secures rights under any patent by license or
assignment with respect to said subject matter in any country, ISI shall at
the request of Atlus and to the extent permitted by law and not prohibited by
any agreement with ISI, grant to Atlus a full-term license in the Licensed
Territory, to develop, use, exploit or sublicense to its affiliates and
subsidiaries, and sell under any such patent, and patent applications upon
the payment of only its share of the royalties, if any, as ISI may be
obligated, by reason of said license to Atlus, to pay to a third party
licensor or licensors.
5.2 ISI agrees to use best efforts to make available to Atlus the
services of trained personnel for reasonable periods and at times convenient
to the party supplying the personnel for the purpose of consulting with the
other party regarding, or training the other party's personnel in the use of,
such improvements, developments, inventions, changes or innovations.
5.3 For the continuing exchange of information provided in this
Article, Atlus shall reimburse ISI for its Direct Expenses incurred by reason
thereof.
ARTICLE 6. CONFIDENTIAL TREATMENT OF INFORMATION
6.1 Each party hereby agrees to use its best efforts to keep strictly
secret and confidential during the term of this Agreement and at any time
thereafter all confidential information acquired from the other party
pursuant to this Agreement except as disclosure or use of such information is
(i) expressly permitted by this Agreement, (ii) reasonably necessary to
achieve the purposes of this Agreement (i.e., Atlus may disclose such
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information to its employees or contractors in connection with the
development, use, analysis or exploitation of such information), and (iii)
required by applicable law. To that end, the party furnishing any such
confidential information, shall, in good faith, mark "confidential" all
information which is disclosed to the other party and which is subject to
this Article 6.
6.2 The obligations imposed by this Article shall not apply with
respect to any information furnished by a party if such information is, or
becomes, published or otherwise generally available to the public other than
through the fault of such other party, is at the time of disclosure is in the
possession of such other party to which disclosed or is independently
developed by such other party.
ARTICLE 7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISI AND
INDEMNIFICATION BY ISI
7.1 ISI is a corporation duly organized, validly existing and in good
standing under the laws of the State of California and has all requisite
corporate power and authority to carry on its business as now conducted and
as proposed to be conducted. All corporate action on the part of the Company,
its officers, directors and shareholders necessary for the authorization,
execution and delivery of this Agreement, the performance of all obligations
of the Company hereunder have been taken, and this Agreement constitutes a
valid and legally binding obligation of the Company, enforceable in
accordance with its terms.
7.2 ISI is not in violation or default of any provisions of its
Articles of Incorporation or Bylaws as amended and in effect on and as of the
date of this Agreement or of any material provision of any instrument or
contract to which it is a party or by which it is bound or, to its knowledge,
of any material provision of any federal or state judgement, writ, decree,
order, statute, rule or governmental regulation applicable to the Company.
The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not result in any
such violation or be in conflict with or constitute, with or without the
passage of time and giving of notice, either a default under any such
provision, instrument or contract or an event which results in the creation
of any lien, charge or encumbrance upon any assets of the Company.
7.3 ISI represents and warrants that it has the unrestricted right to
use, assign, license or sublicense the Licensed Patents and other
Intellectual Property and has the right and ability to enter into this
Agreement and to grant the rights and licenses herein. ISI further represents
and warrants that, to the best of its knowledge, there are no legal actions
or claims for infringement against or challenging the validity of the
Licensed Patents or other Intellectual Property or otherwise challenging
ISI's proprietary rights in the Intellectual Property anywhere in the world.
There are no outstanding orders, writs, injunctions, decrees or judgments
against the Company or the Intellectual Property.
7.4 The rights of ISI in the Licensed Patents are in full force and
effect. Except as disclosed in Article 8, below, there are no liens,
encumbrances, security interests,
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licenses, assignments, or transfer of any interest in the Licensed Patents or
other Intellectual Property.
7.5 No information, representation or warranty by ISI in this Agreement
or any documents provided hereunder by Seller contains any untrue statement
or omissions as to any material fact necessary to make the statement herein
or therein not misleading.
7.6 ISI shall, at Atlus' request, execute and deliver such other
documents, papers and information as may reasonably be necessary to carry out
the purposes and intent of this Agreement. ISI agrees to use its best efforts
to maintain and preserve the Licensed Patents and other Intellectual Property.
7.7 ISI unconditionally and irrevocably indemnifies, protects and
agrees to defend and hold harmless Atlus from and against all loss, damage,
actions, claims of third parties, cost or expense (including reasonable
attorneys' fees and expenses) arising from (i) the breach or violation or any
representation or warranty of ISI contained herein or (ii) the failure of ISI
to perform or satisfy any covenant or obligation contained herein.
7.8 ISI agrees that it shall neither use for itself nor license to any
third party any of the Intellectual Property in connection with the design,
use or manufacture of products or services which compete with the Print Club
products and services.
ARTICLE 8. BARBER PATENT
8.1 The parties hereto acknowledge that ISI has assigned U.S. Patent
No. 5,343,386 ("Barber Patent") and related worldwide rights to a third party
pursuant to the Asset Acquisition Agreement dated as of June 19, 1996 between
ISI and David B. Douds. ISI agrees to use its best efforts to obtain the
rights to grant, and to grant, to Atlus the exclusive rights for Atlus to use
the Barber Patent in connection with the Print Club products and services
within ninety (90) days of the date hereof. In the event that ISI cannot
secure said rights within said period, ISI will negotiate in good faith to
find a mutually agreeable settlement to such matter involving a partial
return of fees paid hereunder.
8.2 Immediately upon ISI's obtaining the right (regardless of whether
such right is secured prior to or after the expiration of such ninety (90)
day period described above) to grant to Atlus the license and use of the
Barber Patent, as set forth in Section 2.1, this Agreement will be deemed to
include the Barber Patent as one of the Licensed Patents and Atlus shall have
the rights in the Barber Patent in accordance with Section 2.1 and all other
terms and conditions of this Agreement; provided, that in the event ISI
obtains the right to grant to Atlus only part of the rights set forth in
Section 2.1 (I.E., only non-exclusive rights in the Print Club products and
services or non-worldwide rights) then ISI shall be deemed to have granted to
Atlus such fullest rights available to ISI.
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8.3 ISI hereby covenants and agrees to take all action, including
exercising its rights of reversion, if any, in the Barber Patent and shall
not take any action which would jeopardize or restrict the granting of the
Barber Patent rights to Atlus hereunder.
ARTICLE 9. INFRINGEMENT ACTIONS
9.1 If any infringement action, proceeding or claim of any kind or
nature is instituted against Atlus because of its development, use and
exploitation of the Intellectual Property, Atlus shall promptly notify ISI in
writing of such action, proceeding or claim and ISI shall defend and save
harmless Atlus against any such action, proceeding or claim; PROVIDED,
HOWEVER, if any infringement action, proceeding or claim of any kind or
nature is instituted against Atlus anywhere in the Licensed Territory because
of its development, use and exploitation of the Intellectual Property in
connection with the Print Club products and services, ISI and Atlus shall
cooperate in defending against any such action, proceeding or claim and shall
share in the costs thereof on a 50-50 basis; and PROVIDED, FURTHER, HOWEVER,
that in any infringement action, proceeding or claim of any kind or nature
instituted against Atlus because of its development, use or exploitation of
the Intellectual Property in connection with other products (I.E. non-Print
Club products and services) in Japan. ISI and Atlus each agrees to allocate
such costs in respect thereof on a 70-30 (ISI to Atlus) basis. ISI shall use
its best efforts to ensure that Atlus has the continuous right and use of the
Intellectual Property granted hereunder. If it is determined that any of the
Intellectual Property does infringe upon the rights of another party, ISI and
Atlus shall cooperate to try to obtain the rights to use such Intellectual
Property or shall use its best efforts to modify such Intellectual Property
so as to no longer infringe upon such third party's rights.
9.2 If during the term of this Agreement any unauthorized use of the
Intellectual Property is made, Atlus shall immediately upon learning thereof
promptly notify ISI in writing, setting forth the facts in reasonable detail.
The parties shall cooperate in good faith to determine what action, if any,
to take against such unauthorized use. The allocation of costs of any action
or proceeding commenced to protect against such unauthorized use and the
allocation of any award received therefrom shall be in accordance with the
first sentence of Section 9.1 above for the respective products in such
respective territory; provided, however, that with respect to the
infringement of the Intellectual Property in connection with Print Club
products or services (or similar or competing products or services), if
requested by Atlus, ISI shall commence action and take steps to protect the
Intellectual Property against such unauthorized use and Atlus shall reimburse
ISI for its reasonable out-of-pocket costs, and any award received in excess
of the costs incurred by and reimbursed to Atlus shall be shared on a 50-50
basis between Atlus and ISI.
9.3 ISI and Atlus agree to cooperate in good faith, and each agrees to
use its best efforts to assist the other, in the defense or prosecution of
any action, proceeding or claim described in Sections 9.1 and 9.2.
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ARTICLE 10. TERM AND TERMINATION
10.1 This Agreement shall remain in effect until and shall terminate
upon the expiration of the last to expire of the rights granted under
Article 2 hereof (including any rights granted pursuant to Article 5 hereof).
10.2 In the event of a material default by either party in the
performance of its duties, obligations or undertakings under this Agreement,
the other party shall have the right to give written notice to the defaulting
party advising such party of the specific default involved and, if within
thirty (30) days after such notice the defaulting party shall not have
remedied or commenced diligently to remedy the default, the other party shall
have the right, in addition to any other rights and remedies it may have, to
terminate this Agreement upon ten (10) days written notice to the defaulting
party.
ARTICLE 11. BANKRUPTCY
In the event that ISI shall commence a case, or an involuntary case be
commenced against ISI, under any applicable bankruptcy, reorganization,
insolvency or other similar law now or hereafter in effect, or a receiver,
liquidator, assignee, custodian, trustee, sequester (or other similar
official) is appointed for ISI or for all or any substantial part of its
assets, then the license and rights granted hereunder to Atlus shall continue
in full force and effect, and Atlus shall have the right, but not the
obligation, to maintain and preserve the Licensed Patents and other
Intellectual Property.
ARTICLE 12. PAYMENTS AND TAXES
12.1 The license and technical assistance fee shall be paid by Atlus to
ISI by wire transfer to the account designated by ISI in writing.
12.2 Any taxes, duties or imposts assessed or imposed upon any payments
due hereunder to ISI with respect to this Agreement, shall be the
responsibility of ISI.
12.3 Atlus and ISI each hereby agree to use its best efforts to obtain
any necessary approval of this Agreement by any governmental authorities
necessary to effect the purposes of this Agreement.
ARTICLE 13. ARBITRATION
All disputes arising in connection with this Agreement shall be finally
settled by arbitration. The arbitration shall be held in California, and
conducted in accordance with the Rules of the American Arbitration
Association. Judgment upon the award rendered may be entered in any court
having jurisdiction, or application may be made to such court for a judicial
acceptance of the award and an order or enforcement. Each party shall bear
its own expenses of the arbitration, but the arbitrator's fees and costs
shall be borne equally between
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the parties participating in the arbitration. The member or members of the
panel of arbitrators each shall be familiar with the imaging and software
industry.
ARTICLE 14. FORCE MAJEURE
Any failure or delay in the performance by either party hereto of its
obligations hereunder shall not be a breach of this Agreement if such failure
or delay arises out of or results from causes beyond such party's control.
These causes shall include but not be restricted to fire, storm,
flood, earthquake, explosion, accident, acts of a public enemy, war (declared
or undeclared), rebellion, insurrections, sabotage, epidemic, quarantine
restrictions, labor disputes, shortages of labor, materials or supplies,
failures by contractors or subcontractors, transportation embargoes, or
failures or delays in transportation, acts of God, acts, rules, regulations,
orders or directives of any government or any state, subdivision, agency or
instrumentality thereof or the order of any court of competent jurisdiction.
Without prejudice to any other remedies that may then be available to either
of them, in the event failure or delay arising out of or resulting from such
causes, the parties will cooperate in an effort to agree upon the
establishment of such alternative arrangements not subject to such failure or
delay as will confer upon them benefits comparable in character and
substantially equivalent in amount to those intended to be conferred by this
Agreement, on terms and conditions not materially more burdensome to either
party than those herein provided.
ARTICLE 15. INVALID PROVISION
The invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions hereof, and this Agreement
shall be construed in all respects as if such invalid or unenforceable
provisions were omitted.
ARTICLE 16. GOVERNING LAW
The existence, validity, construction, operation and effect of this
Agreement shall be determined in accordance with and governed by the laws of
the State of California.
ARTICLE 17. ENTIRE AGREEMENT AMENDMENTS
This Agreement constitutes the entire agreement of the parties and the
provisions hereof shall supersede any and all prior agreements or
understandings relating to the same subject matter; but this Agreement shall
not supersede and shall be deemed contemporaneous with the Stock Purchase
Agreement and the Technical and Marketing Assistance Letter of Understanding
between the parties hereto. This Agreement may be amended only by a writing
signed by a duly authorized representative of both parties.
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ARTICLE 18. NOTICES
Any notice required or permitted under this Agreement shall be given in
writing and shall be deemed effectively given upon personal delivery to the
party to be notified or three business days after deposit with the United
States Post Office by registered or certified mail, return receipt requested,
postage prepaid or other internationally reputable overnight air courier
service and addressed to the party to be notified at the address indicated
for such party indicated below, or at such other address as such party may
designate by ten (10) days' advance written notice to the other parties.
If to the Company: ImageWare Software, Inc.
Attention: Mr. James Miller
15373 Innovation Drive, Suite 120
San Diego, CA 92128
If to Investor: Atlus Co., Ltd.
Attention: Mr. Minegishi
4-8 Kagurazaka, Shinjuku-ku
Tokyo, Japan
or at such other address as either party most recently may have designated in
writing to the other party for such purpose; or (b) on the day sent, when
sent by facsimile and confirmed by prepaid first-class registered airmail,
addressed to ISI or Atlus, as the case may be.
ARTICLE 19. CONTROLLING TEXT
It is understood and agreed that the English text of this Agreement is
controlling.
ARTICLE 20. COUNTERPARTS
This Agreement may be executed in counterparts and any number of
counterparts signed in the aggregate by the parties hereto shall constitute a
single original instrument.
ARTICLE 21. NO AGENCY CREATED
Neither party shall be deemed to be an agent of the other party as a
result of, or in any transaction under or relating to this Agreement and
neither party shall make any warranty or representation or incur any
obligation on behalf of or in the name of the other party and no partnership,
joint venture or agency relationship is created by this Agreement or the
transactions contemplated hereunder.
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ARTICLE 22. ASSIGNMENT
ISI shall not assign or delegate any of its rights or obligations
hereunder without the prior written consent of Atlus.
ARTICLE 23. HEADINGS
The headings herein are for reference only and shall not affect the
construction of this Agreement.
ARTICLE 24. EFFECTIVE DATE OF AGREEMENT
This Agreement shall become effective on the date hereof.
[signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized officers as of the day and year first above
written.
IMAGEWARE SOFTWARE INC.
By /s/ S. James Miller
----------------------------------
Name: S. James Miller
Title: Chairman & CEO
ATLUS CO., LTD.
By /s/ Naoya Harano
----------------------------------
Name: Naoya Harano
Title: President
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EXHIBIT I
LICENSED PATENTS
<TABLE>
<CAPTION>
Patent
- ------
<S> <C>
1. Patent Name Image Editing System
U.S. Patent No.: 5,577,179
Date of Patent: Nov. 19, 1996
Assignee: ImageWare Software, Inc.
San Diego, CA
2. Patent Name Image Editing System Including Masking Capability
U.S. Patent No.: 5,469,536
Date of Patent: Nov. 21, 1995
Assignee: ImageWare Software, Inc.
San Diego, CA
3. Patent Name Image Editing System for Taking a Background and
Inserting Part of an Image Therein
U.S. Patent No.: 5,345,313
Date of Patent: Sep. 6, 1994
Assignee: ImageWare Software, Inc.
San Diego, CA
4. Patent Name Apparatus for Making Electronically-Produced
Postcards and Method of Operating Same
U.S. Patent No.: 5,343,386
Date of Patent: Aug. 30, 1994
Assignee: ImageWare Software, Inc.
San Diego, CA
</TABLE>
Exhibit I
<PAGE>
Agreement Clarifying and Amending Certain Terms of the License Agreement
("Amendment")
Without prejudice to any other terms of the "License Agreement" between
Atlus Co. Ltd. ("Atlus") and ImageWare Software, Inc. ("ISI") dated March 7,
1997, the parties wish to clarify certain terms, and amend certain terms of
the License Agreement. Atlus and ISI each acknowledge that consideration has
been given to each of them for the agreements herein, the receipt and
sufficiency of which are hereby acknowledged. Unless otherwise specified in
this Amendment, all capitalized terms contained herein shall have the meaning
ascribed to those terms within the License Agreement.
1) Without limiting other meanings, for the purposes of the License
Agreement, "Print Club" shall include among other possible products or
services, any product or service now or hereafter offered by Atlus or its
assignees or licensees in conjunction with any apparatus, operated on a
pay-per-use basis, by means of currency, tokens, credit card or other
transactional means, including without limitation a photo booth or photo
kiosk, permitting customers to create or reproduce images, whether as
stickers, post cards, or any other form of reproducing copies, which images
are generally intended for entertainment or amusement, or for business card,
address labels and similar applications. Print Club shall not include
products designed expressly for law enforcement purposes. Without limiting
Atlus' existing rights under the License Agreement, ISI will in good faith
negotiate with Atlus with respect to the exploitation of the Intellectual
Property for post office kiosks, passport kiosks and driver's license kiosks,
and shall not enter into an arrangement with any other party until such
negotiations have been completed.
2) ISI acknowledges and agrees that included within the rights granted Atlus
pursuant to Article 2.1 of the License Agreement are all rights heretofore
granted by ISI to David Douds, Imageware Specialty Products, or any other
entity owned or controlled by David Douds.
3) Article 9.2 of the License Agreement is deleted and replaced with the
following:
If during the term of this Agreement either party learns of any
unauthorized use of any Intellectual Property, then that party shall
promptly notify the other party in writing, setting forth the facts in
reasonable detail. The parties shall consult in good faith as to what
action, if any, to take against such unauthorized use. Following such
consultation, Atlus shall have the exclusive right in its sole and
absolute discretion to commence and pursue such litigation to protect
against such unauthorized use, at its cost and in its own name. ISI
shall cooperate fully with Atlus in such litigation by producing any and
all records, executing all documents, and providing all testimony and
other assistance as Atlus may require to exercise its rights under this
Section 9, or to pursue or facilitate such litigation and Atlus shall
reimburse ISI for its reasonable out-of-pocket expenses in such regard.
Any damages or other payments realized in connection with any such
litigation shall be first applied to repay Atlus and ISI proportionally
for the expenses each incurred, including legal fees, in connection with
such litigation. Any damages, payments and license fees remaining
following such application
<PAGE>
payable in consideration of future use of any Intellectual Property,
shall be shared on an seventy percent (70%) (Atlus), thirty percent
(30%) (ISI) basis. Atlus may settle, compromise or dismiss any action in
its sole discretion and pursuant to such terms as it deems appropriate.
Should Atlus choose not to commence or pursue litigation then ISI may
commence and pursue such litigation at its cost, and any recovery shall
be applied first to reimburse ISI for all of its expenses, including
legal fees, and the balance shared on a 70/30 basis between ISI and
Atlus.
4) Article 9.3 shall be renumbered Article 9.4, and a new Article 9.3 shall
be added as follows:
ISI understands that in connection with certain litigation, Atlus may
wish to pursue such litigation in the name of ISI. In such event, ISI
shall cooperate with Atlus in pursuing such actions on terms Atlus and
ISI may determine at the time.
5) Atlus hereby confirms its agreement to purchase and then convert the
Five Hundred Thousand Dollars ($500,000) eight percent (8%) convertible notes
held by three (3) holders on or before November 3, 1997, and to purchase Two
Million and Five Hundred Thousand Dollars ($2,500,000) of ISI stock in
accordance with Phase II of the March 7, 1997 Securities Purchase Agreement
on or before November 3, 1997, subject to the conditions therein (other than
the forecast condition). Atlus will reimburse ISI for the payment made by ISI
to David Douds on or before August 28, 1997.
6) The parties intend to continue their good faith discussions regarding
other needed clarifications and amendments of the License Agreement, although
the rights and obligations set forth in this Amendment are in no way
dependent upon the existence or outcome of those discussions. Each of the
parties has been represented by counsel in connection with this amendment,
which shall be effective as of the date hereof.
Executed this 28th day of July, 1997
Atlus Co. Ltd.
By: /s/ [ILLEGIBLE]
--------------------------
Imageware Software Inc.
By: /s/ S. James Miller, Jr.
--------------------------
<PAGE>
SOFTWARE DEVELOPMENT AND TECHNOLOGY LICENSE AGREEMENT
AGREEMENT, made and entered into as of the 20th day of October 1998 (the
"Effective Date"), by and between PANASONIC COMPUTER PERIPHERALS COMPANY,
UNIT OF MATSUSHITA ELECTRIC CORPORATION OF AMERICA, a Delaware corporation
which has its principal offices at One Panasonic Way, Secaucus, New Jersey
07094 ("PCPC"), and IMAGEWARE SOFTWARE, INC., a California corporation which
has its principal offices at 15373 Innovation Drive, Suite 120, San Diego,
California 92128 ("ImageWare").
WHEREAS, PCPC is engaged in the marketing and distribution of a series
of motion image printers; and
WHEREAS, PCPC desires to have developed a software program that will
take advantage of the capabilities of such motion image printers; and
WHEREAS, ImageWare represents that it has the expertise to develop such
a software program; and
WHEREAS, ImageWare represents that it owns certain object layering
technology useful in the development of such a software program; and
WHEREAS, ImageWare desires to develop such a software program for, and
license its object layering technology to, PCPC, upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein set forth, the parties hereby agree as follows:
1. DEFINITIONS
The following capitalized terms, when used in this Agreement, shall have the
meanings ascribed to them in this Section 1:
1.1 "Bundled Product" shall mean a Motion Printer combined with one copy of
the Product in object code form and shipped with the Motion Printer in the
same packaging.
1.2 "Intellectual Property" shall mean all intellectual property other
than the Technology owned by ImageWare prior to the Effective Date or
licensed to ImageWare by a third party, and used in the development of the
Product.
1.3 "Motion Printer" shall mean the Panasonic motion image printer described
in Exhibit A hereto.
<PAGE>
1.4 "Motion Printer DLL" shall mean a certain dynamic link library to be
lent to ImageWare by PCPC pursuant hereto.
1.5 "Product" shall mean the software program to be developed by ImageWare
pursuant to this Agreement in accordance with the Specifications,
together with user manuals, other documentation and any other ancillary
materials to be developed by ImageWare pursuant hereto.
1.6 "Specifications" shall mean the specifications for the Product set forth
in Exhibit B hereto, together with any additional specifications or
modifications to the specifications set forth in Exhibit B that may be
agreed to in writing by the parties during the term of this Agreement.
1.7 "Technology" shall mean the object layering technology described and
claimed in U.S. Patent No. 5,577,179.
1.8 Other capitalized terms shall have the meanings ascribed to them in the
body of this Agreement.
2. TERM AND TERMINATION
2.1 This Agreement shall have an Initial Term of three years, commencing
with the Effective Date. Each contract year shall commence with the
Effective date or the anniversary thereof. Provided that PCPC provides
written notice to ImageWare at least 60 days before the expiration of
the Initial Term of its desire to renew the Agreement, ImageWare shall
negotiate in good faith with PCPC the terms for renewal of the Agreement
for periods beyond the Initial Term. As long as such negotiations
continue, the Agreement shall remain in effect upon the terms applicable
to the third contract year, notwithstanding the expiration of the
Initial Term.
2.2 PCPC may, at its sole option and election, TERMINATE this Agreement
effective AS OF THE END OF ANY CONTRACT YEAR upon written notice to
ImageWare, provided that PCPC shall have tendered to ImageWare the
minimum Per-Copy Fee FOR THE SUBSEQUENT CONTRACT YEAR.
2.3 Either party may terminate this Agreement immediately upon written
notice and without further obligation in the event of a material breach
of this Agreement by the other party, which breach is not cured within
30 days after the nonbreaching party shall have given written notice of
such breach.
3. DEVELOPMENT.
3.1 ImageWare shall undertake and complete development of the Product in
accordance with the Specifications set forth in Exhibit B hereto, as
well as any other applicable Specifications.
3.2 PCPC shall lend to ImageWare all hardware reasonably required for
testing the Product, including at minimum a printer, scanner and video
capture card. ImageWare shall maintain
<PAGE>
such hardware in the same condition in which it was furnished, normal wear
and tear excepted, and shall return such hardware to PCPC upon Acceptance
of the Product by PCPC, unless otherwise agreed upon by the parties based
upon the need to have ImageWare perform additional support and testing of
the Product. ImageWare shall maintain all-risk insurance insuring such
hardware for its replacement value. PCPC shall retain all right, title and
interest in such hardware, and ImageWare shall not encumber such hardware
in any way nor make it available to any third party except for approved
subcontractors.
3.3 ImageWare shall use all commercially reasonable efforts to complete the
development of the Product within 60 days of the Effective Date. PCPC shall
provide such support and assistance as may be reasonably required by
ImageWare. Upon completion of the development of the Product, ImageWare
shall deliver the Product to PCPC. In the event that ImageWare fails to
develop and deliver the Product within such 60-day period, provided that
PCPC has fulfilled all of its obligations hereunder, (a) the Development
Fee, as defined below, shall be reduced by the amount of $5,000.00, up to a
maximum of $40,000; (b) the Annual Fee, as defined below, shall be reduced
by the amount of $1,250.00, up to a maximum of $10,000.00; and (c) the
Per-Copy Fee, as defined below, shall be reduced by the amount of $1.00, up
to a maximum of $7.50, for each week after the expiration of such 60-day
period during which the Product has not been delivered. In the event that
the Product has not been developed and delivered within 150 days of the
Effective Date, PCPC may, at its sole option and election, terminate this
Agreement without further obligation, in which case, ImageWare shall refund
all monies paid by PCPC.
3.4 Upon ImageWare's delivery of the Product to PCPC, PCPC shall have a period
of 30 days (the "Acceptance Period") to test the Product for conformity to
the Specifications. In the event that the Product operates in conformity
with the Specifications during the Acceptance Period, PCPC shall notify
ImageWare in writing that Acceptance has occurred. In the event that the
Product does not operate in conformity with the Specifications, PCPC shall
so notify ImageWare in writing setting forth with reasonable specificity
the nature of such nonconformity. In such event, ImageWare shall correct
the nonconformity within 30 days of receipt of such notice, and shall
deliver the corrected Product to PCPC, and the Acceptance Period shall
recommence. In the event that the Product still fails to operate in
conformity with the Specifications after the second Acceptance Period has
run, PCPC may, at its sole option and election, (a) afford ImageWare
additional opportunities to correct the nonconformity, to be followed by
additional Acceptance Periods, subject to the procedure set forth in this
paragraph, or (b) terminate this Agreement without further obligation, in
which case, ImageWare shall refund all monies paid by PCPC.
4. OWNERSHIP OF INTELLECTUAL PROPERTY.
4.1 Except for such rights as are expressly granted to PCPC in this Agreement,
ImageWare shall retain all right, title and interest in the Technology and
the Intellectual Property, including such elements and portions of the
Technology or the Intellectual Property as may be incorporated into the
Product, and this Agreement conveys no other right, title or interest in
the Technology or the Intellectual Property.
<PAGE>
4.2 PCPC shall provide to ImageWare hereunder the Motion Printer DLL for use in
the development of, and for inclusion in, the Product. ImageWare agrees to
treat the Motion Printer DLL as confidential in accordance with the
provisions of Section 11 hereof; (b) to use the Motion Printer DLL only for
the purposes set forth in this Agreement; and (c) not to reverse engineer,
reverse compile or disassemble the Motion Printer DLL. Upon the expiration
or termination of this Agreement, ImageWare shall return to PCPC or destroy
all copies of the Motion Printer DLL then in its possession, including
without limitation copies stored on computers and magnetic or optical
media. Except for such rights as are expressly granted to ImageWare in this
Agreement, PCPC or its licensor shall retain all right, title and interest
in and to the Motion Printer DLL, and this Agreement conveys no other
right, title or interest in the Motion Printer DLL.
4.3 The parties expressly recognize that additional intellectual or other
property rights may be created in the performance of this Agreement. The
parties expressly agree that all right, title and interest (including
patent rights, copyrights, trade secret rights and any other rights
throughout the world) in and to the Product and in and to any object code,
source code, inventions, works of authorship, mask works, derivative or
collective works and any ideas or information created, conceived or reduced
to practice by ImageWare or PCPC relating to the Product in the course of
performance of this Agreement (the "Work Product") shall belong to PCPC.
The Work Product shall be deemed work made for hire pursuant to the
copyright laws of the United States.
4.4 To the extent that PCPC does not obtain all right, title and interest in
the Work Product pursuant to the foregoing paragraph, ImageWare agrees to
assign, or cause its employees, agents and contractors to assign all such
Work Product to PCPC and to execute all documents and perform all acts, or
cause its employees, agents and contractors to execute all documents and
perform all acts require to effectuate such assignment. ImageWare shall
cooperate with PCPC to patent, copyright or otherwise protect the Work
Product in the United States and elsewhere. PCPC shall bear the costs of
applying for, prosecuting, securing and maintaining such protection. PCPC
shall have the exclusive right to enforce and defend the intellectual
property rights in the Work Product.
4.5 All applicable PCPC and ImageWare patent and copyright notices relating to
the Product will be incorporated as part of the Product and displayed
prominently when the application is initially started by a user.
5. LICENSE OF THE TECHNOLOGY
5.1 ImageWare acknowledges that PCPC intends to engage in the following
activities with respect to the Product:
(a) combine copies of the Product, in object code form, with Motion
Printers to create Bundled Products;
<PAGE>
(b) distribute Bundled Products to distributors, other resellers and end
users;
(c) distribute the Product, in object code form only, to distributors and
resellers and permit such distributors and resellers to reproduce
copies of the Product and combine such copies with Motion Printers
supplied by PCPC for resale to resellers and end users;
(d) distribute the Product, in object code form only, to end users and
permit such end users to reproduce copies of the Product for use with
Motion Printers purchased from PCPC;
(e) use the Product for demonstration and internal business purposes and
to support, maintain, modify, enhance, upgrade and update the Product;
(f) reproduce copies of the Product to make possible or facilitate any of
the activities described in this paragraph;
(g) sublicense to affiliates of PCPC, any or all of the rights granted in
this Section, provided that such affiliates shall agree to be bound by
the terms of this Agreement.
5.2 ImageWare hereby grants to PCPC an exclusive license in the United States,
its territories and Canada to use the Technology to the extent necessary
for PCPC or its distributors, resellers, end users and sublicensees to
perform any of the activities described in the preceding paragraph.
ImageWare further agrees that it shall extend the foregoing license,
without additional charge, to a list of additional territories
substantially identical to the list of territories set forth in Exhibit C
hereto, as soon as ImageWare shall have reasonably determined the
appropriate territorial scope of its intellectual property protection for
the Technology, but in no event more than 90 days from the latest date of
execution of this Agreement unless the parties shall have agreed in writing
to a later date. In the event that ImageWare has not provided written
confirmation of the extension of such license within such 90-day period,
such license shall be deemed to have been extended to the territories set
forth in Exhibit C as of the date of expiration of such 90-day period.
ImageWare further agrees that it shall not during the term of this
Agreement make the Technology available to any third party for use in
connection with products competitive with the Product. ImageWare further
grants to PCPC a nonexclusive license everywhere in the world to use the
Intellectual Property to the extent necessary for PCPC or its distributors,
resellers, end users and sublicensees to perform any of the activities
described in the preceding paragraph.
6. PAYMENT AND PAYMENT SCHEDULE.
6.1 PCPC shall pay ImageWare for the development and other services
performed hereunder and for the rights granted by ImageWare hereunder, as
follows:
<PAGE>
(a) A Development Fee of [Confidential Treatment requested by ImageWare
Systems, Inc.], payable in three installments, as follows:
As of the Effective Date: [Confidential Treatment requested
by ImageWare Systems, Inc.]
30 days after the Effective Date: [Confidential Treatment requested
by ImageWare Systems, Inc.]
30 days after Acceptance [Confidential Treatment requested
by ImageWare Systems, Inc.]
(b) An Exclusivity Fee of [Confidential Treatment requested by ImageWare
Systems, Inc.] per year, payable at the commencement of each contract
year; the initial Exclusivity Fee payment shall be due upon Acceptance
of the Product by PCPC.
(c) A fee of [Confidential Treatment requested by ImageWare Systems, Inc.]
Per-Copy Fee for each copy of the Product distributed by PCPC or
reproduced by PCPC's distributors, resellers, end users or
sublicensees with PCPC's permission. This Per-Copy Fee shall be
subject to a minimum payment for each contract year, as follows:
Contract year 1: [Confidential Treatment requested
by ImageWare Systems, Inc.]
Contract year 2: [Confidential Treatment requested
by ImageWare Systems, Inc.]
Contract year 3: [Confidential Treatment requested
by ImageWare Systems, Inc.]
PCPC shall remit the accrued Per-Copy Fees at the end of each
contract-year quarter. At the conclusion of each contract year, PCPC
shall remit any remaining difference between the Per-Copy Fees
remitted during such contract year and the minimum payment for such
contract year.
(d) Travel and living expenses of ImageWare's employees incurred in the
performance of ImageWare's obligations under this Agreement. Such
expenses shall be subject to PCPC's prior approval, and shall conform
to PCPC's internal travel and living expense policies.
7. SUPPORT.
During the first contract year, ImageWare shall provide up to 100 hours of
programming and support services as requested in writing from time to time by
PCPC. Upon any such request from PCPC, ImageWare shall promptly furnish PCPC
with a written statement of the timetable for providing such services. Services
in excess of 100 hours shall be billable at the rate of $110.00 per hour, except
as otherwise agreed in writing by the parties. Any portion of the 100 hours not
used during the first contract year will not be carried over to subsequent
contract year.
8. WARRANTIES AND REPRESENTATIONS
8.1 ImageWare warrants for a period of ninety (90) days following the first
shipment of the Product to an end user that the Product will substantially
conform to the Specifications. ImageWare will correct at its own expense
any nonconformity that occurs during such ninety (90)-day period.
8.2 ImageWare warrants that the services performed hereunder will be performed
in a professional and workmanlike manner in accordance with the highest
industry standards.
<PAGE>
8.3 Each party represents and warrants to the other that the execution,
delivery and performance of this Agreement do not require the
authorization or approval of any third party and do not violate any
contract or other obligation of such party and that such party knows of
no circumstances existing as of the Effective Date or the date on which
it executes this Agreement that would prevent its performance of this
Agreement.
9. INDEMNIFICATION
9.1 Except to the extent set forth to the contrary in this Section 9,
ImageWare agrees to indemnify and hold PCPC harmless against all claims
that the Technology, the Intellectual Property and/or the Product
infringes any patent, copyright, trade secret, mask work or any other
property rights of third parties. ImageWare hereby represents that it
has no knowledge of any such claim of infringement. ImageWare shall
assume the defense of any suit, action, proceeding or objection based on
any such claim of infringement brought against PCPC specifically
relating to the Technology, the Intellectual Property and/or the
Product, by counsel retained at ImageWare's own expense, and shall pay
any damages assessed against or otherwise payable by PCPC in any such
suit as a result of the final disposition of any such claim, suit,
action, proceeding or objection, provided PCPC, upon receiving notice
thereof, promptly notifies ImageWare of such claim or of the
commencement of any such suit, action, proceeding or objection, or
threats thereof, and ImageWare is afforded the opportunity, in its sole
and absolute discretion, to determine the manner in which such claim,
suit, action, proceeding or objection shall be handled or otherwise
disposed of. PCPC shall give ImageWare the cooperation ImageWare
requires, at ImageWare's sole cost and expense for all reasonable and
direct costs and expenses incurred by PCPC, except for salaries of the
employees of PCPC and fees and expenses of any counsel retained by PCPC
in the defense of any such claim, suit, action, proceeding or objection.
