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As filed with the Securities and Exchange Commission on December 6, 2000
Registration No. 333____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
IMAGEWARE SYSTEMS, INC.
(Exact name of Registrant as specified in its Charter)
California 33-0224167
(State of Incorporation) (I.R.S. Employer Identification Number)
10883 Thornmint Road
San Diego, CA 92127
(Address, including zip code, of Registrant's principal executive offices)
1994 Employee Stock Option Plan
1994 Non-Qualified Stock Option Plan
1999 Stock Option Plan
(Full title of the plan)
S. James Miller, Jr.
ImageWare Systems, Inc.
10883 Thornmint Road
San Diego, California 92127
(858) 673-8600
(Name, address and telephone number of agent for service)
Copies to:
Dennis J. Doucette, Esq.
Luce Forward Hamilton & Scripps LLP
600 West Broadway, Suite 2600
San Diego, CA 92101
(619) 236-1414
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
TITLE OF SECURITES AMOUNT TO BE PROPOSED MAXIMUM AGGREGATE OFFERING AMOUNT OF REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE PRICE FEE
<S> <C> <C> <C> <C>
Common Stock, $.001 par value:
Reserved or 170,616(1)
outstanding under 1994
Employee Stock Option
Plan
Reserved or 18,957(1)
outstanding under 1994
Non-Qualified Stock
Option Plan
Reserved or 550,000
outstanding under 1999
Stock Option Plan
TOTALS 739,573 $6.25(2) $4,622,331 $1,220(3)
</TABLE>
(1) Reflects a 5.275-to-1 reverse stock split effected on
November 29, 1999.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the filing fee on the basis of $6.25 per share (based
on the average high and low price of Registrant's Common Stock as
reported on the American Stock Exchange on November 29, 2000).
(3) Amount of Registration Fee was calculated pursuant to Section 6(b) of
the Securities Act of 1933, as amended (the "Securities Act").
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IMAGEWARE SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference into this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission"):
1. The Registrant's Registration Statement on Form SB-2 (File No.
333-93131), as amended, originally filed on December 20, 1999
pursuant to Section 12(b) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") and declared effective
on March 30, 2000.
2. The Registrant's Quarterly Report on Form 10-QSB for the
quarter ended June 30, 2000, filed pursuant to Section 13(a)
of the Exchange Act.
3. A Form 8-K filed by Registrant on September 7, 2000 pursuant
to Section 13(a) of the Exchange Act.
4. The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A (File No.
001-15757) filed March 21, 2000 pursuant to Section 12(g) of
the Exchange Act.
All documents filed by the Registrant pursuant to Section 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date hereof, and prior to
the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTOR'S AND OFFICERS.
The Registrant's Articles of Incorporation limit the liability of
directors for monetary damages for breach of the director's duties to the
corporation or its shareholders. Such limitation
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of liability does not eliminate or limit the liability of the director (i) for
acts or omissions that involve intentional misconduct or knowing in culpable
violation of law, (ii) for acts or omissions that a director believes to be
contrary to the best interests of the Registrant 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 reckless disregard for the director's duty to the
corporation or its shareholders in circumstances under 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 Registrant 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
Registrant or its shareholders, (vi) under Section 310 of the California
Corporations Code or (vii) under Section 316 of the California Corporations
Code.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors, officers, and may indemnify its employees and agents (other than
officers and directors), against certain liabilities. The Registrant is also
empowered under its Bylaws to purchase insurance on behalf of any director,
officer, employee or agent for any liability arising out of his or her actions
in such capacity, whether the Bylaws would permit indemnification.
In addition, the Registrant has entered into Indemnification Agreements
with its directors and officers. Under such agreements, the Registrant will
indemnify its directors and officer for actual amounts incurred in action, suit
or proceeding brought against the director or officers in its capacity as a
director or officer, if the officer or director acted in good faith and in a
manner reasonably believed to be in the best interest of the Registrant. With
respect to any criminal action or proceeding, the director or officer must have
had no reasonable cause to believe the conduct was unlawful. It is the opinion
of the staff of the Securities and Exchange Commission (the "Commission") that
indemnification provisions such as those contained in these agreements have no
effect on a director's or officer's liability under the federal securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT
-------------- -----------------------
<S> <C>
4.1 1994 Employee Stock Option Plan.(1)
4.2 1994 Non-Qualified Stock Option Plan. (1)
4.3 1999 Stock Option Plan. (1)
5.1 Opinion of Luce, Forward, Hamilton & Scripps LLP as to
legality of securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP, independent
auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1 hereto).
24.1 Powers of Attorney (see page 7).
</TABLE>
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(1) Previously filed in the Registrant's Registration Statement on Form SB-2
(File No. 333-93131) originally filed December 20, 1999 and declared
effective on March 30, 2000.
ITEM 9. UNDERTAKINGS
(a) The Registrant hereby undertakes:
(1) to file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement;
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of
this Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in this Registration
Statement;
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in this Registration
Statement or any material change to such
information in this Registration Statement;
provided,however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement;
(2) that, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) to remove from registration by means of a post-effective
amendment of any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that, in the opinion of the 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 of
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by a
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable ground to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, State of California, on this 27th day of
November, 2000.
IMAGEWARE SYSTEMS, INC.
By: /s/ S. James Miller, Jr.
-------------------------------------
S. James Miller, Jr.
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints S. James Miller, Jr. as his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully and to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute, may be
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title
<S> <C> <C>
November 27, 2000 /s/ S. James Miller, Jr.
---------------------------------- --------------------------------------
Dated S. James Miller, Jr. President, Chief Executive Officer
November 27, 2000 /s/ Wayne Wetherell
---------------------------------- --------------------------------------
Dated Wayne Wetherell Chief Financial Officer
November 27, 2000 /s/ Patrick Downs
---------------------------------- --------------------------------------
Dated Patrick Downs Director
November 27, 2000 /s/ John L. Holleran
---------------------------------- --------------------------------------
Dated John L. Holleran Director
November 27, 2000 /s/ Yukuo Takenaka
---------------------------------- --------------------------------------
Dated Yukuo Takenaka Director
November 27, 2000 /s/ John Callan
---------------------------------- --------------------------------------
Dated John Callan Director
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER NUMBERED PAGE DESCRIPTION OF DOCUMENT
<S> <C>
4.1 1994 Employee Stock Option Plan.(1)
4.2 1994 Non-Qualified Stock Option Plan.(1)
4.3 1999 Stock Option Plan.(1)
5.1 Opinion of Luce, Forward, Hamilton & Scripps LLP as
to legality of securities being registered.
23.1 Consent of PricewaterhouseCoopers, independent
auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1 hereto).
24.1 Powers of Attorney (see page 7).
</TABLE>
(1) Previously filed in the Registrant's Registration Statement on Form SB-2
(File No. 333-93131) originally filed December 20, 2000, and declared
effective on March 30, 2000.
