UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE 14A
PROXY STATEMENT PURSUANT TO SECTION 14(a)
OF THE SECURITIES EXCHANGE ACT OF 1934
Filed
by the Registrant [X]
Filed
by a Party other than the Registrant [ ]
Check
the appropriate box:
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[
]
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Preliminary
Proxy Statement
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[
]
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Confidential,
for Use of the SEC Only (as permitted by
Rule 14a-6(e)(2))
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[X]
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Definitive
Proxy Statement
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[
]
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Definitive
Additional Materials
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[
]
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Soliciting
Material Pursuant to 14a-12
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ImageWare Systems, Inc.
(Name
of Registrant as Specified in its Charter)
Payment
of Filing Fee (Check the appropriate box):
[X]
No fee required.
[
] Fee computed on table below
per Exchange Act Rules 14a-6(i)(4) and 0-11.
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1.
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Title
of each class of securities to which transaction
applies:
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2.
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Aggregate
number of securities to which transaction applies:
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3.
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Per
unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on
which the filing fee is calculated and state how it was
determined):
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4.
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Proposed
maximum aggregate value of transaction:
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5.
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Total
fee paid:
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[
] Fee paid previously with
preliminary materials.
[
] Check box if any part of the fee is
offset as provided by Exchange Act Rule 0-11(a)(2) and
identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its
filing.
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1.
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Amount
Previously Paid:
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2.
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Form,
Schedule or Registration Statement No.:
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3.
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Filing
Party:
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4.
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Date
Filed:
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10815
Rancho Bernardo Rd., Suite 310
San
Diego, CA 92127
Tel.
(858) 673-8600
Fax
(858) 673-1770
NOTICE OF CONSENT SOLICITATION
January
3, 2018
Dear
ImageWare Systems, Inc. Stockholder:
The
Board of Directors of ImageWare Systems, Inc., a Delaware
corporation (the “
Company
” or “
we
”), is writing to solicit your
consent to approve
(i) an amendment to
our Certificate of Incorporation, as amended (the
“
Charter
”), to increase the number of shares of
common stock, par value $0.01 per share (“
Common
Stock
”), authorized under
the Charter from 150.0 million shares to 175.0 million shares (the
“
Charter
Amendment
”); and
(ii
) an amendment to the Company’s 1999 Stock Option
Plan (the “
1999
Plan
”) to increase the number of shares authorized for
issuance thereunder
from approximately
6.2 million to approximately 8.2 million (the
“
Plan
Amendment
,” and, together with
the Charter Amendment, the “
Proposals
”).
The
Company's Board of Directors (the “
Board
”) unanimously approved the
Charter Amendment
on
November 14, 2017, and the Plan Amendment on January 9, 2017.
Details of both Proposa
ls
are
more fully described in the attached Consent Solicitation
Statement.
In
order to save the expense associated with holding a special meeting
of the Company’s stockholders, the Board has elected to
obtain stockholder approval of the Proposals by written consent
(“
Written
Consent
”) pursuant to Section 228(b) of the Delaware
General Corporation Law, rather than by calling a meeting of
stockholders. The close of business on December
19
, 2017 has been fixed as the record date
for the determination of holders of shares of our Common Stock,
shares of our Series A Convertible Preferred Stock, par value $0.01
per share (“
Series A
Preferred
”), and
Series B Convertible Preferred Stock, par value $0.01 per share
(“
Series B
Preferred
”), entitled to receive notice of, and the
discretion to approve the Proposals.
This
solicitation is being made on the terms and subject to the
conditions set forth in the accompanying Consent Solicitation
Statement. To be counted, your properly completed Written Consent,
a form of which is attached to the accompanying Consent
Solicitation Statement, must be received before 5:00 p.m. Pacific
Time, on March 2, 2018 (the “
Expiration Date
”), subject to
early termination of, or extension of the Expiration Date at the
discretion of our Board of Directors.
Failure
to submit the Written Consent by any stockholder of record as of
the Record Date will have the same effect as a vote against the
Proposals. We recommend that all stockholders consent to the
Proposals by marking the box titled “FOR” with respect
to the Proposals and submitting the Written Consent by one of the
methods set forth in the attached form of Written Consent. If you
sign and send in the Written Consent form but do not indicate how
you want to vote as to the Proposals, your consent form will be
treated as a consent “FOR” the Proposals.
Please
return the enclosed written consent to us no later than 5:00 p.m.,
Pacific Time, on March 2, 2018 via facsimile to (858) 673-1770, via
email to wgw@iwsinc.com, or mail to:
ImageWare Systems,
Inc.
Attn:
Wayne Wetherell, Corporate Secretary
10815
Rancho Bernardo Road, Suite 310
San
Diego, CA 92127
By
order of the Board of Directors,
/s/ S. James Miller
S.
James Miller
Chief
Executive Officer, Chairman and Director
10815
Rancho Bernardo Rd., Suite 310
San
Diego, CA 92127
Tel.
(858) 673-8600
Fax
(858) 673-1770
_____________________________________________________________________________________________
CONSENT SOLICITATION STATEMENT
_____________________________________________________________________________________________
This
Consent Solicitation Statement is being furnished in connection
with the solicitation of written consents of the stockholders of
ImageWare Systems, Inc., a Delaware corporation (the
“
Company
,”
“
us,
”
“
we
” or
“
our
”), for
approval of the following actions (together, the
“
Proposals
”):
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1.
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An
amendment to our Certificate of Incorporation, as amended (the
“
Charter
”), to
increase the number of shares of the Company’s common stock,
$0.01 par value per share (“
Common Stock
”), authorized
thereunder from 150.0 million to 175.0 million (the
“
Charter
Amendment
”); and
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2.
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An
amendment to our 1999 Stock Award Plan (the “
1999 Plan
”) to increase in the
number of shares of Common Stock available for issuance from
approximately 6.2 million shares to approximately 8.2 million
shares (the “
Plan
Amendment
”).