9.2 Notwithstanding the foregoing, PCPC may be represented in any such suit
by its own counsel at its own cost and expense; provided, however, that
PCPC shall not consent to any judgment or decree in any such suit or pay
or agree to pay any sum of money or agree to do any other act in
compromise of any such claim of a third party without first obtaining
ImageWare's consent thereto in writing.
9.3 In the event that the use or sale of the Technology, the Intellectual
Property and/or the Product, or any part thereof, is preliminarily or
permanently enjoined by reason of infringement of any third party
patent, copyright, trade secret, mask work or other property right,
ImageWare shall, at ImageWare's sole cost and expense, take any one of
the following actions in ImageWare's sole and absolute discretion: (a)
procure for PCPC the right to continue the use and/or sale of the
Technology, the Intellectual Property and/or the Product; or (b) modify
the Technology, the Intellectual Property and/or the Product so it
becomes non-infringing; or (c) authorize PCPC to return the enjoined
Technology, the Intellectual Property and/or the Product theretofore
paid for by PCPC and agree to refund to PCPC the full price paid by PCPC
hereunder and any reasonable and necessary direct transportation costs
associated with such return.
<PAGE>
9.4 Notwithstanding any other provision of this Agreement, the provisions of
this Section 9 shall not apply to any designs, specifications or
modifications originating with PCPC, whether or not accepted by
ImageWare, or performed by PCPC without ImageWare's written approval, or
to the combination of the Technology, the Intellectual Property and/or
the Product with other products not supplied by ImageWare; but, rather,
PCPC shall indemnify and hold ImageWare harmless and defend ImageWare
against all claims that the same infringe any patent, copyright, trade
secret, mask work or other property rights of third parties in
accordance with the terms and provisions of this Section 9.
9.5 ImageWare's and PCPC's obligations set forth in this Section 9 shall
survive the expiration or termination of this Agreement.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR LOSS OF PROFIT, OR
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING UNDER THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREUNDER, EVEN IF SUCH PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
11. NONDISCLOSURE
11.1 Each party agrees to keep, and to cause it employees, agents and
contractors to keep, any information that is disclosed to it hereunder
by the other party, and which is designated in writing as confidential
or which is or should in good faith be known by the other party to be
confidential ("Confidential Information"), confidential, and to use such
information only for the purposes described herein. The parties further
agree that both the Motion Printer DLL and all information developed by
ImageWare for PCPC hereunder (including without limitation the Work
Product, but excluding the Technology and the Intellectual Property)
shall be deemed to be the Confidential Information of PCPC without the
requirement of a written designation. Each party shall take, and shall
cause its employees, agents and contractors to take, all reasonable
steps necessary to safeguard the confidentiality of such information
from and against disclosures thereof. Neither party shall make, nor
permit anyone to make, any copies of such information without the other
party's prior written consent, and the other party shall return, and
shall cause its employees to return, all copies of such information in
its possession to the other party upon request therefor or upon any
termination or cancellation of this Agreement. Nothing contained in this
Agreement shall be construed as granting or conferring any rights on
either party, by license or otherwise, with respect to any of such
information. Each party's obligations under this paragraph shall survive
indefinitely the termination of this Agreement or until such information
is made public other than through the acts of either party.
<PAGE>
11.2 The obligations of this Section 11 shall not apply to information that
either party can demonstrate (a) is or has become readily available
without restriction through no fault of that party or its employees or
agents; (b) is received without restriction from a third party lawfully
in possession of such information and lawfully empowered to disclose
such information, (c) was rightfully in the possession of either party
without restriction prior to its disclosure by the other party; or (d)
was independently developed by employees or consultants of either party
without access to Confidential Information of the other party.
12. INDEPENDENT CONTRACTOR
The parties are, and shall at all times during the term of this Agreement be
deemed to be, independent contractors, and nothing in this Agreement shall in
any way be deemed or construed to constitute either party as an agent or
employee of the other, nor shall either party have the right or authority to
act for, incur, assume or create any obligation, responsibility or liability,
express or implied, in the name of, or on behalf of, the other party, or to
bind the other party in any manner whatsoever. The employees of one party
shall be deemed to be the agents, servants and employees of that party only,
and the other party shall incur no obligations or liabilities of any kind,
nature or sort, express or implied, by virtue of, or with respect to, the
conduct of such employees.
13. ASSIGNMENT; MODIFICATION
13.1 Neither this Agreement, nor any of the rights or interests of either
party hereunder, may be assigned, transferred or, by operation of law or
otherwise, except upon the express prior written consent of the other
party.
13.2 None of the terms of this Agreement can be waived or modified, except in
writing signed by both parties. The failure of either party hereto to
enforce, or the delay by either party in enforcing, any of its rights
under this Agreement shall not be deemed a continuing waiver or a
modification thereof and either party may, within the time provided by
applicable law, commence appropriate legal proceedings to enforce any or
all such rights.
14. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding, and hereby supersedes any
and all prior agreements, oral or written, heretofore made, between the
parties with respect to the subject matter of this Agreement, and there are
no representations, warranties, covenants, agreements or understandings, oral
or otherwise, express or implied, affecting this Agreement not expressly set
forth herein.
15. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to its conflict-of-laws rules.
<PAGE>
16. SEVERABILITY
Both parties agree that the provisions of this Agreement are severable and
should any of the provisions be finally held by a court of proper
jurisdiction to be invalid, the remainder of this Agreement shall be in full
force and effect.
17. DISPUTE RESOLUTION
In the event of a dispute hereunder, the parties agree to use reasonable
efforts to negotiate a resolution to such dispute for a period of 30 days, or
such longer period as the parties may agree upon. If no resolution is agreed
upon after 15 days of such negotiation, each party shall involve a senior
executive of such party in the negotiation for the remainder of the 30-day or
other agreed-upon period.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals.
IMAGEWARE SOFTWARE, INC. PANASONIC COMPUTER PERIPHERALS
COMPANY, UNIT OF MATSUSHITA
ELECTRIC CORPORATION OF AMERICA
By: /s/ Jim Miller By: /s/ J.H. Cullen
------------------------------- -------------------------------
Name: Jim Miller Name: J.H. Cullen
----------------------------- -----------------------------
Title: President & CEO Title: VP & GM
---------------------------- ----------------------------
Date: Oct. 20, 1998 Date: 11-12-98
----------------------------- -----------------------------
<PAGE>
ORIGINAL
SPECIFICATIONS FOR PANASONIC MIP PROGRAM.
This RFP is an adjunct to the current Swing Studio Program. Panasonic
believes the current Swing Studio application contains the basic tools
required for an MIP Studio System. The implementation of the GUI is/may not
suited best considering our target user. Several usability features need to
be improved. There are also other key features which need to be added. This
RFQ includes current Swing Studio functionality, and requirements for an
upgrade to that application.
APPLICATION SCOPE
It is our intent to eventually have three tiers of application scope. First
is to fully develop the Swing Studio type application. Secondly we will
create a distinct, idiot proof, path through the application. Third will be
to strip it down to deliver a kiosk based system.
STUDIO SYSTEM TARGET USER:
Little or no Computer Experience.
Learning curve should be several hours
SYSTEM REQUIREMENTS:
Windows 98 or Windows NT Operating System
Minimum RAM (TBD)
Pentium 266 MHz or better Higher
Possible Multiple VGA Display Support Under Windows 98 (Windows NT?)
Display 1 is operator, Display 2 is Audience / Attract Screen
Consider GUI resolution, Kiosk have support for "NTSC grade monitor? Graphics
development?
Highly Efficient Print Spooling / Buffer
"Smart" Multiple MIP Printer Support
Hide-able Tool Bar
Status Bar
Direct menu access any module screen
Floating Toolbars (if applicable)
Undo Function where applicable
Cursor change to "Busy" during any system processing
GUI DESIGN REQUIREMENTS:
GENERAL LOOK & FEEL
Two operation modes. Standard and step through card creation.
Kiosk mode may be developed independently.
Textured Background Graphics (user changeable for each module)
User selectable button Fonts & some System Colors
Bright colors, fun fonts,
3D Buttons, animated/not animated
Auto Hi-Lite Selections
"Mouse-Over" Action descriptions.
Audible response to user input (could be theme oriented)
Customizable scrolling marquee - subtle attract loop during work in progress
Basic application designed in 640x480. When running in 800x600 remainder of
desktop becomes attract loop area.
<PAGE>
ORIGINAL
SPECIFIC USER INTERFACE REQUIREMENTS
Print UI displays slide based graphical representation of up to six frames
which will be output to the MIP.
Card Editor should also support less than six frames (Still frame modes for 2
or 3 images.
Support for these graphic functions required:
Ability to easily load pre-designed "Template" frames and backgrounds
Key, Layer & Overlay, Move to front & back of imported sprites
Moveable sprites, Path Based Animation
Copy & Paste a sprite from one frame to another (keep relative position &
display position coordinates in status bar)
maintain exact size & position from one frame to another
Output Preview Function
Basic Image Painting tools
Rotateable & Resizable Text & sprite insertion
Additional
Simple Image Morphing Engine (IE Power Goo)
Label print option (adhesive label on back of card)
Key Function
Easily paste a face, captured from the scanner or video, into a cutout card.
Luminance key is required, chroma key may be desirable in future.
Editing Functions
When a card is "saved" and closed, the user should be able to re-open the
card and have the ability to continue editing the objects on the card.
Sprites, pictures and text must remain individual objects. Only output
should be converted to bitmap.
STANDARD GUI SCREENS FOR OPERATOR MODE:
TEMPLATE SELECTION SCREEN
Similar to Swing Studio
Six to nine templates displayed
Selected Frame or background animates in left hand pane when selected.
NAME\DATE TEXT ENTRY SCREEN (DEPENDS ON EVENT OR ATTRACTION)
Text can be positioned in default location or moved by dragging. Cursor
nudging should be supported.
Random text insertion, right click to select applied frames.
Supports all available fonts on system including symbols
"Jiggle" text supported (nudging between frames, "Simpsons Effect")
Text for optional label printer would be entered here also.
VIDEO CAPTURE SCREEN
Video for Windows or WDM Driver model
Microsoft Direct Show Compliant or upgrade
Supports PCI, Parallel & USB camera technologies
Multiple video source selection.
Video Key Function
Input Selection (based on capture device)
Capture Frame Rate Selection
Step capture mode with audible cue (beep-beep-bong). Used for "X marks the
spot" staged motion
Manual Image Selection will show up to 30 thumbnails of
captured video.
Operator selects frames by highlighting them with the mouse
Access to all VFW video adjustment controls
Real time display of image in preview mode, access to adjustment of,
brightness. Contrast saturation,
<PAGE>
SCANNING SCREEN
Preview\Pre-scan of 8.5x11" page. Click & Drag multiple image selections
(up to 4) of image.
Aspect ratio constraints may need to be applied for selection process.
Automated scanning tool to resizes "selections" to constrained dimensions of the
MIP Card Array of standard image scanning tools may include:
Crop, Resize, Selection, Free-Rotate, Color saturation, Brightness,
Contrast, Sharpen, Edge blur etc.
Support Current Twain, and new proposed twain I/F
Provide Scanner bin to hold recently imported images, which will be used to
create a card
Thumnails with displayed filenames
ADJUSTEMENT/EDITING SCREENS
For Video Capture
For Scanning Function
Position Adjustment for Foreground, Key Image, and Background
Image Enhancement Screen(s) TBD Image ware recommendations
SPECIAL IMAGE EFFECTS
Place where appropriate within the application
Composite, Blend, Tone, Find Contour, Color reduction, Smooth/Sharpen, Merge,
Morph, Brightness/Contrast, Gamma,
OUTPUT PREVIEW SCREEN
Supports Image Re-ordering
Multiple Copy Selection
Individual card "image" may be double clicked and edited with specified Windows
Image editing program.
MIP Card Print Preview will simulate Lenticular lens effect.
DATABASE SCREEN
Simple Flat File text Boolean searchable database
Application will retain card images & text information
Database fields to be determined
Card creation timer (start to finish) may required
Other statistical information may need to be added to dataset
Database should be prugable
Images from MIP Card could be sold to customer on
a floppy screen save, postcard, etc.
<PAGE>
SYSTEM RELATED OPERATIONS
SYSTEM SETTINGS - OPERATOR SETUP SCREEN
Capture & Scanning setup
Video Board setup & Key color selection
Event Triggering setup
Multimedia selections
Background music (MIDI Files)
System Event Sounds Setup (Wav or Midi Files)
Module "Wallpaper" Background setup-preset or random changing
Printer Setup Selections
Restore System Default Settings
STANDARD WINDOWS HELP SYSTEM
Windows Balloon Help - Mouse-Over where applicable
Application Status Bar - Button Function or User action hint/recommendation
User can toggle on or off
Multimedia Training Tutorial Module
IMAGE ENHANCEMENT:
Edge Smoothing
Compositing
Luminance Key
Chroma Key
Adaptive Key (Image Ware Propriety)
GENERAL PURPOSE INTERFACE - INPUT OUTPUT CONTROL
Lighting During Capture (Relay closure for Kiosk)
Attraction Look GPI (Relay closure(s) for Kiosk)
VCR MCI Control (Studio System)
Camera Zoom (Studio System - Low Priority)
Coin acceptor mechanism input interface (Kiosk Only)
We expect ImageWare recommendation for GPI interface card selection.
OTHER EXTERNAL CONTROL
Modem Callout for Supply replenishment
Joystick support (for Kiosk, possibly Studio System also)
Other Kiosk input support (Kiosk Buttons could be GPI or L & R Mouse clicks??)
Support For label printer (for back of card or customer information, mailing
label, custom message, etc.)
Should support Seiko label printer or standard windows printer.
SCANNER CONTROL (STUDIO SYSTEM)
Twain Compliant
Full page scan preview
Selection tool for auto save and auto resize of scanned image for MIP card
<PAGE>
[LETTERHEAD]
PROPOSAL FOR PANASONIC COMPUTER PERIPHERAL COMPANY
SWING STUDIO MIP SOFTWARE APPLICATION
SCOPE OF WORK
As defined in following outline from T. Meyerhoff. This proposal is for the
first and second phase of the "three tiers" of application scope. That is to
fully develop the Swing Studio application that contains the basic tools
required for a MIP Studio System and create a distinct, "idiot proof", path
through the application. The third phase for a kiosk based system will best be
finalized after the initial phases are completed and user feedback is
considered. Also there are a number of additional issues to consider such as
coin mechanisms, I/O control, etc. We believe that we will be very well
positioned to carry out this task, but it is our understanding that the manned
applications are of priority.
In order to quote the timeframe required, we must take exception to a few items
on the list. The following will not be part of the developed product, but could
be added a later time:
1. No Morphing capability
2. Limited Sprite support
3. Twain scanning only
4. No modem call-out for supply replenishment
5. No kiosk or Studio System components
6. We require additional details to understand how a "MIP Card Print Preview
will simulate Lenticular lens effect" feature
7. Win 95 or NT version 4.0
<PAGE>
[LETTERHEAD]
EXHIBIT C
IMAGEWARE SOFTWARE, INC.
Patent Number 5,577,179
Title: Image Editing System
Status:
Issued - United States
Pending - Japan
Application in Process: Western Europe
Canada
New Zealand
Australia
<PAGE>
LICENSING AGREEMENT
This Licensing Agreement (the "Agreement") dated November 16, 1998, is
entered into by and between Viisage Technology, Inc. ("Viisage"), a Delaware
corporation with its principal place of business at 30 Porter Road,
Littleton, Massachusetts, and ImageWare Software, Inc. ("ImageWare"), a
corporation with offices at 15373 Innovation Drive, Suite 120, San Diego, CA
92128.
RECITALS
Viisage is the owner or licensee of proprietary facial recognition
technology. ImageWare desires to distribute and sublicense software programs
which utilize that facial recognition technology. Viisage is willing to enter
into this licensing agreement with ImageWare to enable ImageWare to
sublicense the programs pursuant to Viisage's approved sublicensing terms.
In consideration of the foregoing premises, the mutual covenants set
forth below, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following definitions
shall apply:
1.1 "Approved Sublicensing Terms" means the mandatory terms and
conditions to be included in the Customer Contracts, as modified or amended
from time to time by Viisage, a copy of which is attached as EXHIBIT 1.1.
1.2 "Authorized Field" means the limited use of the Program by
Customers in the United States for use in connection with composite imaging
linked to databases.
1.3 "Customer" shall mean U.S. state and local police departments and
other public law enforcement agencies located in the United States.
1.4 "Customer Contract" means an agreement which ImageWare enters into
with a Customer to sublicense the Program.
1.5 "Documentation" means the user training manual(s) and any other
materials supplied by Viisage for use with the Program.
1.6 "ImageWare" means ImageWare and its successors and permitted
assigns.
1.7 "Program" means the machine-readable object code of the version of
the facial recognition software program of Viisage described on EXHIBIT 1.7
hereto. EXHIBIT 1.7 may be amended by mutual agreement of the parties if
Viisage introduces a new version of its facial
<PAGE>
recognition software program.
1.8 "Viisage" means Viisage and its successors and permitted assigns.
SECTION 2. GRANT OF LICENSE
2.1 LICENSE GRANT. Subject to the terms and conditions of this
Agreement, Viisage hereby grants to ImageWare, and ImageWare hereby accepts a
non-exclusive, non-transferable license (the "License") to market,
distribute, and sublicense the Program, along with related Documentation, to
Customers pursuant to Customer Contracts for use only in the Authorized Field.
2.2 LIMITATION OF RIGHTS.
2.2.1 The grant of the License does not grant ImageWare any title
to or ownership interests in the Program, Documentation, Viisage's
facial recognition technology, or any part thereof. ImageWare shall not
have any right to transfer, or assign the Program or any of its rights
under this Agreement, or to modify or to create derivative works from the
Program. ImageWare shall have no right to receive, review, or otherwise
use or have access to the source code for the Program, and the Program
is permitted to be distributed by ImageWare only in object code form and
only to Customers.
2.2.2 All rights in the Program, including, but not limited to
Viisage's confidential and proprietary information, trade secrets,
trademarks, service marks, patents, and copyrights, are and will remain
the property of Viisage or any third party from whom Viisage has
licensed software or technology embedded in the Program. This Agreement
and the License granted hereunder are subject to all such third party's
restrictions.
2.2.3 ImageWare shall not have the right to distribute the Program
to other distributors or other intermediaries without Viisage's prior
written consent.
2.3 VISAGE LOGO. ImageWare shall include the Viisage logo on its Face
ID product and use its best efforts to promote (including trade shows and
similar appearances), market, and distribute the Program to Customers for use
in the Authorized Field.
2.4 LIMIT OF AUTHORITY. ImageWare shall solicit orders only on its own
behalf and shall not represent that it has the authority to obligate Viisage
contractually.
2.5 COMPLIANCE WITH LAWS. ImageWare shall comply with the
requirements of all applicable laws, rules, regulations and orders of
governmental or regulatory authorities in connection with the distribution of
the Program.
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2.6 CLAIMS. ImageWare shall notify Viisage in writing within three (3)
days of ImageWare's receipt of any notice of threatened or actual litigation
or claims made by a Customer or other parties involving the Program.
2.7 INSURANCE. ImageWare shall maintain product liability and errors
and omissions insurance in amounts reasonably approved by Viisage.
SECTION 3. COMPENSATION
As consideration for the License and other rights and benefits granted
by Viisage to ImageWare under this Agreement, ImageWare shall pay to Viisage
for each CPU/Face ID that utilizes the Program: (i) $5,000 for searches up
to 40,000 images and (ii) $0.17 per image over 40,000 images. These payments
shall be made by ImageWare to Viisage within fifteen (15) days of the date
the related revenues are recorded by ImageWare. If any payment due to Viisage
is not made when due, the amount of such payment shall continue to be due and
shall thereafter accumulate interest at the prime rate published in THE WALL
STREET JOURNAL plus 4%. This compensation may be adjusted by mutual written
agreement of the parties if Viisage introduces a new version of its facial
recognition software program.
SECTION 4. ORDERING TERMS; SUBLICENSE TERMS AND CONDITIONS.
4.1 PROGRAM COPIES. Subject to the terms and conditions of this
Agreement, ImageWare shall have the right to copy the Program solely for the
purpose of distribution in accordance with the terms and conditions of this
Agreement.
4.2 SUBLICENSE TERMS AND CONDITIONS. ImageWare shall incorporate the
Approved Sublicensing Terms in all Customer Contracts. Viisage shall have no
liability, and ImageWare shall indemnify Viisage, with respect to any terms
or conditions which vary from the Approved Sublicensing Terms unless they are
approved by Viisage in writing in its sole discretion.
4.3 LIMITATION ON REPRESENTATIONS. Except as set forth in the
Documentation and any Program brochures or promotional material supplied by
Viisage, ImageWare shall not make any representations or warranties to any
third party as to the specifications, capabilities, or performance of the
Programs, except with Viisage's prior written consent, which consent may be
withheld by Viisage in its sole discretion.
4.4 OTHER PRODUCTS OF VIISAGE. The parties contemplate that ImageWare
may distribute, in addition to the Programs, other products of Viisage. Those
arrangements shall be subject to one or more separate agreements as may be
mutually agreed to by the parties in writing.
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SECTION 5. SOFTWARE MAINTENANCE AND TELEPHONE SUPPORT
After expiration of the warranty period set forth in Section 6.2 below,
Viisage will provide software maintenance and telephone support to ImageWare
upon ImageWare's request to enable ImageWare to correct any material defects
or malfunctions in the Program or Documentation. The annual fee for this
maintenance and support for each version of the Program will equal 18% of the
compensation paid under Section 3 above for that version of the Program. The
annual fee will be subject to proration for partial years and will be
calculated at each calendar year end, beginning with the year ending December
31, 1999, and shall be paid by January 15 of the ensuing year. As part of
this maintenance and support, Viisage will make available to ImageWare
updates and enhancements to the version of the Program which Viisage has made
available for use by other customers. Viisage may, also in its discretion,
provide ImageWare with facial recognition technology products other than the
Program pursuant to one or more separate agreements.
SECTION 6. REPRESENTATIONS, WARRANTIES AND INDEMNITIES
6.1 MUTUAL REPRESENTATIONS AND WARRANTIES. Each of the parties
represents and warrants that:
6.1.1 It is a corporation or limited liability company duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation and all necessary action, corporate or
otherwise, has been taken by it to execute, deliver, and perform this
Agreement; and the execution, delivery, and performance of this Agreement does
not violate and applicable charter, bylaws or operating agreement.
6.1.2 The execution and performance of this Agreement does not
and will not breach, any duty owed by said party to any other person,
corporation, or entity.
6.2 LIMITED PROGRAM WARRANTY. Viisage warrants to ImageWare that with
normal use and service under ordinary operating conditions the Program will
perform substantially in accordance with the Documentation for ninety (90)
days after receipt by ImageWare, provided that such Program has not been
modified or altered by anyone other than Viisage. This warranty shall be void
and shall not apply to Programs in the event of modification without
Viisage's written consent, accident, neglect, misuse, failure to maintain a
suitable operating environment, tampering, or any other event other than
ordinary use.
6.3 DISCLAIMER. THE WARRANTIES STATED IN SECTION 6.2 ARE THE SOLE AND
EXCLUSIVE WARRANTIES SET FORTH HEREIN PERTAINING TO THE PROGRAM AND VIISAGE
HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
4
<PAGE>
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT (EXCEPT AS EXPRESSLY PROVIDED
BELOW), WITH RESPECT TO THE PROGRAM.
6.4 EXCLUSION OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL VIISAGE BE
LIABLE TO IMAGEWARE OR ANY CUSTOMER FOR ANY INDIRECT, SPECIAL, OR
CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST
OPPORTUNITIES, COSTS OF DELAY, ANY FAILURE OF DELIVERY, COSTS OF LOST OR
DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM
ANY SOURCE, EVEN IF VIISAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
6.5 EXCLUSIVE REMEDY. IMAGEWARE'S EXCLUSIVE REMEDY AGAINST VIISAGE
FOR NONPERFORMANCE OF THE WARRANTY SHALL BE VIISAGE'S CORRECTION OF ANY ERROR
OR DEFECT IN THE PROGRAM OF WHICH IMAGEWARE HAS GIVEN NOTICE TO VIISAGE OR AN
EQUITABLE REFUND OF THE AMOUNTS PAID TO VIISAGE UNDER THIS AGREEMENT WHICH
RELATE TO THE DEFECTIVE PROGRAM.
6.6 INDEMNIFICATION BY IMAGEWARE. ImageWare shall indemnify Viisage
and its directors, officers, employees and agents from and hold each of them
harmless against, any and all losses, liabilities, claims, damages or
expenses incurred by any of them arising out of or by reason of any claim,
investigation, litigation or other proceeding (including any threatened
investigation or litigation or other proceedings) relating to any act or
service performed by ImageWare hereunder, including without limitation the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation or litigation or other proceedings (but excluding any such
losses, liabilities, claims, damages or expenses incurred by reason of the
gross negligence or willful misconduct of the person to be indemnified).
SECTION 7. LIMITATIONS ON DAMAGES
7.1 AGGREGATE LIMIT. IN NO CASE SHALL THE AGGREGATE AMOUNT OF
DAMAGES PAYABLE BY VIISAGE FOR ANY CLAIM ARISING FROM THE PROGRAM OR THIS
AGREEMENT (INCLUDING, WITHOUT LIMITATION, ITS WARRANTY AND INDEMNIFICATION
PROVISIONS) EXCEED THE AMOUNTS PAID BY IMAGEWARE TO VIISAGE UNDER THIS
AGREEMENT.
5
<PAGE>
SECTION 8. CONFIDENTIALITY
8.1 NON-DISCLOSURE. The parties agree to keep confidential and not
to disclose the proprietary information marked as confidential by the other
party ("Confidential Information"). Each party shall take the same
precautions with the other party's Confidential Information as it takes in
protecting its own confidential information (and in no event less than the
software industry standard) to ensure that no unauthorized persons have
access to the Confidential Information and that no unauthorized copies
are made, except that the receiving party may disclose Confidential
Information as required by law, regulation, or court order and to employees
or agents who have a need to receive or use such Confidential Information and
who shall be obligated in a similar manner. If a party is legally compelled
to disclose Confidential Information, the party shall provide the other party
with prompt prior written notice of such requirement and an opportunity to
participate in such legal proceedings to the greatest extent possible.
Confidential Information does not include information (a) already known to or
independently developed by the receiving party which is not based upon or
derived from Confidential Information, (b) generally known to the public
through no wrongful act or fault of the receiving party, or (c) disclosed by a
third party who has a right to do so without restriction as to disclosure
thereof.
8.2 RETURN OF INFORMATION. Upon expiration or termination of this
Agreement, the parties shall promptly return to each other all Confidential
Information or certify that such Confidential Information has been destroyed.
8.3 EQUITABLE REMEDIES. The parties acknowledge that the
restrictions set forth in this Section 8 in this Agreement are reasonable to
protect the other party's business interests. Accordingly, the parties
acknowledge that a violation of a provision of this Section 8 would cause
immediate and irreparable harm to the other party. Therefore, the parties
agree that in addition to any other legal and/or equitable relief of remedies
available to the other party for enforcement of the terms of this Section 8,
the other party shall be entitled to injunctive relief against any violation
of this Section 8.
SECTION 9. NO REVERSE ENGINEERING, COPYING, ETC.
9.1 NO REVERSE ENGINEERING, ETC. Except as permitted under
Section 4.1, ImageWare may not modify, decompile, copy, disassemble,
translate, or reverse engineer the Program without the prior written consent
of Viisage. ImageWare shall not modify third party software embedded or
contained in or provided with the Program without the express consent of the
third party owner or licensor of such software. ImageWare may not copy or
otherwise reproduce any Documentation without the prior written consent of
Viisage.
6
<PAGE>
9.2 NO ALTERATION OF MARKINGS. ImageWare may not alter any proprietary
markings on the packaging of the Program or on the Documentation, including
copyright, trademark, trade name and patent legends, and shall not use or
register any trademarks or trade names similar thereto unless Viisage
provides prior written approval therefor. ImageWare shall immediately
discontinue use of all of such trademarks and trade names upon termination of
this Agreement.
SECTION 10. PATENT AND COPYRIGHT INDEMNIFICATION
10.1 INDEMNIFICATION TERMS. Viisage shall defend or, at its option,
settle any claim or proceeding brought against ImageWare to the extent that
it is based on an assertion that the Program infringes any United States
patent or copyright of any third party and shall indemnify ImageWare against
all costs, damages, and expenses finally awarded against ImageWare which
result from any such claim, provided that Viisage shall have no liability
hereunder unless (a) ImageWare gives prompt written notice of any such claim
or proceeding, (b) Viisage has sole control of the defense of any such claim
or proceeding and all negotiations for its compromise or settlement, and (c)
ImageWare reasonably cooperates in the defense and settlement thereof and
does not admit liability or settle such claim without Viisage's written
consent. In the event that the Program is likely to become, in Viisage's
opinion, or becomes, the subject of a claim, suit, proceeding, or action for
infringement or misappropriation of a United States patent or copyright,
Viisage shall have the right, at its option and expense, to perform one of
the following in its discretion:
(i) replace the Program with compatible, functionally equivalent
non-infringing technology;
(ii) modify the Program to make it non-infringing without impairing
the Customer's ability to use and operate the Program in
accordance with the Documentation; or
(iii) procure, at no increased cost to ImageWare, the right to
continue using the Program.
10.2 NON-INFRINGING RELEASES. If Viisage supplies, at its expense, a
non-infringing release of the Program or a non-infringing replacement
product, ImageWare shall require the Customer to permit installation of such
non-infringing release or product on its system or hardware and terminate use
of prior release(s) of the Program. Thereafter, Viisage may withdraw
maintenance and support for the prior version of the Program.
10.3 NO LIABILITY. Viisage shall have no liability to ImageWare that
is based on or arises out of the use of the Program or any component thereof
when any modification not authorized in writing by Viisage causes
infringement or where the combination of the Program with other hardware or
software not licensed, provided by, or approved by Viisage causes the
infringement.
7
<PAGE>
10.4 DISCONTINUANCE OF PROGRAM. If, in its judgment, Viisage deems
that, due to a claim or proceeding based on alleged infringement, it is not in
Viisage's practical interest to continue distributing the Program, Viisage
may require ImageWare, upon thirty (30) days written notice, to terminate the
use of the Program. Thirty days after notice to cease the use of the Program,
the Agreement shall terminate as to the Program involved, ImageWare shall
receive a prorated refund of any fee paid under this Agreement.
10.5 LIMITATION OF LIABILITY. EXCEPT AS SPECIFICALLY PROVIDED
OTHERWISE HEREIN, THE PROVISIONS OF THIS SECTION ARE IN LIEU OF ALL OTHER
OBLIGATIONS, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF
NON-INFRINGEMENT, AND STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF
VIISAGE AND THE SOLE, EXCLUSIVE, AND ENTIRE REMEDY OF IMAGEWARE WITH RESPECT
TO ANY CLAIM OF INFRINGEMENT BY THE PROGRAM. IN NO EVENT SHALL VIISAGE BE
LIABLE FOR LOST PROFITS OR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
ARISING OUT OF ANY INFRINGEMENT UNDER THIS AGREEMENT, EVEN IF VIISAGE HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SECTION 11. TERM AND TERMINATION
11.1 TERM. The Agreement (and the License under the Agreement) shall
commence upon the date first set forth above and shall continue in effect
until December 31, 2000 unless it is terminated earlier as provided for
herein. This Agreement may be extended by the mutual written agreement of the
parties.
11.2 TERMINATION BY EITHER PARTY. If either party (i) breaches any
of its monetary obligations under this Agreement and such breach continues
for a period of ten (10) business days after it receives written notice
from the other party of such breach; or (ii) materially breaches any of its
non-monetary obligations under this Agreement and any such breach continues
for a period of thirty (30) days after it receives written notice of such
breach (provided that if the breach is curable, the thirty (30) day period
shall be extended while the breaching party diligently pursues a cure), then
the non-breaching party shall have the right to terminate its obligations
under this Agreement, effective upon written notice to the breaching party.
11.3 TERMINATION BY VIISAGE. Viisage may terminate this Agreement in
the following circumstances:
11.3.1 Immediately upon written notice if ImageWare commits a
material breach of any of its obligations concerning the scope of use or
the protection of the Program,
8
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Documentation, or Confidential Information; or
11.3.2 Immediately upon written notice if ImageWare (i) seeks the
liquidation, reorganization, dissolution or winding-up of itself, (ii)
applies for or consents to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its assets, (iii) makes a general
assignment for the benefit of its creditors, (iv) commences a
voluntary case under the bankruptcy laws of the United States, or (v)
files a petition seeking to take advantage of any other law relating
to bankruptcy, insolvency, reorganization, winding-up or
composition or readjustment of debts which shall not constitute a
default hereunder; or
11.3.3 Immediately upon written notice if a proceeding or case
shall be commenced against ImageWare without the application or
consent of ImageWare and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any
of the following shall be entered and continue unstayed and in effect,
for a period of ninety (90) days from and after the date service of
process is effected upon the party, seeking (i) ImageWare's
liquidation, reorganization, disolution or winding-up, or the
composition or readjustment of its debts, (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like of ImageWare
or of all or any substantial part of its assets, or (iii) similar
relief in respect of ImageWare under any law relating to bankruptcy,
insolvency, reorganization, winding-up or the composition or
readjustment of debts which shall not constitute a default hereunder;
or
11.3.4 Immediately upon written notice if ImageWare sells a
majority interest of its business or assets, or implements or incurs
any substantial change in management or control which shall not
constitute a default hereunder; or
11.3.5 Immediately upon written notice if ImageWare utilizes
programs and products competitive with Viisage in the Authorized Field
which shall not constitute a default hereunder.
11.4 MUTUAL AGREEMENT. By mutual written agreement of the parties.
11.5 CONSEQUENCES. Upon termination of this Agreement, the License to
use the Program shall terminate, and ImageWare shall, unless otherwise agreed to
by Viisage in writing, (a) destroy or promptly return to Viisage all copies of
the Program and Documentation and any other Confidential Information and (b)
cease to use any Viisage trademark, logo or trade name in connection with the
Program. Following the termination of this Agreement, each existing Customer
shall have the right to continue to use the program pursuant to the existing
Customer Contract, provided that the amounts specified in Section 3 are paid to
Viisage.
9
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SECTION 12. ADDITIONAL RIGHTS OF VIISAGE
12.1 CRIMES PRODUCTS. During the term of this Agreement, ImageWare
shall grant Viisage the non-exclusive right to resell and/or sublicense
ImageWare's CRIMES products, software programs and modules (the "CRIMES
Products") in connection with Viisage's systems integration business to
prospects for terms to be agreed to in good faith by the parties. Viisage
shall disclose the identity of such prospects for consideration by ImageWare
prior to any discussions regarding the CRIMES products between Viisage and
such prospects. The identity and product needs of those prospects shall be
Confidential Information of Viisage. ImageWare shall provide the CRIMES
Products to Viisage or Viisage's customers at ImageWare's most favorable
pricing terms after consideration of the volume requirements and at
ImageWare's other then standard terms and conditions for resale and/or
license of the CRIMES Products.
