AS
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 20, 2007
REGISTRATION
NO. 333-147215
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
PRE-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
IMAGEWARE
SYSTEMS, INC.
(Exact name of registrant
as specified in its charter)
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Delaware
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33-0224167
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(State or other
jurisdiction of
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(I.R.S. Employer
Identification Number)
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incorporation or
organization)
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10883
Thornmint Road
San
Diego, CA 92127
(858)
673-8600
(Address, including zip
code, and telephone number, including area code, of registrant’s principal
executive offices)
S. James
Miller, Jr.
Chief
Executive Officer
ImageWare
Systems, Inc.
10883
Thornmint Road
San
Diego, CA 92127
(858)
673-8600
(Address, including zip
code, and telephone number, including area code, of agent for service)
Copies to:
Carl Sanchez, Esq.
Paul,
Hastings, Janofsky & Walker, LLP
3579
Valley Centre Drive
San
Diego, California 92130
(858)
720-2500
APPROXIMATE
DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From
time to time after the effective date of this registration statement, as
determined by the selling stockholders.
If the only securities being registered on this Form
are being offered pursuant to dividend or interest reinvestment plans, please
check the following box:
o
If any of the securities being registered on this Form
are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, as amended, other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box.
x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering.
o
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.
o
If this Form is a registration statement pursuant to
General Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule 462(e) under
the Securities Act, check the following box.
o
If this Form is a post-effective amendment to a
registration statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities pursuant to
Rule 413(b) under the Securities Act, check the following box.
o
CALCULATION OF REGISTRATION FEE
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Title of each class of
securities to be
registered
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Amount to be
registered (1)
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Proposed maximum
offering price per
share (2)
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Proposed maximum
aggregate offering
price (2)
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Amount of
registration fee
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Common stock, par value $0.01 per share
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3,500,610
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$
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1.66
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$
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5,811,012.60
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$
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178.40
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(3)
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(1)
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The amount is comprised
of (i) 2,016,666 shares of the Registrant’s common stock held by certain
selling stockholders named in the prospectus contained herein and any
supplements thereto, (ii) 210,528 shares of the Registrant’s common
stock issuable upon conversion of the Registrant’s Series D preferred
stock held by certain selling stockholders named in the prospectus contained
herein and any supplements thereto, and (iii) 1,273,416 shares of the
Registrant’s common stock issuable upon exercise of warrants outstanding on
the date hereof and held by certain selling stockholders named in the
prospectus contained herein, and any supplements thereto, 113,834 of which
are immediately exercisable and 1,008,333 of which are exercisable beginning
March 26, 2008. The Registrant is not selling any shares of common stock
in this offering and therefore will not receive any proceeds from this
offering. The Registrant will, however, receive the exercise price of the
warrants if and when the warrants are exercised for cash. Pursuant to
Rule 416 under the Securities Act of 1933, as amended (the “Securities
Act”), the shares being registered hereunder include such indeterminate
number of shares of the Registrant’s common stock as may be issuable with
respect to the shares being registered hereunder to prevent dilution by
reason of any stock dividend, stock split, recapitalization or other similar
transaction.
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(2)
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Estimated solely for
the purpose of calculating the amount of the registration fee pursuant to
Rule 457(c) of the Securities Act. The proposed maximum offering price
per share and proposed maximum aggregate offering price are based upon the
average of the high ($1.68) and low ($1.64) sales prices of the Registrant’s
common stock on November 5, 2007, as reported on the American Stock
Exchange. It is not known how many shares will be sold under this
registration statement or at what price or prices such shares will be sold.
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(3)
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Previously paid.
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THE
REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS
MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES
ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS
THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
PART II
INFORMATION NOT REQUIRED IN THE
PROSPECTUS
Item 14. Other
Expenses of Issuance and Distribution
The following table lists the costs and expenses
payable by the registrant in connection with the sale of the common stock
covered by this prospectus other than any sales commissions or discounts, which
expenses will be paid by the selling stockholders. All amounts shown are
estimates except for the SEC registration fee.