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Our
Board of Directors (the “
Board
”) has elected to seek
stockholder approval of the Proposals by written consent
(“
Written
Consent
”), rather than calling a special meeting of
stockholders, in order to eliminate the costs and management time
involved in holding a special meeting. Written Consents are being
solicited from stockholders of record as December
19
, 2017, the record date set in connection
with this Consent Solicitation Statement (the “
Record Date
”), pursuant to
Section 228(b) of the Delaware General Corporation Law and Section
2.11 of our Amended and Restated Bylaws (the “
Bylaws
”).
Who May Consent
This Consent Solicitation Statement and attached form of Written
Consent are being mailed to holders of our Common Stock, Series A
Convertible Preferred Stock (“
Series A Preferred
”) and Series B
Convertible Redeemable Stock (“
Series B Preferred
”) as of the
Record Date on or about December
19
, 2017. As of the Record Date, we had (i)
93,651,814
shares of Common
Stock, (ii) 31,021 shares of Series A Preferred, (iii) 239,400
shares of Series B Preferred outstanding, each of which are
entitled to act with respect to this Consent Solicitation. As of
the Record Date, outstanding shares represented 120,671,980 votes,
consisting of 93,651,814 attributable to Common Stock, 26,974,783
attributable to Series A Preferred, and 45,384 attributable to
Series B Preferred.
Stockholders who wish to consent to the
Proposals must return the attached form of Written Consent either
by mail, facsimile or email on or before 5:00 p.m. Pacific Time on
March 2, 2018 (the “
Expiration
Date
”)
. The
Company expressly reserves the right, in its sole discretion and
regardless of whether any of the conditions of the Consent
Solicitation have been satisfied, subject to applicable law, at any
time prior to Expiration Date to (i) terminate the Consent
Solicitation for any reason, including if the consent of
stockholders holding a
majority of the
Company’s outstanding shares has been received;
(ii) waive any of the conditions to the Consent Solicitation;
or (iii) amend the terms of the Consent Solicitation.
Stockholders who
wish to consent must deliver their properly completed and executed
Written Consents to the Corporate Secretary of the Company in
accordance with the instructions set forth in the attached form
of Written Consent. The Company reserves the right (but is not
obligated) to accept any Written Consent received by any other
reasonable means or in any form that reasonably evidences the
giving of consent to the approval of the
Proposals.
IF
YOU HOLD YOUR STOCK IN “STREET NAME,” YOU MUST INSTRUCT
YOUR BROKER OR NOMINEE TO APPROVE THE PROPOSALS. IF YOU FAIL TO DO
SO, YOUR BROKER OR NOMINEE MAY NOT RETURN THE WRITTEN CONSENT. Any
beneficial owner of the Company who is not a record holder must
arrange with the person who is the record holder or such record
holder’s assignee or nominee to: (i) execute and deliver a
Written Consent on behalf of such beneficial owner; or (ii) deliver
a proxy so that such beneficial owner can execute and deliver a
Written Consent on its own behalf.
Requests for copies
of this Consent Solicitation Statement should be directed to
ImageWare Systems, Inc. at the address or telephone number set
forth above.
We will
act as tabulation agent for this Consent Solicitation Statement. If
you have any questions regarding your form of Written Consent,
please contact us directly at (858) 673-8600.
Consent Required
Stockholder
approval of the Proposals will be effective upon receipt by us of
affirmative Written Consents, not previously revoked, representing
at least 60,335,991 votes, or a majority of votes that may be cast
by our issued and outstanding voting securities as of the Record
Date. Accordingly, abstentions from submitting your Written Consent
will have the same effect of disapproving the
Proposals.
Revocation of Consents
You may
withdraw or change you Written Consent at any time prior to the
Expiration Date by submitting a written notice of revocation to the
Company’s Corporate Secretary at the address set forth above.
A notice of revocation or withdrawal must specify the record
stockholder’s name and the number of shares being
withdrawn. After the Expiration Date, all written consents
previously executed and delivered and not revoked will become
irrevocable.
Absence of Appraisal Rights
Stockholders who
abstain from consenting to the approval of the Proposals, or who
withhold consent of the Proposals, do not have the right to an
appraisal of their shares of Common Stock, Series A Preferred,
Series B Preferred (shares of Series A Preferred and Series B
Preferred are collectively referred to herein as
“
Preferred
Stock
”) or any similar dissenters’ rights under
the Delaware General Corporation Law, our Charter or our
Bylaws.
Expenses of this Solicitation
This
solicitation is being made by our Board of Directors and
management, and we will bear the entire cost of the solicitation,
including preparation, printing and mailing costs. Written Consents
will be solicited principally through the mail, but our directors,
officers and employees may solicit Written Consents personally, by
phone or by e-mail. Arrangements will be made with brokerage firms
and other custodians, nominees and fiduciaries to forward these
consent solicitation materials to stockholders whose shares of
Common Stock or Preferred Stock are held of record by such
entities, and we will reimburse such brokerage firms, custodians,
nominees and fiduciaries for
reasonable
out-of-pocket expenses incurred by them in connection herewith. In
addition, we may pay for and utilize the services of individuals or
companies we do not regularly employ in connection with this
consent solicitation, if management determines it
advisable.
PROPOSA
LS
TO BE ACTED UPON BY
STOCKHOLDERS:
___________________________________
PROPOSAL NO. 1
AMENDMENT OF OUR CERTIFICATE OF INCORPORATION TO INCREASE THE
NUMBER OF SHARES OF AUTHORIZED COMMON STOCK
General
Our
Charter currently authorizes a total of 150.0 million shares of
Common Stock for issuance. On November 14, 2017, our Board of
Directors (the “
Board
”) unanimously adopted
resolutions approving, subject to approval by our stockholders, an
amendment to our Charter to increase the number of authorized
shares of Common Stock from 150.0 million shares to 175.0 million
shares, a 25.0 million share increase. This increase in the
number of authorized shares of Common Stock will become effective
upon filing the Charter Amendment with the Delaware Division of
Corporations.