SECTION 13. MISCELLANEOUS
13.1 SURVIVAL. The terms and conditions of Sections 1,2.2,
3,6,7,8,9,10,11 and 13 shall survive the termination of this Agreement.
13.2 AUDITS, RECORDS. During the term of this Agreement and for six
months after termination, at Viisage's reasonable request and at its expense,
Viisage or its agent or accountant shall be provided access during normal
business hours to ImageWare's records for purposes of inspecting and auditing
ImageWare's books and records relating to this Agreement, the licensing of
the Program, and the fees due to Viisage. All such books and records shall be
treated as confidential by Viisage and such agent or accountant unless
Viisage determines that material deficiencies exist in any of the information
that is inspected or audited, and except to resolve any dispute in connection
with this Agreement.
13.3 FORCE MAJEURE. Neither party to this Agreement shall be liable
for any delay in its performance or failure to perform (other than payment of
sums due) resulting from causes beyond its control and not attributable to
its fault or negligence, including, but not limited to, electrical or other
utilities failure (including telecommunications failure), delays in or
failures of performance by the other party, acts of civil or military
authority, acts of God or of the public enemy, war, civil disorder, embargo,
strike, fire, or natural disaster (each, a "Force Majeure Event"). If, due to
a Force Majeure Event, a party's performance hereunder becomes more than
thirty (30) days overdue (or for such longer period while any cure is being
diligently pursued), the other party may at any time thereafter, so long as
such inability to perform continues, elect to terminate this Agreement.
Neither party shall be liable for any damages or other claims resulting from
a Force Majeure Event or termination as a result thereof as provided in this
section.
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13.4 FURTHER ASSISTANCE. Each party agrees to execute and deliver, or
cause to be executed and delivered, such further instruments and do and cause to
be done such further acts and things that may be necessary or as the other party
hereto may at any time and from time to time reasonably request in connection
with this Agreement or to carry out the provisions and purposes of, or to be
better assure and confirm unto such other party its rights and remedies under,
this Agreement.
13.5 INDEPENDENT CONTRACTORS. This Agreement shall not constitute or
otherwise imply a joint venture, partnership, employment relationship, or any
other form of business association of any kind. Each party to this Agreement
shall act as an independent contractor.
13.6 NOTICE. Any notice required or permitted to be sent under this
Agreement shall be in writing and shall be sent in a manner requiring a signed
receipt, such as overnight delivery, courier delivery, or if mailed, registered
or certified mail, return receipt requested, or by fax if promptly confirmed by
mail as provided above. All notices to a party shall be sent to the address
below or to such other address as such party may designate from time to time.
Notice is effective upon receipt. Any notice given hereunder may be given on
behalf of any party by its counsel or other authorized representative.
If to Viisage:
Viisage Technology, Inc.
30 Porter Road
Littleton, MA 01460
Attn: President
Tel: 978/952-2200
Fax: 978/952-2218
If to ImageWare:
ImageWare Software, Inc.
15373 Innovation Drive, Suite 120
San Diego, CA 92128
Attention: President
Tel: 619/673-8600
Fax: 619/673-1770
13.7 ASSIGNMENT: BINDING EFFECT. ImageWare shall not assign this
Agreement or the License granted hereunder except as expressly set forth in
this Agreement or as mutually agreed upon in writing. This Agreement shall be
binding upon and enforceable by and shall inure to the
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benefit of the parties hereto and their respective successors and permitted
assigns.
13.8 MISCELLANEOUS. This Agreement, including all exhibits hereto,
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all previous oral or written agreements. This
Agreement shall be governed by the laws of The Commonwealth of Massachusetts,
without regard to its choice of law rules, and the parties agree to be
subject to the jurisdiction of the courts of The Commonwealth of
Massachusetts and the federal courts located therein. This Agreement may not
be modified or amended except by a writing which is signed by the duly
authorized representatives of each of the parties. The failure of either
party to exercise any right or the waiver by either party of any breach,
shall not prevent a subsequent exercise of such right or be deemed a waiver
of any subsequent breach of the same of any other term of the Agreement. If
any provision of this Agreement shall be held to be invalid, illegal, or
unenforceable, such invalidity, illegality, or unenforceability shall not
affect any other provisions of this Agreement, unless the unenforceability of
the applicable provision would materially impair either party's ability to
obtain substantial performance of the other party. This Agreement may be
executed in counterparts. Headings are for convenience only.
Agreed, under seal, as of the date first set forth above.
IMAGEWARE SOFTWARE, INC. VIISAGE TECHNOLOGY, INC.
By: /s/ Paul Devermann By: /s/ Thomas J. Colatosti
------------------------- ----------------------------
Name: Paul Devermann Name: Thomas J. Colatosti
Title: Vice President Sales Title: President & CEO
and Business Development
EXHIBITS:
1.1 Approved Sublicensing Terms
1.7 Description of Program
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EXHIBIT 1.1
VIISAGE TECHNOLOGY, INC.
APPROVED SUBLICENSING TERMS
SECTION 1. DEFINITIONS. As used in this Agreement, the following definitions
shall apply:
1.1 "Authorized Field" shall mean
-----------------.
1.2 "Confidential Information" shall mean the Program, Documentation, and
other information that is identified by Licensor as confidential or proprietary.
Confidential Information does not include information (a) already known to or
independently developed by Licensee and which is not based upon or derived from
Licensor's Confidential Information, (b) generally known to the public through
no wrongful act or fault of Licensee, or (c) disclosed by a third party who has
a right to do so without restriction as to disclosure thereof.
1.3 "Documentation" shall mean the user training manual(s) and any other
materials supplied by Licensor for use with the Program.
1.4 "Program" shall mean the machine-readable object code of any of
Viisage Technology, Inc.'s proprietary facial recognition software or other
proprietary product which Licensee licenses now or in the future from Licensor
including any modifications, enhancements, or upgrades thereto. Reference to
"Program" shall be construed to include "Programs" where applicable.
SECTION 2. GRANT OF LICENSE
Subject to the terms and conditions of this Agreement, Licensor hereby
grants to Licensee, and Licensee hereby accepts, a non-exclusive,
non-transferable license (the "License") to use the Program, along with related
Documentation, only in the Authorized Field.
The License granted authorizes the operation of the Program only by
employees or agents of the Licensee ("Authorized Users") on the designated
computer hardware authorized by Licensor ("Authorized Hardware") at the
designated locations authorized by Licensor ("Authorized Locations"), and
pursuant to the terms set forth herein. If the Program is installed on a
network, access is restricted to Authorized Users at Authorized Locations on
Authorized Hardware. Licensee will be responsible for ensuring that Authorized
Users abide by the terms of this Agreement. The License is subject to third
party proprietary rights which have been licensed to
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Licensor and, accordingly, this Agreement and the License granted hereunder are
subject to all such third party's rights and restrictions.
SECTION 3. NO OWNERSHIP RIGHTS
The grant of the License hereunder does not grant Licensee any title
to or ownership rights or interest in the Program, Documentation, or any part
thereof. Licensee shall not have any right to sublicense, transfer, or assign
the Program or any of its rights under this Agreement, or to modify, market,
copy (except as expressly authorized herein), or distribute the Program or
make the Program available to any person other than Authorized Users, or to
create derivative works from the Program.
SECTION 4. COPIES OF THE PROGRAM
4.1 Licensee may make and maintain no more than one archival copy of each
Program to be used for backup purposes. Each copy shall contain all legends and
notices and will be subject to the same terms as the original Program.
4.2 Licensee may not, without the prior written consent of Licensor,
copy or otherwise reproduce any Documentation.
SECTION 5. CONFIDENTIAL INFORMATION
5.1 Licensee acknowledges that the Program and the Documentation
contain Confidential Information. Licensee agrees to keep confidential and
not to disclose the Confidential Information (except with the prior written
consent of Licensor) and to take the same precautions it takes in protecting
its own confidential information (and in no event less than the software
industry standard) to ensure that no unauthorized persons have access to the
Confidential Information and that no unauthorized copies are made, provided,
however, that Licensee may disclose Confidential Information as required by
law, regulation, or court order and to Licensee's employees or agents who
have a need to receive or use such Confidential Information and who shall be
obligated in a similar manner. If Licensee is legally compelled to disclose
such Confidential Information, Licensee shall provide Licensor with prompt
prior written notice of such requirement and an opportunity for Licensor to
participate in such legal proceedings to the greatest extent possible.
5.2 Upon expiration or termination of this Agreement, Licensee shall
promptly return to Licensor all Confidential Information or certify to Licensor
that such Confidential Information has been destroyed.
5.3 Licensee acknowledges that the restrictions on the use, duplication,
and disclosure
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of the Confidential Information as set forth herein are reasonable to protect
Licensor's business interests. Licensee acknowledges that a violation of a
provision of this section would cause immediate and irreparable harm to
Licensor. Therefore, Licensee agrees that in addition to any other legal and/or
equitable remedies available to Licensor for enforcement of the terms hereof,
Licensor shall be entitled to injunctive relief against any violation of this
section.
5.4 This section shall survive the expiration or termination of this
Agreement.
SECTION 6. NO REVERSE ENGINEERING, ETC.
6.1 Licensee may not modify, decompile, copy, disassemble, translate,
or reverse engineer the Program. Licensee shall not modify third party software
embedded or contained in or provided with the Program.
6.2 Licensee may not alter any proprietary markings on the packaging of
the Program or on the Documentation, including copyright, trademark, and patent
legends.
SECTION 7. DISCLAIMER OF LIABILITY; LIMITATION ON DAMAGES.
7.1 [Insert ImageWare warranty, if any.]
7.2 LICENSOR AND ANY THIRD PARTY FROM WHOM LICENSOR HAS LICENSED THE
PROGRAM DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT (EXCEPT AS PROVIDED BELOW), WITH RESPECT TO THE
PROGRAM AND THE DOCUMENTATION.
7.3 LICENSOR AND ANY THIRD PARTY FROM WHOM LICENSOR HAS LICENSED THE
PROGRAM WILL NOT BE LIABLE FOR LOST PROFITS, LOST OPPORTUNITIES, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR TORT DAMAGES ARISING OUT OF THIS
AGREEMENT, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.4 LICENSEE'S EXCLUSIVE REMEDY AGAINST ANY PARTY FOR NONPERFORMANCE
OF THE WARRANTY SHALL BE LICENSOR'S CORRECTION OF ANY ERROR OR DEFECT IN THE
PROGRAM OF WHICH LICENSEE HAS GIVEN NOTICE TO LICENSOR OR AN EQUITABLE REFUND
OF THE AMOUNTS PAID TO LICENSOR HEREUNDER WHICH RELATE TO THE DEFECTIVE
PROGRAM. IN NO CASE SHALL THE AGGREGATE AMOUNT OF DAMAGES PAYABLE TO LICENSEE
FROM ANY AND
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ALL PARTIES FOR ANY CLAIM ARISING FROM THE PROGRAM OR THIS AGREEMENT (INCLUDING,
WITHOUT LIMITATION, ITS WARRANTY AND INDEMNIFICATION PROVISIONS) EXCEED THE
AMOUNTS PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT.
7.5 This section shall survive the expiration or termination of this
Agreement.
SECTION 8. PATENT AND COPYRIGHT INDEMNIFICATION
8.1 Licensor shall defend or, at its option, settle any claim or
proceeding brought against Licensee to the extent that it is based on an
assertion that the Program infringes any United States patent or copyright of
any third party and shall indemnify Licensee against all costs, damages, and
expenses finally awarded against Licensee which result from any such claim,
provided that Licensor shall have no liability hereunder unless (a) Licensee
gives prompt written notice of any such claim or proceeding, (b) Licensor has
sole control of the defense of any such claim or proceeding and all negotiations
for its compromise or settlement, and (c) Licensee reasonably cooperates in the
defense and settlement thereof and does not admit liability or settle such claim
without Licensor's written consent. In the event that the Program is likely to
become, in Licensor's opinion, or becomes, the subject of a claim, suit,
proceeding, or action for infringement or misappropriation of a United States
patent, copyright, trade secret, or other proprietary right, Licensor shall have
the right, at its option and expense, to perform one of the following in its
discretion:
(i) replace the Program with compatible, functionally equivalent
non-infringing technology;
(ii) modify the Program to make it non-infringing without impairing
Licensee's ability to use and operate the Program in accordance with the
Documentation; or
(iii) procure, at no increased cost to Licensee, the right to continue
using the Program.
8.2 If Licensor supplies a non-infringing release of the Program or a
non-infringing replacement product, Licensee shall promptly permit installation
of such non-infringing release or product on the Authorized Hardware and
terminate use of prior release(s) of the Program.
8.3 Licensor shall have no liability to Licensee that is based on or
arises out of the use of the Program or any component thereof when any
modification not authorized in writing by Licensor causes infringement or where
the combination of the Program with other hardware or software not licensed,
provided by, or approved by Licensor causes the infringement.
8.4 If, in its judgment, Licensor deems that, due to a claim or
proceeding based on alleged infringement or for any other reason, it is not in
Licensor's practical interest to continue
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distributing the Program, Licensor may require Licensee, upon thirty (30) days
written notice, to terminate use of the Program. Thirty days after notice to
cease use of the Program, the Agreement shall terminate as to the Program
involved, Licensee shall receive a prorated refund of any license fee paid,
based on the percentage of unused license term remaining. For purposes of
calculating the prorated portion of a license fee, the maximum length of time is
considered to be five years.
8.5 EXCEPT AS SPECIFICALLY PROVIDED OTHERWISE HEREIN, THE PROVISIONS OF
THIS SECTION ARE IN LIEU OF ALL OTHER OBLIGATIONS, INCLUDING WITHOUT LIMITATION
THE IMPLIED WARRANTY OF NON-INFRINGEMENT, AND STATE THE SOLE, EXCLUSIVE, AND
ENTIRE LIABILITY OF LICENSOR AND THE SOLE, EXCLUSIVE, AND ENTIRE REMEDY OF
LICENSEE WITH RESPECT TO ANY CLAIM OF INFRINGEMENT BY THE PROGRAM. IN NO EVENT
SHALL LICENSOR BE LIABLE FOR LOST PROFITS OR SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF ANY INFRINGEMENT UNDER THIS AGREEMENT, EVEN
IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SECTION 9. TERMINATION; RIGHTS AND OBLIGATIONS UPON TERMINATION
9.1 Licensor may terminate this Agreement in the event Licensee commits
a material breach of any of its obligations concerning the scope of use or the
protection of the Program, Documentation, or Confidential Information.
9.2 Upon termination of this Agreement, Licensee's license to use the
Program shall terminate, and Licensee shall immediately turn over to Licensor
all copies of the Documentation and any other Confidential Information relating
to the Program and Documentation, and Licensee shall provide evidence to
Licensor of having removed and erased completely any copies of the Program
installed or recorded on any hard disk or other storage medium at all Authorized
Locations (or new locations permitted by mutual written agreement under the
Agreement, as well as any other location(s) where it may be found). Licensee
shall return original magnetic media and Documentation provided by Licensor for
the Program and any and all later releases that have been made available to
Licensee.
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VALUED ADDED RESELLER (VAR) AGREEMENT
This Agreement is made as of the 7th day of October 1998, by
ImageWare Software, ("VAR"), with offices at 15373 Innovation Drive, Suite
120, San Diego, California 92128-3424 and Visionics Corporation, a
corporation organized under the laws of New Jersey ("Licensor"), with offices
at 1 Exchange Place, Jersey City, NJ 07302 USA.
WHEREAS, Visionics owns or controls the rights in certain face
recognition technology and products (as defined below);
WHEREAS, VAR desires a business relationship to distribute and sell
Visionics products in accordance with and subject to all of the provisions of
this Agreement;
NOW, THEREFORE, for the consideration stated in this Agreement, the
parties hereby agree as follows:
SECTION 1.
DEFINITIONS
The following words shall, where the context allows, have the
following meanings whether such words shall appear in lower case or
with the first letter of each word capitalized:
a) "ENGINE" shall mean Visionics' face detection and recognition
technology as encapsulated in the FaceIt Developer Kit.
b) "VISIONICS' FINISHED PRODUCTS (VFP)" shall mean products built by
Visionics based on the Engine and offered to VAR for resale. Current
list of Visionics' Finished Products(s) that will be subject to this
Agreement is given in Exhibit A, Section 1. This list can be updated
and modified from time to time by written consent of both parties.
c) "OPEN-SOURCE PRODUCTS (OSP)" shall mean VFPS that Visionics
designates as Open Source by providing Preferred VARs access to
the application source code for the purpose of customizing the
applications to the specific needs of their customers. Current
list of OSPs is given in Exhibit A, Section 2. This list can be
updated from time to time by mutual written agreement of both
parties.
d) "VAR CUSTOMIZED PRODUCT (VCP)" shall mean the product which results
from ImageWare's customization of the OSP, Engine or from the
integration of the OSP with other value added components - example
ImageWare's FaceID program (part of the C.R.I.M.E.S. product suite).
e) "APPLICATIONS" shall be defined as product applications that the
VAR is allowed to pursue subject to the terms of this Agreement. The
Applications are set in Exhibit A, Section 3. This list can be
updated by mutual written agreement by both parties.
f) "TERRITORY" shall mean the world.
g) "TRADEMARK" shall be defined as any trademarks(s) owned by Visionics
from time to time.
h) "CUSTOMERS" shall be defined as end-user customers that VAR sells
the VCP product to.
i) "SDK" Visionics' FaceIt software developer kit.
<PAGE>
SECTION 2.
GRANT OF LICENSE
2.1 For the term of this Agreement, Visionics hereby grants to VAR and
VAR hereby accepts:
a) A limited, non-exclusive license throughout the Territory to market
and resell VFPs.
b) The right to customize the OSPs to produce a VAR Customized Product
(VCP), provided that such customization shall be done (i) within
the guidelines permitted by Visionics' SDK and the application
source code for the OSPs, (ii) in order to meet specific needs of
Customers.
2.2 In connection with the exercise of the rights granted in paragraph
(2.1a, b) above the VAR:
a) Acknowledges that it has no right under this current Agreement to
sublicense the Engine, or the OSPs to any third party, other than as
incorporated in a VAR customized product.
b) Understands and accepts that the Engine in the form of the SDK is
provided for the purpose of facilitating the customization of OSP
and that the VAR does not have the right to resell the SDK or the
Engine independently without prior written approval of Visionics.
c) Can use its own tradename for the VCP provided that the VAR uses the
FaceIt logo(s) and/or the expression "with FaceIt -Registered
Trademark- Technology" or "Powered by FaceIt" or "with FaceIt
-Registered Trademark- Face Recognition Technology" or equivalent
expressions that acknowledge that the face recognition technology in
the VCP is FaceIt from Visionics on where appropriate on its VCP
Product packaging and advertising, splash screen etc, with all such
use to inure to the benefit of Visionics or its suppliers. VAR is to
provide Visionics with samples of its packaging and advertisement
that mention FaceIt technology before the manufacture, sale or
distribution of (whichever occurs first) of its VCP.
d) VAR explicitly acknowledges that the grant in paragraph (2.1a,b)
will not in any way be interpreted as granting ownership rights in
any intellectual property associated with the ENGINE, THE VFPS OR
THE OSPS. All such ownership shall remain solely with Visionics.
e) Notwithstanding any other provisions contained in the Agreement,
all intellectual property created by VAR previous to or during the
course of this agreement, including but not limited to that
contained in VCP, shall be owned exclusively by VAR except those
reserved in paragraph (2.2d).
2.3 Notwithstanding any other provisions contained in this Agreement,
Visionics and its suppliers reserve all rights not expressly granted
herein to VAR.
SECTION 3.
VISIONIC'S OBLIGATIONS
3.1 Unless the VAR has already received the SDK, Visionics shall deliver
to VAR a copy of the SDK within ten (10) business days following the
execution of this Agreement. The SDK will be invoiced NET 30 for the
amount of $4,495 ($US) (discount rates are not applicable to SDKs).
3.2 Visionics shall deliver to VAR, within 30 days of release, the VFPs
for evaluation and demonstration to Customers by VAR.
<PAGE>
3.3 Visionics shall deliver to VAR, within 30 days of release, the
application source code for the OSPs.
SECTION 4.
VAR'S OBLIGATIONS
4.1 VAR shall, subject to the terms of this Agreement, use reasonable
commercial efforts to promote, market, sell and support the VFPs and to
develop and commercialize the VCPs throughout the Territory.
4.2 VAR shall cause Visionics copyright, patent and trademark notices to
appear on or within each unit of the VCP Product and/or each item of
packaging and promotional material as may be designated and approved
by Visionics.
4.3 VAR shall keep Visionic reasonably informed regarding its marketing and
business development plans relating solely to the VCPs and VFPs, to the
extent that those plans include the sale of any of Visionics' products
and their customizations.
4.4 VAR shall reasonably cooperate with Visionics in protecting
Visionics' Engine, VFPs and intellectual property, at Visionics'
expense, and shall promptly supply Visionics, at Visioncs' expense,
with any information or materials reasonably required by Visionics. If
VAR is notified in writing or becomes aware of any unauthorized use of
the Engine in the Territory, VAR shall so advise Visionics. Visionics
may, in its discretion, take, or elect not to take, such action as it
deems advisable against any infringing party. If Visionics fails, or
elects not to take action against an infringing party within 30
business days after receipt by Visionics of VAR's notice to Visionics
of such unauthorized use, VAR shall have the right, at VAR's expense,
to commence an action against the infringer in VAR's name and/or in
Visionics' name and Visionics shall cooperate with VAR, at VAR's
expense, in connection therewith. VAR shall not enter into any
settlements of infringements without Visionics' consent, which shall
not be unreasonably withheld.
4.5 VAR agrees to reasonably assist Visionics in protecting the distributon
of the VFPs and Engine from unlawful duplication. VAR shall furnish
Visionics with samples of proposed advertising, packaging and wrapping
materials for the VCP Products before manufacture, sale or distribution
(whichever first occurs) of the same.
SECTION 5.
PROPRIETARY RIGHTS
5.1 Visionics or its suppliers shall own the copyright and all other rights
to the Engine, and VFP, and VAR shall not challenge, or cause any third
party to challenge, the rights of Visionics or its suppliers anywhere
in the world.
5.2 VAR shall own the copyright and other rights to any packaging,
advertising and promotional material produced by VAR for the VCP
Product only to the extent that they are not derivative works of the
material provided by Visionics to VAR. VAR acknowledges that is not,
by virtue of this Agreement, acquiring from Visionics the right to
create or utilize derivative works from the Engine or VFPs after the
expiration of the term of this agreement.
<PAGE>
SECTION 6
CONFIDENTIALITY
6.1 Each party acknowledges that it may be provided with information
about, and during the course of this Agreement will be brought into
close contact with many confidential affairs of the other Party,
including proprietary information about operational methods,
technical processes and other business affairs and methods, plans
for future developments and other information not readily available
to the public, including but not limited to source code for OSPs,
user and maintenance manuals, performance curves etc, all of which
are highly confidential and proprietary and all of which were
developed by the parties at great effort and expense. In recognition
of the foregoing, Each Party covenants and agrees:
(a) That it will keep secret all confidential matters of the party and
not disclose them to anyone outside of the receiving Party, except
with the disclosing Party's prior written consent;
(b) That it will not make use of any of such confidential matters for its
own purposes or the benefit of anyone other than the disclosing
Party, other than in accordance with the terms of this Agreement;
and
(c) That it will deliver promptly to the disclosing Party at any time
the disclosing Party may so request, all confidential memoranda,
notes, records, reports and other confidential documents (and all
copies thereof) relating to the business of the disclosing Party,
which it may then possess or have under its control.
6.2 Each Party hereto shall keep in confidence and not disclose to any
third Party, without the written permission of the other party, the
terms of this agreement.
6.3 This requirement of confidentiality shall not apply to information
that is (a) in the public domain through no wrongful act of the
receiving party; (b) rightfully received by the receiving party from
a third party who is not bound by a restriction of nondisclosure;
(c) is required to be disclosed by applicable rules and regulations
of government agencies or judicial bodies; (d) was already in
possession of the receiving party as of the date of the receipt of
Visionics Engine, (Documented date of ImageWare's receipt of the
Engine from Visionics is April 24, 1998).
6.4 This obligation of confidentiality shall survive the termination of
this Agreement.
SECTION 7
COMPETING PRODUCTS
7.1 VAR agrees to refrain from direct communication with Visionics'
competitors regarding the Engine and VFPs, including but not limited
to its features, performance benchmarks, user feedback, product
roadmap and any other information not readily available to third
party. This shall apply to information that may not be considered
confidential.
SECTION 8
PAYMENT TERMS
8.1 VAR shall during the term of this agreement or after the term of
this agreement in the instance of residual product stock, pay to
Visionics royalties for each unit of the product sold in accordance
with the Pricing&Royalties Schedule in Exhibit B hereof by check or
wire transfer in U.S. Dollars, according to instructions given to
VAR by Visionics.
<PAGE>
8.2 VAR shall pay to Visionics Maintenance Fees and Upgrade Fees as set in
Exhibit C.
Under the terms of this Agreement, VAR is entitled to a 40% discount from
Visionics Published List Prices in accordance with the Pricing&Royalties
Schedule. In consideration of said discount, VAR agrees to a minimum
royalty payment of $10,000 per year. The minimum royalty shall be
pro-rated to a quarterly minimum payment of $2,500 and is due 30 days
after the close of each quarter. The accounting period shall coincide
with the fiscal accounting period.
8.3 VAR will bear all reasonable related bank charges. Any late payment will
accrue interest at a rate of 1.5% per month. VAR will pay any late
payment charge upon remitting the principle amount to Visionics.
8.4 Statements as to Royalties shall be sent by VAR to Visionics within 30
days following the end of each quarterly calendar period for such
preceding quarterly period together with payment of Royalties, if any,
shown to be due thereon.
8.5 All statements of Royalties and all other accountings rendered by VAR
hereunder shall be subject to objection, stating the basis thereof, by
Visionics within three (3) years after the date rendered (including
after termination or expiration of this Agreement).
8.6 VAR shall maintain, at its executive offices, books of account
concerning sales of the VCP Product and the VFPs. Visionics or its agent
may, at Visionics' sole expense, examine VAR's books relating to sales
of the VCP Products and the VFP's solely for the purpose of verifying
the accuracy thereof, during VAR's normal business hours and upon
reasonable written notice. Such books relating to any particular royalty
statement may be examined as aforesaid only within two years after the
date rendered. Visionics shall notify VAR in writing within 90 days
after such examination if Visionics believes that VAR's books are not
accurate. Visionics and its agents shall keep all information obtained
in such examination confidential and use such information solely for the
purpose of this paragraph.
8.7 Visionics may change the List Prices as defined in Exhibit C,
Maintenance Fees and Upgrade Fees, in whole or in part, at any time
upon no less than 90 days prior notice to VAR, subject to any binding
commitment that Visionics has made to VAR, but only if Visionics
generally applies such changes to its other VARs. Visionics may also
increase the Product Discount, Maintenance Discount or Upgrade Discount
upon no less than 30 days prior notice to VAR.
8.8 All amounts payable by VAR under this Agreement are exclusive of any
tax, levy or similar governmental charge that may be assessed by any
jurisdiction, whether based on gross revenue, the delivery, possession
or use of the VARs product, the execution or performance of this
Agreement or otherwise, except for net income, net worth or franchise
taxes assessed on VAR outside of the Territory. If, under the laws of the
Territory, VAR is required to withhold any taxes on such payments, then
the amount of the payment will be automatically increased to totally
offset such tax, so that the amount actually remitted to Visionics, net
of all taxes, equals the amount invoiced or otherwise due. VAR
promptly furnish Visionics with the official receipt of payment of these
taxes to the appropriate taxing authority. VAR will pay all other
<PAGE>
taxes, levies or similar governmental charges or provide Visionics with
a certificate of exemption acceptable to the taxing authority.
SECTION 9
MAINTENANCE
9.1 VAR shall be responsible for all technical support inquiries relating to
the VFPs and VCP which originate from VARs customers within the
Territory. These services include, but are not limited to: adequate
technical assistance, notification of upgrades, distribution of upgrades
and updates, and obtaining bug fixes from Visionics and distributing
them to the Customers.
VAR shall put together an appropriate maintenance program that it will
offer for a fee to its customers.
9.2 Visionics shall provide VAR personnel with reasonable training, such
technical information, current maintenance documentation, and
assistance, by E-Mail or by fax, by phone at VARs telephone expense, to
enable VAR to provide adequate support services to Customers.
9.3 Visionics shall provide notice of upgrades, identified problems, and
technical letters to VAR in a timely fashion.
SECTION 10
TERM OF AGREEMENT
10.1 The term of this Agreement shall commence upon the Effective Date of
this Agreement and shall expire in three years. This Agreement may be
renewed at Visionics' option and in writing after a performance review
to be conducted no later than 6 months before the Date of Expiration of
this Agreement. The obligation to pay royalty on residual product stock
that uses the Engine shall survive the termination of this Agreement.
SECTION 11
TERMINATION
11.1 In the event that (1) VAR fails to make any royalty payments to
Visionics pursuant to the terms of this Agreement, (2) bankruptcy,
insolvency or reorganization proceedings, or other proceedings analogous
in nature or effect, are instituted against the VAR or by the VAR with
respect to itself, or (3) VAR breaches any representation or warranty
made herein, Visionics may terminate this Agreement forthwith upon
written notice to VAR.
11.2 VAR has the right to terminate this Agreement without cause at any time
with 60 day written notice to Visionics.
<PAGE>
11.3 Upon expiration of the term of this Agreement, all rights granted to VAR
hereunder shall immediately and without further action by Visionics
revert to Visionics. VAR shall not thereafter manufacture, advertise,
distribute or sell VFPs; provided, however, that the VAR may sell off
existing inventories of the VFPs for a period of six months, subject to
all the other terms and conditions hereof. After expiration or other
termination of this Agreement, VAR shall continue to pay all royalties
that become due and payable hereunder.
11.4 Visionics and VAR agree that upon expiration or termination of this
Agreement, neither party shall be liable to the other for any damages or
expenditures, loss of profits of any kind or nature sustained or arising
out of, or alleged to have been sustained or to have arisen out of such
termination. The expiration or termination of this Agreement shall not,
however, relieve or release either party from making payments which may
be owing to the other party under the terms of this Agreement.
11.5 Upon expiration or termination of this Agreement, VAR shall immediately
cease all use of Visionics' Trademarks, and will not use any trademark
which is confusingly similar to any of Visionics' Trademarks.
SECTION 12
REPRESENTATIONS AND WARRANTIES/INDEMNIFICATION
12.1 Each party represents and warrants to the other that this Agreement has
been duly authorized, executed and delivered by it; it has the full
power and authority and is free to enter into this Agreement and to
perform its obligations hereunder; this Agreement constitutes its valid
and binding obligation, enforceable in accordance with its terms; and the
making of this Agreement does not violate any agreement, right or
obligation existing between it and any other person, firm or
corporation, on the other hand.
12.2 VAR represents and warrants that any materials created or added to the
VFP or OSP or the VCP Product Set by VAR or its agents, does not and
will not infringe the proprietary rights of any third party including,
without limitation, patents, copyrights, trade secrets, rights of
privacy and other intellectual property rights. VAR further represents
and warrants that the VCP Product Set will be manufactured in accordance
with industry standards for similar products, to the best of its
knowledge will be free of defects, and will not be harmful to the
property or person of third parties. VAR will handle in a professional
manner any end user or distributor inquiries or complaints regarding the
VCP.
12.3 Each party shall indemnify, defend and hold harmless the other (and the
other's officers, directors, and affiliated companies) from any cost or
expense (including reasonable attorney's fees), whether awarded by a
court of panel or arbiters or paid in settlement, payable by the
indemnified party to a third party as a result of a breach by the other
party to this Agreement of a representation or warranty contained in
this section. The party who would be entitled to indemnification shall
promptly notify the other party of any such claim or proceeding and
shall not settle any such claim or proceeding without the indemnifying
party's prior written consent. The indemnified party shall have the
right at its expense to participate in the defense thereof with counsel
of its choice, provided that the indemnifying party shall have the right
at all times to retain or resume control of the conduct of such defense.
This indemnification obligation shall survive for two years after
termination or expiration of this Agreement.
<PAGE>
12.4 Visionics represents and warrants to VAR that the sale of the VFP and
use of the Engine, OSP, and SDK to produce and sell the VCP by VAR will
not infringe any copyright, patent, trade secret, or other intellectual
property rights of any third party and that Visionics has the right to
grant the licenses hereunder to VAR. For purposes of this section, VFP,
Engine, OSP, and SDK are collectively referred to as "Licensed Products".
Visionics shall indemnify, defend, and hold VAR harmless against any
claim that the use of the Licensed Products in accordance with this
Agreement, infringes any third-party intellectual property rights.
Visionics shall have the right and responsibility to control the defense
and all related settlement negotiations. Visionics shall bear all the
expenses for any such defense and negotiations. If any infringement
claim has occurred or is reasonably likely to occur, then Visionics
shall be obligated, at VAR's option, either (i) to procure the right for
VAR to continue the use of the Licensed Products; (ii) replace or modify
the Licensed Products so they are noninfringing; or (iii) if neither of
the foregoing options are available, to return to VAR the fees paid by
VAR under this Agreement. Visionics shall reimburse VAR on a monthly
basis for any and all damages and expenses incurred by VAR as a direct
or indirect result of a third-party infringement claim. Visionics
further represents and warrants to VAR that the Licensed Products shall
be of the quality for which they were contracted, and fit for the
purpose for which they were intended by VAR.
SECTION 13
LIMITATION OF LIABILITY
13.1 Under no circumstances will either Party or related persons, be liable
for any consequential, indirect, special, punitive or incidental
damages or lost profits, whether foreseeable or unforeseeable, based on
claims of either Party, their dealers or Customers (including, but not
limited to, claims for loss or data, goodwill, use of money or use of
the Engine/VFP, interruption in use or availability of data, stoppage of
other work or impairment or other assets), arising out of breach or
failure of express or implied warranty or condition, breach of contract,
misrepresentation, negligence, strict liability in tort or otherwise. In
no event will the aggregate liability which either Party or related
persons may incur in any action or proceeding exceed the total amount
actually paid to by either Party for the specific item that directly
caused the damage. Visionics disclaims any and all liability for
recommendations that Visionics may make to VAR, its dealers or Customers,
with respect to third party products that Visionics may recommend. This
section will not apply only when and to the extent that applicable law
specifically requires liability, despite the forgoing exclusion and
limitation.
13.2 VAR agrees to include an appropriate end-user license in its VCP Product
Set that will hold the VAR and Visionics harmless against claims by
third party. This end-user license should include explicit language to
the effect that the product is sold as "AS IS". Alternatively VAR may
elect to purchase product liability insurance to cover potential claims
and agrees to indemnify Visionics against all third Party claims in
relation to the VFPs or VCPs.
SECTION 14
MISCELLANEOUS PROVISIONS
<PAGE>
14.1 NO ASSIGNMENT. VAR shall not have the right to assign any of its
rights of obligations hereunder.
14.2 NOTICES. All notices, statements and payments to be sent to the
parties hereunder shall be addressed to the parties at the addresses
set forth on the first page hereof or at such other address as the
parties shall designate in writing from time to time. All notices
shall be in writing and shall either be served by personal delivery
(to an officer of each company), mail, or facsimile (if confirmed by
mail or personal delivery of the hard copy), all charges prepaid.
Except as otherwise provided herein, such notices shall be deemed
given when received. Copies of all notices to Visionics should be
sent to Visionics at its address set forth above attention: Dr.
Joseph Atick, President.
