UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
 


FORM 8-K
 

 
CURRENT REPORT
 
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
 
Date of Report (Date of earliest event reported): February 7, 2018
 
 

 
IMAGEWARE SYSTEMS, INC.
(Exact name of Registrant as specified in its Charter)
 
 

 
 
 
 
Delaware
001-15757
33-0224167
(State or other jurisdiction
of incorporation)
(Commission File No.)
(IRS Employer
Identification No.)
 
 
 
 
10815 Rancho Bernardo Road, Suite 310, San Diego, California 92127
 
(Address of principal executive offices)
 
 
 
(858) 673-8600
 
(Registrant’s Telephone Number)
 
 
 
Not Applicable
 
(Former name or address, if changed since last report)
 
 
 

 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
 
☐ 
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
☐ 
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
☐ 
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
☐ 
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR 230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR 240.12b-2)  ☐
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act  ☐

 
 
 
Item 1.01 Entry into a Material Definitive Agreement.
 
On February 7, 2018 and February 8, 2018, ImageWare Systems, Inc. (the “ Company ”) entered into amendments to the employment agreements (the “ Employment Amendments ”) for Messrs. David Harding, the Company’s Chief Technical Officer, and S. James Miller, Jr., the Company’s Chairman of the Board of Directors and Chief Executive Officer, respectively. Pursuant to the terms of the Employment Amendments, the term of each executive officer’s employment agreement was extended until December 31, 2018. A copy of each of the Employment Amendments is attached to this Current Report on Form 8-K as Exhibits 10.1 and 10.2, respectively, and are incorporated by reference herein.
 
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
 
See Item 1.01.
 
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Changes in Fiscal Year.
 
On February 9, 2018, the Company filed with the Secretary of State of the State of Delaware a Certificate of Amendment to its Certificate of Incorporation, as amended (the “ Charter ”), to increase the authorized number of shares of its common stock, par value $0.01 per share (“ Common Stock ”), to 175.0 million from 150.0 million shares. A copy of the Certificate of Amendment is attached to this Current Report on Form 8-K as Exhibit 3.1, and is incorporated herein by this reference.
 
Item 5.07 Submission of Matters to a Vote of Security Holders.
 
On January 4, 2018, the Company began soliciting written consents from its shareholders pursuant to the Consent Solicitation Statement on Schedule 14A filed with the Securities and Exchange Commission on January 4, 2018, to approve (i) an amendment to the Company’s Charter to increase the number of shares of the Company’s Common Stock authorized thereunder from 150.0 million to 175.0 million, and (ii) an amendment to the Company’s 1999 Stock Option Plan to increase the number of shares authorized for issuance thereunder from approximately 6.2 million to approximately 8.2 million (together, the “ Proposed Amendments ”). As of February 9, 2018, the Company had received written consents approving the Proposed Amendments from shareholders representing 62,663,628 votes, consisting of 41,033,193 shares attributable to common stock, 21,630,435 shares attributable to Series A Preferred Stock, and 0 shares attributable to Series B Preferred Stock, or over 50% of the Company’s voting capital stock. As a result, the Proposed Amendments were approved, and the Company terminated the solicitation on February 9, 2018.
 
Item 9.01 Financial Statements and Exhibits.
 
See Exhibit Index.
 
 
 
 
SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
 
 
 
 
 
 
IMAGEWARE SYSTEMS, INC.
 
 
 
 
Date: February 12, 201
 
By:
 /s/ Wayne Wetherell
 
 
 
Wayne Wetherell
 
 
 
Chief Financial Officer
 
 
 
 
 
 
 
EXHIBIT INDEX
 
 
 
 
Exhibit Number
 
Description
 
Certificate of Amendment to Certificate of Incorporation
 
Fifth Amendment to Employment Agreement, by and between David E. Harding and ImageWare Systems, Inc., dated February 7, 2018
 
Tenth Amendment to Employment Agreement, by and between S. James Miller and ImageWare Systems, Inc., dated February 8, 2018
 
 
 
 
Exhibit 3.1
 
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 February 12, 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 9th day of February, 2018.
 
 
 
By: /s/ Wayne Wetherell
 
Name:  Wayne Wetherell
 
Title:    Chief Financial Officer
 
 
 
 
 
 
 
 
Exhibit 10.1
 
Fifth Amendment
to
Employment Agreement
 
 
This Fifth Amendment to Employment Agreement (the “Fifth Amendment”), is being entered into effective December 31, 2017 by and between ImageWare Systems, Inc., a Delaware corporation (the “Company”) and Mr. David Harding (the “Executive”).
                    
Whereas, the Company and Executive entered into an Employment Agreement dated as of January 1, 2013 and subsequently amended on November 1, 2013, January 9, 2015, December 14, 2015, and on October 20, 2016 (as amended, the “Employment Agreement”);
 
WHEREAS , the Executive continues to perform valuable services for the Company and the Company desires to assure itself of the continuing services of Executive; and
 
WHEREAS , in consideration of the foregoing and in order to amend the terms of the Agreement and to provide for the continued services of the Executive in accordance with the present intent of the Company and the Executive.
 
NOW THEREFORE , in consideration of the foregoing and for other good and valuable consideration, receipt of which is hereby acknowledged, and in further consideration of the mutual covenants contained in the Employment Agreement, the parties do hereby agree that the Employment Agreement is hereby amended as follows:
 
1. 
Section “3. Term of Agreement ” strike the language “continue until December 31, 2017” and replace it with “continue until December 31, 2018”.
 
2. 
Except as expressly amended herein, the Employment Agreement shall continue and be in full force in all respects.
 
 
 
/s/ James Miller
 
/s/ David Harding
ImageWare Systems, Inc.
Chairman and CEO
February 7, 2018
 
David Harding
 
 
 
 
 
Exhibit 10.2
 
TENTH AMENDMENT
to
Employment Agreement
 
 
This Tenth Amendment to Employment Agreement (the "Tenth Amendment"), is being entered into effective September 12, 2017 by and between ImageWare Systems, Inc., a Delaware corporation (the "Company") and Mr. S. James Miller, Jr. (the "Executive").
 
WHEREAS , the Company and Executive entered into an Employment Agreement dated as of September 27, 2005 and subsequently amended on September 27, 2008, April 6, 2009, December 10, 2009, March 10, 2011, January 31, 2012, November 1, 2013, January 9, 2015, December 14, 2015, and on October 20, 2016 (as amended, the "Employment Agreement");
 
WHEREAS , the Executive continues to perform valuable services for the Company and the Company desires to assure itself of the continuing services of Executive; and
 
WHEREAS , in consideration of the foregoing and in order to amend the terms of the Agreement and to provide for the continued services of the Executive in accordance with the present intent of the Company and the Executive.
 
NOW THEREFORE , in consideration of the foregoing and for other good and valuable consideration, receipt of which is hereby acknowledged, and in further consideration of the mutual covenants contained in the Employment Agreement, the parties do hereby agree that the Employment Agreement is hereby amended as follows:
 
1.
Section " 2. Term of Agreement ” strike the language "continue until December 31, 2017" and replace it with "continue until December 31, 2018".
 
2.
Except as expressly amended herein, the Employment Agreement shall continue and be in full force in all respects.
 
 
 
 
/s/ David Carey
 
/s/ S. James Miller, Jr.
ImageWare Systems, Inc.
By: David Carey, Chaiman of
Compensation Committee on behalf of
IWS Board of Directors
 
S. James Miller, Jr.