The
Charter Amendment will
not
change the total number of
authorized shares of preferred stock, par value $0.01 per share,
currently authorized for issuance by our Charter. Our Board
determined that the Charter Amendment is advisable and in the best
interests of the Company and our stockholders and directed that it
be submitted to our stockholders for approval.
If
Proposal No. 1 is approved, our Charter will be amended to reflect
the 25.0 million share increase in the number of authorized shares
of our authorized Common Stock. We expect to file the Charter
Amendment with the State of Delaware as soon as practicable after
receiving Written Consents representing a majority of our
outstanding voting securities. The proposed Charter Amendment is
attached to this Consent Solicitation Statement as Appendix
A.
Purpose
of and Rationale for Proposed Certificate Amendment
The
objective of the Charter Amendment is to ensure we have a
sufficient number of shares authorized for future issuances,
including conversion of our outstanding derivative securities. As
of December
19
, 2017, there
were approximately
93,651,814
shares of Common Stock issued and outstanding, and another
38,098,085 shares required to be issued under our incentive plans,
common stock purchase warrants, outstanding shares of Preferred
Stock, convertible promissory notes and other written
agreements. Specifically, as of December
19
, 2017:
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93,651,814
shares of our Common Stock were issued and
outstanding;
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27,020,166
shares of our Common Stock were reserved for issuances upon
conversion of our Preferred Stock;
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4,800,000
shares of our Common Stock were reserved for issuance upon
conversion of outstanding convertible promissory
notes;
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6,124,843
shares of our Common Stock are required to be
issued upon exercise of outstanding options issued under the 1999
Plan; and
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150,000
shares of our Common Stock are required to be issued upon exercise
of outstanding common stock purchase warrants and other written
agreements.
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To
allow for the conversion of all of our outstanding derivative
securities, and to provide the Company with the flexibility to
issue shares in connection with future financings and strategic
acquisitions, debt restructurings or resolutions, equity
compensation and incentives to employees and officers and other
corporate purposes, our Board believes the number of shares of
Common Stock available for issuance should be increased in order
avoid the delay and expense associated with obtaining special
stockholder approval each time an opportunity requiring the
issuance of shares of Common Stock arises. Such a delay might
deny us the flexibility that the Board views as important in
facilitating the effective use of our securities.
In
addition to shares of Common Stock issuable upon conversion or
exercise of our outstanding derivative securities, we may desire to
issue and sell shares of our Common Stock in capital raising
transactions to fund our working capital requirements. These
financings are often conducted at a discount to the prevailing
market price of our Common Stock. The last reported sales
price of our Common Stock was $
1.95
per share on January 2, 2018, as
reported on the OTCQB Marketplace. As a result, any financing
that involves the issuance of shares of Common Stock or securities
convertible into Common Stock, even at prices that are at or above
the prevailing market price, may require that a substantial number
of shares of Common Stock be available for issuance. These
financing transactions may also result in substantial dilution to
the Company’s existing stockholders. Financing
transactions may not be available on terms favorable to the
Company, or at all, but the Board of Directors believes that the
Company should have sufficient shares of Common Stock available for
issuance in the event that the issuance of shares of Common Stock
is desirable and in the best interests of stockholders. Although
the Company will seek additional sources of working capital, the
Company currently does not have any commitments, arrangements,
understandings or agreements, written or oral, regarding the
issuance of additional shares of Common Stock.
Although the
Company has no present obligations to issue additional shares of
Common Stock (except in connection with our outstanding derivative
securities), our Board believes that it is prudent to increase the
number of authorized shares of Common Stock from 150.0 million to
175.0 million in order to have a sufficient number of shares of
Common Stock to meet our business and financing needs. In the event
this Proposal No. 1 is not approved, we will be required to
consider the issuance of additional shares of Preferred Stock or
other securities to address our financing requirements, and/or
negotiate a restructuring of our outstanding derivative securities,
which may on terms less favorable to stockholders than the terms
that may be available is we had sufficient authorized shares of
Common Stock available.
Effect
of Proposed Certificate Amendment
The
increase of our authorized shares of Common Stock will not have any
immediate effect on the rights of existing stockholders. If
the stockholders approve the proposed Charter Amendment and our
Charter is amended, our Board may cause the issuance of additional
shares of Common Stock (up to the new total number of authorized
shares of Common Stock) without further vote of our stockholders,
except as provided under the Delaware General Corporation Law or to
the extent the Company chooses to comply with any limiting rules of
any securities exchange or quotation system on which shares of
Common Stock are then listed or traded. Current holders of
Common Stock do not have preemptive or similar rights, which means
that current stockholders do not have a right to purchase any new
issue of capital stock of the Company in order to maintain their
proportionate ownership. The issuance of additional shares of
Common Stock may have a dilutive effect on earnings per share and
on the equity and voting
power of existing
holders of our Common Stock. It may also adversely affect the
market price of our Common Stock. However, in the event
additional shares are issued in transactions that position us to
take advantage of favorable business opportunities or provide
working capital sufficient to allow us to pursue and/or expand our
business plan, the market price of our Common Stock may
increase.
This
proposed Charter Amendment will not otherwise alter or modify the
rights, preferences, privileges or restrictions of outstanding
shares of our Common Stock.