14.3 SCOPE OF AGREEMENT AND AMENDMENT. The entire understandings between
the parties hereto relating to the subject manner hereof are
contained herein. There are no representations, warranties, terms,
conditions, undertakings or collateral agreements, express, implied
or statutory, between the parties other than as expressly set forth
in this Agreement. This Agreement cannot be changed, modified,
amended or terminated except by an instrument in writing executed by
both VAR and Visionics. All Schedules, which may be attached hereto,
constitute a part of this Agreement and are incorporated herein by
this reference.
14.4 NO WAIVER. No waiver, modification or cancellation of any term or
condition of this Agreement shall be effective unless executed in
writing by the party charged therewith. No written waiver shall
excuse the performance of any act other than those specifically
referred to therein and shall not be deemed or construed to be a
waiver of such terms or conditions for the future or any subsequent
breach thereof.
14.5 RELATIONSHIP OF PARTIES. This Agreement does not constitute a
partnership or joint venture between Visionics and VAR. Neither VAR
or Visionics shall have any right, power or authority to obligate or
bind the other in any manner whatsoever, except as provided for in
this Agreement, and nothing herein contained shall give or is
intended to give any rights of any kind to any third persons.
14.6 APPLICABLE LAWS. This Agreement shall be governed by the laws of New
Jersey applicable to contracts made and to be wholly performed
therein (without regard to choice of law).
14.7 ARBITRATION. In the event of any dispute or controversy hereunder
(including, without limitation, any dispute involving the existence,
validity or breach of this Agreement), the parties shall submit same
to arbitration privately and confidentially in New York, New York by
one arbitrator mutually agreed (or, if none, appointed pursuant to
the Commercial Arbitration Rules of the American Arbitration
Association), subject to the arbitrator executing an appropriate
confidentiality agreement. The result of any such arbitration shall
be binding but shall not be made public unless necessary to confirm
same after non-compliance by a party.
14.8 SEVERABILITY. If any provision of this Agreement is or becomes or is
deemed invalid, illegal or unenforceable under the applicable laws
or regulations of any jurisdiction, then either such provision will
be deemed amended to conform to such laws or regulations without
materially altering the intention of the parties or it shall be
stricken and the remainder of this Agreement shall remain in full
force and effect.
14.9 APPROVAL AND CONSENT. Wherever the approval or consent of a party is
required hereunder, such approval or consent shall not be
unreasonably withheld.
14.10 NO CONFLICT OF INTEREST. The parties represent and warrant that they
have full power and authority to undertake the obligations set forth
in this Agreement and that they have not entered into any other
agreements that would render them incapable of satisfactorily
performing their obligations thereunder.
<PAGE>
14.11 COMPLIANCE WITH LAW. The parties agree that they shall comply with
all applicable laws and regulations of governmental bodies or
agencies in their performance under this Agreement.
14.12 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original Agreement for all purposes and
which collectively shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as
of the day and year first above written.
ImageWare Software.
By: /s/ [ILLEGIBLE]
-------------------------
Its: [ILLEGIBLE]
------------------------
VISIONICS CORPORATION
By: /s/ [ILLEGIBLE]
-------------------------
Its: Marketing Manager
------------------------
<PAGE>
EXHIBIT A
SECTION 1: VISIONICS FINISHED PRODUCTS (VFP)
FACEIT DB
SECTION 2: OPEN-SOURCE PRODUCTS (OSP)
FACEIT DB
SECTION 3: APPLICATIONS
UNLESS OTHERWISE AGREED TO IN WRITING BY BOTH PARTIES, THE APPLICATIONS VAR
SHALL PURSUE ARE
1. LAW ENFORCEMENT, PUBLIC SAFETY, DIGITAL IMAGE AND MUGSHOT BOOKING
APPLICATIONS THAT UTILIZE FACEIT DB AND CUSTOM VERSIONS OF IT ON A
WORLD-WIDE BASIS.
2. U.S. FEDERAL CONTRACTS CAN BE PURSUED BY VAR ONLY WITH THE WRITTEN
PERMISSION FROM VISIONICS ON A PER PROJECT BASIS.
3. VAR EXPLICITLY AGREES NOT TO CUSTOMIZE THE VFPS FOR CAMERA CONTROL
APPLICATIONS IN BROADCAST AND VIDEO CONFERENCING IN GROUP ENVIRONMENT.
SECTION 4: DESCRIPTION OF IMAGEWARE'S PRODUCT SET
C.R.I.M.E.S. is an integrated suite of software products which aids law
enforcement in the criminal investigative and arrest process. The
C.R.I.M.E.S. modular suite consists of five programs which are able to work
independent of one another. Included in the suite are: Suspect ID-Registered
Trademark-, a full color, photo-realistic composite program. Crime
Lab-Registered Trademark-, a photo and video image enhancement program,
Vehicle ID-TM-, a vehicle identification program, Crime Capture System-TM-, a
digital booking system, and Face ID-TM-, a facial recognition program.
Face ID-TM-is the program that Visionics Engine, OSPs and VFPs will be
integrated with. The current published description of Face ID-TM- is the
following:
Face ID is a facial recognition and retrieval program that helps officers
positively identify both unknown suspects and criminals with multiple
aliases. Quickly identify a suspect at the time of booking, or if caught on
video by searching local, county, regional or state digital photobases. Face
ID searches can be conducted with or without setting criteria filters.
Identify a suspect by searching a photo-realistic suspect composite against a
digital booking database. Rather than searching a large database one photo at
a time. a witness can average photographs and/or composites to rapidly
identify a suspect.
11
<PAGE>
EXHIBIT B
PRICING & ROYALTIES
Prices: For each Licensed Product that VAR delivers as part of VAR's Product
Set, VAR will pay Licensor the then-current list price of the Licensed
Product as detailed below, less the applicable discount. This payment will be
due and payable 30 days after the end of the following calendar quarter after
the Licensed Product is accepted by the Customer. The current List Prices are
specified below:
FACEIT DB PRICING SCHEDULE*
<TABLE>
<CAPTION>
FACEIT DB SERVER
NUMBER OF RECORDS COST FOR 1ST CPU 2ND CPU* 3RD CPU* 4TH CPU*
<S> <C> <C> <C> <C>
1-30,000 $ 13,988 $ 6,994 $ 4,196 $ 2,098
30,000-75,000 $ 20,988 $10,494 $ 6,296 $ 3,148
75,000-250,000 $ 37,488 $18,744 $11,246 $ 5,623
250,000-500,000 $ 66,988 $33,494 $20,096 $10,048
500,000-1,000,000 $120,988 $60,494 $36,296 $18,148
Server includes a license for 1 client
<CAPTION>
ADDITIONAL FACEIT CLIENTS
NUMBER OF CLIENTS PRICE PER CLIENT
<S> <C>
1-4 $4,196
5-8 $3,497
9-20 $1,255
21-50 $1,198
Each Additional 50 $ 600
</TABLE>
*Prices for Multiple CPUs are based on multiple CPUs within one Server Unit
*The above pricing schedule is applicable solely for FaceIt DB (when
integrated with digital imaging systems and law enforcement investigative
tools. Other pricing schedules will apply when FaceIt DB (is integrated with
other systems, including but not limited to applicant processing systems.
**Prices for Multiple CPUs are based on multiple CPUs within one Server Unit.
12
<PAGE>
July 12, 1999
Agreement Modifications
1. The royalty structure of our Agreement dated October 7th, 1998 is
hereby amended to reflect a 30% discount from Visionics Published OEM
Licensing Fees in accordance with the Pricing and Royalties Schedule.
2. In consideration of the terms listed above, Imageware agrees to a
minimum royalty payment in the amount of $200,000 per year, effective
March 1, 1999. The minimum royalty payment shall be pro-rated to a
quarterly payment of $50,000 and is due 30 days after the close of
each quarter. The accounting period shall coincide with the effect
date of March 1, 1999.
/s/ [ILLEGIBLE]
---------------------------
VISIONICS CORPORATION
/s/ [ILLEGIBLE]
---------------------------
IMAGEWARE
<PAGE>
SOFTWARE LICENSE AND SERVICES SUBCONTRACT
BETWEEN
DIGITAL BIOMETRICS, INC.
AND
IMAGEWARE SOFTWARE, INC.
Table of Contents
<TABLE>
<S> <C> <C>
1. Definitions ............................................................1
2. Scope of services.......................................................1
3. Type of contract........................................................1
4. Software license agreement..............................................2
5. Payments................................................................3
6. Invoices................................................................4
7. Year 2000 performance warranty..........................................4
8. Hardware warranty.......................................................5
9. Software warranty.......................................................5
10. Inspection and acceptance...............................................5
11. Insurance...............................................................6
12. Compliance with laws, regulations and ethics............................6
13. Limitation of liability.................................................6
14. General relationship....................................................6
15. Indemnification.........................................................7
16. Termination; Breach.....................................................7
17. Disputes, Binding arbitration, Attorneys' fees..........................8
18. Contract administration.................................................8
19. Miscellaneous...........................................................9
</TABLE>
EXHIBITS
<TABLE>
<S> <C>
Exhibit A IWS Pricing Proposal. Dated 5/24/1999.
Exhibit B DBI contract overview. Dated 7/06/99.
Exhibit C LASD Workplan. Dated 5/24/99.
Exhibit D Scope of work. Dated 7/06/99.
Exhibit E System Acceptance. To be delivered to conform to Exhibit F.
Exhibit F PHOTO IMAGING SYSTEM, Proposal to Digital Biometrics, Inc. for
Los Angeles County Sheriff's Department. Dated 3/22/99.
</TABLE>
<PAGE>
SOFTWARE LICENSE AND SERVICES SUBCONTRACT
THIS SUBCONTRACT is made and entered into with an effective date of
July 23, 1999, by and between Digital Biometrics, Inc. having offices at
__________________________________(hereinafter "DBI") and ImageWare Software
Inc. having offices at 10883 Thornmint Road, San Diego, CA 92127 (hereinafter
"IWS").
DBI desires to contract IWS in order to provide IWS investigative product to
improve the LASD Live-Scan Fingerprinting Network System.
The parties agree as follows:
1. DEFINITIONS
As used herein, the following terms have the following meanings:
"Prime Contract" means LASD/DBI Agreement.
"Contractor" means DBI or its authorized Contracting Official.
"Subcontractor" means ImageWare Software, or its authorized representative.
"Customer" means the Los Angeles Sheriff's Department (LASD).
"Electronic Digital Mug System", means the Crime Capture System investigative
software, including Face ID and developed interfaces.
"The Software" means all software developed by IWS and offered to LASD as
defined in Exhibit A and Exhibit F.
2. SCOPE OF SERVICES
IWS shall performance services and deliver equipment in accordance with
Exhibit A - "IWS Pricing Proposal", Exhibit B - "DBI contract overview",
Exhibit C - "LASD Workplan", Exhibit E - "System Acceptance", Exhibit D -
"Scope of Work" and Exhibit F. The term of this Subcontract Agreement is
valid through final acceptance of the delivered system, or for termination
for other than default. IWS agrees to offer maintenance, customer and product
support for the system for at least five years after installation subject to
LASD entering into an IWS Maintenance Agreement during that five years. Any
such Maintenance Agreement is optional for LASD and requires LASD to pay an
additional fee. Through the term of this Maintenance Agreement LASD shall be
entitled to all the Software updates, including bug fixes and generic
upgrades provided to other IWS customers. Upgrades that represent feature
enhancements shall not be included.
3. TYPE OF CONTRACT
This Subcontract is a Firm Fixed Price agreement which provides for IWS to
furnish the items described under the Scope of Work, Exhibit D, at the fixed
unit prices set forth in
DBI-IWS Agreement Page 1
<PAGE>
Exhibit A - "IWS Pricing Proposal", all in accordance with the terms,
conditions and provisions included in this Subcontract, or incorporated as
Exhibit hereto and made a part hereof. There shall be no charge for software
and services provided by IWS unless specifically set forth under this
Subcontract.
4. SOFTWARE LICENSE AGREEMENT
IWS grants to DBI the right to sublicense the Software to LASD. The Software
shall be and remain the sole and exclusive products of IWS. DBI shall have no
rights in or to the Software.
The Software may not be copied or modified, in whole or in part, for any
purpose whatsoever. The Software may not be reversed, compiled, dissembled,
or otherwise reverse engineered in whole or in part. The Software and its
associated documentation shall be used only with the designed equipment for
which, or with which, it was acquired. The parties acknowledge that during
performance under this contract, new technologies, proprietary and
confidential concepts, methods, techniques, processes and ideas, whether or
not patentable or copyrightable, and whether or not constituting inventions
may result which the parties now agree shall constitute protectable
Intellectual Property. All right, title and interest, including trademarks,
copyright interests and other forms of intellectual property, in and to such
new technologies, proprietary and confidential concepts, methods, techniques,
processes and ideas developed and funded under this contract shall be the
exclusive property of IWS. All right, title and interest, including
trademarks, copyright interests and other forms of intellectual property, in
and to such intellectual property developed by IWS, its employees, IWSs,
vendors or agents, in the performance of this agreement shall be the property
of IWS, with LASD being granted, through license, use thereof.
Upon final acceptance, IWS hereby grants to LASD a perpetual, non-exclusive,
royalty-free, irrevocable, fully-paid license to all Software and its
associated documentation. No title to or ownership of the Software or any of
its parts is transferred to LASD. Title to the Software and all patents,
copyrights, trade secrets, and any other applicable intellectual property
rights shall remain with IWS and/or its vendors whether developed prior to or
during the performance of this contract.
DBI or LASD funded products and inventions developed subsequently to this
agreement that are not based on IWS patents, trade secrets or any other
applicable intellectual, property rights shall be considered DBI or LASD
property respectively.
The database contents (Records and images) shall remain the property of LASD
and shall not be released or transferred without LASD project manager
approval. The database structure contains IWS trade secrets and intellectual
property rights and therefor shall remain the property of IWS.
DBI-IWS Agreement Page 2
<PAGE>
CONFIDENTIAL
5. PAYMENTS
The total price for the System is $428,483.61 as set forth in Exhibit-A.
Payment shall be according to the following schedule and be made within 30
days of receipt of IWS's invoice and notice of the listed event:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
EVENT* PAYMENTS AMOUNT**
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C>
PHASE I DELIVERABLES
- --------------------------------------------------------------------------------------------
01 System Acceptance Test Plan $0.00
- --------------------------------------------------------------------------------------------
02 Server installed and configured with CCS Upon LASD manager $81,635.11
software acceptance of delivery
- --------------------------------------------------------------------------------------------
03 Interconnect with DBI store and forward Upon LASD manager $21,132.00
acceptance
- --------------------------------------------------------------------------------------------
04 Conversion of Photos and Records Upon LASD manager $36,332.00
acceptance
- --------------------------------------------------------------------------------------------
05 De-duplication of Database Upon LASD manager $4,293.00
acceptance
- --------------------------------------------------------------------------------------------
06 Installation of Investigative Software in Upon LASD manager $56,273.25
10 sites (Includes Sybase licenses) acceptance
- --------------------------------------------------------------------------------------------
07 10% Holdback Upon LASD manager $21,342.01
acceptance of Phase I
- --------------------------------------------------------------------------------------------
08 Training Phase I Upon completion of $3,750.00
training
- --------------------------------------------------------------------------------------------
PHASE II DELIVERABLES
- --------------------------------------------------------------------------------------------
09 Installation of Investigative Software in Upon LASD manager $28,563.12
5 sites (Includes Sybase licenses) acceptance
- --------------------------------------------------------------------------------------------
10 Installation of Investigative Software in Upon LASD manager $28,563.12
5 sites (Includes Sybase licenses) acceptance
- --------------------------------------------------------------------------------------------
11 Conversion of data from Sybase to Oracle Upon LASD manager $9,000.00
acceptance
- --------------------------------------------------------------------------------------------
</TABLE>
DBI-IWS Agreement Page 3
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C>
12 Web Investigative Interface Upon LASD manager $70,740.00
acceptance
- --------------------------------------------------------------------------------------------
13 CAL-PHOTO Upon LASD manager $6,120.00
acceptance
- --------------------------------------------------------------------------------------------
14 CAL-GANG Upon LASD manager $6,120.00
acceptance
- --------------------------------------------------------------------------------------------
15 CCHRS Upon LASD manager $18,630.00
acceptance
- --------------------------------------------------------------------------------------------
16 LARCIS Upon LASD manager $18,630.00
acceptance
- --------------------------------------------------------------------------------------------
17 10% Holdback Upon LASD manager $14,360.00
Acceptance of Phase II
- --------------------------------------------------------------------------------------------
18 Training Phase II Upon completion of $3,000.00
training
- --------------------------------------------------------------------------------------------
</TABLE>
* All the deliverables include respective shipping, handling, installation
charges, and IWS project management.
** Most of the amounts reflect a 10% holdback payable at the end of the
respective phases after final testing. There is not a 10% holdback in
items 07, 08, 09, 10, 17 and 18.
All other orders resulting from the follow-up contract pricing shall be
invoiced directly to the corresponding agency upon acceptance of software.
Payment shall be made by the agency within 30 days of receipt of IWS's
invoice.
6. INVOICES
Invoices when applicable shall be mailed to:
Digital Biometrics, Inc.
NW 7090 PO Box 1450
Minneapolis, MN. 55485-7090
7. YEAR 2000 PERFORMANCE WARRANTY
IWS agrees to warrant that each hardware, software, and firmware product
delivered under this agreement and listed herein shall be able to accurately
process date/time data (including, but not limited to, calculating,
comparing, and sequencing) from, into, and between the
DBI-IWS Agreement Page 4
<PAGE>
twentieth and twenty-first centuries, and the years 1999 and 2000 and
leap-year calculations, to the extent that other information technology, used
in combination with the information technology being provided hereunder,
properly exchanges date/time data with it. The remedies available to DBI
under this warranty shall include, but not be limited to, repair or replacement
of any listed product. Nothing in this warranty shall be construed to limit
any rights or remedies DBI may otherwise have under this agreement with
respect to defects other than year 2000 performance.
8. HARDWARE WARRANTY
IWS represents and warrants (1) that all hardware delivered pursuant hereto
will be new and shall be free from defects in material; that all items will
conform to the specifications as set forth in Exhibit A - "IWS Pricing
Proposal", Exhibit B - "DBI contract overview" and Exhibit D - "Scope of
Work", and Exhibit F; and (3) that all hardware warranty services performed
pursuant hereto will be free from defects in material and workmanship and
will be performed in accordance with the specifications and instructions of
LASD. However, IWS retains discretion and control with respect to the manner
and means of performing such services and shall at all times remain an
independent contractor. This warranty will cover one (1) year from time of
System Acceptance.
9. SOFTWARE WARRANTY
IWS represents and warrants (1) that all software related materials under
this Agreement are in conformance with requirements set forth in Exhibit A -
"IWS Pricing Proposal", Exhibit B - "DBI contract overview" and Exhibit D -
"Scope of Work"; and (2) that the software is fit for the intended purpose of
which is sold. IWS warrants that the Software will perform the functions set
forth in Exhibit B, and Exhibit F of this Agreement so long as the software
is unmodified and operated in accordance with the instructions of IWS. IWS's
sole obligation under this warranty shall be to provide corrections to the
Software to cause it to perform as specified in Exhibit B and Exhibit F. This
warranty will cover one (1) year from time of System Acceptance.
10. INSPECTION AND ACCEPTANCE
IWS will provide a System Acceptance Test Plan as a formal deliverable for
Customer acceptance, which is not to be unreasonably held. The plan will
conform to requirements from Exhibit A and Exhibit F.
The Functional Acceptance test for each deliverable will take place after
ImageWare has verified that the installation of all necessary hardware and
software is complete and ready for testing. The Functional Acceptance test
for each deliverable will be considered successful if the requirements
defined in the System Acceptance Test Plan are satisfied.
DBI-IWS Agreement Page 5
<PAGE>
In addition to the functional acceptance for each deliverable, at the end of
each of the phases there will be a final testing of all deliverables.
11. INSURANCE
IWS will provide and maintain at its own expense the following programs of
insurance covering its operations hereunder. Certificates of insurance will
be delivered to LASD prior to commencing service under this Agreement. Such
insurance shall be endorsed naming the County of Los Angeles as an additional
insured where indicated and shall include (a) General Liability insurance
policy with a minimum policy limit of $1,000,000 per occurrence (b)
Automobile Liability insurance policy with a combined singled limit not less
than $300,000 per occurrence, and (c) worker's Compensation in an amount and
form to meet all applicable requirements of the California Labor Code
including Employers liability with a $1,000,000 limit, covering all persons
performing work on behalf of IWS and all risks to such persons under this
Agreement.
12. COMPLIANCE WITH LAWS, REGULATIONS AND ETHICS
In addition to the obligations in this Agreement and generally in performing
the Services both Parties accept that their individual conduct shall at all
times comply with all laws, rules and regulations of government and other
bodies having jurisdiction over the area in which the services are being
conducted.
13. LIMITATION OF LIABILITY
Notwithstanding any provisions of this contract to the contrary, IWS hereby
acknowledges and agrees that DBI's total liability to IWS under this contract
shall in no circumstance exceed the aggregate of the amounts paid to it for
services and products pursuant to this contract.
14. GENERAL RELATIONSHIP
IWS agrees that in all matters relating to this subcontract Agreement it
shall be acting as an independent contractor and shall assume and pay all
liabilities and perform all obligations imposed with respect to the
performance of this Subcontract Agreement.
DBI-IWS Agreement Page 6
<PAGE>
15. INDEMNIFICATION
OBLIGATIONS -- DBI :
DBI agrees to protect and hold IWS harmless from any and all claims, suits,
actions and procedures brought or filed by third parties and from all
damages, penalties, losses, costs and expenses (including attorney's fees)
arising out of, or related to, any act or omission of DBI, its employees, or
agents.
OBLIGATIONS -- IWS
IWS agrees to protect and hold DBI harmless from any and all claims, suits,
actions and procedures brought or filed by third parties and from all
damages, penalties, losses, costs and expenses (including attorney's fees)
arising out of, or related to, any act or omission of IWS, its employees, or
agents.
In addition IWS agrees to protect and hold DBI harmless from any claims
brought against DBI alleging that the System Software infringes a 3rd party's
patents or copyright, provided that IWS is notified promptly by DBI of any
such claim (including any threatened claim) and IWS has sole control of the
defense with respect to such claims. The preceding indemnification by IWS
will not apply to any claim based, in whole or in part, on any modification
of the Software made by any person other than IWS. If a final injunction is
issued, or, IWS believes, is likely to be entered, prohibiting the use of the
Software by DBI, IWS will, at its sole discretion and expense, either: (i)
procure for DBI the right to use the Software as provided herein, (ii)
replace the Software with non-infringing, functionally equivalent product;
(iii) suitably modify the Software so that it is not infringing and provides
similar functionality; or (iv) accept return of the Software and refund the
purchase price. IWS's LIABILITY FOR ANY INFRINGING SOFTWARE IS STRICTLY
LIMITED TO THE FOREGOING.
16. TERMINATION; BREACH
TERMINATION
Either party may terminate this Agreement upon a breach by the other party
which is not cured in a timely manner as provided for below. Otherwise, this
Agreement will terminate upon both parties' fulfilling all of their
obligations under it.
BREACH
In the event of any material breach of this Agreement by either party, the
aggrieved party must give written notice thereof, including a reasonably
detailed statement of the nature of such breach, to the breaching party. The
breaching party has thirty (30) days to cure such breach. In the case of a
breach that cannot reasonably be cured within 30 days, the breaching party
will provide a written estimate of the time needed to cure such breach, will
commence
DBI-IWS Agreement Page 7
<PAGE>
to cure such breach within thirty (30) days of notice from the aggrieved
party, and will diligently continue to cure such breach to completion. If the
breaching party fails to cure, to commence cure, or diligently prosecute such
cure to completion, the aggrieved party shall be entitled to suspend its
performance under this Agreement for as long as the breach remains
uncorrected, and avail itself the remedies provided by this Agreement.
17. DISPUTES; BINDING ARBITRATION; ATTORNEYS' FEES
DISPUTES
In the event that any dispute or controversy arises between IWS and DBI, IWS
and DBI agree to first attempt to resolve the matter through discussions
between them directly.
BINDING ARBITRATION
In the event IWS and DBI are unable to resolve any matter through
discussions, they agree to resolve the matter through binding arbitration.
IWS and DBI will agree upon the location and rules for the arbitration, and,
if they are unable to agree, will follow the rules of the American
Arbitration Association.
ATTORNEYS' FEES
In the event of arbitration or any court proceedings notwithstanding
subsection (b), above, the court or arbitrator may award reasonable attorneys
fees and costs to the prevailing party in addition to any other relief which
the party is entitled.
18. CONTRACT ADMINISTRATION
In regard to administrative and contractual matters relating to this
Subcontract, the parties hereby appoint the persons listed below, or their
duly authorized designees, as the only persons empowered to make written
commitments on behalf of their respective organizations to effect changes to
any portion of this Subcontract.
FOR DBI:
Project Director
Mr. Barry Fisher
Digital Biometrics, Inc.
Project Manager
Mr. Allen Sypherd
FOR IWS:
Project Director
Mr. Robert Bannan
DBI-IWS Agreement Page 8
<PAGE>
Project Manager
Ms. Carmen Errejon
Sales Rep
Mr. Erik Carlgren
19. MISCELLANEOUS
A) INCORPORATED EXHIBITS
The following documents are hereby incorporated into this Agreement by
reference:
Exhibit A IWS Pricing Proposal. Dated 5/24/1999.
Exhibit B DBI contract overview. Dated 7/06/99.
Exhibit C LASD Workplan. Dated 5/24/99.
Exhibit D Scope of work. Dated 7/06/99.
Exhibit E System Acceptance. To be delivered to conform to Exhibit F.
Exhibit F PHOTO IMAGING SYSTEM, Proposal to Digital Biometrics, Inc. for
Los Angeles County Sheriff's Department. Dated 3/22/99.
B) SOURCE CODE PROTECTION
IWS agrees to deposit the source code, documentation and related materials of
the System (Deposit Materials) with an Escrow Agent subject to LASD entering
into Software Escrow Agreement. The Deposit Materials will be made available
to LASD for the purpose of self support if certain events named in the
Software Escrow Agreement occur. IWS will provide a copy of its current
Software Escrow Agreement to LASD when requested.
C) NOTICES. Whenever under this Subcontract one party is required or
permitted to give notice to the other, such notice shall be in writing and
shall be deemed to have been given when delivered in hand, by facsimile, or
when sent by registered or certified United States mail, return receipt
requested, postage prepaid, and addressed as follows:
1. In the case of DBI:
Mr. Barry Fisher
Digital Biometrics, Inc. NW 7090 PO Box 1450 Minneapolis, MN.
55485-7090
2. In the case of IWS:
Ms. Carmen Errejon
ImageWare Software, Inc.
DBI-IWS Agreement Page 9
<PAGE>
10883 Thornmint, San Diego, CA 92127
D) ENTIRE AGREEMENT. This Subcontract constitutes the complete agreement
between the parties and supersedes all previous agreements or
representations, written or oral, with respect to the Programs and services
specified herein. This Subcontract may not be modified or amended except in a
writing signed by a duly authorized representative of each party and with
approval of the LASD AFIS project manager.
It is expressly agreed that any terms and conditions of any Delivery Order,
purchase order or other ordering document shall be considered void and
superseded in their entirety by the terms and conditions of this Subcontract.
This Subcontract shall also supersede the terms of any unsigned license
agreement included in any package for software.
E) GOVERNING LAW. The construction, enforceability, validity and
interpretation of this Subcontract shall be in accordance with the laws of
the State of California.
F) HEADINGS AND INTERPRETATIONS. The article and section headings and table
of contents used herein are for reference and convenience only and shall not
enter into the interpretation thereof.
G) SEVERABILITY. If any of the provisions of this Subcontract or part of
such provisions are or become invalid or unenforceable, the remaining
provisions shall continue to be effective to the extent that these portions
of this Subcontract embodying the material intent of the parties remain
unaffected.
H) WAIVERS. No waiver by a party of any of its rights or remedies hereunder
shall be construed as a waiver by such party of any other rights or remedies
that such party may have under this Subcontract.
I) NEGATION OF THE FORMATION OF A BUSINESS ORGANIZATION. This Subcontract
shall not constitute, create, or in any way be interpreted to create a
partnership, joint venture, or formal business organization of any kind
between IWS and DBI.
J) PUBLICITY. No publicity or advertising regarding this Subcontract shall be
released without the reasonable prior written approval of DBI, and with
approval of the LASD AFIS project manager except that this Subcontract may be
made known to the U.S. Contracting Agency/Organization, and except such
publicity as may be required to comply with federal and state securities
laws. Any consent with regard to this clause shall not be unreasonably
withheld.
K) SUPERSEDING EFFECT. This Subcontract supersedes all written and oral
agreements. Further, this agreement constitutes the entire Subcontract
between the parties hereto with
DBI-IWS Agreement Page 10
<PAGE>
respect to this Subcontract. All work performed by IWS, actions taken, and
payments made, if any, under any other prior written, or oral Subcontracts,
with respect to this Subcontract, shall be deemed to have been work
performed, actions, taken, or payments made under this Subcontract.
L) ASSIGNMENT. Neither this Subcontract nor any interest hereunder may be
assigned or otherwise transferred by either party to third parties other than
corporate affiliates of either party without the prior written consent of the
other party and LASD project manager, which consent shall not be unreasonably
withheld. This Subcontract shall be binding upon and inure to the benefit of
the heirs, successors, assigns, and delegates of the parties hereto.
EXECUTION OF AGREEMENT OF SUBCONTRACT
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed as of the day and year first above written.
DBI FWS
BY: /s/ James C. Granger BY: /s/ Jim Miller
------------------------------- -------------------------------
NAME: James C. Granger NAME: Jim Miller
----------------------------- ------------------------------
TITLE: Pres. & CEO TITLE: Chmn & CEO
---------------------------- -----------------------------
DATE: July 26, 1999 DATE: July 23, 1999
----------------------------- ------------------------------
DBI-IWS Agreement Page 11
<PAGE>
EXHIBIT A - IWS PRICING PROPOSAL MAY 24, 1999
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION QTY UNIT EXT TOTAL
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
CENTRAL IMAGE SERVER
- -----------------------------------------------------------------------------------------------------------------------------------
NETFINITY 7000 M10 400MHZ (QUAD PROCESSOR) RAID V
- -----------------------------------------------------------------------------------------------------------------------------------
IBM Netfinity 7000 M10 400/512KB Xeon, 128MB 1 $11,839.50 $11,839.50
- -----------------------------------------------------------------------------------------------------------------------------------
ECC OPEN, 32X, PCI (Rack 11U)
- -----------------------------------------------------------------------------------------------------------------------------------
(Std) 128MB (4x32MB) EDO DRAM DIMM - 50ns
- -----------------------------------------------------------------------------------------------------------------------------------
(Std) IBM 1.44MB 3.5-inch Diskette Drive
- -----------------------------------------------------------------------------------------------------------------------------------
(Std) Integrated IDE Controller
- -----------------------------------------------------------------------------------------------------------------------------------
(Std) Internal IDE CD-ROM Drive
- -----------------------------------------------------------------------------------------------------------------------------------
(Std) Netfinity 400W Hot-Swap Power Supply
- -----------------------------------------------------------------------------------------------------------------------------------
(Std) Netfinity 7000 400MHz/512KB PII Xeon Processor
- -----------------------------------------------------------------------------------------------------------------------------------
(Std) Planar Integrated Wide Ultra SCSI
- -----------------------------------------------------------------------------------------------------------------------------------
(Std) Planar Integrated Wide Ultra SCSI for External Devices
- -----------------------------------------------------------------------------------------------------------------------------------
(Std) S3 Trio 64V2 Graphics - 1MB SGRAM
- -----------------------------------------------------------------------------------------------------------------------------------
(Std) Systems Management Processor
- -----------------------------------------------------------------------------------------------------------------------------------
3520-2RU Netfinity EXP 15 Storage Expansion Unit 1 $ 3,321.00 $ 3,321.00
- -----------------------------------------------------------------------------------------------------------------------------------
(Std) 3520 Enclosure Hot-Swap Backplane 1 $ 2,160.00 $ 2,160.00
- -----------------------------------------------------------------------------------------------------------------------------------
IBM 35/70GB DLT SCSI Tape Drive - External 1 $ 7,458.75 $ 7,458.75
- -----------------------------------------------------------------------------------------------------------------------------------
IBM Netfinity ServerRAID-3L Ultra2 SCSI Adapter 1 $ 945.00 $ 945.00
- -----------------------------------------------------------------------------------------------------------------------------------
IBM Netfinity 400W Hot-Swap Redundant Power Supply II (2 total) 1 $ 810.00 $ 810.00
- -----------------------------------------------------------------------------------------------------------------------------------
IBM Netfinity 7000 M10 Rack-to-Tower Conversion Kit 1 $ 540.00 $ 540.00
- -----------------------------------------------------------------------------------------------------------------------------------
Netfinity 7000 400MHz/512KB Xeon Processor (4 total) 3 $ 2,160.00 $ 6,480.00
- -----------------------------------------------------------------------------------------------------------------------------------
IBM 8mm to 68pin Converter for external cables 1 $ 52.65 $ 52.65
- -----------------------------------------------------------------------------------------------------------------------------------
1GB (4x256MB) EDO DRAM DIMM - 50ns 1 $ 7,341.30 $ 7,341.30
- -----------------------------------------------------------------------------------------------------------------------------------
IBM Netfinity 18.2GB Wide Ultra SCSI SCA-2 HDD (HH) 8 $ 1,618.65 $12,949.20
- -----------------------------------------------------------------------------------------------------------------------------------
IBM Netfinity 2M Ultra2 SCSI Cable 2 $ 93.15 $ 186.30
- -----------------------------------------------------------------------------------------------------------------------------------
Netfinity NetBAY3 2 $ 117.45 $ 234.90
- -----------------------------------------------------------------------------------------------------------------------------------
Black Sleek Mouse 1 $ 28.35 $ 28.35
- -----------------------------------------------------------------------------------------------------------------------------------
IBM Netfinity 10/100 Ethernet Adapter (PCI) 1 $ 128.25 $ 128.25
- -----------------------------------------------------------------------------------------------------------------------------------
G72 - 17(15.7) in. Color Monitor, 69KHz, Stealth Gray 1 $ 476.55 $ 476.55
- -----------------------------------------------------------------------------------------------------------------------------------
IBM Standard Black 104-Key Keyboard 1 $ 60.75 $ 60.75
- -----------------------------------------------------------------------------------------------------------------------------------
OBI External V.34 Data/Fax Modem 1 $ 496.80 $ 496.80
- -----------------------------------------------------------------------------------------------------------------------------------
IBM Netfinity 4.5GB Wide Ultra SCSI SCA-2 Hot-Swap Hard Disk Drive (SL) 2 $ 565.65 $ 1,131.30
- -----------------------------------------------------------------------------------------------------------------------------------
External F/W to F/W Cable-Standard with 01K1174 Tape Drive 1 $ 128.25 $ 128.25
- -----------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL $ 56,768.85
- -----------------------------------------------------------------------------------------------------------------------------------
SOFTWARE
- -----------------------------------------------------------------------------------------------------------------------------------
CCS Server Software 1 $20,000.00 $20,000.00
- -----------------------------------------------------------------------------------------------------------------------------------
CCS Investigative Display Software 20 $ 4,900.00 $98,000.00
- -----------------------------------------------------------------------------------------------------------------------------------
Suspect ID (Composite Software) 20 $ 0.00 $ 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
Crime Lab (Image Editing Software) 20 $ 0.00 $ 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
Vehicle ID 20 $ 0.00 $ 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
Custom NIST Import from DBI Store and Forward 1 $20,000.00 $20,000.00
- -----------------------------------------------------------------------------------------------------------------------------------
Face ID Server Software (Includes Conversion and auto enrollment) 1 $ 0.00 $ 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
Face ID Client Software 4 $ 0.00 $ 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL $138,000.00
- -----------------------------------------------------------------------------------------------------------------------------------
CCHRS & LARCIS INTERFACE
- -----------------------------------------------------------------------------------------------------------------------------------
Systems Integration/Setup 40 $ 900.00 $36,000.00
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
CONFIDENTIAL
EXHIBIT A - IWS PRICING PROPOSAL MAY 24, 1999
<TABLE>
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------
Project Management 6 $900.00 $5,400.00
- ---------------------------------------------------------------------------------------------------------
SUBTOTAL $41,400.00
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
CAL-PHOTO/CAL-GANG INTERFACE
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
NIST or Flat File Export for Cal-Photo ID 1 $5,000.00 $5,000.00
- ---------------------------------------------------------------------------------------------------------
NIST or Flat File Export for Cal-Gang 1 $5,000.00 $5,000.00
- ---------------------------------------------------------------------------------------------------------
Project Management 4 $900.00 $3,600.00
- ---------------------------------------------------------------------------------------------------------
SUBTOTAL $13,600.00
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
WEB INVESTIGATIVE INTERFACE
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
WEB enabled CCS Investigative Software (LA Country and 1 $75,000.00 $75,000.00
Orange County
- ---------------------------------------------------------------------------------------------------------
Project Management 4 $900.00 $3,600.00
- ---------------------------------------------------------------------------------------------------------
SUBTOTAL $78,600.00
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
TOTAL HARDWARE/SOFTWARE $328.368.85
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
SERVICES
- ---------------------------------------------------------------------------------------------------------
De-duplication of Database 5 $900.00 $4,500.00
- ---------------------------------------------------------------------------------------------------------
Conversion of Existing Photos & Records (approx. 250,000) 250,000 $0.15 $37,500.00
- ---------------------------------------------------------------------------------------------------------
*Conversion of data on Mug Server from Sybase to Oracle 1 $10,000.00 $10,000.00
- ---------------------------------------------------------------------------------------------------------
Project Management/Specifications Gathering 15 $900.00 $13,500.00
- ---------------------------------------------------------------------------------------------------------
SUBTOTAL $65,500.00
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
LICENSES
- ---------------------------------------------------------------------------------------------------------
Sybase License 6.0 Server + 5 users 1 $1,248.75 $1,248.75
- ---------------------------------------------------------------------------------------------------------
Sybase License 6.0 (20 User) 1 $3,243.75 $3,243.75
- ---------------------------------------------------------------------------------------------------------
Windows Licenses TBD
- ---------------------------------------------------------------------------------------------------------
SUBTOTAL $4,492.50
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
SUBTOTAL $398,361.35
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
SHIPPING/HANDLING/INSTALLATION $23,372.26
- ---------------------------------------------------------------------------------------------------------
TRAINING 9 $750.00 $6,750.00 $6,750.00
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
TOTAL $428,483.61
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
FOLLOW-UP CONTRACT PRICING
- ---------------------------------------------------------------------------------------------------------
Per our agreement with LASD this pricing will be made available to all
agencies in Los Angeles County for a period of two years, subject to the
agency terms and conditions.