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SEC registration
fee
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$
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179
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Legal fees and
expenses
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40,000
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Accounting fees
and expenses
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5,000
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Printing
expenses
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20,000
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Miscellaneous
fees and expenses
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5,000
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Total
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$
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70,179
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Item 15.
Indemnification of Directors and Officers
The registrant is incorporated under the laws of the
State of Delaware. Section 145 of the Delaware General Corporation Law (“DGCL”)
provides that a Delaware corporation may indemnify any persons who are, or are
threatened to be made, parties to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation), by reason of the
fact that such person was an officer, director, employee or agent of such
corporation, or is or was serving at the request of such person as an officer,
director, employee or agent of another corporation or enterprise. The indemnity
may include expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such person
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the corporation’s best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his or
her conduct was illegal. A Delaware corporation may indemnify any persons who
are, or are threatened to be made, a party to any threatened, pending or
completed action or suit by or in the right of the corporation by reason of the
fact that such person was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys’ fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit provided such person acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the corporation’s best
interests except that no indemnification is permitted without judicial approval
if the officer or director is adjudged to be liable to the corporation. Where
an officer or director is successful on the merits or otherwise in the defense
of any action referred to above, the corporation must indemnify him or her
against the expenses which such officer or director has actually and reasonably
incurred. The registrant’s certificate of incorporation and bylaws provide for
the indemnification of directors and officers of the Registrant to the fullest
extent permitted under the DGCL.
Section 102(b)(7) of the DGCL permits a corporation to
provide in its certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duties as a director, except for
liability:
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or any
transaction from which the director derives an improper personal benefit;
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for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law;
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for improper
payment of dividends or redemptions of shares; or
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for any
breach of a director’s duty of loyalty to the corporation or its stockholders.
The registrant’s certificate of incorporation and
bylaws include such a provision. Expenses incurred by any officer or director
in defending any such action, suit or proceeding in advance of its final
disposition shall be paid by the registrant upon delivery to the registrant of
an undertaking if required by the DGCL, by or on behalf of such director or
officer, to repay all amounts so advanced if it shall ultimately be determined
that such director or officer is not entitled to be indemnified by the
registrant.
At present, there is no pending litigation or
proceeding involving any of the registrant’s directors, officers or key
employees as to which indemnification is being sought nor is the registrant
aware of any threatened litigation that may result in claims for
indemnification by any of its officers or directors.
The registrant has an insurance policy covering its
officers and directors with respect to certain liabilities, including
liabilities arising under the Securities Act or otherwise.
Item 16. Exhibits
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Number
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Exhibit
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5.1
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Opinion of Paul, Hastings, Janofsky & Walker LLP
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23.1**
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Consent of Independent Registered Public Accounting
Firm
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23.2
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Consent of Paul, Hastings, Janofsky & Walker LLP
(included in their opinion filed as Exhibit 5.1)
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24.1
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Power of Attorney (included in signature page
hereto)
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** Previously filed.
Item 17.
Undertakings
(a) The undersigned 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 of 1933, as amended (the “Securities Act”);
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the 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 the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of 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 Securities and Exchange Commission pursuant
to Rule 424(b) 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.
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement.
Provided, however,
that paragraphs (i), (ii) and (iii) above 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 Securities and
Exchange Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in
this registration statement, or is contained in a form of prospectus filed
pursuant to Rule 424(b) that is part of the registration statement.
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(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for the purpose of determining liability
under the Securities Act to any purchaser each prospectus filed pursuant to
Rule 424(b) shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness; provided,
however, that no statement made in the registration statement or prospectus
that is part of the registration statement or made in a document incorporated
or deemed incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such first use, supersede or modify
any statement that was made in the registration statement or prospectus that
was part of the registration statement or made in any such document immediately
prior to such date of first use.
(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 Section
15(d) of the Securities Exchange Act of 1934, as amended (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934, as amended) that is
incorporated by reference in the 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.
(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
Securities and Exchange Commission such indemnification is against public
policy as expressed in the 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 Act and will be governed by the final adjudication of such
issue.
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