Anti-Takeover
Effects
Although the
proposed Charter Amendment is not motivated by anti-takeover
concerns and is not considered by the Board to be an anti-takeover
measure, the availability of additional authorized shares of Common
Stock could enable our Board to issue shares defensively in
response to a takeover attempt or to make an attempt to gain
control of the Company more difficult or time-consuming. For
example, shares of Common Stock could be issued to purchasers who
might side with management in opposing a takeover bid which our
Board determines is not in the best interests of the Company and
its stockholders, thus diluting the ownership and voting rights of
the person seeking to obtain control of the Company. In
certain circumstances, issuance of shares of our Common Stock
without further action by the stockholders may have the effect of
delaying or preventing a change of control of the Company, may
discourage bids for the Company’s Common Stock at a premium
over the market price of the Common Stock, and may adversely affect
the market price of the Common Stock. Thus, increasing the
authorized number of shares of our Common Stock could render more
difficult and less likely a hostile merger, tender offer or proxy
contest, assumption of control by a holder of a large block of our
stock, and the possible removal of our incumbent
management. We are not aware of any proposed attempt to take
over the Company or of any attempt to acquire a large block of our
Common Stock.
Approvals
Required
The
affirmative written consent of the holders of a majority of our
outstanding voting securities is required to approve this Proposal
No. 1.
Our Board of Directors recommends that
stockholders sign and return Written Consents for the approval
of an amendment of our Charter to increase the authorized number of
shares of Common Stock thereunder from 150.0 million shares to
175.0 million
shares.
PROPOSAL NO. 2
AMENDMENT TO OUR 1999 STOCK OPTION PLAN TO INCREASE THE NUMBER OF
SHARES AVAILABLE FOR ISSUANCE THEREUNDER
BY 2.0 MILLION SHARES
Proposal
On January 9, 2017, our Board
unanimously
approved of the amendment to the 1999 Plan, subject to stockholder
approval, to increase the number of shares of Common Stock reserved
for issuance thereunder by an aggregate of 2.0 million shares, from
approximately 6.2 million shares to a new total of approximately
8.2 million
shares. 6,124,843
shares of our Common Stock are currently reserved for issuance
under the 1999 Plan upon exercise of outstanding options.
As
a result,
we
currently have
only
73,934
shares available for issuance as
stock options or other awards under the 1999 Plan. The proposed
Plan Amendment will allow the Company to maintain a sufficient pool
of available shares for future grants under the 1999
Plan.
Background
and Purpose
The 1999 Plan was adopted by our Board on December
17, 1999. Under the terms of the 1999 Plan, we could, originally,
issue up to 350,000 non-qualified or incentive stock options to
purchase shares of Common Stock. During the year ended December 31,
2014, we subsequently amended and restated the 1999 Plan to
increase the number of shares of Common Stock reserved for issuance
to approximately 7.0 million shares.
The
1999 Plan provides for the issuance of stock based awards to
attract and retain the services of executives and other key
employees. Keeping a proportionate number of shares available for
issuance under the 1999 Plan in relation to our issued and
outstanding shares of Common Stock provides the ability and
flexibility to present compensation packages which compare
favorably with those offered by other companies. As only
73,934 shares are currently available for issuance under the 1999
Plan, our Board voted unanimously to adopt the Plan Amendment to
provide for an additional 2.0 million shares for future grants
under the 1999 Plan. We do not have plans, commitments,
arrangements, understandings, or agreements, either written or
oral, regarding the issuance of options or Common Stock pursuant to
the 1999 Plan subsequent to the effectiveness of the Plan
Amendment.
Set
forth below is a summary of the 1999 Plan, but this summary is
qualified in its entirety by reference to the full text of the 1999
Plan filed as Appendix B to the Definitive Proxy Statement on
Schedule 14A filed with the Securities and Exchange Commission
(“
SEC
”)
November 21, 2007. Any stockholder who wishes to obtain a copy
of the 1999 Plan may do so by written request to ImageWare Systems,
Inc., 10815 Rancho Bernardo Road, Suite 310, San Diego, California
92127, Attention: Mr. Wayne Wetherell, Chief Financial
Officer.
Material
Terms of the 1999 Plan
Purpose
.
The primary purpose of the
1999 Plan is to attract and retain the best available personnel in
order to promote the success of our business and to facilitate the
ownership of our Common Stock by employees and others who provide
services to us.
Administration
.
Our Board of Directors
administers the 1999 Plan, provided that the Board may delegate
such administration to the Compensation Committee.
Eligibility
.
Under the 1999 Plan,
awards may be granted to employees, officers, directors, or
consultants, as provided in the 1999 Plan.
Terms of Grants
.
The term of each award
granted under the 1999 Plan will be contained in a stock option or
other agreement between the recipient and us, and such terms will
be determined by the Board of Directors consistent with the
provisions of the 1999 Plan, including the following:
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Purchase Price
. The purchase price of the Common Stock
subject to each incentive stock award will not be less than the
fair market value (as set forth in the 1999 Plan), or in the case
of the grant of an incentive stock award to a principal
stockholder, not less that 100% of fair market value of such Common
Stock at the time such award is granted.
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Vesting
. The dates on which each award (or portion thereof)
will vest and the conditions precedent to such vesting, if any,
will be fixed by the Board of Directors, in its discretion, at the
time such award is granted.
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Transferability
. No award will be transferable, except by
will or the laws of descent and distribution, and any award or
rights that may be exercisable shall be exercised during the
lifetime of the recipient by the recipient or his or her guardian
or legal representative. No award granted under the 1999 Plan shall
be subject to execution, attachment, or other process.
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Award
Adjustments
.
In the event of any change in the outstanding stock by reason of a
stock split, stock dividend, combination or reclassification of
shares, recapitalization, merger, or similar event, the Board of
Directors, or a committee delegated by the Board to administer the
1999 Plan, may adjust proportionally (a) the number of shares of
Common Stock (i) reserved under the 1999 Plan, (ii) available for
Incentive Stock Options and Nonstatutory Options (as such terms are
defined in the 1999 Plan), and (iii) covered by outstanding stock
awards or restricted stock purchase offers; (b) the stock prices
related to outstanding grants; and (c) the appropriate fair market
value and other price determinations for such grants. In the event
of a corporate merger, consolidation, acquisition of property or
stock, separation, reorganization or liquidation, the Board of
Directors or the Compensation Committee will be authorized to issue
or assume stock options, whether or not in a transaction to which
Section 424(a) of the Internal Revenue Code
of 1986
(
“
Code
”)
applies, and other grants by means of substitution of new grant
agreements for previously issued grants or an assumption of
previously issued grants.