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
SOFTWARE
- ---------------------------------------------------------------------------------------------------------
CCS Investigative Display Software $4,900.00
- ---------------------------------------------------------------------------------------------------------
Suspect ID (Composite Software) $2,000.00
- ---------------------------------------------------------------------------------------------------------
Crime Lab (Image Editing Software) $300.00
- ---------------------------------------------------------------------------------------------------------
Vehicle ID $1,000.00
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT A - IWS PRICING PROPOSAL MAY 24, 1999
<TABLE>
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------
ADDITIONAL FACE ID CLIENT COSTS:
- ---------------------------------------------------------------------------------------------------------
1-10 copies $15,000.00
- ---------------------------------------------------------------------------------------------------------
11-50 copies $12,500.00
- ---------------------------------------------------------------------------------------------------------
51-100 copies $9,000.00
- ---------------------------------------------------------------------------------------------------------
over 100 $6,000.00
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
WARRANTY
- ---------------------------------------------------------------------------------------------------------
ImageWare offers a complete one year
warranty on all hardware and software
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
MAINTENANCE
- ---------------------------------------------------------------------------------------------------------
*ImageWare Customer Service (Year 1) $59,106.39
- ---------------------------------------------------------------------------------------------------------
STARTS THE DAY AFTER FINAL SYSTEM ACCEPTANCE
- ---------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT B - DBI CONTRACT OVERVIEW JULY 6, 1999
DBI CONTRACT OVERVIEW
This proposal is in response to a request by the Identification Unit of
the Los Angeles County Sheriff's Department, Exhibit F. It addresses and
provides solutions for many needs. Overall, it is a complete turn-key
solution that has been designed to eliminate these needs. The proposal
has no hidden costs and leaves many options.
Because of the many requirements that must be satisfied, this section is
broken into several phases in addition to providing system interfaces.
These phases flow in logical order and associated costs are paralleled
in the Cost Proposal.
PROJECT OVERVIEW
The heart of this project is a central mugshot server that must power
investigative clients throughout the County and the State. The server is
fully scaleable and capable of processing and distributing information
to a large number of client sources. The software that will drive this
solution is ImageWare's Crime Capture System (CCS). CCS runs on the
Windows NT 4.0 platform and will utilize Oracle 8.0 database software
as required by the County. CCS will either feed or be queried by a
minimum of five different subsystems including: CCHRS, LARCIS, CAL-PHOTO
ID, CAL-GANG, and via secure Intra-net. The system proposed is a
complete turn-key solution that meets current needs and provides many
options for the future. The entire system is fully Year 2000 compliant
and meets all State and Federal ANSI/NIST standards.
The system components will connect to the existing network directly,
with each agency or the county being responsible to provide LAN
connections for the new equipment. The operating system for the central
server will be Microsoft Windows NT 4.0. The protocol will be TCP/IP.
All connections to either the network or additional devices will be
industry standard connections.
Data archive and backup shall be accomplished on-line.
System security will make use of both operating system permissions as
well as database software security. This will allow access to certain
functions and data to be controlled by the system administrator. These
privileges and permissions will be given and controlled by user login.
There will be an administrative function available only to the system
administrator, where these permissions and privileges are maintained.
PHASE I
In the initial phase, ImageWare will install an IBM Netfinity 7000 M10
mug server that will eventually act in place of the current mugshot
server in Los Angeles County. IWS will convert the existing images and
data (approx. 250,000) and populate the current version of CCS, which
runs on Windows NT 4.0 and Sybase 6.0 database software. The purpose for
installing and converting the existing images on Sybase before CCS is
ported to Oracle is to satisfy the immediate needs for the County.
Examples would be creating
1
<PAGE>
EXHIBIT B - DBI CONTRACT OVERVIEW JULY 6, 1999
photo line-ups or searching, viewing and printing mugshots. In addition
to converting the existing database, we will also de-duplicate it.
Because of certain limitations to the existing photo database software,
there are duplicate records and photos of a good percentage of the
entire database. A de-duplication procedure that is agreed upon by both
IWS and the County will eliminate the unwanted photos and, or records.
While the conversion is taking place, IWS will complete the interface
with the DBI store and forward. The CCS server will identify, read and
export standard NIST type 1, 2 and Type 10 data packages from the
existing DBI store and forward server. Completion of this interface will
effectively replace the existing DBI Photo RAID. The existing images
will have been converted and all new records will be delivered directly
from the DBI Tenprinters to the CCS database.
Once the NIST packages populate the CCS database, the records and photos
can be searched by CCS Investigative software. This software will be
responsible for satisfying the County's immediate investigative needs.
Phase I includes 20 copies of CCS Investigative software and 20 copies
of Suspect ID composite software.
Face ID-Registered Trademark- facial recognition server software is also
being offered with this proposal, at no charge! We are offering to
convert the existing images into Face ID as well as provide software
that enrolls all new captured images into Face ID. Basically, all images
that populate the CCS database will also be enrolled into Face ID.
At no cost to the County, IWS will install Face ID server software and
convert all existing images to Face ID. All new images will be
automatically enrolled in Face ID and IWS will provide 4 copies of Face
ID client software. Upon approval from LA County and DOJ, IWS will
enroll Megan's Law images into a separate Face ID database at no charge.
IWS may provide updates of Face ID database charging a fee to be agreed
with LASD and will discuss the possibility of creating a customized
product to import future versions of Megan's Law images. All Face ID
client sites will then have facial recognition capabilities against the
Megan's Law database.
Several other LA County law enforcement agencies have shown interest in
purchasing Face ID client software as well. There is an issue as to how
will these Face ID clients effect the load on the CCS server. Will it
slow it down? The answer is no! We are going to isolate just one of the
four processors in the Netfinity server for Face ID crunching. When the
extracted facial data from the suspect mugshots is being searched by a
Face ID client, only one server processor will be used. The remaining
three processors are more than enough to handle all the queries and
changes to the CCS database.
When the Face ID clients grow too large in number or when the database
gets too large for one processor to sort in a desirable amount of time,
then ImageWare will require new Face ID client customers to add 'swarm'
machines to the server solution 'Swarm' machines are basically PC boxes
that contain at least one standard Pentium II or greater processor and a
certain amount of RAM. They are then configured to process data being
2
<PAGE>
EXHIBIT B - DBI CONTRACT OVERVIEW JULY 6, 1999
searched by Face ID clients. "Swarm" machines distribute the Face ID
processing workload. The more "swarm" machines added to the system,
the more the workload is distributed. Search times will go down as
clients and "swarms" are added.
SERVER SPECIFICATIONS
The proposed server is an IBM Netfinity 7000 M10 Server. The image
server will be running Windows NT 4.0 that provides a second level of
system security and stability. Initially, the server will be running
the current Sybase version of CCS. Phase 2 converts this database to
Oracle.
The database is all open architecture, ODBC compliant, allowing for
ease of data sharing with other ODBC compliant systems. The server is
capable of storing the mug photo's and text data in Los Angeles County
booking system for a minimum of five years.
The server is a high performance 400 MHz Quad XEON Processor system.
It has RAID V hot swap drive array and Mirrored OS. It is sized with
today's performance and tomorrow's growth in mind. Installing a RAID V
system provides a very high fault tolerant data storage system while
not degrading performance and allows the storage of business-critical
data with confidence.
A UPS will protect the system from power fluctuations and momentary
outages. The system will have a redundant power supply. The server
will be equipped with a modem and remote diagnostic software, allowing
for quicker response and problem resolution. The system also includes
a DLT tape drive for back-ups and a CD ROM Drive. The server will
utilize the existing network which utilizes the TCP/IP protocol.
SOFTWARE CAPABILITIES
The CCS central server software includes several administrative
functions, including the setup and maintenance of all drop down menus
and pick lists, the archive function, and the assignment of names and
passwords. The 4 User Defined fields are also edited from here.
IBM Netfinity Management software will be used to remotely monitor and
maintain the CCS server.
Client Investigative application will not be installed on server.
CCS INVESTIGATIVE SOFTWARE
CCS Investigative workstation software includes the client software
necessary to search the database based on demographic information,
create photo line-ups, view photo mug books, and print. Any printer
that includes a Windows NT driver may be utilized. The software can
connect with and make use of peripherals with TWAIN drivers (such as
3
<PAGE>
EXHIBIT B - DBI CONTRACT OVERVIEW JULY 6, 1999
scanners), and have the ability to import images from files that are
.JPG or .BMP and add to existing records. The client software also
allows for the export of images in either .JPG or .BMP files. All of
these functions can be authorized or not authorized based on User ID
authorization.
Searches may be accomplished using NCIC standard demographic codes,
from user maintained tables.
The software will create photo line-ups with a specified amount of
images. The Crime Capture System will retrieve and display the images
of all subjects with characteristics that match, or substantially
match, those of the line-up subject. The user will be able to select
or reject from the images retrieved up to twenty, that together with
the subject's constitute the line-up. The line-up will be random
ordered, and may be saved for future retrieval. These photo line-ups
are also printable.
Portions of an image may be "roped" for enlargement for viewing
purposes.
The print function is available for any image with its associated
demographic data.
The search function includes very flexible ad hoc inquiries, including
many Boolean logic functions, including AND, OR, GREATER THAN, LESS
THAN, EQUAL TO, etc.
Each agency will be able to search the database and obtain information
about the total number of bookings by date, by officer ID, by charge
code, etc.
Any text fields entered into a booking record will be searchable,
including any comment fields.
Fields describing SMT data will be searchable.
Images of SMT are printable, either color or black and white.
The search software will process hyphenated and/or multiple last,
first, and middle names correctly.
The search software will use "soundex" to find similar named
individuals.
Investigative workstations will have the ability to scan photos into
the system, import them, and link them with booking records. For
example, crime scene photos can be imported into booking records, as
well as weapons photos, vehicle photos, residence photos, year book
photos, etc. This function may be turned off by the system
administrator.
FACE ID
Face ID is a state-of-the-art facial recognition and retrieval program
that helps officers positively identify both unknown suspects and
criminals with multiple aliases. Suspect
4
<PAGE>
EXHIBIT B - DBI CONTRACT OVERVIEW JULY 6, 1999
images that have been captured on a surveillance video, suspect
composite or photograph can be searched against any digital database of
faces. The search returns a group of images whose facial
characteristics closely resemble that of the search photograph. This
feature can also be used at the time of booking to immediately identify
criminals with multiple aliases. Face ID saves the officer tremendous
amounts of time when scanning through large databases. The ability to
key in text data description in addition to the facial search makes
searching large databases possible.
Suspect ID/Registered Trademark/
Suspect ID is the composite module of the C.R.I.M.E.S. software
family. Using an online cognitive interview process, officers,
witnesses and victims can accurately create full-color, photo-realistic
suspect composites within minutes. The digital composites are
constructed from catalogs of facial features. The catalogs are
comprised of actual photographs, not hand-drawn sketches, so composites
from Suspect ID look like people, not like pencil sketches. Suspect ID
can interface directly with Face ID. Upon completion, a composite can
be immediately searched against the Face ID database. This search
returns a number of suspect photos from within the LA booking database.
The Suspect ID module was designed specifically for use by law
enforcement agencies. Even officers with little or no computer
knowledge or artistic talent can complete a suspect composite simply by
pointing and clicking with a mouse. Suspect ID is a standard PC-based
software application that can be installed on a laptop computer and
taken into the field, allowing officers to conduct interviews before
the witnesses' and victims' memories fade. For rapid identification,
officers can distribute completed composites within minutes via radio,
fax or e-mail.
PHASE 2
Phase 2 will convert the installed Sybase version of CCS to the latest
version of Oracle. Once in Oracle, the remaining interfaces shall be
accomplished. ImageWare has made the decision to fast forward our
Oracle solution in order to meet the requirements set forth by Los
Angeles County. LA County is currently an Oracle house and it is
logical that their requirements include an Oracle database.
ImageWare does not intend to charge Los Angeles County with any costs
associated with our development of the Oracle platform. Converting the
installed system from Sybase to Oracle does, however, have costs
associated. ImageWare engineers will design the new system so that the
conversion process creates very little down time.
The GUI interface throughout the network will not change and no
additional training of users will be required. Face ID will also be
converted to Oracle.
5
<PAGE>
EXHIBIT B - DBI CONTRACT OVERVIEW JULY 6, 1999
PHASE 3 (NOT ACCEPTED BY LASO)
The last phase is a simple, but large expansion of the investigative
product. ImageWare will provide CCS Investigative software and Suspect
ID to an additional 60 sites throughout the county. With all phases
complete, Los Angeles County will have the ability to view and print
records and lineups of every person booked in Los Angeles County within
the DBI Tenprinter network.
INTERFACES
CCHRS & LARCIS
ImageWare offers a single integration technique for both the CCHRS
system and the LARCIS system. We are able to offer this due to the
fact that all systems will be running a single common RDBMS, Oracle
8.0. This will be accomplished by enabling a login to CCS and allowing
access to a mutually agreed upon set of tables and stored procedures.
(Open Architecture) This access will allow CCHRS or LARCIS to query our
database and retrieve the directory reference to the photo stored on
disk for a particular individual. All the particular parameters and
query result capabilities will be agreed upon during final design
discussions with the system architects of CCHRS, LARCIS CAL GANG and
CAL PHOTO.
It will be the responsibility of each of the integrated systems to
properly read the photo from the CCS server, decompress the JPEG, and
display the photo on the screen to the user. The CCS server data will
be kept in sync with AJIS by the NIST data feed from the DBI store and
forward integration. Any duplicate records from DBI will be
synchronized with existing records causing an update to existing
records not duplication of data. All records will be tied together
between the systems with a common unique identifier such as a record
number and each person will be given a unique identifier, such as a
state ID number. These will be used to identify a unique record for an
individual between all integrated systems as well as identify a
person's record history.
The interface will basically allow both the CCHRS and LARCIS
sub-systems to display a photograph of the subject by selecting a
defined number of data tables.
CAL-PHOTO ID & CAL-GANG
ImageWare offers a single solution for both of these interfaces as
well, only duplicated for each. When a record is completed within CCS,
the server will export a flat text file or a NIST package to the local
CAL-ID or CAL-GANG Web Server. This flat file will contain demographic
text data as well as the photo's location or URL. Once the State
parses this information into its main query engine, the images will be
searchable via the CAL-ID or CAL-GANG intra-net.
6
<PAGE>
EXHIBIT B - DBI CONTRACT OVERVIEW JULY 6, 1999
IWS will discuss with the State, the type and size of the server needed
to accomplish the requirements for Cal-Photo ID. When the time comes,
we would be pleased to provide a quote for that server and the
maintenance thereof. The cost for feeding the server is outlined in the
Cost Proposal. ImageWare will work with the State to isolate a means
for maintaining the Cal-Photo ID software.
WEB INVESTIGATIVE INTERFACE
ImageWare is offering a site license to be used within the Los Angeles
County and Orange County intra-net for a product that is currently
under development. The site license will enable the EDMS database to be
searched by a standard web browser within the local network. The basic
concept of this product is to provide a Web Interface that enables
standard web browser search engines to query the Mugshot database
through a limited amount of text fields and descriptors. The fields
that are to be searched have yet to be defined, however, it is expected
that 5-7 fields will be appropriate. 6-pack lineups will also be a
feature.
IWS is willing to discuss the development of an additional Web Product
capable of retrieving a single photo based on name and booking number
queries.
7
<PAGE>
EXHIBIT C - LASD EDMS WORKPLAN July 6, 1999
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
Contract Award Month 1 Month 2 Month 3 Month 4 Month 5 Month 6 Month 7 Month 8 Month 9
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------
PHASE 1 X *************************
- -----------------------------------------------------------------------------------------------------------------------
PHASE 2 X *******
- -----------------------------------------------------------------------------------------------------------------------
Required Interfaces ***************************
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT D - SCOPE OF WORK JULY 6, 1999
LOS ANGELES COUNTY SHERIFF'S DEPARTMENT ELECTRONIC DIGITAL MUSHOT
SYSTEM
SCOPE OF WORK
This document identifies the product to be delivered and specifies
work to be performed by the Contractor during the implementation of
ImageWare's Crime Capture System and related development as well as
outlines those tasks which are the responsibility of Los Angeles
County Sheriff's Department.
PROJECT OVERVIEW
The heart of this project is a central mugshot server that must power
investigative clients throughout the County and the State. The server
is fully scaleable and capable of processing and distributing
information to a large number of client sources. The software that
will drive this solution is ImageWare's Crime Capture System (CCS).
CCS runs on the Windows NT 4.0 platform and will utilize Oracle 8.0
databases software as required by the County. CCS will either feed or
be queried by a minimum of five different sub-systems including:
CCHRS, LARCIS, CAL-PHOTO ID, CAL-GANG, and via secure Intra-net. The
system proposed is a complete turn-key solution that meets current
needs and provides many options for the future. The entire system is
fully Year 2000 compliant and meets all State and Federal ANSI/NIST
standards.
The system components will connect to the existing network directly,
with each agency or the county being responsible to provide LAN
connections for the new equipment. The operating system for the
central server will be Microsoft Windows NT 4.0. The protocol will be
TCP/IP. All connections to either the network or additional devices
will be industry standard connections.
Data archive and backup shall be accomplished on-line.
System security will make use of both operating system permissions as
well as database software security. This will allow access to certain
functions and data to be controlled by the system administrator. These
privileges and permissions will be given and controlled by user login.
There will be an administrative function available only to the system
administrator, where these permissions and privileges are maintained.
1. WORK TO BE COMPLETED BY IMAGEWARE
PHASE I: Completion within 90 days from contract signing.
1
<PAGE>
EXHIBIT D - SCOPE OF WORK JULY 6, 1999
- System Acceptance Test Plan
- CCS Server configuration and installation
- Interconnect with existing DBI store & forward
- Conversion of existing images and data into CCS and Face ID
- De-duplication of existing database
- Installation of investigative software (includes Face ID)
- Training
PHASE II: Completion within 6 months from contract signing.
- Port installed CCS system from Sybase to Oracle
DEVELOPMENT OF REQUIRED INTERFACES: Completion within 9 months from
contract signing
- Development of CCHRS
- Development of LARCIS
- Development of Cal-Photo ID
- Development of Cal-GANG
- Installation of WEB enabled CCS
- Training
Priority to be determined by LASD project manager
II. HARDWARE/SOFTWARE
1. ImageWare will provide the hardware listed in the IWS proposal to
DBI:
- Server, Netfinity 7000
2. ImageWare will provide 20 copies of the following software:
- CCS Investigative
- Suspect ID (Composite)
- Vehicle ID
- Crime Lab
5. ImageWare will provide 4 copies of Face ID Client software
III. INTEGRATION AND TEST
ImageWare will configure, integrate, install and test all hardware and
software prior to System Acceptance Test.
IV. DATA CONVERSION
All data and images in the current DBI system will be converted and
transferred to the EDMS. After conversion, IWS will (with cooperation
from LASD) eliminate duplicate photos and records.
V. PLATFORM CONVERSION
2
<PAGE>
EXHIBIT D - SCOPE OF WORK JULY 6, 1999
ImageWare will convert the EDMS to the Oracle platform as outlined in
IWS proposal to DBI, Exhibit F.
VI. INTERCONNECTS
ImageWare is responsible for porting over to CCS any current
interconnects with the DBI store & forward. In addition, ImageWare
will develop interconnects with CCHRS, LARCIS, Cal-GANG and Cal-Photo
ID.
VII. WEB PRODUCT
ImageWare will test and install the CCS Web interface
VIII. TRAINING
ImageWare will provide training as outlined in IWS proposal to LASO,
Exhibit F.
IX. DOCUMENTATION
ImageWare will provide one manual per capture and per investigative
station. LASD (and police employees at LIT sites) are authorized to
make copies for training purposes.
X. TASKS FOR LOS ANGELES COUNTY SHERIFF'S OFFICE
1. Network connections
2. Sites must be clean and ready for installation
3. Phone lines for remote access of system management of server.
4. Personnel available for technical questions
5. Facilitate specifications on interconnects
6. Facilitate technical cooperation from DBI and Sierra systems for
conversion purposes
7. Facilitate technical expertise from DBI and NIST interconnect to
store & forward
8. Proper electrical availability
9. Space and tables for computers and printers
10. IP addresses
3
<PAGE>
PROPOSAL TO DIGITAL BIOMETRICS, INC.
FOR LOS ANGELES COUNTY SHERIFF'S DEPARTMENT
MARCH 22, 1999
PROPOSAL CONTENT
PART I
Original Proposal submitted to Los Angeles County Sheriff's Department on
March 9, 1999. A turn-key solution to satisfy the needs of Los Angeles County
and DBI.
PART II
Answers to questions about original proposal, posed by Sgt. Paul Alexander in
an e-mail dated 3/19/99.
PART II
Point by point answers to statement of work questions written by Sgt. Paul
Alexander. Any question that have been previously answered will be responded
to with the corresponding page # of the original proposal.
PART IV
Changes to Original Proposal. This includes additional software and
capabilities as well as clarification of a few issues on original proposal.
PART V
Updated Cost Proposal Exhibit A.
<PAGE>
TABLE OF CONTENTS
COMPANY PROFILE & QUALIFICATIONS __________________________________________ 3
ImageWare History ______________________________________________________ 4
Products _______________________________________________________________ 5
SUSPECT ID -Registered Trademark - __________________________________ 5
CRIME LAB -Registered Trademark- ____________________________________ 5
VEHICLE ID -TM- _____________________________________________________ 6
PACE ID -TM- ________________________________________________________ 6
CRIME CAPTURE SYSTEM -TM-__ _________________________________________ 6
Milestones _____________________________________________________________ 7
Notable Customers ______________________________________________________ 7
PERSONNEL QUALIFICATIONS __________________________________________________ 8
ImageWare Executives ___________________________________________________ 8
Key Project Staff ______________________________________________________ 9
OVERVIEW / PROJECT APPROACH _______________________________________________ 16
Project Overview _______________________________________________________ 16
Phase 1 ___________________________________________________________________ 17
SERVER SPECIFICATIONS _______________________________________________ 18
SOFTWARE CAPABILITIES _______________________________________________ 19
CCS INVESTIGATIVE SOFTWARE __________________________________________ 20
FACE ID _____________________________________________________________ 21
SUSPECT ID -Registered Trademark - __________________________________ 21
PHASE 2 ___________________________________________________________________ 21
PHASE 3 ___________________________________________________________________ 22
INTERFACES ________________________________________________________________ 22
CCHRS & LARCIS ______________________________________________________ 22
CAL-PHOTO ID & CAL-GANG _____________________________________________ 23
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
WEB INVESTIGATIVE INTERFACE _________________________________________ 23
Implementation Schedule ___________________________________________________ 24
Approach in Project ____________________________________________________ 24
REFERENCES ________________________________________________________________ 27
ARIZONA DEPARTMENT OF PUBLIC SAFETY _________________________________ 27
LOS ANGELES COUNTY CITY OF LAKEWOOD _________________________________ 32
NEW YORK CITY POLICE DEPARTMENT _____________________________________ 35
HENEPIN COUNTY SHERIFF'S OFFICE (MINNEAPOLIS) _______________________ 35
PIERCE COUNTY WA ____________________________________________________ 35
Reference Contacts _____________________________________________________ 36
Other C.R.I.M.E.S. References __________________________________________ 37
FINANCIAL STATEMENT ____________________________________________________ 38
EXHIBIT A - COST PROPOSAL _________________________________________________ 39
EXHIBIT B - MAINTENANCE & WARRANTIES ______________________________________ 46
Product and Customer Support ___________________________________________ 49
Hardware Warranties ____________________________________________________ 49
Hardware Maintenance ___________________________________________________ 49
Software Warranties ____________________________________________________ 50
Source Code ____________________________________________________________ 50
Software On-Going Maintenance and Support ______________________________ 50
EXHIBIT C - TRAINING ______________________________________________________ 52
CRIME CAPTURE SYSTEM TRAINING OUTLINE __________________________________ 52
IMAGEWARE SOFTWARE INC. 2 PHONE 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEMS
COMPANY PROFILE & QUALIFICATIONS
- -------------------------------------------------------------------------------
ImageWare Software, Inc., a San Diego, California based company is a leader
and innovator in the emerging technology of PC-based digital imaging, with
its primary focus on law enforcement software. Our corporate offices are at
the following address. This same address is also used for sales, technical
services and billing.
ImageWare Software, Inc.
10883 Thornmint Road
San Diego, CA 92127
Phone: 619-673-8600; 800-842-4199
FAX: 619-673-1770
ImageWare has, through its efforts, gained respect within the Law Enforcement
arena and is quickly being recognized as a leader in the handling of large
mugshot databases as well as the powerful investigative software that runs
them. We were recently awarded a contract by the State of Arizona and the
system is meeting all of its expectations. The Arizona Department of Public
Safety enjoys a powerful network of photo and data information, with
extremely limited down time. It seamlessly interfaces with several disparate
systems and provides a smooth and synchronized data flow throughout. Very
recently, in partnership with NEC and PRC/Litton, IWS was awarded the digital
imaging contract for Las Vegas Metro PD.
One year ago ImageWare acquired XImage Corporation, a San Jose, California
based company also specializing in law enforcement software. XImage
Corporation is a company strong in the installation and management of very
large booking installations. The company has developed its products using
Sun SPARC servers and workstations on a UNIX operating system. Its flagship
installation is New York City Police Department as well as Henepin County MN
(Minneapolis), Indianapolis PD and Portland Police Bureau. The NYC system
spans 76 precincts in 5 boroughs, including 100 capture stations and
redundant central servers. XImage/ImageWare had a large customer support
staff with 24 hours a day, 7 days a week availability.
ImageWare and XImage combined to form a company that is strong, technically
proficient, and leading the way in the development of tools for the law
enforcement industry. The skills of one company compliment those of the
other. The strengths and experience of XImage will enable the new company to
bypass many pitfalls, during the introduction of new Windows based products
under the expertise of ImageWare.
On March 18, 1999, ImageWare will receive financial backing in the form of a
$10,000,000 funding from an international group of investors led by JP
Morgan. This backing combined with our large maintained customer base and
success in the placement of large mugshot databases ensures the highest
quality products and services for many years to come.
IMAGEWARE SOFTWARE, INC. 3 Phone: 619-673-8600
10883 THORNMINT ROAD FAX: 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEMS
CCS runs on the Microsoft Windows operating system, specifically Windows 95,
98 and Windows NT 4.0. We configure systems using all IBM components,
ensuring our customers of state-of-the-art architecture, durability,
reliability. By teaming with IBM as a business partner, ImageWare can and
does offer the highest quality PC products, systems software and customer
service available. PC platforms being used include multiple Pentium Pro
processing servers, redundant servers, Xeon processors and Pentium II capture
and investigative workstations. In many cases, current hardware can be
utilized and hardware may be purchased off existing County contracts.
Support is handled on a 24/7 basis with our support offices being in San
Diego. There is a one hour call back response time and on-site response times
can be negotiated. In some cases, on-site personnel can be hired. Servers and
workstation software can be maintained remotely using sophisticated IBM
Netfinity Management software. If a server goes down, it does not effect the
capture workstations. All capture stations have the ability to store data and
images locally until the server is back on-line.
IWS core products are Crime Capture System (CCS), and Face ID-Registered
Trademark- (FID). CCS is a powerful flexible and easy to use digital booking,
identification and retrieval system. Face ID-Registered Trademark- is a
state-of-the-art facial recognition and retrieval program that is re-defining
what a mugshot database is capable of. Face ID-Registered Trademark-
integrates with both ImageWare's and XImage's bookings systems, giving the
company a very distinct, and unique product line.
IMAGEWARE HISTORY
Incorporated in 1987, ImageWare initially focused on the entertainment
industry.The company's patented imaging technology was first used in photo
imaging kiosks at theme parks and tourist attractions in the U.S., Canada,
Mexico, Japan and the United Kingdom. The kiosks produced People
Postcards!-Registered Trademark- by superimposing customers' images onto
amusing or picturesque backgrounds.
At the 1992 COMDEX Show, ImageWare introduced its first retail product,
ImageWizard. At the show, the revolutionary image manipulation and processing
program was nominated one of the "Best New Software Programs" of the year.
ImageWizard was the first application to incorporate multiple image objects
for fast and easy image enhancement and editing. In early 1994, ImageWare
released a companion program to ImageWizard called MorphWizard-Registered
Trademark-. A powerful morphing application, MorphWizard allows users to
manipulate and force transformation between multiple images. Both ImageWizard
and MorphWizard sold domestically and in Japan through Canon Sales Co.
Concurrent with the release of MorphWizard ImageWare shifted its focus from
the entertainment and retail markets to the institutional enforcement arena.
The C.R.M.E.S.
IMAGEWARE SOFTWARE, INC. 4 Phone: 619-673-8600
10883 THORNMINT ROAD FAX: 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
(Crime Reduction, Image Management and Enhancement System), software suite
was unveiled in October 1994.
Since 1994, ImageWare has placed software in over 650 law enforcement
agencies around the country and internationally. Currently, there are over
100 departments using XImage or ImageWare mug photo systems, with more coming
on-line every day.
PRODUCTS
C.R.I.M.E.S. is a modular family of affordable, easy-to-use software
applications that aid law enforcement with the criminal investigative
process. Currently there are five Windows-TM- based C.R.I.M.E.S. modules;
Suspect ID, Crime Lab, Vehicle ID, Face ID and the Crime Capture System. The
multiple module system is fully integrated so information entered into one
module is reflected in all others, thus eliminating the time and expense
required to interface programs designed by different software companies.
SUSPECT ID-Registered Trademark-
Suspect ID is the composite module of the C.R.I.M.E.S. software family.
Using an online cognitive interview process, officers, witnesses and victims
can accurately create full-color, photo-realistic suspect composites within
minutes. The digital composites are constructed from catalog of facial
features. The catalogs are comprised of actual photographs, not hand-drawn
sketches, so composites from Suspect ID look like people, not like pencil
sketches. Suspect ID can interface directly with Face ID. Upon completion, a
composite can be immediately searched against the Face ID database. This
search returns a number of suspect photos from within the LA booking database.
The Suspect ID module was designed specifically for use by law
enforcement agencies. Even officers with little or no computer knowledge or
artistic talent can complete a suspect composite simply by pointing and
clicking with a mouse. Suspect ID is a standard PC-based software application
that can be installed on a laptop computer and taken into the field, allowing
officers to conduct interviews before the witnesses' and victims' memories
fade. For rapid identification, officers can distribute completed composites
within minutes via radio, fax or e-mail.
CRIME LAB-Registered Trademark-
The second module of the C.R.I.M.E.S. family, Crime Lab, is a
sophisticated image enhancement and editing program used to fulfill a host of
investigative imaging needs such as updating old photos, creating
non-prejudicial line-ups, removing distracting backgrounds and enhancing
surveillance videos. Crime Lab interfaces with each of the modules to provide
enhanced capability to each.
IMAGEWARE SOFTWARE INC. 5 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
VEHICLE ID-TM-
Vehicle ID is a revolutionary photo-based software program that helps
officers quickly identify and disseminate vehicle information for the purpose
of locating a stolen car or a vehicle involved in a crime. Vehicle ID's
comprehensive database of over 1,000 vehicles can be searched by features,
description, or VIN (Vehicle Identification Number). To ensure a more
accurate identification, vehicles matching the query description can be
viewed from front, rear, side or three quarter angles. The program also
includes a custom paint shop for depicting the exact color of the vehicle. A
color copy of the suspect vehicle can then be produced and immediately
broadcast, printed or faxed to officers in the field to quickly apprehend
suspected criminals.
Information from NICB's (National Insurance Crime Bureau) VINassist-TM-
program has been incorporated into Vehicle ID, enabling officers to obtain
images of vehicles based on VIN translation codes. This feature helps
officers identify stolen vehicles in cases of switched VINs.
FACE ID-TM-
Face ID is a state-of-the-art facial recognition and retrieval program
that helps officers positively identify both unknown suspects and criminals
with multiple aliases. Suspect images that have been captured on a
surveillance video, suspect composite or photograph can be searched against
any digital database of faces. This search returns a group of images whose
facial characteristics closely resemble that of the search photograph. This
feature can also be used at the time of booking to immediately identify
criminals with multiple aliases. Face ID saves the officer tremendous amounts
of time when scanning through large databases. This ability to key in text
data descriptors in addition to the facial search make searching large
databases possible.
CRIME CAPTURE SYSTEM-TM-
Crime Capture System is a flexible, easy-to-use, and affordable digital
imaging solution for automated capture, storage and retrieval of booking
images and related information. The Crime Capture System utilizes
off-the-shelf hardware that complies with open industry standards and easily
integrates with an agency's records or AFIS system (Automated Fingerprint
Identification System). Utilizing client/server architecture, the Crime
Capture System can operate on an array of systems ranging from a stand alone
PC to a wide area network.
San Diego based ImageWare Software, Inc. is privately held.
IMAGEWARE SOFTWARE INC. 6 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
MILESTONES
There are currently:
- over 4 million arrestees that have booked using ImageWare systems
throughout North America
- over 5 million images stored on ImageWare systems worldwide
- over 150,000 lineups that have been created on ImageWare systems
- over 100,000 people booked in the first 4 months of operation using
the New York City PD ImageWare system
- over 1 million images stored in the state of Florida on ImageWare
systems
- over 800,000 images stored in the state of Washington on ImageWare
systems &
- over 434,000 bookings stored on the Orange County, Florida
ImageWare system
NOTABLE CUSTOMERS
- - Las Vegas Metro PD (Awarded) - Dakota County
- - Indianapolis PD - Orange County
- - King County (Seattle) - Clackamas County
- - Multnomah County (Portland) - Marion County
- - Sonoma County - Yolo County
IMAGEWARE SOFTWARE INC. 7 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
PERSONNEL QUALIFICATIONS
- ------------------------------------------------------------------------------
IMAGEWARE EXECUTIVES
S. JAMES MILLER, JR. CHAIRMAN & CEO
Mr. Miller came to ImageWare in 1990 after 11 years at Oak Industries,
Inc. Most recently a Senior Vice President for the publicly traded company,
Mr. Miller also served as Chief Legal Officer, Chief Administrative Officer
and President of the company's Far East manufacturing subsidiaries. At Oak
Industries, Mr. Miller's responsibilities included business acquisitions,
divestitures and financing. He also headed the negotiation of technology
licensing arrangements. Mr. Miller holds a J.D. in Law (WITH HONORS) from the
University of San Diego School of Law, and a B.A. in History and Economics
(SUMMA CUM LAUDE) from the University of California at San Diego.
WAYNE G. WETHERELL, VICE PRESIDENT OF FINANCE & CFO
Prior to becoming ImageWare's Vice President of Finance and CFO, Mr.
Wetherell served in a similar capacity at Bilstein Corporation of America (a
subsidiary of the Krupp Group) for nearly five years. Before joining
Bilstein, he spent 10 years with Oak Industries, Inc., where he served in
various capacities, including Director of Finance and Director of Financial
Planning and Analysis. His responsibilities included management reporting,
financial and strategic planning, and business development. Mr. Wetherell
holds a M.S. in Finance and a B.S. in Management from San Diego State
University.
PAUL J. DEVERMANN, VICE PRESIDENT OF SALES & BUSINESS DEVELOPMENT
Prior to joining ImageWare in 1996, Mr. Devermann was the Managing
Director and Founding Partner of InTra-International Trade & Transactions, an
international consulting and trading company specializing in facilitating
business transactions between the U.S. and Japan. Prior to that, Mr.
Devermann held the position of Senior Vice President of the San Diego
Economic Development Corporation where he was responsible for marketing and
development from 1985 to 1990. Mr. Devermann spent the previous ten years
with Oak Communications in various capacities of sales, sales management,
marketing and business development positions. He holds a B.S. in Marketing
from Northern Illinois University and a M.B.A. from the University of Puget
Sound.
IMAGEWARE SOFTWARE INC. 8 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
KEY PROJECT STAFF
Project Coordinator: ERIK CARLGREN
Telephone Number: (619) 673-8600
FAX Number: (619) 673-1770
<TABLE>
<CAPTION>
Name Years With Project Role
Company
- ------------------------------------------------------------------------------
<S> <C> <C>
JOHN CANEPA 6 Software Developer
RENEE GUTIERREZ 4 Documentation & Testing
TRACY TOETTCHER 6 Training Manager
BILL IBBERSON 6 Director of R&D
</TABLE>
Other staff, including Oracle experts, will be identified after contract
award.
IMAGEWARE SOFTWARE INC. 9 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
WILLIAM J. IBBETSON
3520 Mission Mesa Way
San Diego, CA 92120
(619) 582-0830
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Employment IMAGEWARE SOFTWARE, INC., SAN DIEGO, CA
Experience MARCH 1992 TO PRESENT
<S> <C>
Chief Technical Officer
- Responsible for all technical aspects of the company.
- Direct technical solutions and industry positioning of
products.
Manager, Research and Development
- Manage software development team.
- Design software applications and utilities.
- Conduct new product feasibility studies.
- Analyse product/project costs and schedules.
Photo Imaging Specialist
- Develop patented imaging technology.
- Design digital image algorithms.
- Integrate imaging technologies into software
applications.
INDEPENDENT CONSULTANT, SAN DIEGO, CA
JUNE 1987 TO PRESENT
Admit 1 Technologies
- Designed and developed graphic based screensaver.
- Created animation and imaging for screensaver.
RESOURCE SUPPLY, INC.
- Designed accounts payable/receivable database
applications.
- Created an Inventory Control System.
Publications - WROX PRESS - TECHNICAL EDITOR
Beginners Guide to Visual C++, January 1996
- VISUAL BASIC PROGRAMMING JOURNAL - CO-AUTHOR
Animation Techniques in VB, February 1996
</TABLE>
IMAGEWARE SOFTWARE INC. 10 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
<TABLE>
<S> <C>
Patents - METHOD AND APPARATUS FOR THE ELECTRONIC TRANSMISSION OF
AN IMAGE FROM A PHOTO KIOSK - INVENTOR
Patent Pending
- IMAGEWAREGS PATENT PORTFOLIO - TECHNICAL LIAISON
U.S. Patent No. 5,345,313 - Image editing system
U.S. Patent No. 5,469,536 - Color masking system
U.S. Patent No. 5,577,179 - Object layering
U.S. Patent No. 5,343,386 - Electronically produced
postcards
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
Specialized - C/C++ PROGRAMMING
Skills - MICROSOFT FOUNDATION CLASSES (MFC)
- VISUAL BASIC PROGRAMMING
- RDBMS DESIGN, INTEGRATION AND MANAGEMENT
- DIGITAL PHOTO IMAGING MANIPULATION/ENHANCEMENT
- NOVELL/NT SERVER CONFIGURATION, CONNECTIVITY AND
ADMINISTRATION
- INTERNET/INTRANET APPLICATION DEVELOPMENT
Education COLEMAN COLLEGE COMPUTER ELECTRONICS TECHNOLOGY
GRADUATE 1992 1990-1992
Honors - Top 5% of class Computer Hardware Specialist
Deans List - 3.947 GPA
Additional - NETSCAPE DEVELOPERS CONFERENCE
Training - MICROSOFT MFC DEVELOPERS CONFERENCE
- MICROSOFT INTERACTIVE MULTIMEDIA CONFERENCE
</TABLE>
IMAGEWARE SOFTWARE INC. 11 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
JOHN J. CANEPA
SENIOR SOFTWARE ENGINEER
SUMMARY OF EXPERIENCE
Five years experience in the imaging software industry. Senior developer for
windows based law enforcement applications. Designed user interface, database
search tools and data acquisition screens for digital booking and
investigative applications. Worked directly with the State of Arizona in
design, development and acceptance of the AZAFIS Mug Photo System.
EMPLOYMENT HISTORY
FEBRUARY 1993 TO PRESENT. SOFTWARE ENGINEER, IMAGEWARE SOFTWARE, INC.
Hired for quality assurance and software support. Moved into programming to
modify existing code for product updates. Experience using VB, C++, MFC,
ODBC, and SQL on Windows 3.1., Windows 95 and Windows NT. Developed data
acquisition applications for in house utilities. Designed algorithm to rotate
2D raster objects in 3D using OpenGL. Senior software engineer for the
development of the Crime Capture System (CCS). Experienced in developing user
interface, data entry and database query applications using ODBC and MFC.
Developed multithreaded Windows 95/NT law enforcement investigative
application for searching UNIX booking database.
OCTOBER 1991 TO NOVEMBER 1992. MARKETING MANAGER, DESIGN DRAFTING AND
ENGINEERING, INC.
Designed and maintained customer contract management software and database.
Managed direct marketing for the sales of CAD/CAM software.
EDUCATION
B.A. Applied Mathematics, University of California, San Diego, 1993.
IMAGEWARE SOFTWARE, INC. 12 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
ERIK CARLGREN
NW SALES REPRESENTATIVE - PROJECT COORDINATOR
SUMMARY OF EXPERIENCE
Nine years experience in photo imaging, three of those in the law enforcement
industry. Technically oriented in sales and account management. Oversee all
phases of account development from identification of account and needs
assessment to contract negotiations.
EMPLOYMENT HISTORY
MAY 1996 TO PRESENT. SALES REP./PROJECT COORDINATOR, IMAGEWARE SOFTWARE, INC.
Hired originally as a sales representative for the Southeastern U.S..
Currently the representative for the Northwestern territories. Also handles
certain international accounts. Current responsibilities include systems
design, customer relations, sales and marketing. Responsible for accounts
from start to finish. Skilled in a multitude of Microsoft applications as
well as graphics programs and capabilities. Pays particular attention to
customers needs. Thoroughly trained in all ImageWare applications and
proficient with designs of disparaging systems and interfaces. Familiar with
state requirements and systems design.
OCTOBER 1992 TO APRIL 1996. TECHNICAL MANAGER, KING VISUAL TECHNOLOGY, INC.
Managed the digital photo department of fast paced professional photo lab.
Hired to build a digital imaging department and transition the company from a
traditional photo lab to a highly technical digital photo service. Required
to find a market, design, produce and print state-of-the-art digital photo
prints. Very fast paced and deadline oriented structure.
JUNE 1990 TO SEPTEMBER 1992. ACCOUNT MANAGER/DESIGNER, RYAN KING RENNINGER,
INC.
Responsible for managing all aspects of marketing of accounts. Familiar with
most design applications. Managed handling of project from design through
printed piece. Wrote and designed marketing campaigns for Hecht's Co.,
Washington Bullets and the U.S. Navy.
EDUCATION
B.A. Printing, Rochester Institute of Technology, Rochester, NY 1990.
IMAGEWARE SOFTWARE, INC. 13 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
RENEE GUTIERREZ
TECHNICAL DOCUMENTATION DEVELOPER
SUMMARY OF EXPERIENCE
Ms. Gutierrez has 8 years of experience in the computer software industry.
She has 7 years of documentation and user interface design experience with
extensive recent experience in the usability of law enforcement software.
EMPLOYMENT HISTORY
MAY 1995 TO PRESENT. IMAGEWARE SOFTWARE, INC.
- - Create software user manuals, including research, writing, and design.
Test software for usability and develop hypertext On-line Help.
Coordinate with clients and R&D and Marketing departments to design
print reports, user interface and icons for all law enforcement
applications.
- - Responsible for all Webmaster duties, including design and creation of
HTML pages, graphics, photo-imaging, and Web conferencing maintenance.
NOVEMBER 1994 TO PRESENT. INDEPENDENT CONTRACTOR
- - CASIO, INC. - Created software user manual and On-Line Help file for
Windows interface to the Casio B.O.S.S.
- - ABACUS DATA SYSTEMS - Created software user manuals for Windows based
legal/attorney software.
- - WINDOWS LINK, INC. - Created software user manual and On-Line Help file
for Windows interface to Royal and Sharp handheld organizers.
- - PERSONAL RESOURCE SYSTEMS - Created software user manual and On-Line
Help file for Windows Time Management software.
- - EAGLE INTERNATIONAL - Created software user manual and On-Line Help file
for Windows PIM.
- - KINGSLEY MACHINE COMPANY - Created software user manual and On-Line Help
file for Windows desktop publishing program. In addition created manual
for foil stamping hardware.
NOVEMBER 1994 TO MAY 1995. STELLCOM TECHNOLOGIES
Independent Contractor. Works as a contract Technical Writer and Quality
Assurance Engineer.
- - EDITPRO CORPORATION - Created software user manual and On-Line Help
file for Windows program editor.
- - INTUIT - Performed Quality Assurance testing on in-house Windows
referral program. Wrote training documentation and trained staff in use
of the Partners-TM- program.
IMAGEWARE SOFTWARE, INC. 14 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
- - HORIZONS TECHNOLOGY, INC. - Created documentation for CD Rom Maps
software and LAN auditing software.
JULY 1993 TO OCTOBER 1994. POLARIS SOFTWARE, INC.
- - Manager, Information Development. Created software user manuals,
including research, writing and design. Tested software for usability
and developed hypertext On-line Help. Coordinated with Usability,
Development, and Marketing departments on design and implementation.
MARCH 1991 TO JULY 1993. MIDRANGE COMPUTING
- - Assistant Director Software Division. Coordinated all software sales,
technical support, and marketing. Senior technical writer of software
manuals. Administered technical support through diagnostics and
troubleshooting. Trained and supervised technical support and sales
staffs.
- - Assistant Manager, Business to Business Sales. Trained and supervised
staff in sales of technical manuals, software, and trade journal.
Coordinated trade shows and training seminars.
EDUCATION
B.A., English, University of Arizona, Tucson, AZ, 1985
IMAGEWARE SOFTWARE, INC. 15 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
OVERVIEW/PROJECT APPROACH
This proposal is in response to a request by the Identification Unit of the
Los Angeles County Sheriff's Department. It addresses and provides solutions
for many needs. Overall, it is a complete turn key solution that has been
designed to eliminate these needs. The proposal has no hidden costs and
leaves many options.
Because of the many requirements that must be satisfied, this section is
broken into several phases in addition to providing systems interfaces. These
phases flow in logical order and associated costs are paralleled in the Cost
Proposal (Exhibit A).
PROJECT OVERVIEW
The heart of this project is a central mugshot server that must power
investigative clients throughout the County and the State. The server is
fully scaleable and capable of processing and distributing information to a
large number of client sources. The software that will drive this solution is
Image Ware's Crime Capture System (CCS). CCS runs on the Windows NT 4.0
platform and will utilize Oracle 8.0 database software as required by the
County. CCS will either feed or be queried by a minimum of five different
sub-systems including: CCHRS LARCIS, CAL-PHOTO ID, CAL GANG, and via secure
Intra net. The system proposed is a complete turn-key solution that meets
current needs and provides many options for the future. The entire system is
fully Year 2000 compliant and meets all State and Federal ANSI/NIST standards.
The system components will connect to the existing network directly, with
each agency or the county being responsible to provide LAN connections for
the new equipment. The operating system for the central server will be
Microsoft Windows NT 4.0. The protocol will be TCP/IP. All connections to
either the network or additional devices will be industry standard
connections.
Data archive and backup can be accomplished on-line.
System security will make use of both operating system permissions as well as
database software security. This will allow access to certain functions and
data to be controlled by the system administrator. These privileges and
permissions will be given and controlled by user login. There will be an
administrative function available only to the system administrator, where
these permissions and privileges are maintained.
16
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CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
Phase 1
- ------------------------------------------------------------------------------
In the initial phase, ImageWare will install an IBM Netfinity 7000MG mug
server that will eventually act in place of the current mugshot server in Los
Angeles County. IWS will convert the existing images and data (approx.
250,000) and populate the current version of CCS which runs on Windows NT 4.0
and Sybase 6.0 database software. The purpose for installing and converting
the existing images on Sybase before CCS is ported to Oracle is to satisfy the
IMMEDIATE needs for the County. Examples would be creating photo line-ups or
searching viewing and printing mugshots. In addition to converting the
existing database, we will also de-duplicate it. Because of certain
limitations to the existing photo database software, there are duplicate
records and photos of a good percentage of the entire database. A
de-duplication procedure that is agreed upon by both IWS and the County will
eliminate unwanted photos and, or records.
While the conversion is taking place, IWS will complete the interface with
the DBI store and forward. The CCS server will identify and read standard
NIST type 1, 2 and Type 10 data packages from the existing DBI store and
forward server. Completion of this interface will effectively replace the
existing DBI Photo RAID. The existing images will have been converted and all
new records will be delivered directly from the DBI Telprinters to the CCS
database.
Once the NIST packages populate the CCS database, the records and photos can
be searched by CCS Investigative software. This software will be responsible
for satisfying the County's immediate investigative needs. Phase 1 includes
20 copies of CCS Investigative software and 20 copies of Suspect ID composite
software.
Face ID-Registered Trademark- facial recognition software is also being
offered with this proposal, at no charge! We are offering to convert the
existing images into Face ID as well as provide software that enrolls all new
captured images into Face ID. Basically, all images that populate the CCS
database will also be enrolled into Face ID.
No Face ID client software is being offered in this proposal. However, the
city of Lakewood, CA has already purchased Face ID client software and has
shown great interest in connecting their client with this proposed FACE ID
database. Currently, Lakewood is searching a very limited subset of the
current LA County database and has had great success. With 6 times the number
of images to search, Lakewood expects 6 times the success rate.
Several other LA County law enforcement agencies have shown interest in
purchasing Face ID client software as well. There is an issue as to how will
these Face ID clients effect the load on the CCS server. Will it slow down?
The answer is no! We are going to isolate just one of the four processors in
the Netfinity server for Face ID crunching. When the extracted facial data
from the suspect mugshots is being searched by a Face ID client only one
server processor will be used. The remaining processors are more than enough
to handle all the queries and changes to the CCS database.
17
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CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
When the Face ID clients grow too large in number or when the database gets
too large for one processor to sort in a desirable amount of time, then
ImageWare will require new Face ID client customers to add "swarm" machines
to the server solution. "Swarm" machines are basically PC boxes that contain
at least one standard Pentium II or greater processor and a certain amount of
RAM. They are then configured to process data being searched by Face ID
clients. "Swarm" machines distribute the Face ID processing workload. The
more "swarm" machines added to the system, the more the workload is
distributed. Search times will go down as clients and "swarms" are added.
Server Specifications
The proposed server is an IBM Netfinity 7000 M10 Server. The image server
will be running Windows NT 4.0 that provides a second level of system
security and stability. Initially, the server will be running the current
Sybase version of CCS. Phase 2 converts this database to Oracle.
The database is all open architecture, ODBC compliant, allowing for case of
data sharing with other ODBC compliant systems. The server is capable of
storing the mug photo's and text data in Los Angeles County booking system
for a minimum of five years.
The server is a high performance 400 MHz Quad XEON Processor system. It has
RAID V hot swap drive array and Mirrored OS. It is sized with today's
performance and tomorrow's growth in mind. Installing a RAID V system
provides a very high fault tolerant data storage system while not degrading
performance and allows the storage of business-critical data with confidence.
A UPS will protect the system from power fluctuations and momentary outages.
The system will have a redundant power supply. The server will be equipped
with a modem and remote diagnostic software, allowing for quicker response
and problem resolution. The system also includes a DLT tape drive for
back-ups and a CD ROM Drive. The server will utilize the existing network
which utilizes the TCP/IP protocol.
Server Includes:
Netfinity 7000 M10 400 MHz (Quad Processor) RAID V
IBM Netfinity 7000 M10 400/512KB Xeon, 128MB ECC,OPEN,32X,PCI (Rack 11U)
(Std) 128MB (4x32MB) EDO DRAM DIMM - 50ns
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) Integrated IDE Controller
(Std) Internal IDE CD-ROM Drive
(Std) Netfinity 400W Hot-Swap Power Supply
(Std) Netfinity 7000 400MHz/512KB PII Xeon Processor
(Std) Planar Integrated Wide Ultra SCSI
(Std) Planar Integrated Wide Ultra SCSI for External Devices
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CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
(Std) S3 Trio64V2 Graphics - 1MB SGRAM
(Std) Systems Management Processor
3520 2RU Netfinity EXP15 Storage Expansion Unit
(Std) 3520 Enclosure Hot-Swap Backplane
IBM 35/70GB DLT SCSI Tape Drive - External
IBM Netfinity ServerRAID-3L Ultra2 SCSI Adapter
IBM Netfinity 400W Hot-Swap Redundant Power Supply II (2 total)
IBM Netfinity 7000 M10 Rack-to-Tower Conversion Kit
Netfinity 7000 400MHz/512KB Xeon Processor (4 total)
IBM 8mm to 68pin Converter for external cables
1GB (4x256MB) EDO DRAM DIMM - 50ns
IBM Netfinity 18.2GB Wide Ultra SCSI SCA-2 HDD (HH)
IBM Netfinity 2M Ultra2 SCSI Cable
Netfinity NetBAY3
Black Sleek Mouse
IBM Netfinity 10/100 Ethernet Adapter (PCI)
G72 - 17(15.7) in. Color Monitor, 69 KHz, Stealth Gray
IBM Standard Black 104-Key Keyboard
OBI External V.34 Data/Fax Modem
IBM Netfinity 4 5GB Wide Ultra SCSI SCA-2 Hot-Swap Hard Disk Drive (SL)
External F/W to F/W Cable Standard with 01K1174 Tape Drive
Minimum requirements for investigative workstation hardware (Not included in
price)
Pentium Processor Computer
Windows NT, Windows 95 or Windows 98
32 MB RAM
CD-ROM Drive Internal 32X Max (Variable Speed)
Graphics card capable of at least 16,000 colors.
Monitor and graphics card with 600X800 resolution capability
Software Capabilities
The CCS central server software includes several administrative functions,
including the setup and maintenance of all drop down menus and pick lists,
the archive function and the assignment of names and passwords. The 4 User
Defined fields are also edited from here.
IBM Netfinity Management software will be used to remotely monitor and
maintain the CCS server.
The central server will not execute any client applications meaning all
searches, viewing, and printing or data from the mugshot database must be
accomplished via either CCS investigative station or one of the sub-system
interfaces.
19
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CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
CCS INVESTIGATIVE SOFTWARE
CCS investigative workstation software includes the client software
necessary to search the database based on demographic information, create
photo line-ups, view photo mug books and print. Any printer that includes a
Window NT driver may be utilized. The software can connect with and make use
of peripherals with TWAIN drivers (such as scanners), and have the ability to
import images from files that are JPG or BMP and add to existing records.
The client software also allows for the export of images in either JPG or BMP
files. All of these functions can be authorized or not authorized based on
User ID authorization.
Searches may be accomplished using NCIC standard demographic codes, from user
maintained tables.
The software will create photo line-ups with a specified amount of images. The
Crime Capture System will retrieve and display the images of all subjects
with characteristics that match, or substantially match, those of the line-up
subject. The user will be able to select or reject from the images retrieved
up to twenty, that together with the subject's constitute the line up. The
line-up will be random ordered, and may be saved for future retrieval. These
photo line-ups are also printable.
Portions of an image may be 'roped' for enlargement for viewing purposes.
The print function is available for any image with its associated
demographic data.
The search function includes very flexible ad hoc inquiries, including
many boolean logic functions, including AND, OR, GREATER THAN, LESS THAN,
EQUAL TO, etc.
Each agency will be able to search the database and obtain information
about the total number of bookings by date, by officer ID, by charge code,
etc.
Any text fields entered into a booking record will be searchable,
including any comment fields.
Fields describing SMT data will be searchable.
Images of SMT are printable, either color or black and white.
The search software will process hyphenated and/or multiple last, first,
and middle names correctly.
The search software will use 'soundex' to find similar named individuals.
Investigative workstations will have the ability to scan photos into the
system, import them, and link them with booking records. For example, crime
scene photos can be imported
20
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
into booking records, as well as weapons photos, vehicle photos, residence
photos, year book photos, etc. This function may be turned off by the system
administrator.
FACE ID
Face ID is a state-of-the-art facial recognition and retrieval program that
helps officers positively identify both unknown suspects and criminals with
multiple aliases. Suspect images that have been captured on a surveillance
video, suspect composite or photograph can be searched against any digital
database of faces. The search returns a group of images whose facial
characteristics closely resemble that of the search photograph. This feature
can also be used at the time of booking to immediately identify criminals with
multiple aliases. Face ID saves the officer tremendous amounts of time when
scanning through large databases. The ability to key in text data descriptors
in addition to the facial search makes searching large databases possible.
SUSPECT ID-Registered Trademark-
Suspect ID is the composite module of the C.R.I.M.E.S. software family.
Using an online cognitive interview process, officers, witnesses and victims
can accurately create full-color, photo-realistic suspect composites within
minutes. The digital composites are constructed from catalogs of facial
features. The catalogs are comprised of actual photographs, not hand-drawn
sketches, so composites from Suspect ID look like people, not like pencil
sketches. Suspect ID can interface directly with Face ID. Upon completion, a
composite can be immediately searched against the Face ID database. This
search returns a number of suspect photos from within the LA booking database.
The Suspect ID module was designed specifically for use by law enforcement
agencies. Even officers with little or no computer knowledge or artistic
talent can complete a suspect composite simply by pointing and clicking with
a mouse. Suspect ID is a standard PC-based software application that can be
installed on a laptop computer and taken into the field, allowing officers to
conduct interviews before the witnesses' and victims' memories fade. For
rapid identification, officers can distribute completed composites within
minutes via radio, fax or e-mail.
PHASE 2
- -------------------------------------------------------------------------------
Phase 2 will convert the installed Sybase version of CCS to the latest
version of Oracle. Once in Oracle, the remaining interfaces can be
accomplished. ImageWare has made the decision to fast forward our Oracle
solution in order to meet the requirements set forth by Los Angels County. LA
County is currently an Oracle house and it is logical that their requirements
include an Oracle database.
ImageWare does not intend to charge Los Angeles County with any costs
associated with our development of the Oracle platform. Converting the
installed system from Sybase to Oracle
21
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
does, however, have costs associated. ImageWare engineers will design the new
system so that the conversion process creates very little down time.
The GUI interface throughout the network will not change and no additional
training of users will be required. Face ID will also be converted to Oracle.
PHASE 3
- -------------------------------------------------------------------------------
The last phase is a simple, but large expansion of the investigative product
ImageWare will provide CCS Investigative software and Suspect ID to an
additional 60 sites throughout the county. With all phases complete, Los
Angeles County will have the ability to view and print records and lineups of
every person booked in Los Angeles County within the DBI Tenprinter network.
INTERFACES
- -------------------------------------------------------------------------------
CCHRS & LARCIS
ImageWare offers a single integration technique for both the CCHRS system and
the LARCIS system. We are able to offer this due to the fact that all systems
will be running a single common RDBMS, Oracle 8.0. This will be accomplished
by enabling a login to CCS and allowing access to a mutually agreed upon set
of tables and stored procedures. (Open Architecture) This access will allow
CCHRS or LARSIS to query our database and retrieve the directory reference to
the photo stored on disk for a particular individual. All the particular
parameters and query result capabilities will be agreed upon during final
design discussions with the system architects of CCHRS and LARSIS. It will be
the responsibility of each of the integrated systems to properly read the
photo from the CCS server, decompress the JPEG, and display the photo on the
screen to the user. The CCS server data will be kept in sync with AJIS by the
NIST data feed from the DBI store and forward integration. Any duplicate
records from DBI will be synchronized with existing records causing an update
to existing records not duplication of data. All records will be tied
together between the systems with a common unique identifier such as a record
number and each person will be given a unique identifier, such as a state ID
number. These will be used to identify a unique record for an individual
between all integrated systems as well as identify a person's record history.
The interface will basically allow both the CCHRS and LARCIS sub-systems to
display a photograph of the subject by selecting a defined number of data
tables.
22
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CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
CAL-PHOTO ID & CAL-GANG
ImageWare offers a single solution for both of these interfaces as well, only
duplicated for each. When a record is completed within CCS, the server will
export either a flat text file or a NIST package to the local CAL-ID or
CAL-GANG Web Server. This flat file will contain demographic text data as
well as the photo's location or URL. Once the State parses this information
onto its main query engine, the images will be searchable via CAL-ID or
CAL-GANG intra-net.
At this point in time, ImageWare is not proposing to install or maintain the
local Web Server(s) for these applications. When the final design is approved
and the web server is identified, IWS will discuss maintenance of this server.
WEB INVESTIGATIVE INTERFACE
ImageWare is offering a site license to be used within the Los Angeles County
intra-net for a product that is currently under development. The site license
will enable the LA County CCS photo database to be searched by a standard web
browser within the local network. The basic concept of this product is to
provide a Web Interface that enables standard web browser search engines to
query the CCS database though a limited amount of text fields and
descriptors. The fields that are to be searched have yet to be defined,
however, it is expected that 5-7 fields will be appropriate.
23
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
IMPLEMENTATION SCHEDULE
A Project Manager will be named by ImageWare Software, Inc., to oversee and
manage the planning, monitoring, reporting, and acceptance of the system
outlined in the proposal if ImageWare is the successful vendor. This person's
resume will be supplied during contract negotiations. It is expected that the
LOS ANGELES COUNTY SHERIFF'S OFFICE will also name a Project Coordinator who
will work with the IWS Project Manager, who will be responsible for all tasks
outlined as COUNTY responsibility on the task list.
APPROACH TO PROJECT
ImageWare has a well defined, disciplined approach to program management
which includes:
- Attention to customer satisfaction
- Regular communications with customer via weekly status meetings,
monthly project status reports, and quarterly reviews
- Regularly scheduled status meetings with the project staff
ImageWare will avoid and mitigate risks by reviewing, prioritizing, and
monitoring key project risks throughout the project life cycle. Identified
project risks will be recorded and tracked to resolution. Identification of
risks and potential mitigation plans will be reviewed with the project staff
monthly, documented in the project reports, and presented to the LOS ANGELES
COUNTY SHERIFF'S OFFICE's Project Coordinator during the project reviews. By
identifying risks early before they have impacted the project, the actual
impact to the project can be decreased, if not totally eliminated. An
inescapable fact of project management is that there are always risks. The
key to ensuring a successful project is to manage them. This means the
following must be done early, before the risk actually impacts the project:
- Identify risks (technical, schedule, and cost)
- Prioritize and quantify risks
- Assign responsibility
- Mitigate (determine mitigation action, responsible person, due date)
- Track Progress
24
<PAGE>
LASO ImageWare Software 3/22/99
WorkPlan/Implementation
<TABLE>
<CAPTION>
Contract Award Month 1 Month 2 Month 3 Month 4 Month 5 Month 6 Month 7 Month 8 Month 9
-------------- ------- ------- ------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
PHASE 1 X /// /// ///
PHASE 2 X ///
PHASE 3 X ///
Required interfaces /// /// ///
</TABLE>
IMAGEWARE SOFTWARE, INC. Page 25 Phone 619-673-8600
10883 THORNMINT ROAD FAX 619-673-1770
SAN DIEGO, CA 92127
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFFS DEPARTMENT 3/22/99
PROPOSAL PHOTO IMAGING SYSTEM
<TABLE>
<CAPTION>
- ------------------------ ---------------------------- ---------- -------------------
Customization Definition Customization Implementation Deployment Maintenance Support
- ------------------------ ---------------------------- ---------- -------------------
<S> <C> <C> <C>
Phase 1: Tasks Phase 2: Tasks Phase 3: Tasks Phase 4: Tasks
- -------------- -------------- -------------- --------------
- - Database field definitions - Implement customized database - Integration - HW & SW Maintenance
- - Define field validation rules - Implement field validation rules - Installation - Enhancements &
- - Define code labels - Implement customized screens - Training upgrades (Option)
- - Define print formats, Audit Trail - Implement Audit Trail reports - System Acceptance
- - Define Mandatory Fields - Develop installation plan
- Develop acceptance test document
- - Site Surveys - Develop training material
- -Procure Components - Develop user manuals
Phase 1: Milestones Phase 2: Milestones Phase 3: Milestones Phase 4: Milestones
- ------------------- ------------------- ------------------- -------------------
- - Specifications Review - Ready-To-Ship Review - Site Reviews - Maint. Plan Review
- - Purchase Order Issued - Installation Schedule Review - Final System Acceptance
Phase 1: Deliverables Phase 2: Deliverables Phase 3: Deliverables Phase 4: Deliverables
- --------------------- --------------------- --------------------- --------------------
- - Specifications Document - Acceptance Test Plan - Site hardware - Help Desk Incidence
- - Installation Schedule (preliminary) Installation Schedule - Site software Statistics
- - Purchase Order - Training Material - Maint. Plan
- Use Manual
- System Administration Manual
</TABLE>
IMAGEWARE SOFTWARE, INC. 26 (619) 673-8600 voice
15373 INNOVATIVE DRIVE #120 (619) 619-673-1770 fax
SAN DIEGO, CA 92128
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
REFERENCES
- -------------------------------------------------------------------------------
ImageWare Software, Inc. has proven its ability to successfully complete
projects of the size and magnitude as the Los Angeles County system. IWS has
installed investigative software in more than 650 police departments and
digital photo software in more than 100 departments throughout the world. The
needs of Los Angeles County are similar to those of many of our customers,
but not exact. Each individual agency varies in their requirements and the
following customers are just a few examples of how we met those needs.
ARIZONA DEPARTMENT OF PUBLIC SAFETY
Description of Installed System and Its Features:
Central Server is IBM Netfinity server, dual host cluster, with automatic
fail-over in case of one system failure. Shared disk array with RAID level 5
implemented, 15 county intake facilities, with both capture and investigative
Crime Capture System workstations, 2 additional sites at county court
facilities. Features include an interface with the Identix livescan device,
taking all demographic data, creating the record and populating the data
fields, making the image capture portion the only step required by the
operator. All information and images are immediately available for all other
investigative workstations on the network. Arizona DPS has also recently
issued a purchase order for the addition of Face ID-Trademark- to be added to
the central server. Each county can then purchase the client software and
conduct facial recognition searches using images or composites produced by
Suspect ID-Trademark-. Crime Lab-Trademark-was also included in each
investigative workstation.
Fact Sheet
The State of Arizona in an effort to consolidate images and booking
information, has contracted with ImageWare Software, Inc. to install a
statewide digital mugshot repository called Mug Photo Interface (MPI). IN
those locations that are part of the system, the booking process begins at
the Identix livescan station where an operator captures the suspect's
fingerprints and enters required demographic and biographical information.
Once the information is entered into the livescan system, the data
automatically transfers to the MPI system via a common linking number. At the
MPI capture station, additional mandatory information is recorded, and
digital images of the suspect are taken. Upon completion of a record, the
information is immediately transmitted via the AZAFIS network to a central
repository housed at the Department of Public Safety. At this point, the data
is readily available for searching purposes by any agency in the state which
has access to the database.
An ImageWare supplied investigative station is used to perform several
functions including quick and advanced searches for querying the database,
mugbook searches and views for
27
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CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
witness identification of a suspect, line-ups, and in the near future, facial
recognition which is used to identify unknown suspects and criminals.
Arizona MPI Technical Break Down
Initial Number of Capture Stations: 17
Initial Number of Investigative Stations: 17
Approximate Number of Bookings Per Year: 350,000
Hardware
Central Site: 2 IBM Netfinity Servers running in a clustered environment and
sharing a RAID level 5 array of 82 GB for database storage. Each server has 4
Pentium Pro Processors, 1 GB of RAM memory and 13 GB of internal system disk
space. The system drives are mirrored. If the active server fails to reset a
heartbeat, the failover takes place automatically, and the drive array fails
over to the control of the now active server. There is dial-in capability for
diagnostic purposes. The operating system is Windows NT Server 4.0 Enterprise
Edition with Microsoft Cluster Server.