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Termination,
Modification
and
Amendment
. The Board may, insofar as
permitted by law, from time to time, suspend or terminate the 1999
Plan or revise or amend it in any respect whatsoever, except that
without the approval of the stockholders, no such revision or
amendment may (i) increase the number of shares subject to the 1999
Plan; (ii) decrease the price at which grants may be granted; (iii)
materially increase the benefits to participants; or (iv) change
the class of persons eligible to receive grants under the 1999
Plan;
provided, however,
no
such action may alter or impair the rights and obligations under
any option, or stock award, or restricted stock purchase offer
outstanding as of the date thereof without the written consent of
the participant.
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U.S. Federal Income Tax Consequences
Under
the 1999 Plan, stock options may be granted which are intended to
qualify as Incentive Stock Options under Section 422 of the Code,
or which are not intended to qualify as Incentive Stock Options. In
addition, direct grants of stock or restricted stock may be
awarded. Accordingly, the 1999 Plan is, in part, a qualified plan
for Federal income tax purposes. As such, the Company is entitled
to (a) withhold and deduct from future wages of any participant, or
make other arrangements for the collection of, all legally required
amounts necessary to satisfy any and all federal, state and local
withholding and employment-related tax requirements attributable to
an Incentive Stock Option, including, without limitation, the
grant, exercise or vesting of, or payment of dividends with respect
to, an Incentive Stock Option or a disqualifying disposition of
stock received upon exercise of an Incentive Stock Option, or (b)
require the participant promptly to remit the amount of such
withholding to the Company before taking any action, including
issuing any shares of Common Stock, with respect to an Incentive
Stock Option.
Plan Benefits
Participation in
the 1999 Plan is entirely within the discretion of the Compensation
Committee of our Board of Directors. Because we cannot predict the
rate at which the Compensation Committee or Board of Directors will
make awards to participants or the terms of any award granted under
the 1999 Plan, it is not possible to determine the number of shares
that will be purchased or the value of benefits that may be
obtained by executive officers and other employees under the 1999
Plan in the event stockholders approve the Plan
Amendment. Alternatively, the following table sets forth
information with respect to the awards granted under the 1999 Plan
to the Company's executive officers, the Company's directors
(excluding any executive officer that is also a director), and the
Company's employees (excluding the Company's executive officers)
during the fiscal year ended December 31, 2016, our most recently
completed fiscal year.
Awards Issued Under the
1999 Stock Option Plan
During the Fiscal Year Ended December 31, 2016
|
|
Grant Date
|
All Other Option Awards: Number of Securities Underlying
Options
(#)
|
Exercise or Base Price of Option Awards
($/Share)
(1)
|
Grant Date Fair Value of Stock and Option Awards
($)
(2)
|
|
S.
James Miller, Jr.
|
09/20/2016
|
300,000
|
$
1.37
|
$
249,424
|
|
Wayne G.
Wetherell
|
09/20/2016
|
75,000
|
$
1.37
|
$
62,356
|
|
David
Harding
|
09/20/2016
|
300,000
|
$
1.37
|
$
249,424
|
|
Robert
Brown
|
09/20/2016
|
75,000
|
$
1.37
|
$
62,356
|
|
(1)
|
|
Each option was granted at an exercise price equal to the fair
market value of our Common Stock on the grant date which was equal
to the closing price of a share of our Common Stock, as reported by
the OTCQB Marketplace, on the date of grant.
|
|
(2)
|
|
The amounts reflect the grant date fair value, in accordance with
the provisions of ASC 718. Assumptions used in the calculation of
these amounts are included in Note 2 of the Consolidated Financial
Statements included in our Annual Report on Form 10-K for the year
ended December 31, 2016.
|
Equity Compensation Plan Information
The
following table provides information as of December 31, 2016
regarding equity compensation plans approved by our security
holders and equity compensation plans that have not been approved
by our security holders:
|
Plan Category
|
Number of securities to be issued
upon exercise of outstanding options, warrants
and rights
|
Weighted-
Average exercise price of outstanding options, warrants
and rights
|
Number of securities remaining available
for future issuance under equity compensation plans
(excluding securities reflected in
column) (a)
|
|
|
(a)
|
(b)
|
(c)
|
|
Equity compensation plans approved by security
holders:
|
|
|
|
|
1999
Stock Award Plan, as amended and restated
|
6,506,843
|
$
1.21
|
55,938
|
|
|
|
|
|
|
Total
|
6,506,843
|
$
1.21
|
55,938
|
Required Approval
We must
receive affirmative Written Consents approving the Plan Amendment
representing at least 60,335,991 votes, or a majority of our
outstanding voting securities as of the Record Date.
Board of Directors Recommendation
Our
Board of Directors recommends that stockholders sign and return
Written Consents for the approval of the Plan Amendment to
provide for the issuance of an additional 2.0 million shares
of Common Stock under our 1999 Plan.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
As
of December 14, 2017, we had three classes of voting stock
outstanding: (i) Common Stock; (ii) our Series A Preferred; and
(iii) our Series B Preferred. The following tables sets forth
information regarding shares of Series A Preferred, Series B
Preferred, and Common Stock beneficially owned as of December 14,
2017 by:
(i)
Each of our officers and directors;
(ii)
All officer and directors as a group; and
(iii)
Each person known by us to beneficially own
five percent or more of the outstanding shares of our Common Stock,
Series A Preferred, and Series B. Percent ownership is calculated
based on
31,021
shares of
Series A Preferred,
389,400
shares of Series B Preferred and 93,651,814
shares Common Stock outstanding at December 14,
2017.