Capture & Investigative Stations: Each Investigative Station is a IBM 300XL
PC with 64MB RAM and 6.1 GB of hard disk storage. The capture camera is a
Pulnix TMC-73M with a Computar zoom lens. The camera and lens are mounted on a
Hitachi pan and tilt device. The capture card is an Integral Technology
MV-Pro. The camera is mounted on it's side to accommodate the NIST Best
Practice Recommendations and proprietary software does a rotation of the
Video live feed before it is displayed by the graphics card. Printing and
scanning take place on an Epson Stylus 800 printer and an Epson 636
Expressions scanner (SCSI connection). The operating system is Windows NT
Workstation 4.0. Each capture and investigative station is connected to the
central servers via a wide area network utilizing Ethernet and TCP/IP
protocol. Each station runs client software that connects to the central
server's database.
28
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CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
For Immediate Release
---------------------
Arizona Department of Public Safety Awards Statewide Mug Photo
Interface Contract to ImageWare Software, Inc.
IMAGEWARE'S CRIME CAPTURE SYSTEM-TM- TO HELP ARIZONA LAW ENFORCEMENT
AGENCIES APPREHEND CRIMINALS.
San Diego, California - January 15, 1998. After an extensive evaluation
process, the State of Arizona announced Wednesday that they had awarded the
Arizona Statewide Digital Mug Photo Interface Contract to ImageWare Software,
Inc. The contract is expected to exceed one million dollars and is the first
contract of its kind to be awarded for a statewide mugshot system. "We are
very pleased to provide Arizona law enforcement with a complete solution for
their mug photo needs," says Jim Miller, President and CEO of ImageWare
Software, Inc. "We feel the Crime Capture System will provide a quantum leap
forward for the State."
Under the terms of the contract, the State of Arizona will utilize
ImageWare's Crime Capture System (CCS), a state-of-the-art digital booking,
identification and retrieval program. The main CCS database will be housed at
the Arizona Department of Public Safety. Seventeen sites will be capable of
capturing mugshots, SMT (scars, marks, and tattoos) photos, and descriptive
data for each suspect they arrest. Each remote site will also receive an
investigative workstation capable of searching and viewing the mugshot
database and creating photo line-ups. Once information is entered into the
remote database, the central repository is immediately updated allowing all
agencies access to the most recent information. Officers and Detectives will
no longer have to spend hundreds of hours searching through file cabinets of
photographs to identify a suspect or generate a photo line up, instead they
will use CCS's central repository and systematically search the digital
database of images for similarities between suspects, thus speeding up case
processing. The new CCS system will also interface directly with the existing
Arizona Automated Fingerprint Identification System (AZAFIS) network.
The State of Arizona and ImageWare have agreed to an aggressive
implementation schedule which will have the system fully operational by June
1998. Once the first phase is complete, there are plans to move forward with
the implementation of additional C.R.I.M.E.S-TM- modules including, Suspect
ID-Registered Trademark- (a composite program), Crime Lab-Registered
Trademark- (an image enhancement and edit program), Vehicle ID-TM- (a vehicle
identification program), and what Ben Armstrong, the Lead Business Analyst
with the Maricopa County Sheriff's Office considers, "one of the most
promising law enforcement tools," Face ID-TM- (a facial recognition program).
All of these modules combined will create a fully integrated law enforcement
solution for the State of Arizona.
San Diego-based ImageWare Software, Inc. is a leader and innovator in
PC-based digital imaging, with its primary focus on law enforcement software.
Through its growing family of C.R.I.M.E.S. software modules, ImageWare is
effectively assisting in the resolution of crime worldwide. Currently, the
five C.R.I.M.E.S modules are being used by more than 500 law enforcement
agencies worldwide. ImageWare Software, Inc. is privately held.
###
29
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
THE ARIZONA REPUBLIC
POLICE SING PRAISES OF NEW STATEWIDE MUG SHOT SYSTEM
Published on Saturday, September 12, 1998
Byline: By Judi Villa, The Arizona Republic
In seconds, a suspect's booking mug can be seen by law enforcement agencies
throughout the state. A few computer keystrokes, and a detective can have
more pictures than he'll ever need for a photographic lineup. And if there is
no suspect, that same detective can type in a physical description and get a
list of potential bad guys in no time.
Welcome to the Mug Photo Interface, a subsystem of the Arizona Automated
Fingerprint Identification System. MPI uses electronic imaging to capture mug
shot photos and transmit them immediately to a statewide image database
operated by the state Department of Public Safety. "It is going to
revolutionize (police work) just like fingerprints did," said Clyde Tess, a
crime lab supervisor with the Maricopa County Sheriff's Office. "It'll solve
cases faster; It'll help in identifying suspects faster. "If a suspect is
entered into the database in Phoenix then goes down to Tucson and commits a
crime, the victim can identify the suspect the same day. Before an agency
would have to send a photo or fax it. Faxes aren't always that good, and the
mail takes a day or two. This is instant."
The MPI system went online Thursday in 10 counties. The first booking mug was
entered by the Santa Cruz County Sheriff's Office in Nogales. "It's pretty
nice," said Ramon Villela, a detention officer in Nogales. "It's going to make
our jobs easier and faster and the detectives are going to be able to do
lineups faster."
Arizona's program, funded by a grant from the Arizona Criminal Justice
Enhancement Fund, will be one of the most progressive in the county,
officials say. Although some cities, including San Diego and Boston, have
limited imaging databases, only Arkansas has a statewide system, and that one
collects information from only six sites. Seven more sites including police
departments in Mesa, Tempe, Phoenix, Scottsdale and Glendale, will be added
to MPI by next summer. And by the end of this year, five sheriff's
departments that already have their own mug photo systems will be linked to
the statewide system. A few agencies, like the Chandler Police Department,
have purchased their own equipment to boot into the system.
"Here's a great thing," said Mark Hatcher, an identification supervisor for
the Mesa Police Department and chairman of the MPI Task Force. The task
force, a grass roots effort with members from five police agencies in Arizona
has been working for two years to implement
30
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
the technology. "This opens up communication from Yuma County to Navajo
County." Hatcher said, "Geographically, they're at different ends of the
state, but they can do a search just like they were here at DPS."
The system standardizes the way mug shots are taken and stored, sets up a
"major clearinghouse" for all photos and allows investigators anywhere in the
state to search for, retrieve and print out mugs and suspect information from
virtually anywhere in the state. It also can be used to create photo lineups
and books of mug shots for victims to look through. "Say a suspect does a
robbery with a mask, and he's got a tattoo on his arm," Villela said.
"Detectives can take that picture of that tattoo and scan it into the system,
and it'll give you everybody that has that tattoo." The system also is
capable of tracking gang affiliations, weapons and registered sex offenders.
31
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFFS DEPARTMENT 3/22/99
PROPOSAL PHOTO IMAGING SYSTEM
LOS ANGELES COUNTY, CITY OF LAKEWOOD
ImageWare Software has great experience in the area of composite creation and
the identification of suspects using those composites. The most recent and
important news involves the facial recognition software, Face ID. This
software was created using algorithms developed from MIT research, which
ImageWare has the exclusive right to offer to the law enforcement industry.
The software describes a portion of the face of an individual mathematically,
from the eyebrows to the lips. This represents the majority of facial
features used to differentiate individuals and discounts such things as hair
length and style, eyeglasses, hats, and other adornments.
Face ID is presently installed at the Lakewood substation of the Los Angeles
Sheriff's Department, and was recently used to capture a carjacking suspect.
The victim gave a very accurate description to the Sheriff's Department, and
a composite was created using ImageWare's Suspect ID. This composite was used
to then search their mugshot database using Face ID. The returned search
results contained a suspect that the victim identified from a lineup. This
search took approximately 30 seconds to perform, and caused the
identification and apprehension of the suspect, and subsequently the District
Attorney's office has filed charges against the suspect. The press release of
this incident follows along with a view of the composite and actual photo of
the suspect.
FOR IMMEDIATE RELEASE
Los Angeles Sheriff's Department Identifies Suspect
With New Nigh-tech Crime Fighting Software
DETECTIVES UTILIZE FACE ID-TM- FACIAL RECOGNITION SOFTWARE
TO ARREST CAR-JACKING AND BATTERY SUSPECT.
San Diego, California - November 3, 1997 - Just three days after installation
of their newest crime fighting weapon, detectives with the Los Angeles County
Sheriff's Department arrested a car jacking and battery suspect "that would
never had been identified without Face ID-TM- facial recognition software",
according to Sergeant Bill Conley of the Los Angeles Sheriff's Office. With
no leads, frustrated detectives had given up on the case weeks prior and
considered it dead until the installation of Face ID. Using a composite of
the suspect, detectives employed the facial recognition program to search
their digital mugshot database for possible matches. Within seconds the
automated search results displayed photos in rank order that were similar to
those of the composite. Detectives investigated the matches, created a
photo-line-up and two witnesses positively identified Eduardo Ochoa as the
suspect. Ochoa was arrested on October 30, 1997 and is being held in lieu of
$125,000 bail. Sergeant Conley
IMAGEWARE SOFTWARE, INC. 32 (619) 673-8600 voice
15373 INNOVATIVE DRIVE #120 (619) 673-1770 fax
SAN DIEGO, CA 92128
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFFS DEPARTMENT 3/22/99
PROPOSAL PHOTO IMAGING SYSTEM
was amazed and commented, "Face ID is one of the most innovative
breakthroughs in law enforcement technology."
Face ID, one of the modules of the C.R.I.M.E.S.-Registered Trademark- suite
of integrated law enforcement programs developed by ImageWare Software, Inc.,
is a state-of-the-art facial recognition and retrieval program. Now,
investigators no longer have to spend hundreds of hours trying to identify a
suspect. Detectives can take a suspect composite created in ImageWare's
Suspect ID-TM- program, and seamlessly export it to Face ID, which in turn
will systematically search any digital database of booking images to identify
possible suspects. Similarly, a suspect's image caught on a bank or
convenience store surveillance video can be run against a digital photo
database for possible identification. With Face ID, officers will be able to
utilize this facial recognition technology at the time of booking to
immediately identify a criminal with multiple identities or outstanding
warrants.
San Diego-based ImageWare Software, Inc. is a leader and innovator in
PC-based digital imaging, with its primary focus on public sector and law
enforcement software. Through its growing family of modules, ImageWare is
effectively creating a fully integrated solution to assist in the resolution
of crime worldwide. Currently, the C.R.I.M.E.S. suite consists of five
modules: Suspect ID (facial composite module), Crime Lab-TM- (an image
enhancement and edit program). Vehicle ID-TM- (vehicle identification
program), Face ID (facial recognition application) and Crime Capture System
(digital booking module) which are being used by more than 500 law
enforcement agencies worldwide. ImageWare Software, Inc. is a privately held
company.
IMAGEWARE SOFTWARE, INC. 33 (619) 673-8600 voice
15373 INNOVATIVE DRIVE #120 (619) 673-1770 fax
SAN DIEGO, CA 92128
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
Los Angeles Sheriff's Department Identifies Suspect
With New High-tech Crime Fighting Software
San Diego, California - November 3, 1997 - Just three days after installation
of ImageWare's Face ID-TM-, the program proved itself to be the most effective
high-tech crime fighting software available. Using a composite of a suspect,
detectives employed Face ID to conduct an automated comparison search and
produced a number of photos which closely resembled the suspect in a
carjacking and battery case. Both the victim and witness positively
identified the suspect who was ranked highest in the comparison search.
[PHOTO]
The suspect would never had been
identified without FACE ID face
recognition software.
-SERGEANT BILL CONLEY-
LOS ANGELES COUNTY SHERIFF'S
DEPARTMENT
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
NEW YORK CITY POLICE DEPARTMENT
DESCRIPTION OF INSTALLED SYSTEM AND ITS FEATURES:
With over 400,000 bookings each year, the New York City Police Department is
the largest law enforcement agency in the world. The contract for booking
systems for the entire NYPD network clearly establishes ImageWare as the
leading company for mugshots. ImageWare was chosen for the high quality of
the system, the adaptability of the software with other technologies and its
ability to be scaled to the size of the project. The operating system is UNIX.
The New York City Police Department's booking system, spans 76 precincts in 5
boroughs, including 100 capture stations and redundant central servers.
ImageWare has a large customer support staff with 24 hours a day, 7 days a
week availability.
XImage worked as a subcontractor to the worldwide systems integrator, SAIC,
Science Applications International Corporation of McLean, VA. SAIC is an
established provider of computer and information solutions to governmental
agencies worldwide.
HENEPIN COUNTY SHERIFF'S OFFICE (MINNEAPOLIS)
DESCRIPTION OF INSTALLED SYSTEM AND ITS FEATURES:
This system is a UNIX installation with a single ImageBank server, but
servicing input and searching from 6 other agencies. There is also a Mail
Server within the system. There are a total of 18 workstation, 3 of which are
capture stations from within the Henepin County Sheriff's Office. The
database size is approximately 600,000 records at present. ImageWare has
recently received a purchase order from Henepin County to install Face
ID-TM- on the network. This will allow for the facial recognition of
subjects, based on a composite or image.
PIERCE COUNTY, WA
DESCRIPTION OF INSTALLED SYSTEM AND ITS FEATURES.
This system is currently a UNIX installation with a single ImageBank server,
but will be one of the first XImage installations to convert to the new CCS
Windows NT solution. This solution was chosen as a natural upgrade from their
existing system. They will enjoy lower maintenance costs, faster throughput,
more scaleability and a friendlier interface.
35
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
Reference Contacts
<TABLE>
<CAPTION>
Reference and Contact Tool Used RDBMS Environment
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Arizona Department of Public Safety C++ Sybase SQL Windows NT 4.0 Server
2310 N. 20th Ave. Anywhere Server Windows NT 4.0 clients
Phoenix, AZ 85005
CYNTHIA PELLIEN
PROJECT COORDINATOR
602-223-2401
- -----------------------------------------------------------------------------------------------------
New York City Police Department C Sybase System 11 SUN Solaris Server
One Police Plaza MISD Room 700 SCO UNIX Clients
New York, NY 10038
BRIAN GRIFFIN
212-374-5020
- ---------------------------------------------------------------------------------------------------
Pierce County Sheriff's Office Switching Switching to CCS Soon to be Win NT 4.0
930 S. Tacoma Ave. to CCS,
Tacoma, WA 98402 C++
DAVE COTTON
253-798-7729
- ---------------------------------------------------------------------------------------------------
Los Angeles County Sheriff's Office - C++ Sybase SOL Windows NT 4.0 Server
City of Lakewood Anywhere Server Windows NT 4.0 clients
SGT. BILL CONLEY
562-866-9061
- ---------------------------------------------------------------------------------------------------
Falls Township PD C++ Sybase SQL Windows NT 4.0 Server
Anywhere Server Windows NT 4.0 clients
WYNNE CLOUD
215-949-9100
- ---------------------------------------------------------------------------------------------------
Chandler Police Department C++ Sybase SQL Windows NT 4.0 Server
Anywhere Server Windows NT 4.0 clients
SGT. BRIAN POTTER
602-782-4501
- ---------------------------------------------------------------------------------------------------
</TABLE>
36
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
OTHER C.R.I.M.E.S. REFERENCES
<TABLE>
<S> <C> <C>
AZ DPS Cyndy Pellien 602-223-2401
Los Angeles SO Sgt. Bill Conley 562-866-9061
Corona PD CA Danny Verdugo 909-279-3642
Raynham PD MA Lou Pacheco 508-824-2727
Independence PD KS Harry Smith 316-332-1700
Little Rock PD AR Chuck Ray 501-371-4660
Long Island Railroad Police Kevin Farrell 718-558-3346
Navel Investigative Service Brandon Armstrong 619-556-1386
E. Providence PD RI Capt Broadmeadow 401-435-7626
San Diego PD CA David Cavanaugh 619-531-2623
San Diego SO CA Mark Kelly 619-258-3100
Monroe SO NY Jim Beikirch 716-428-5432
Placentia PD CA Matt Reynolds 714-993-8164
Austin PD TX Cheryl Bowne 512-480-5145
Visalia PD CA Det Sharon Brown 209-738-3235
Wilson County SO TN Lt Bob White 615-444-1459
San Bernardino SO CA Dep Karen Rice 909-387-8812
Los Angeles PD CA Det Tom Barnhart 818-756-8553
Bullhead City PD AZ Capt Rodney Head 520-763-9200
Arlington PD TX Det Pat Smith 817-459-5710
New York City Police Department Lt. Brian Griffin 212-374-5020
Clackamas County Sheriff's Office Joanne LeBreun 503-650-3155
Stanislaus County Sheriff's Office Gordon Brusso 209-525-7279
Santa Ana Police Department Lt. George Saadeh 714-245-8410
Henepin County Sheriff's Dept Sheryl Loose 612-348-9648
</TABLE>
37
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
FINANCIAL STATEMENT
IWS has included financial statements from 1996, 1997 and through November of
1998. When reviewing the attached financials for November 30, 1998 several
issues should be noted. On the Consolidating Income Statement included in the
11 months, results are approximately $1 million of one time costs related to
the acquisition and integration of XImage operations into ImageWare. When
reviewing the 11/30/98 Balance Sheet, the fact is that ImageWare is (as of
3/15/99) less than thirty days away from funding a $10,000,000 equity from a
group of institutional investors led by J. P. Morgan. A summarized pro-forma
balance sheet is provided below which shows the 11/30/98 balance sheet
assuming the equity investment and the planned immediate use of funds for
debt and liabilities had already taken place.
<TABLE>
<CAPTION>
Balance Sheet 11/30/98 Actual Pro-Forma
---------------- ---------------
<S> <C> <C>
Cash 223,627 5,623,627
Other Current Assets 1,538,815 1,538,815
Fixed Assets 273,876 273,876
Other Assets 3,133,738 3,133,738
--------- ----------
Total Assets 5,170,056 10,570,056
Current Liabilities 5,305,564 1,555,564
Long Term Liabilities 674,059 674,059
--------- ----------
Total Liabilities 5,979,623 2,229,623
Stockholders Equity (809,567) 8,340,433
--------- ----------
Total Liabilities and S. E. 5,170,056 10,570,056
--------- ----------
</TABLE>
38
<PAGE>
IMAGEWARE SOFTWARE, INC.
---------
REPORT ON AUDITED FINANCIAL STATEMENTS
For the Years Ended December 31, 1997 and 1996
---------
<PAGE>
[Logo]
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors of
ImageWare Software, Inc.
We have audited the accompanying balance sheets of ImageWare Software, Inc.
as of December 31, 1997 and 1996 and the related statements of operations,
stockholders' equity (deficit) and cash flows for the years then ended. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based
on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of ImageWare Software, Inc. at
December 31, 1997 and 1996 and the results of its operations and cash flows
for the years ended, in conformity with generally accepted accounting
principles.
/s/ COOPERS & LYBRAND L.L.P.
San Diego, California
March 13, 1998
<PAGE>
IMAGEWARE SOFTWARE, INC.
BALANCE SHEETS
December 31, 1997 and 1996
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
ASSETS
Current assets:
Cash $ 2,309,859 $ 43,031
Accounts receivable - net of allowance for doubtful accounts
of $3,162 and $52,377 for 1997 and 1996, respectively 107,062 151,191
Other 361,631 30,137
------------ ------------
Total current assets 2,778,552 224,359
Property and equipment, net 246,258 191,972
Intangible assets, net of accumulated amortization of $300,181
and $213,787 for 1997 and 1996, respectively 200,469 50,252
------------ ------------
$ 3,225,279 $ 466,583
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Accounts payable $ 412,670 $ 344,600
Deferred revenue 16,000
Accrued compensation and other expenses 1,030,177 901,352
Accrued interest 36,607 43,260
Notes payable to stockholders 238,150 870,400
------------ ------------
Total current liabilities 1,733,604 2,159,612
Commitments
Stockholders' equity (deficit):
Series B convertible redeemable preferred stock, $.01 par
value, 750,000 shares authorized, 389,400 and 341,000 shares
issued and outstanding in 1997 and 1996, respectively,
$973,500 and $852,500 liquidation preference in 1997 and
1996, respectively 3,894 3,410
Common stock, $0.01 par value, 50,000,000 shares authorized,
4,458,240 and 3,230,038 shares issued and outstanding for
1997 and 1996, respectively 44,583 33,301
Additional paid-in capital 14,260,171 10,615,290
Accumulated deficit (12,816,973) (12,344,030)
------------ ------------
Total stockholders' equity (deficit) 1,491,675 (1,693,029)
------------ ------------
$ 3,225,279 $ 466,583
============ ============
</TABLE>
The accompanying notes are an integral part
of the financial statements.
2
<PAGE>
IMAGEWARE SOFTWARE, INC.
STATEMENTS OF OPERATIONS
For the Years Ended December 31, 1997 and 1996
---------
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
Revenues:
Software sales $ 461,968 $ 499,085
Royalties and other revenue 2,434,108 83,486
---------- -----------
2,896,076 582,571
Cost of products sold 44,384 10,063
---------- -----------
Gross margin 2,851,692 572,508
---------- -----------
Operating, general and administrative expenses 1,637,049 1,121,546
Sales and marketing expenses 918,557 412,394
Research and development expenses 482,834 510,078
Interest expense, net 90,091 93,789
---------- -----------
Total operating expenses 3,128,531 2,137,807
---------- -----------
Loss before income taxes (276,839) (1,565,299)
---------- -----------
Provision for income taxes 196,104 -
---------- -----------
Net loss $ (472,943) $(1,565,299)
---------- -----------
---------- -----------
</TABLE>
The accompanying notes are an integral part
of the financial statements.
3
<PAGE>
ImageWare Software, Inc.
Consolidating Balance Sheet
30 Nov-98
<TABLE>
<CAPTION>
IMAGEWARE XIMAGE
SOFTWARE CORPORATION ELIMINATIONS CONSOLIDATED
-------- ----------- ------------ ------------
<S> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS:
Cash 212,611 11,016 223,627
Accounts receivable, net 794,805 332,639 1,127,445
Other receivables, net 69,429 1,000 70,429
Inventory, net of reserve 88,989 107,782 196,771
Prepaid expenses 139,664 4,507 144,171
----------- ---------- ---------- -----------
Total Current Assets 1,305,499 456,944 1,762,442
----------- ---------- ---------- -----------
FIXED ASSETS, AT COST: 807,076 350,584 1,157,660
Accumulated depreciation (569,808) (313,977) (883,785)
----------- ---------- ---------- -----------
Fixed Assets, net 237,268 36,607 273,876
----------- ---------- ---------- -----------
OTHER ASSETS
Patents, net of amortization 109,404 109,404
Goodwill 2,976,590 2,976,590
Investment in subsidiary 2,457,531 2,457,531
Interco receivable (payable) 447,221 (438,912) 8,309
Deposits and other 30,435 9,000 39,435
----------- ---------- ---------- -----------
Total Other Assets, net 3,044,591 (429,912) 519,059 3,133,738
----------- ---------- ---------- -----------
----------- ---------- ---------- -----------
TOTAL ASSETS 4,587,358 63,639 519,059 5,170,056
=========== ========== ========== ===========
LIABILITIES AND
STOCKHOLDERS' EQUITY:
CURRENT LIABILITIES:
Accounts Payable, trade 701,502 155,515 857,017
Accrued liabilities 999,710 641,299 1,641,009
Deferred revenues 297,700 301,336 599,036
Short term borrowings 2,005,000 203,500 2,208,500
----------- ---------- ---------- -----------
4,003,912 1,301,651 5,305,563
----------- ---------- ---------- -----------
LONG-TERM DEBT
Notes payable, stkhldrs 238,149 238,149
Notes payable, NBD 375,106 375,106
Other long-term liabilities 34,506 26,298 60,804
----------- ---------- ---------- -----------
647,761 26,298 674,059
----------- ---------- ---------- -----------
STOCKHOLDERS' EQUITY
Stock, Paid-in capital 14,655,648 1,414,249 (1,414,249) 14,655,648
Accumulated deficit (12,816,973) (2,755,189) 2,755,189 (12,816,973)
Current year net (loss) (1,902,990) 76,630 (821,881) (2,648,241)
----------- ---------- ---------- -----------
Total Stockholders' Equity (64,315) (1,264,310) 519,059 (809,567)
Total Liabilities and ----------- ---------- ---------- -----------
Stockholders' Equity 4,587,358 63,639 519,059 5,170,056
=========== ========== ========== ===========
</TABLE>
Page 1
<PAGE>
IMAGEWARE SOFTWARE, INC.
Consolidating Income Statement
For the Eleven Months Ended November 30, 1998
<TABLE>
<CAPTION>
IMAGEWARE XIMAGE
SOFTWARE CORPORATION ELIMINATIONS CONSOLIDATED
-----------------------------------------------------------
Note 1
<S> <C> <C> <C> <C>
Revenues 2,205,495 2,078,158 4,283,653
Cost of sales 389,935 1,260,395 1,650,330
-----------------------------------------------------------
Gross profit 1,815,560 817,763 2,633,323
-----------------------------------------------------------
Salaries (incl fringes) 1,665,901 453,545 2,119,445
Sales commissions 72,511 -- 72,511
Contract services 412,125 41,179 453,304
Consulting & prof services 216,194 16,715 232,909
Legal 113,828 855 114,683
Adverting, promo & printing 28,765 249 29,013
Trade shows 14,007 -- 14,007
Dues & subscriptions 3,836 1,750 5,586
Rent and utilities 223,099 86,048 309,147
Communications 102,644 49,662 152,306
Office expenses 124,478 30,304 154,782
Insurance 28,061 5,326 33,388
Travel 293,218 15,415 308,633
Depreciation & amortization 163,384 19,486 821,881 1,004,751
-----------------------------------------------------------
3,462,051 720,535 821,881 5,004,467
-----------------------------------------------------------
Interest (income) expense 221,417 18,328 239,745
Other (income) expense 35,082 2,271 37,353
-----------------------------------------------------------
Net income (1,902,990) 76,630 (821,881) (2,645,241)
-----------------------------------------------------------
-----------------------------------------------------------
</TABLE>
Note 1 Ximage Corporation results are for the period January 23, 1998 thru
February 25, 1998, January 23, 1998 is the effective date of the
merger
Page 1
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22-99
PROPOSAL PHOTO IMAGING SYSTEM
EXHIBIT A - COST PROPOSAL
- -------------------------------------------------------------------------------
ImageWare Software Inc. 45 (619) 673-8600 voice
15373 Innovation Drive, #120 (619) 675-1700 Fax
San Diego, CA 92128
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFFS DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
EXHIBIT B - Maintenance & Warranties
- -------------------------------------------------------------------------------
Product and Customer Support
IWS will provide LOS ANGELES COUNTY SHERIFF'S DEPARTMENT with diagnostic
software and manuals necessary to operate and maintain the system, including
schematics diagnostic and maintenance manuals as provided by the manufacture.
During the Warranty period IWS will support the System without any cost to
the County. Also during the period IWS agrees to offer Customer Support for
an additional fee specified in Exhibit A, or at a cost per incident according
to the time and Materials Schedule. For the purpose of this Agreement
Customer Support is defined as all information calls related to operation of
the System and calls based upon user error. After the warranty period, IWS
agrees to offer maintenance, customer and product support for the System for
at least five years after installation subject to LOS ANGELES COUNTY
SHERIFF'S DEPARTMENT entering into an IWS Maintenance Agreement during the
five years. IWS will provide a copy of its current Maintenance Agreement to
LOS ANGELES COUNTY SHERIFF'S DEPARTMENT and requires LOS ANGELES COUNTY
SHERIFF'S DEPARTMENT to pay an additional fee. IWS reserves the right to
modify the terms and fees of its standard Maintenance Agreement at any time.
Hardware Warranties
All hardware that IWS supplies carries a full 1 Year warranty. IWS supports
only the hardware that it installs. Support for other systems not purchased
through Image Ware can be negotiated.
Hardware Maintenance
Maintenance for the system hardware will be 7 days per week, 24 hours per day
with all agencies in LOS ANGELES COUNTY SHERIFF'S OFFICE having just one toll
free number to call for service. Initial calls will be received by the IWS
Help Desk. If no one is available, a call back will be made within 1 hour.
Within a agreed upon period of time a hardware technician will be on-site to
troubleshoot and correct the problem.
If any installation within any agency will require access to restricted area
by IWS employees, it is expected that information will be given to Image Ware
during contract negotiations. ImagWare will make any and all information
available to the LOS ANGELES COUNTY SHERIFF'S OFFICE for each employee who
must have access to the restricted area.
ImageWare Software Inc.
15373 Innovation Drive. #120 (616)673-8600 voice
San Diego, CA 92178 (619)673-1770 Fax
49
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
The equipment and hardware supplied as part of this proposal will be fully
guaranteed for a minimum period of 12 months. All prices quoted as part of
this proposal are guaranteed for a period of 12 months.
The central server comes complete with dial-in modem, and the IBM Netfinity
Manager software and clients installed on each supplied workstation. This
will enable the customer service rep to access, and actually "take over"
workstations when necessary to diagnose and repair any problems.
Software support first level is via toll free number to phone support. This
customer service rep has the ability to escalate the problem up to level 2
support, which is an R&D engineer. If that person requires an on-site rep, one
will be dispatched. We also include IBM hardware support with each IBM
system. Sometimes, the ImageWare programmer just needs a set of hands and
eyes on-site, and an IBM technician will be dispatched. Dial in access is
available to both levels 1 and 2, and using Netfinity Manager, many problems
can be diagnosed and resolved by "taking over" the workstation that is
having problems, seeing the error happen, and resolving the situation
immediately via remote connection.
SOFTWARE WARRANTIES
All software has a one year warranty starting on the day of system acceptance
SOURCE CODE
The latest versions of all CRIMES modules, including CCS will be put into an
escrow account. The specifics of this escrow agreement will be outlined at
contract signing.
SOFTWARE ON-GOING MAINTENANCE AND SUPPORT
Maintenance for the system software will be 7 days per week, 24 hours per
day, with all agencies in LOS ANGELES COUNTY SHERIFF'S OFFICE having just one
toll-free number to call for service. ImageWare will meet the response times
as outlined by the County. Initial calls will be received by the IWS Help
Desk. If no one is available, a call back will be made within 1 hour. On-site
response times will be negotiated at contract signing. In previous contracts,
response times as fast as 4 hours have been accepted. Within this 4 hour
period, a hardware technician is on-site to trouble-shoot and correct the
problem.
If any installation within any agency will require access to restricted areas
by IWS employees it is expected that information will be given to ImageWare
during contract negotiations. ImageWare will make any and all information
available to the LOS ANGELES COUNTY SHERIFF'S OFFICE for each employee who
must have access to the restricted areas.
ImageWare Software Inc. 50 (619) 673-8600 voice
15373 Innovation Drive, #120 (619) 675-1700 Fax
San Diego, CA 92128
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
The equipment and software supplied as part of this proposal will be fully
guaranteed for a minimum period of 12 months. All prices quoted as part of
this proposal are guaranteed for a period of 12 months.
The central server comes complete with dial-in modem, and the IBM Netfinity
Manager software and clients installed on each supplied workstation. This
will enable the customer service rep to access, and actually "take over"
workstations when necessary to diagnose and repair any problems.
Software support first level is via toll free number to phone support. This
customer service rep has the ability to escalate the problem up to level 2
support, which is an R&D engineer. If that person requires an on-site rep,
one will be dispatched. We also include IBM hardware support with each IBM
system. Sometimes, the ImageWare programmer just needs a set of hands and
eyes on-site, and an IBM technician will be dispatched. Dial-in access is
available to both levels 1 and 2, and using Netfinity Manager, many problems
can be diagnosed and resolved by taking over the workstation that is having
problems, seeing the errors happen, and resolving the situation immediately via
remote connection.
ImageWare Software Inc.
15375 Innovation Drive, #120 (619)673-8600 voice
San Diego, CA 92128 (619)673-1770 Fax
51
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
EXHIBIT C - TRAINING
Training is purchased in increments. One increment is defined as one day of
on-site training with a maximum class size of 15. On-site training outlines
may vary. Example: Training system administrators on server functions will be
different than being trained on investigative software. A defined number of
training increments for this proposal can be found in the Cost Proposal
(Exhibit A). Follow-up training is available, either on-site or at the IWS
facilities.
Training time is kept to a minimum with the Crime Capture System, as it is so
easy to use.
Training will be accomplished at each agency location, using their system
equipment. All handout materials and reference materials will be furnished.
After the training session, users have lab time for hands-on familiarization.
It is recommended that at least one training session be video taped and
duplicated for each agency for on-going training purposes.
The length of each class is outlined below.
CRIME CAPTURE SYSTEM TRAINING OUTLINE
OBJECTIVE: By the end of the training session, students will know how to book
- ---------
a suspect, search a database, use the mug book function and create photo
line-ups.
CLASS SIZE: Maximum 15 students.
- ----------
TRAINING OUTLINE:
- ----------------
I. Starting the program 5 minutes
II. New Bookings 90 minutes
a. Adding a New Booking
b. Searching for Matches
1. Linking Records
2. Unlinking Records
c. Viewing Records
d. Viewing Multiple Bookings
e. Editing and Deleting Records
f. Printing Individual Records
III. Searching 45 minutes
a. Quick Search
ImageWare Software Inc.
15375 Innovation Drive, #120 (619)673-8600 voice
San Diego, CA 92128 (619)673-1770 Fax
52
<PAGE>
CONFIDENTIAL LOS ANGELES COUNTY SHERIFF'S DEPARTMENT 03/22/99
PROPOSAL PHOTO IMAGING SYSTEM
b. Advanced Search
c. Saving a Search
d. Running and Existing Search
e. Deleting and Existing Search
f. Printing Search Results
IV. Mug Book 30 minutes
a. Searching for Mugshot
b. Saving a Mug Book
c. Viewing an Existing Mug Book
d. Deleting a Mug Book
V. Photo Line-up 40 minutes
a. Creating a Photo Line-up
b. Saving a Photo Line-up
c. Viewing an Existing Photo Line-up
d. Deleting an Existing Photo Line-up
e. Printing a Photo Line-up
ImageWare Software Inc.
15375 Innovation Drive, #120 (619)673-8600 voice
San Diego, CA 92128 (619)673-1770 Fax
53
<PAGE>
PART II
Answers to questions about original proposal, posed by Sgt. Paul Alexander in
an e-mail dated 3/19/99.
Q. In your bid you made clear that facial recognition was not included. Would
you please give us the cost of Face ID as a single unit and the cost in
groups (like 10, 50, 100 licenses) etc.
R. THE ORIGINAL PROPOSAL INCLUDED FACIAL RECOGNITION INCLUDED FACIAL
RECOGNITION SERVER SOFTWARE AS WELL AS THE ENROLLMENT OF ALL IMAGES INTO
FACIAL RECOGNITION AT NO ADDITIONAL COST. IMAGEWARE IS NOW OFFERING AN
ADDITIONAL 4 COPIES OF FACE ID CLIENT SOFTWARE AT NO COST. THE TOTAL VALUE
OF THIS SOFTWARE AND SERVICES IS MORE THAN $127,000, AND IS BEING OFFERED TO
DBI AND THE COUNTRY IN THIS PROPOSAL AT NO ADDITIONAL CHARGE.
ADDITIONAL FACE ID CLIENT COSTS:
1-10 COPIES $15,000 EACH
10-50 COPIES $12,500 EACH
50-100 COPIES $9,000 EACH
OVER 100 $6,000 EACH
Q. There is what appears to be an addition error in your Phase I Software
which reads $118,000 ($138,000 by our calculation)
R. THERE IS AN ERROR IN THE ORIGINAL COST PROPOSAL. THE CHANGE HAS BEEN MADE
AND REFLECTED IN THE NEW COST PROPOSAL (PART V)
Q. Your bid says that we are getting some Suspect ID composite software. The
description of same says that the composite can be searched against the
photo database. Is that presuming that you have the facial recognition
software?
R. YES, IT IS PRESUMING THAT THE COUNTY HAS FACE ID CLIENT SOFTWARE. IWS IS
NOW INCLUDING 4 COPIES OF FACE ID CLIENT SOFTWARE TO THE COUNTY. AS
MENTIONED IN THE ORIGINAL PROPOSAL, THE CITY OF LAKEWOOD ALREADY HAS FACE
ID CLIENT SOFTWARE AND COULD ALSO HAVE THIS CAPABILITY.
Q. In your bid, you talk about Cal-Photo ID and Cal-Gang and say that you are
not proposing to install or maintain the local web servers for these
applications but will discuss it later. But the CAL-Photo ID server is an
integral portion of this project and we are relying on the successful
vendor to tell us what server we should get from DOJ (DOJ has offered to
furnish it) and to be prepared to maintain it. We need to know the
approximate costs of feeding and caring for this server.
R. IMAGEWARE WILL DISCUSS WITH THE STATE, THE TYPE AND SIZE OF THE SERVER
NEEDED TO ACCOMPLISH THE REQUIREMENTS FOR CAL-PHOTO ID. WHEN THE TIME
COMES, WE WOULD BE PLEASED TO PROVIDE A QUOTE FOR THAT SERVER AND THE
MAINTENANCE THEREOF. THE COST FOR FEEDING THE SERVER IS OUTLINED IN THE COST
PROPOSAL. IMAGEWARE WILL WORK WITH THE STATE TO ISOLATE A MEANS FOR
MAINTAINING THE CAL-PHOTO ID SOFTWARE.
Q. In your phase 2 breakdown, you specify $23,500 for Sybase to Oracle and in
phase 1 you specify $46,500 to convert the existing database. Could you
more fully explain how these functions are distinct from one another.
<PAGE>
R. PHASE 1 SERVICES INCLUDE CONVERSION OF THE EXISTING DATABASE,
DE-DUPLICATION OF THE DATABASE AND PROJECT MANAGEMENT TOTALING $46,500.
CONVERSION MEANS THE CONVERSION OF IMAGES AND DATA FROM THE DBI FORMAT TO CCS
FORMAT. DE-DUPLICATION IS THE PROCESS AND TIME IT WILL TAKE TO RID THE NEW
DATABASE OF DUPLICATE IMAGES AND TEST IMAGES.
PHASE 2 SERVICES INCLUDE THE CONVERSION OF DATA FROM SYBASE TO ORACLE
AND PROJECT MANAGEMENT TOTALING $23,500. THIS CONVERSION IS THE TIME AND
EFFORT IT WILL TAKE TO CONVERT THE SYSTEM FORM SYBASE TO ORACLE. IT HAS
NOTHING TO DO WITH THE CONVERSION OF IMAGES OR RECORDS. IT IS A PLATFORM
CONVERSION. IN NO WAY IS THIS COST ASSOCIATED WITH THE DEVELOPMENT OF ORACLE,
IT IS SIMPLY THE COST TO CONVERT ONE SYSTEM PLATFORM TO ANOTHER. PLEASE NOTE
THAT THE COST FOR THIS HAS BEEN LOWERED FROM $23,500 TO $19,000 IN THE NEW
COST PROPOSAL.
<PAGE>
PART III
Point by point answers to statement of work questions written by Sgt. Paul
Alexander and received by IWS on 3/19/99. Any questions that have been
previously answered will be responded to with the corresponding page # of
the original proposal.
Image Server(s)
1.1 To be brought into consistency with the LASD Sheriff's Data
Network (SDN)
IN ACCORDANCE WITH THE REQUIREMENTS SET FORTH BY THE LASD, IWS IS
CONVERTING CCS FROM SYBASE TO ORACLE. IWS HAS BEEN IN DISCUSSIONS
WITH LASD FOR MORE THAN TWO YEARS IN PREPARATION FOR THIS PROJECT.
THE PURPOSE OF THIS PROPOSAL IS TO OUTLINE A CLEAR UNDERSTANDING OF
HOW IWS INTENDS TO SUPPORT THE NEEDS OF LASD WELL INTO THE NEXT
CENTURY. THE CAPABILITIES OUTLINED IN THE PROPOSAL WILL ASSIST IN
MAKING LASD THE PREMIER LAW ENFORCEMENT AGENCY IN THE US.
1.1.1 Y2K Compliant (Must)
THIS REQUIREMENT WILL BE MET.
1.1.1 Meets all State/Federal ANSI/NIST standards (Must)
THIS REQUIREMENT WILL BE MET.
1.1.1 TCP/IP Protocol (must)
THIS REQUIREMENT WILL BE MET.
1.1.1 WindowsNT / Unix (must)
THIS REQUIREMENT WILL BE MET.
1.1.1 Oracle 8X (Must)
THIS REQUIREMENT WILL BE MET, AS DESCRIBED ON PAGE 21 OF THE
ORIGINAL PROPOSAL.
1.1.1 Conversion from the current RAID which is operating under UNIX and
using Oracle 7 DBMS. This conversion will require a re-parsing of
data fields from the current file structure (known to DBI) to be
incorporated into a new database structure which will allow for
queries and retrieval based on multiple fields both indexed and
non-indexed. The present database has duplicates, some erroneous
entries, and test photos that must be filtered out. (Must)
THIS REQUIREMENT WILL BE MET.
<PAGE>
1.1 The current RAID must be analyzed for adequacy in regards to its
capacity to support the ambitions of the enhanced EDMS and a
replacement system(s) suggested if a "better fit" would appear
appropriate.
IWS proposes to install a new server as outlined in the new Cost
Proposal and on pages 16-19 of the original proposal.
1.1.1. Vendors, in their system assessment, should contemplate the
following workload:
1.1.1.1. LASD contemplates 20,000 bookings per month.
THIS REQUIREMENT WILL BE MET.
1.1.1.1.1. Each booking will have a complete demographic record.
THIS REQUIREMENT WILL BE MET.
1.1.1.1.1. Each booking will usually have two (2) mug-shot JPG (40K images)
but may have as many as six (6) images if glasses / Scars /
Marks / Tatoos are present.
UNDERSTOOD.
1.1.1.1. The system will be the mug shot photo source for:
1.1.1.1.1. The Consolidated Criminal History and Records System (CHRSS)
thumbnail and photo upon demand.
THIS REQUIREMENT WILL BE MET. (PAGE 22)
1.1.1.1.1. The L.A. Regional Criminal Information System (LARCIS)
thumbnail and photo upon demand.
THIS REQUIREMENT WILL BE MET. (PAGE 22)
1.1.1.1.1. The feeder system for another web-server for CAL PHOTO ID*
THIS REQUIREMENT WILL BE MET. (PAGE 23)
* The CAL PHOTO ID is a project of California DOJ utilizing
web enabled servers outside of participating agencies'
security to share photos throughout the California Law
Enforcement Community. To participate, LASD will be provided a
server by DOJ. DBI's selected sub-contractor will be called
upon to specify/describe what server should be used for the
L.A. Node of Cal Photo and to make the LASD Mugshots and
demographics available to the Cal Photo Server. The vendor
will be expected to provide ongoing hardware and software
support for the CAL Photo server.
THIS REQUIREMENT WILL BE MET. IWS WILL DISCUSS WITH THE STATE
THE SPECIFICATIONS FOR
<PAGE>
THE WEB SERVER AND PROVIDE MAINTENANCE FOR THAT SERVER.
1.1.1.1.1 The Cal Gang Node maintained by LASD.
THIS REQUIREMENT WILL BE MET. (PAGE 23)
1.1.1.1.1 SDN users via enclosed intranet.
IWS WILL PROVIDE A SITE LICENSE FOR BOTH LA COUNTY AND ORANGE
COUNTY. STANDARD WEB BROWSERS MAY BE UTILIZED.
1.1.1.1.1.1 The approximate concurrent active logon sessions is anticipated
to @200.
UNDERSTOOD
1.1.1 LASD will require that DBI's selected sub-vendor must provide on-going
software and hardware maintenance for the EDMS system that will be
created beyond the present Store and forward. It is therefore required
that they (the vendor) shall specify the hardware devices that best
fit their comfort as to adequacy, reliability, and compatibility
with their EDMS solution.
IWS WILL PROVIDE MAINTENANCE FOR EVERYTHING PROVIDED WITHIN THE QUOTE.
THE HARDWARE THAT IMAGEWARE IS SUGGESTING IS IBM HARDWARE SIMILAR TO
THAT OF ARIZONA DPS. ARIZONA DPS IS EXTREMELY PLEASED WITH THE
PERFORMANCE OF THEIR SERVER. (PAGE 18, 27, 36)
1.1.1 Sub-vendors shall include with their proposal the cost of the hardware
device(s) that they are prepared to utilize and support.
SEE THE UPDATED COST PROPOSAL (PART V)
1.1.1 LASD desires to retain the right to purchase the devices specified by
the vendor directly rather then relying on DBI or the sub-vendor to
acquire and provide the hardware. If this is unacceptable, it must be
stated.
THE HARDWARE THAT IWS IS PROPOSING HAS BEEN THOROUGHLY TESTED FOR
QUALITY AND PERFORMANCE. IT IS OUR RECOMMENDED SOLUTION. ANY OTHER
SOLUTION MAY HAVE ADVERSE EFFECTS ON SYSTEM PERFORMANCE. IF THE COUNTY
CHOOSES TO PURCHASE THE HARDWARE FROM ANOTHER VENDOR THEN MANY ISSUES
COME INTO PLAY. (MAINTENANCE, RELIABILITY, ETC.) IWS IS AGREEABLE TO
DISCUSSING THIS POSSIBILITY, HOWEVER WE DO NOT RECOMMEND IT.
1.1.1 Response times: System abilities should contemplate multiple basic
searches and retrievals from remote sites.
THE SERVER WE ARE RECOMMENDING IS VERY ROBUST. THE FOUR 400 MHZ XEON
PROCESSORS, AND 1 GB OF RAM ARE MORE THAN ENOUGH TO HANDLE THE LOADS
THAT ARE EXPECTED ON THE SYSTEM. (PAGE 18)
1.1.1 Response times: System may require audit trail housekeeping
transactions.
<PAGE>
THIS IS EXPECTED AND ACCOUNTED FOR IN OUR PROPOSED SOLUTION.
1.1 Mug-shot Search/Display/Output
1.1.1 System shall have easy access and retrieval capabilities.
THIS REQUIREMENT WILL BE MET.
1.1.1 Provides searches on pre-established indexed fields.
THIS REQUIREMENT WILL BE MET.
1.1.1 Provides searches on all data fields
THIS REQUIREMENT WILL BE MET.
1.1.1 Accommodate Boolean expression searches on data fields: Indexed
THIS REQUIREMENT WILL BE MET.
1.1.1 Accommodate Boolean expression searches on data fields: Non-indexed
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to perform all search and retrieval functions from remote
workstations
THIS REQUIREMENT WILL BE MET.
1.1.1.1.1 If client software is required, site costs must be specified in
any proposals.
CLIENT COSTS ARE OUTLINED IN THE COST PROPOSAL (PART V)
1.1.1.1.1 If no client software is required or license fees are
contemplated, these facts need to be specified in any proposal.
A SITE LICENSE FOR BOTH LA COUNTY AND ORANGE COUNTY IS PROVIDED.
THE COSTS ARE OUTLINED IN THE COST PROPOSAL (PART V)
1.1.1 Provide mug-shot searches; Based on pre-established search statements
THIS REQUIREMENT WILL BE MET.
1.1.1 Provide mugshot searches; Based on ad-hoc search statements
THIS REQUIREMENT WILL BE MET.
<PAGE>
1.1.1 Provide mug-shot searches: Based on ad-hoc search statements
THIS REQUIREMENT WILL BE MET.
1.1.1 Retrieve all mug-shots for an individual
THIS REQUIREMENT WILL BE MET.
1.1.1 Provide the ability to save the search results on the client machine.
THIS REQUIREMENT WILL BE MET.
1.1.1 On the server, the ability to create and modify a "group" table
(i.e. Florencia Gang, Meghan's Law, etc.)
THIS REQUIREMENT WILL BE MET.
1.1.1 Provide the ability to save the search results as a member(s) of a
grouping on the photo server.
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to retrieve, as a group, photos enrolled or tagged as a
group member.
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to export the result of a search of photos and demographics
to NIST format.
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to export the results of a search of photos AND LIMITED
DEMOGRAPHICS (SOME IDENTIFIER) to non-nist format.
THIS REQUIREMENT WILL BE MET.
1.1.1 Retrieval of any image when a correct unique identifier is entered
in any of the selected fields to be located and displayed within
acceptable response times
THIS REQUIREMENT WILL BE MET.
1.1.1 Provide for photo lineups of suspects by retrieving images and data
files using descriptors that closely fit the suspect's description.
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to import a JPEG photo from a source other then the LASD
EDMS database and mix it into a photo lineup.
<PAGE>
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to rearrange lineup photos
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to print mugshot photo and identifiers.
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to use standard WindowNt print resources / drivers.
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to print any display presented to a user on a workstation.
The display printouts shall include all header information, and
shall be readable and usable.
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to print to conventional output devices: Black and white
laser printer
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to print to conventional output devices: Color inkjet
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to print to conventional output devices: Color laser
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to print to conventional output devices: Dye sublimation
printer
THIS REQUIREMENT WILL BE MET.
1.1.1 Produce an output report after a mug-shot search that: Identifies
total number of mug-shots found in search
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to browse through mug-shots that represent possible "hits"
from a mug-shot search
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to browse through mug-shots thumbnails for "quality control"
consistency and to
<PAGE>
quickly determine the site and employee that submitted the photo.
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to print a collection of thumbnails as a document containing
thumbnails
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to print a collection of thumbnails as a document containing
thumbnails with identifiers referencing each photo
THIS REQUIREMENT WILL BE MET.
1.1.1 Provide simultaneous viewing of image and associated records
THIS REQUIREMENT WILL BE MET.
1.1.1 Ability to support soundex coding or similar phonetic type algorithm
name searches
THIS REQUIREMENT WILL BE MET.
1 SECURITY
1.1 A combination of an assigned log-on and a password shall be required
to sign on, and shall be validated by the system before access is
granted.
THIS REQUIREMENT WILL BE MET.
1.1 Each mugshot/record accessed will include the user ID, site, date,
time, reason reference, order of access, and printing event a system
audit trail.
THIS REQUIREMENT WILL BE MET.
1.1 All printouts of mugshots or any other image produced by the system
will include the user ID, site, date, time, reason reference, in a
system audit trail.
THIS REQUIREMENT WILL BE MET.
1.1 Ability to access must be limitable based on user's profile or role
THIS REQUIREMENT WILL BE MET.
1.1 Ability to provide an audit trail that is easily accessed by
administrator-users.
THIS REQUIREMENT WILL BE MET.
1.1 Ability to segregate or partition special classes, such as
juveniles, etc., and require
<PAGE>
separate or additional access privileges.
THIS REQUIREMENT WILL BE MET.
1.1 Firewall or other protection scheme between SDN and Cal Photo ID Web
Server.
THIS REQUIREMENT WILL BE MET.
1.1 Ability to monitor system usage historically by users
THIS REQUIREMENT WILL BE MET.
1.1 Ability to monitor system usage by site on SDN
THIS REQUIREMENT WILL BE MET.
1.1 Sub-contract vendor must be responsive to court appearances
regarding system integrity and safeguards, etc. at reasonable
witness rates.
THIS REQUIREMENT WILL BE MET.
1 OTHER FUNCTIONS
1.1 On-line, context-sensitive help screens accessible at any time
during program operation
THIS REQUIREMENT WILL BE MET.
1.1 Display error messages when improper key is hit or incorrect data is
entered
THIS REQUIREMENT WILL BE MET.
1.1 Provide ability to establish validation tables to govern all data
fields
THIS REQUIREMENT WILL BE MET.
1.1 Ability to purge records/images from the system: individually
THIS REQUIREMENT WILL BE MET.
1.1 Ability to purge records/images from the system: collectively - in a
batch dump
THIS REQUIREMENT WILL BE MET.
1.1 Ability to block access to an individual photo
THIS REQUIREMENT WILL BE MET.
<PAGE>
1.1 Ability to locate and block access of all photos of an individual
THIS REQUIREMENT WILL BE MET.
1.1 Ability to flag mugshot to prevent release of the image
THIS REQUIREMENT WILL BE MET.
1.1 Ability to flag mugshot to prevent retrieval of image
THIS REQUIREMENT WILL BE MET.
1.1 Ability to determine if mugshot has been altered (checksum?)
THIS REQUIREMENT WILL BE MET.
1.1 Ability to collect, save, and export to CD or e-mail mugshots
limited to specific originating sites.
THIS REQUIREMENT WILL BE MET.
1.1 Ability to adopt Scar, marks, and tattoo schemes
THIS REQUIREMENT WILL BE MET.
1.1 Photo recognition and retrieval of "matches" by photo recognition
algorithym
THIS REQUIREMENT WILL BE MET.
1.1 If no photo recognition offered, database design must contemplate
field space for enrollment schemes.
Facial Recognition is being offered.
1.1 Ability to create composites based on witness descriptions.
THIS REQUIREMENT WILL BE MET.
1.1 Ability to search for matches database based on composite
THIS REQUIREMENT WILL BE MET.
1.1.1 Using photo recognition software?
THIS REQUIREMENT WILL BE MET.
<PAGE>
1.1.1 Using some other search criteria for composite search?
THIS REQUIREMENT WILL BE MET.
1 HARDWARE / SOFTWARE MAINTENANCE MUST BE PROVIDED BY SUB-CONTRACT
VENDOR.
1.1 Must be provided for the EDMS beyond the present Store and Forward
which includes the EDMS photo server for the SDN and the Cal Photo
ID server.
SEE EXHIBIT B OF ORIGINAL PROPOSAL.
1.1 Annual Maintenance fees must be included in proposals.
SEE NEW COST PROPOSAL. PART V
1.1 24 hour / 7 days / 4 hour on site response (must)
THIS REQUIREMENT WILL BE MET.
1.1 Alarm on pager trouble alert
THIS REQUIREMENT WILL BE MET.
1.1 Backup capabilities (with responsibilities specified as to whether
done by LASD personnel or by vendor).
THIS REQUIREMENT WILL BE MET.
1.1 Archiving capability based on ad-hoc collection criteria.
THIS REQUIREMENT WILL BE MET.
1.1.1 Some remnant identifier in database to point to archives for
archived record.
ARCHIVED RECORDS WILL BE PLACED IN ANOTHER DIRECTORY. TO SEARCH THIS
DIRECTOR, SIMPLY IDENTIFY THE ARCHIVED DIRECTORY UPON ENTERING CCS.
1.1 Source code availability.
SOURCE CODE WILL BE PLACED IN AN ESCROW ACCOUNT.
1.1.1 Source code availability upon dissolution of company or other mishap
SOURCE CODE WILL BE PLACED IN AN ESCROW ACCOUNT.
1.1 Software integrity: If any function or incorporated portion of the
sub-vendor's software is
<PAGE>
dependent upon continued or renewing licensing agreements with
parties outside of LASD and DBI, that relationship must be disclosed.
UNDERSTOOD.
1 PROJECT PLAN
1.1 Project management (must) (who, what, when, where)
SEE PAGE 24 OF ORIGINAL PROPOSAL.
1.1 Completion date (whole project) from time of contract.
SEE PAGE 25 OF ORIGINAL PROPOSAL.
1.1 REQUIRED ADDITIONAL SOFTWARE:
1.1.1 Who purchases ? (must)
ALL SOFTWARE NEEDED IS INCLUDED IN THIS PROPOSAL WITH THE EXCEPTION
OF INTERNET BROWSER SOFTWARE AND CLIENT OPERATING SYSTEM SOFTWARE.
1.1.1 Approximation of what additional software may be needed (must be
stated)
LASD MUST PROVIDE INTERNET BROWSER SOFTWARE, CLIENT OPERATING SYSTEM
AND ORACLE LICENSES UNLESS OTHERWISE SPECIFIED BY THE COUNTY.
1.1.1.1 "Off the shelf product"?
LASD MUST PROVIDE INTERNET BROWSER SOFTWARE, CLIENT OPERATING SYSTEM
AND ORACLE LICENSES UNLESS OTHERWISE SPECIFIED BY THE COUNTY.
1.1.1.1 how many units / licenses? (Must)
ORACLE LICENSES WILL BE PROVIDED BY THE COUNTY. ALL OTHER LICENSES
ARE INCLUDED IN THE PROPOSAL.
1.1.1.1 If not "off the shelf", what custom programming is foreseeable or
contemplated (must)
ALL FORESEEABLE CUSTOMIZATION IS INCLUDED IN THE PROPOSAL.
1.1.1.1 programming fees / job rates? By whom?
ALL PROGRAMMING FEES AND JOB RATES ARE INCLUDED IN THE PROPOSAL.
1 TRAINING
1.1 Administrators
<PAGE>
1.2 Users
1.3 Onsite or away.
1.4 duration
1.5 Cost.
SEE EXHIBIT C AND PART V.
1 References:
1.1 Similar projects completed
1.2 Other special projects or systems that are relevant
1.3 Contact persons
SEE PAGE 27-36 OF THE ORIGINAL PROPOSAL.
<PAGE>
PART IV
- -------
Changes to Original Proposal. This includes additional software and
capabilities as well as clarification of a few issues on original proposal.
1. An error was made on the original Cost Proposal. The Phase I Software
total which reads $118,000, should read $138,000 and has been corrected
in the new Cost Proposal in Part V.
2. Page 23 of the original proposal offers a site license to Los Angeles
County for the Web investigative interface. ImageWare is extending that site
license to Orange County at no additional cost. Value --- approx. $125,000
3. Page 17 of the original proposal indicates that no Face ID clients are
included with the system. ImageWare is now offering 4 copies of Face ID
client software at no additional cost. To summarize, at no cost to the
County, IWS will install Face ID server software and convert all existing
images to Face ID. All new images will be automatically enrolled into Face
ID and IWS will provide 4 copies of Face ID client software. Pricing for
additional copies of Face ID client software is included in the new Cost
Proposal. Value --- approx. $140,000
4. On Page 17 of the original proposal, IWS indicates that 20 copies of
Suspect ID composite software will be included in the system. IWS is now
offering an additional 20 copies of both Crime Lab and Vehicle ID at no
additional cost. Value --- approx. $66,000
5. IWS has provided sample prints of the several standard templates that are
included with the software being provided. These samples include:
- ID cards
- Inmate Wristbands
- Wanted Posters
- Line-ups
- Audit Reports
- Search Lists
- Record prints
6. Upon approval from LA county and DOJ, IWS will enroll Megan's Law images
into a separate Face ID database at no charge. All Face ID client sites
will then have facial recognition search capabilities against the Megan's
Law database. Value --- approx. $7,500
7. Award of this contract will fulfill all previous IWS obligations to the
County and the City of Lakewood at no cost to the County.
<PAGE>
Los Angeles County Exhibit A - PART V 3/22/99
Sheriff's Department Cost Proposal
PHASE 1
<TABLE>
<CAPTION>
DESCRIPTION QTY UNIT EXT TOTAL
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
CENTRAL IMAGE SERVER
Netfinity 7000 M10 400 MHz (Quad Processor) RAID V
IBM Netfinity 7000 M10 400/512KB Xeon, 128MB ECC,OPEN,32X,PCI (Rack 1 $11,839.50 $11,839.50
(Std) 128MB (4x32MB) EDO DRAM DIMM - 50ns
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) Integrated IDE Controller
(Std) Internal IDE CD-ROM Drive
(Std) Netfinity 400W Hot-Swap Power Supply
(Std) Netfinity 7000 400MHz/512KB PII Xeon Processor
(Std) Planar Integrated Wide Ultra SCSI
(Std) Planar Integrated Wide Ultra SCSI for External Devices
(Std) S3 Trio64V2 Graphics - 1MB SGRAM
(Std) Systems Management Processor
3520 2RU Netfinity EXP15 Storage Expansion Unit 1 $3,321.00 $3,321.00
(Std) 3520 Enclosure Hot-Swap Backplane 1 $2,160.00 $2,160.00
IBM 35/70GB DLT SCSI Tape Drive - External 1 $7,458.75 $7,458.75
IBM Netfinity ServerRAID-3l Ultra2 SCSI Adapter 1 $945.00 $945.00
IBM Netfinity 400W Hot-Swap Redundant Power Supply II (2 total) 1 $810.00 $810.00
IBM Netfinity 7000 M10 Rack-to-Tower Conversion Kit 1 $540.00 $540.00
Netfinity 7000 400MHz/512KB Xeon Processor (4 total) 3 $2,160.00 $6,480.00
IBM 8mm to 68pin Converter for external cables 1 $52.65 $52.65
1GB (4x256MB) EDO DRAM DIMM - 50ns 1 $7,341.30 $7,341.30
IBM Netfinity 18.2GB Wide Ultra SCSI SCA-2 HDD (HH) 8 $1,618.65 $12,949.20
IBM Netfinity 2M Ultra2 SCSI Cable 2 $93.15 $186.30
Netfinity NetBAY3 2 $117.45 $234.90
Black Sleek Mouse 1 $28.35 $28.35
IBM Netfinity 10/100 Ethernet Adapter (PCI) 1 $128.25 $128.25
G72 - 17(15.7) in. Color Monitor, 69 KHz, Stealth Gray 1 $476.55 $476.55
IBM Standard Black 104-Key Keyboard 1 $60.75 $60.75
OBI External V.34 Data/Fax Modem 1 $496.80 $496.80
IBM Netfinity 4.5GB Wide Ultra SCSI SCA-2 Hot-Swap Hard Disk Drive (SL) 2 $565.65 $1,131.30
External F/W to F/W Cable-Standard with 01K1174 Tape Drive 1 $128.25 $128.25
SUBTOTAL $56,768.85
SOFTWARE
CCS Server Software 1 $20,000.00 $20,000.00
CCS Investigative Display Software 20 $4,900.00 $98,000.00
Suspect ID (Composite Software) 20 $0.00 $0.00
Crime Lab (Image Editing Software) 20 $0.00 $0.00
Vehicle ID 20 $0.00 $0.00
Custom NIST Import from DBI Store and Forward 1 $20,000.00 $20,000.00
Face ID Server Software (Includes Conversion and auto enrollment) 1 $0.00 $0.00
Face ID Client Software 4 $0.00 $0.00
SUBTOTAL $138,000.00
TOTAL HARDWARE/SOFTWARE $194,768.85
SERVICES
De-duplication of Database 5 $900.00 $4,500.00
Conversion of Existing Photos & Records (approx. 250,000) 250,000 $0.15 $37,500.00
Project Management/Specifications Gathering 5 $900.00 $4,500.00
SUBTOTAL $46,500.00
LICENSES
Sybase License 6.0 Server + 5 users 1 $1,248.75 $1,248.75
Sybase License 6.0 (20 User) 1 $3,243.75 $3,243.75
Windows Licenses TBD
SUBTOTAL $4,492.50
PHASE 1 SUBTOTAL $245,761.35
SHIPPING/HANDLING/INSTALLATION $23,372.26
TRAINING 4 $750.00 $3,000.00 $3,000.00
PHASE 1 TOTAL $272,133.61
</TABLE>
PHASE 2
<TABLE>
<CAPTION>
DESCRIPTION QTY UNIT EXT TOTAL
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
SERVICES
</TABLE>
Page 1
<PAGE>
Los Angeles County Exhibit A - Part V 3/22/99
Sheriff's Department Cost Proposal
<TABLE>
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Conversion of data on Mug Server 1 $10,000.00 $10,000.00
Project Management 10 $ 900.00 $ 9,000.00
SUBTOTAL $ 19,000.00
LICENSES
Oracle 8.0 Server License 1 TBD
Oracle Client Licenses 20 TBD
SUBTOTAL
- ---------------------------------------------------------------------------------------------------------------------------------
PHASE 2 SUBTOTAL $ 19,000.00
- ---------------------------------------------------------------------------------------------------------------------------------
TRAINING 1 $ 750.00 $ 750.00 $ 750.00
PHASE 2 TOTAL $ 19,750.00
- ---------------------------------------------------------------------------------------------------------------------------------
This is not related to development of the Oracle database. It is the code
time and effort that is needed to convert the Sybase database of a working
mug server to Oracle with very little down time.
- ---------------------------------------------------------------------------------------------------------------------------------
PHASE 3
- ---------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION QTY UNIT EXT TOTAL
- ---------------------------------------------------------------------------------------------------------------------------------
SOFTWARE
CCS Investigative Display Software 60 $ 4,900.00 $294,000.00
SUBTOTAL $294,000.00
LICENSES
Oracle Client Licenses 60 TBO
- ---------------------------------------------------------------------------------------------------------------------------------
PHASE 3 SUBTOTAL $294,000.00
- ---------------------------------------------------------------------------------------------------------------------------------
SHIPPING/HANDLING/START-UP $ 14,700.00
TRAINING 8 $ 750.00 $ 6,000.00 $ 6,000.00
- ---------------------------------------------------------------------------------------------------------------------------------
PHASE 3 TOTAL $314,700.00
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
TOTAL PHASE 1, 2 & 3
- ---------------------------------------------------------------------------------------------------------------------------------
TOTAL $606,583.61
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
REQUIRED INTERFACES
- ---------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION QTY UNIT EXT TOTAL
- ---------------------------------------------------------------------------------------------------------------------------------
CCHRS & LARCIS INTERFACE
- ---------------------------------------------------------------------------------------------------------------------------------
Systems Integration/Setup 40 $ 900.00 $36,000.00
Project Management 6 $ 900.00 $ 5,400.00
SUBTOTAL $ 41,400.00
- ---------------------------------------------------------------------------------------------------------------------------------
CAL-PHOTO/CAL-GANG INTERFACE
- ---------------------------------------------------------------------------------------------------------------------------------
NIST or Flat File Export for Cal-Photo ID 1 $ 5,000.00 $ 5,000.00
NIST or Flat File Export for Cal-Gang 1 $ 5,000.00 $ 5,000.00
Project Management 4 $ 900.00 $ 3,600.00
SUBTOTAL $ 13,600.00
- ---------------------------------------------------------------------------------------------------------------------------------
WEB INVESTIGATIVE INTERFACE
- ---------------------------------------------------------------------------------------------------------------------------------
WEB enabled CCS Investigative Software LA County and Orange County 1 $ 75,000.00 $ 75,000.00
Project Management 4 $ 900.00 $ 3,600.00
SUBTOTAL $ 78,600.00
- ---------------------------------------------------------------------------------------------------------------------------------
INTERFACE SUBTOTAL $133,600.00
- ---------------------------------------------------------------------------------------------------------------------------------
TRAINING 4 $ 750.00 $ 3,000.00 $ 3,000.00
- ---------------------------------------------------------------------------------------------------------------------------------
INTERFACE TOTAL $136,600.00
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 2
<PAGE>
Los Angeles County Exhibit A-Part V 3/22/99
Sheriff's Department Cost Proposal
* Final requirements are yet to be defined. Price is based on LA County and
Orange County site license and 5-7 search fields.
<TABLE>
<S> <C> <C>
COMPLETE SOLUTION
- -----------------------------------------------------------------------------------------------------------------------
ALL PHASES AND INTERFACES TOTAL
TOTAL $743,183.61
WARRANTY Exhibit B
ImageWare offers a complete one year
warranty on all hardware and software
MAINTENANCE Exhibit B
ImageWare Customer Service (Year 1) $ 83,814.20
YEAR 1 STARTS ON THE DAY OF FINAL ACCEPTANCE
Maintenance & Technical Support (Year 2) $124,625.04
Maintenance & Technical Support (Year 3) $124,625.04
Maintenance & Technical Support (Year 4) $124,625.04
Maintenance & Technical Support (Year 5) $124,625.04
- -----------------------------------------------------------------------------------------------------------------------
DISCOUNT EXPLAINATION
The above price quote reflects a cumulative discount of more than $500K
for DBI and Los Angeles County Sheriff's Office. Below are the standard
list prices for software and the corresponding discount that DBI and Los
Angeles County will receive.
- -----------------------------------------------------------------------------------------------------------------------
Standard Pricing
SOFTWARE
CCS Server Software 1 $20,000.00 $20,000.00
CCS Investigative Display Software 80 $6,750.00 $540,000.00
Suspect ID (Composite Software) 20 $2,000.00 $40,000.00
Crime Lab (Image Editing Software) 20 $300.00 $6,000.00
Vehicle ID 20 $1,000.00 $20,000.00
Face ID Server Software 1 $67,000.00 $67,000.00
Face ID Client Software 4 $15,000.00 $60,000.00
Conversion of Existing Photos & Records (approx. 250,000) 250,000 $0.20 $50,000.00
STANDARD LIST PRICE SUBTOTAL $803,000.00
- -----------------------------------------------------------------------------------------------------------------------
DBI DISCOUNT $333,500.00
FINAL QUOTE $469,500.00
- -----------------------------------------------------------------------------------------------------------------------
THIS DISCOUNT DOES NOT INCLUDE THE SUBSTANTIAL DISCOUNTS GIVEN ON
HARDWARE, INTERFACES AND SERVICES. THE TOTAL PROJECT DISCOUNT EXCEEDS
$500,000.
Additional Face ID client costs:
1-10 copies $15,000.00
11-50 copies $12,500.00
51-100 copies $9,000.00
over 100 $6,000.00
</TABLE>
Page 3
<PAGE>
Exhibit 21
SUBSIDIARIES OF REGISTRANT
--------------------------
XImage Corporation
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in this Registration Statement on Form SB-2 of
our report dated October 22, 1999, except as to Note 5, which is as of
December 13, 1999, relating to the financial statements of ImageWare Systems,
Inc. and our report dated October 22, 1999 relating to the financial
statements of XImage Corporation, which appear in such Registration
Statement. We also consent to references to us under the headings "Experts"
and "Selected Financial Information" in such Registration Statement.
PricewaterhouseCoopers LLP
San Diego, California
December 17, 1999
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXCTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS AND CONSOLIDATED STATEMENT OF OPERATIONS FOUND ON
PAGES F-3 AND F-4 OF THE COMPANY'S FORM SB2 FOR THE LAST FISCAL YEAR AND THE
YEAR-TO-DATE, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<S> <C> <C>
<PERIOD-TYPE> YEAR 9-MOS
<FISCAL-YEAR-END> DEC-31-1999 DEC-31-1999
<PERIOD-START> JAN-01-1998 JAN-01-1999
<PERIOD-END> DEC-31-1998 SEP-30-1999
<CASH> 45,793 89,216
<SECURITIES> 0 0
<RECEIVABLES> 941,654 1,147,357
<ALLOWANCES> 10,000 10,000
<INVENTORY> 43,386 169,133
<CURRENT-ASSETS> 1,277,671 1,626,986
<PP&E> 867,320 889,126
<DEPRECIATION> 597,726 693,122
<TOTAL-ASSETS> 4,384,005 3,938,274
<CURRENT-LIABILITIES> 4,356,198 6,428,765
<BONDS> 1,473,172 165,022
0 0
3,894 3,894
<COMMON> 8,991 11,314
<OTHER-SE> (1,458,250) (2,670,721)
<TOTAL-LIABILITY-AND-EQUITY> 4,384,005 3,938,274
<SALES> 2,708,856 2,531,144
<TOTAL-REVENUES> 4,236,317 3,494,784
<CGS> 1,354,920 943,004
<TOTAL-COSTS> 2,420,660 1,550,175
<OTHER-EXPENSES> 5,045,430 4,137,770
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 204,287 239,939
<INCOME-PRETAX> (3,434,060) (2,433,100)
<INCOME-TAX> 0 0
<INCOME-CONTINUING> (3,434,060) (2,433,100)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (3,434,060) (2,433,100)
<EPS-BASIC> (4.08) (2.56)
<EPS-DILUTED> (4.08) (2.56)
</TABLE>