Unless
otherwise noted, the addresses of the individuals listed below are
10815 Rancho Bernardo Road, Suite 310, San Diego, California
92127.
Beneficial Ownership of Series A Preferred
* less than 1%
|
(1)
(2)
|
Each of the Company’s officers and directors who do not hold
shares of Series A Preferred were excluded from this
table.
Beneficial ownership is determined in accordance with the rules of
the SEC and generally includes voting or investment power with
respect to securities.
|
Beneficial Ownership of Series B Preferred
|
Name, Address and Title (if
applicable)
(1)
|
Series B Convertible
Preferred Stock
(2)
|
% Ownership of Class
(2)
|
|
Darrelyn
Carpenter
|
28,000
|
12
%
|
|
Frederick
C. Orton
|
20,000
|
8
%
|
|
Howard
Harrison
|
20,000
|
8
%
|
|
Wesley
Hampton
|
16,000
|
7
%
|
|
(1)
(2)
|
Each of the Company’s officers and directors who do not hold
shares of Series A Preferred were excluded from this
table.
Beneficial ownership is determined in accordance with the rules of
the SEC and generally includes voting or investment power with
respect to securities.
|
Beneficial Ownership of Common Stock
* less than 1%
|
(1)
|
All entries exclude beneficial ownership of shares issuable
pursuant to options that have not vested or that are not otherwise
exercisable as of the date hereof, or which will not become vested
or exercisable within 60 days of December 14,
2017.
|
|
(2)
|
Percentages are rounded to nearest one-tenth of one percent.
Percentages are based on 93,651,814 shares of Common Stock
outstanding as of December 14, 2017. Options that are presently
exercisable or exercisable within 60 days of December 14, 2017 are
deemed to be beneficially owned by the stockholder holding the
options for the purpose of computing the percentage ownership of
that stockholder, but are not treated as outstanding for the
purpose of computing the percentage of any other
stockholder.
|
|
|
|
|
(3)
|
Includes 75,201 shares held jointly with spouse,
1,445,500 shares issuable upon exercise of stock options, each
exercisable within 60 days of December 14, 2017, and 86,957 shares
issuable upon the conversion of Series A Preferred.
|
|
|
|
|
(4)
|
Includes 117,170 shares issuable upon exercise of stock options
exercisable within 60 days of December 14, 2017.
|
|
|
|
|
(5)
|
Includes 119,670 shares issuable upon exercise of stock options
exercisable within 60 days of December 14, 2017.
|
|
|
|
|
(6)
|
Includes 117,170 shares issuable upon exercise of stock options,
each exercisable within 60 days of December 14, 2017.
|
|
|
|
|
(7)
|
Includes
2,724,348 shares issuable upon the conversion of Series A Preferred
and 89,670 shares issuable upon exercise of stock options, each
exercisable within 60 days of
December
14, 2017
and 4,400,000 shares issuable upon the conversion
of Convertible Notes. Mr. Goldman exercises sole voting and
dispositive power over 30,968,215 shares, and shared voting and
dispositive power over 3,147,700 reported shares, of which
3,000,000 shares are owned by the Goldman Family 2012 GST Trust and
147,700 shares are owed by The Neal and Marlene Goldman
Foundation.
|
|
|
|
|
(8)
|
Includes 139,670 shares issuable upon exercise of stock options
exercisable within 60 days of December 14, 2017.
|
|
|
|
|
(9)
|
Includes 139,670 shares issuable upon exercise of stock
options exercisable within 60 days of December 14, 2017
and
400,000 shares issuable upon the conversion of Convertible
Notes
.
|
|
|
|
|
(10)
|
Includes 73,339 shares issuable upon exercise of stock options
exercisable within 60 days of December 14, 2017.
|
|
|
|
|
(11)
|
Includes
1,867,826 shares issuable upon the conversion of Series A
Preferred.
|
|
|
|
|
(12)
|
Includes
2,700,000 shares issuable upon the conversion of Series A
Preferred.
|
|
|
|
|
(13)
|
Includes 327,500 shares issuable upon exercise of stock options
exercisable within 60 days of December 14, 2017.
|
|
|
|
|
(14)
|
Includes 898,752 shares issuable upon exercise of stock options
exercisable within 60 days of December 14, 2017.
|
|
|
|
|
(15)
|
Includes 281,250 shares issuable upon exercise of stock options
exercisable within 60 days of December 14, 2017.
|
|
|
|
ADDITIONAL INFORMATION
We file
annual, quarterly and current reports, proxy statements and other
documents with the SEC under the Securities Exchange Act of 1934.
The public may read and copy any materials that we file with the
SEC at the SEC’s Public Reference Room at 100 F Street NE.,
Washington, DC 20549. The public may obtain information on the
operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330. Also, the SEC maintains an Internet website that
contains reports, proxy and information statements, and other
information regarding issuers, including us, that file
electronically with the SEC. The public can obtain any documents
that we file with the SEC at
http://www.sec.gov
.
Householding of Proxy Materials
The SEC
has adopted rules that permit companies and intermediaries (e.g.,
brokers) to satisfy the delivery requirements for proxy statements
and annual reports with respect to two or more stockholders sharing
the same address by delivering a single proxy statement and annual
report addressed to those stockholders. This process, which is
commonly referred to as “householding,” potentially
means extra convenience for stockholders and cost savings for
companies.
A
number of brokers with account holders who are stockholders of the
Company will be “householding” the Company’s
proxy materials. A single set of the Company’s proxy
materials will be delivered to multiple stockholders sharing an
address unless contrary instructions have been received from the
affected stockholders. Once you have received notice from your
broker that they will be “householding” communications
to your address, “householding” will continue until you
are notified otherwise or until you revoke your consent. If, at any
time, you no longer wish to participate in
“householding” and would prefer to receive a separate
set of the Company’s proxy materials, please notify your
broker or direct a written request to the Company at
10815 Rancho Bernardo Rd., Suite 310, San Diego,
CA 92127
, or contact us at (858) 673-8600. The Company
undertakes to deliver promptly, upon any such oral or written
request, a separate copy of its proxy materials to a stockholder at
a shared address to which a single copy of these documents was
delivered. Stockholders who currently receive multiple copies of
the Company’s proxy materials at their address and would like
to request “householding” of their communications
should contact their broker, bank or other nominee, or contact the
Company at the above address or phone number.
Deadline for Receipt of Stockholder Proposals
Pursuant to Rule 14a-8 under the
Securities Exchange Act of 1934, as amended, stockholder proposals
to be included in our next Proxy Statement must be received by us
at our principal executive offices at 10815 Rancho Bernardo Rd.,
Suite 310, San Diego, CA 92127, addressed to our Corporate
Secretary, no later than September 4, 2018. These proposals must
comply with applicable Delaware law, the rules and regulations
promulgated by the SEC and the procedures set forth in our
Bylaws.
We reserve the right to reject, rule out of
order, or take other appropriate action with respect to any
proposal that does not comply with these and all other applicable
requirements.
Stockholder Communications with the Board of Directors
Our Board of Directors provides
stockholders with the ability to send communications to the Board
of Directors, and stockholders may do so at their convenience. In
particular, stockholders may send their communications to: Board of
Directors, c/o Corporate Secretary, ImageWare Systems, Inc.,
10815 Rancho Bernardo Rd., Suite 310, San Diego, CA 92127. All
communications received by the Corporate Secretary are relayed to
the Board of Directors of the Company.
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
IMAGEWARE SYSTEMS, INC.
ImageWare
System, Inc., a Delaware corporation (the "Corporation"), does
hereby certify that:
FIRST: This
Certificate of Amendment amends the provisions of the Corporation's
Certificate of Incorporation, as amended (the "Certificate of
Incorporation").
SECOND: The
terms and provisions of this Certificate of Amendment have been
duly adopted in accordance with Sections 228 and 242 of the General
Corporation Law of the State of Delaware, and shall become
effective at 9:00 A.M., Eastern Time, on __________,
2018.
THIRD:
Article 4.a) of the Certificate of Incorporation is hereby amended
by deleting such Article in its entirety and replacing it with the
following:
“a)
The
total number of shares of all classes of stock that the Corporation
is authorized to issue is One Hundred and Seventy-Nine Million
(179,000,000) shares, consisting of One Hundred and
Seventy-Five Million (175,000,000) shares of Common Stock with
a par value of $0.01 per share (“Common Stock”), and
Four Million (4,000,000) shares of Preferred Stock with a par value
of $0.01 per share (“Preferred
Stock”).”
IN WITNESS
WHEREOF, the Corporation has caused this Certificate of Amendment
to be signed by its officers thereunto duly authorized this ___ day
of ________, 2018.
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
IMAGEWARE SYSTEMS, INC.
WRITTEN CONSENT SOLICITED ON BEHALF OF
THE BOARD OF DIRECTORS OF IMAGEWARE SYSTEMS, INC.
The
undersigned hereby acknowledges receipt of a copy of the
accompanying Notice of Consent Solicitation and the Consent
Solicitation Statement of ImageWare Systems, Inc. (the
“
Company
”)
dated January 3, 2018 and hereby revokes any consent or consents
heretofore given. This consent may be revoked at any time before
5:00 p.m. (Pacific Time), on March 2, 2018, unless the solicitation
period is shortened or extended by the Company in its sole
discretion (“
Expiration
Date
”). The undersigned, as holder of shares of the
Company’s common stock, par value $0.01 per share, CUSIP No.
45245S108 (“
Common
Stock
”), hereby takes the following actions with
respect to all shares of Common Stock held by him, her or it as
follows:
|
This Written Consent, when properly executed and returned to the
Company, will be voted in the manner directed herein by the
undersigned. IF NO DIRECTION IS MADE FOR THE PROPOSAL, THIS
CONSENT, IF SO EXECUTED AND RETURNED, WILL BE VOTED FOR THE
PROPOSAL. When shares of Common Stock are held by joint tenants,
both should sign. When signing as attorney, executor,
administrator, trustee or guardian, give full legal title as such.
If a corporation, sign in full corporate name by president or other
authorized officer. If a partnership, please sign in partnership
name by authorized person.
ALL CONSENTS MUST BE RECEIVED BY 5:00 P.M., PACIFIC TIME, ON THE
EXPIRATION DATE.
|
|
IMPORTANT:
This Consent Card must be signed exactly as
your name appears hereon. If more than one name appears, all
persons so designated should sign. Attorneys, executors,
administrators, trustees and guardians should indicate their
capacities. If the signer is a corporation, please print full
corporate name and indicate capacity of duly authorized officer
executing on behalf of the corporation. If the signer is a
partnership, please print full partnership name and indicate
capacity of duly authorized person executing on behalf of the
partnership.
Dated:
________________________, ______
|
|
|
||
|
|
(Print
Name of Stockholder)
|
|
|
|
||
|
(Signature
of Stockholder)
|
||
|
|
||
|
(Second
Signature if held jointly)
|
||
IMPORTANT: PLEASE COMPLETE, SIGN, AND DATE YOUR WRITTEN CONSENT
PROMPTLY
AND FAX IT TO (858) 673-1770, OR RETURN IT IN THE ENVELOPE PROVIDED
TO:
ImageWare Systems, Inc.
Attn: Wayne Wetherell, Corporate Secretary
10815 Rancho Bernardo Road, Suite 310
San Diego, California, 92127
Your executed written consent can also be sent via email in PDF
form to wgw@iwsinc.com.
Your written consent should be received by the Company on or before
March 2, 2018.
IMAGEWARE SYSTEMS, INC.
WRITTEN CONSENT SOLICITED ON BEHALF OF
THE BOARD OF DIRECTORS OF IMAGEWARE SYSTEMS, INC.
The
undersigned hereby acknowledges receipt of a copy of the
accompanying Notice of Consent Solicitation Statement and the
Consent Solicitation Statement of ImageWare Systems, Inc. (the
“
Company
”)
dated January 3, 2018 and hereby revokes any consent or consents
heretofore given. This consent may be revoked at any time before
5:00 p.m. (Pacific Time), on March 2, 2018, unless the solicitation
period is shortened or extended by the Company in its sole
discretion (“
Expiration
Date
”). The undersigned, as holder of shares of the
Company’s Series A Preferred Stock (“
Series A Preferred
”), hereby
takes the following actions with respect to all shares of Series A
Preferred held by him, her or it as follows:
|
This Written Consent, when properly executed and returned to the
Company, will be voted in the manner directed herein by the
undersigned. IF NO DIRECTION IS MADE FOR THE PROPOSAL, THIS
CONSENT, IF SO EXECUTED AND RETURNED, WILL BE VOTED FOR THE
PROPOSAL. When shares of Series A Preferred are held by joint
tenants, both should sign. When signing as attorney, executor,
administrator, trustee or guardian, give full legal title as such.
If a corporation, sign in full corporate name by president or other
authorized officer. If a partnership, please sign in partnership
name by authorized person.
ALL CONSENTS MUST BE RECEIVED BY 5:00 P.M., PACIFIC TIME, ON THE
EXPIRATION DATE.
|
|
IMPORTANT:
This Consent Card must be signed exactly as
your name appears hereon. If more than one name appears, all
persons so designated should sign. Attorneys, executors,
administrators, trustees and guardians should indicate their
capacities. If the signer is a corporation, please print full
corporate name and indicate capacity of duly authorized officer
executing on behalf of the corporation. If the signer is a
partnership, please print full partnership name and indicate
capacity of duly authorized person executing on behalf of the
partnership.
Dated:
________________________, ______
|
|
|
||
|
|
(Print
Name of Stockholder)
|
|
|
|
||
|
(Signature
of Stockholder)
|
||
|
|
|
|
|
(Second
Signature if held jointly)
|
||
IMPORTANT: PLEASE COMPLETE, SIGN, AND DATE YOUR WRITTEN CONSENT
PROMPTLY
AND FAX IT TO (858) 673-1770, OR RETURN IT IN THE ENVELOPE PROVIDED
TO:
ImageWare
Systems, Inc.
Attn:
Wayne Wetherell, Corporate Secretary
10815
Rancho Bernardo Road, Suite 310
San
Diego, California, 92127
Your
executed written consent can also be sent via email in PDF form to
wgw@iwsinc.com.
Your written consent should be received by the Company on or before
March 2, 2018.
IMAGEWARE SYSTEMS, INC.
WRITTEN CONSENT SOLICITED ON BEHALF OF
THE BOARD OF DIRECTORS OF IMAGEWARE SYSTEMS, INC.
The
undersigned hereby acknowledges receipt of a copy of the
accompanying Notice of Consent Solicitation Statement and the
Consent Solicitation Statement of ImageWare Systems, Inc. (the
“
Company
”)
dated January 3, 2018 and hereby revokes any consent or consents
heretofore given. This consent may be revoked at any time before
5:00 p.m. (Pacific Time), on March 2, 2018, unless the solicitation
period is shortened or extended by the Company in its sole
discretion (“
Expiration
Date
”). The undersigned, as holder of shares of the
Company’s Series B convertible Redeemable Preferred Stock
(“
Series B
Preferred
”), hereby takes the following actions with
respect to all shares of Series B Preferred held by him, her or it
as follows:
|
This Written Consent, when properly executed and returned to the
Company, will be voted in the manner directed herein by the
undersigned. IF NO DIRECTION IS MADE FOR THE PROPOSAL, THIS
CONSENT, IF SO EXECUTED AND RETURNED, WILL BE VOTED FOR THE
PROPOSAL. When shares of Series B Preferred are held by joint
tenants, both should sign. When signing as attorney, executor,
administrator, trustee or guardian, give full legal title as such.
If a corporation, sign in full corporate name by president or other
authorized officer. If a partnership, please sign in partnership
name by authorized person.
ALL CONSENTS MUST BE RECEIVED BY 5:00 P.M., PACIFIC TIME, ON THE
EXPIRATION DATE.
|
|
IMPORTANT:
This Consent Card must be signed exactly as
your name appears hereon. If more than one name appears, all
persons so designated should sign. Attorneys, executors,
administrators, trustees and guardians should indicate their
capacities. If the signer is a corporation, please print full
corporate name and indicate capacity of duly authorized officer
executing on behalf of the corporation. If the signer is a
partnership, please print full partnership name and indicate
capacity of duly authorized person executing on behalf of the
partnership.
Dated:
________________________, _______
|
|
|
||
|
|
(Print
Name of Stockholder)
|
|
|
|
||
|
(Signature
of Stockholder)
|
||
|
|
||
|
(Second
Signature if held jointly)
|
||
IMPORTANT: PLEASE COMPLETE, SIGN, AND DATE YOUR WRITTEN CONSENT
PROMPTLY
AND FAX IT TO (858) 673-1770, OR RETURN IT IN THE ENVELOPE PROVIDED
TO:
ImageWare
Systems, Inc.
Attn:
Wayne Wetherell, Corporate Secretary
10815
Rancho Bernardo Road, Suite 310
San
Diego, California, 92127
Your
executed written consent can also be sent via email in PDF form to
wgw@iwsinc.com.
Your written consent should be received by the Company on or before
March 2, 2018.