Imageware Systems Inc - Amended Current report filing (8-K/A)
02 4월 2008 - 4:58AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K/A
Amendment No. 3
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported):
March 28,
2008
ImageWare
Systems, Inc.
(Exact Name of
Registrant as Specified in its Charter)
Delaware
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001-15757
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33-0224167
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(State or Other
Jurisdiction of
Incorporation)
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(Commission File
Number)
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(IRS Employer
Identification No.)
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10883
Thornmint Road
San
Diego, California 92127
(Address of
Principal Executive Offices, Including Zip Code)
858-673-8600
(Registrants
telephone number, including area code)
Not
Applicable
(Former Name or
Former 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 Instructions A.2. below):
o
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Explanatory
Note
As previously reported in a Current Report on Form 8-K
filed on December 21, 2007 (the Initial Form 8-K), ImageWare
Systems, Inc. (the Company) completed the purchase of certain
assets (the Acquired Assets) of Sol Logic, Inc. (Sol Logic) pursuant
to an Asset Purchase Agreement, dated December 19, 2007 (the Purchase
Agreement), entered into by and among the Company, Sol Logic, Frank Mitchell,
a shareholder of Sol Logic, and Wink Jones, as Sol Logics representative (the Representative).
On March 6, 2008, the Company filed Amendment No. 1
on Form 8-K/A to the Initial Form 8-K (the First Amended Form 8-K)
reporting that the Company entered into an oral agreement with the
Representative to amend the Purchase Agreement to adjust the purchase price of
the Acquired Assets and provide for related payment terms (the Oral Agreement).
On March 12, 2008, the Company filed Amendment No. 2
on Form 8-K/A to the Initial Form 8-K (the Second Amended Form 8-K)
updating certain information set forth under Items 1.01, 2.01 and 3.02 of the First
Amended Form 8-K relating to the shares of the Companys common stock (Common
Stock) to be held in escrow and the additional shares of Common Stock to be
registered by the Company in connection with the Oral Agreement.
This Amendment No. 3 on Form 8-K/A is being
filed to (i) disclose the execution of the definitive agreement relating
the terms of the Oral Agreement, (ii) update certain information under
Items 1.01, 2.01 and 3.02 of the Second Amended Form 8-K relating to the
terms of the definitive agreement amending the Purchase Agreement and the related
amendment to the Registration Rights Agreement, entered into by and among the
Company, Sol Logic, and the Representative on December 19, 2007 (the Rights
Agreement), and (iii) update Item 8.01 of the Initial Form 8-K. The information provided herein shall supersede
the information previously reported in Items 1.01, 2.01 and 3.02 of the Second
Amended Form 8-K and Item 8.01 of the Initial Form 8-K. There are no changes to Item 9.01 of the
Second Amended Form 8-K.
Item
1.01 Entry into a Material Definitive Agreement
On March 28, 2008,
the Company entered into Amendment No. 1 to Asset Purchase Agreement with
the Representative (the Purchase Agreement Amendment) to amend the Purchase
Agreement. The Purchase Agreement
Amendment provides that in consideration for the Acquired Assets, the Company
shall issue to Sol Logic an aggregate of 677,940 shares of restricted Common
Stock (the Initial Shares). Of these shares, 467,545 were issued to Sol Logic
on December 19, 2007, the date of the Purchase Agreement. The remaining
210,395 shares were issued to Sol Logic upon execution of the Purchase
Agreement Amendment. In addition, in the
event the Companys revenues on certain specified products set forth in the Purchase
Agreement Amendment either equal or exceed $3,000,000 for the six-month period
commencing on March 6, 2008 and ending on September 6, 2008 or equal
or exceed $5,000,000 for the eighteen-month period commencing on March 6,
2008 and ending on September 6, 2009, the Company will be obligated to
issue that number of additional shares of Common Stock (the Additional Shares
and together with the Initial Shares, the Shares) obtained by dividing
$1,921,924 by the greater of $1.10 or the volume weighted average closing price
of the Companys common stock over the 20 trading-day period immediately prior
to the date the Additional Shares are issued, subject to the terms of the
escrow described below. Pursuant to the Purchase Agreement Amendment, the
maximum number of Additional Shares that may be issued are 1,747,204.
Concurrently with the
execution of the Purchase Agreement Amendment, the Company entered into
Amendment No. 1 to Registration Rights Agreement (the Rights Agreement
Amendment) to amend the Rights Agreement.
Under the terms of the Rights Agreement Amendment, the Company will register
an additional 371,755 of the Initial Shares, for a total of 677,940 shares of
Common Stock, for resale by Sol Logic.
In the event any
Additional Shares become issuable pursuant to the Purchase Agreement Amendment,
approximately 47.5% of these shares will be deposited by the Company into an
escrow account to satisfy any indemnification and reimbursement claims of the
Company, and the remaining shares will be issued directly to Sol Logic.
2
Item
2.01 Completion of Acquisition or Disposition of Assets
The information disclosed
under Item 1.01 of this Current Report on Form 8-K/A with respect to the
execution of the Purchase Agreement Amendment is incorporated by reference into
this Item 2.01 in its entirety.
Item
3.02 Unregistered Sale of Equity Securities
The disclosures made in
response to Items 1.01 and 2.01 above are incorporated herein by reference.
The issuance of shares of
restricted Common Stock in consideration for the acquisition of certain assets
of Sol Logic are exempt from registration requirements of the Securities Act of
1933 (the Act) pursuant to Section 4(2) of the Act and/or
Regulation D promulgated thereunder.
Item 8.01 Other Events
The issuance of the
Shares pursuant to the terms of the Purchase Agreement Amendment referenced in
Item 1.01 above will not increase the Companys shareholders equity to more
than $6,000,000 and thus, the Company believes that it will not be in compliance
with Section 1003(a)(iii) of The American Stock Exchange (AMEX) Company
Guide (the Company Guide), which provides that AMEX will normally consider
suspending dealings in, or removing from the list, securities of a company
which sustains net losses in its five most recent fiscal years and has
shareholders equity of less than $6,000,000, unless the company has total
market capitalization of at least $50,000,000, or total assets and revenue of
$50,000,000.
The information in this
Item 8.01 of Form 8-K shall not be deemed filed for purposes of Section 18
of the Securities Exchange Act of 1934 (the Exchange Act), or otherwise
subject to the liabilities of that section, nor shall it be deemed incorporated
by reference in any filing under the Act or the Exchange Act, except as
expressly set forth by specific reference in such filing.
Item
9.01 Financial Statements and Exhibits.
(a) Financial
Statements of Businesses Acquired.
Not required.
(b) Pro
Forma Financial Information.
Not required.
(d) Exhibits
Exhibit#
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Description
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4.1
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Amendment No. 1 to
Registration Rights Agreement, dated March 28, 2008, by and among the
Company, Sol Logic, and the Representative.
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10.1
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Amendment No. 1 to
Asset Purchase Agreement, dated March 28, 2008, by and between the
Company and the Representative.
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This Current Report on Form 8-K/A may contain
forward-looking statements made pursuant to the safe harbor provisions of
the Private Securities Litigation Reform Act of 1995. Such statements
include, without limitation, statements made with respect to the Companys issuance
of the Additional Shares and the Companys belief that it will not be in
compliance with Section 1003(a)(iii) of the Company Guide. Although the Company believes the statements
contained herein to be accurate as of the date they were made, it can give no
assurance that such expectations will prove to be correct. The Company
undertakes no obligation to update these forward-looking statements.
3
SIGNATURE
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.
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IMAGEWARE SYSTEMS, INC.
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Date: March 31,
2008
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By:
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/s/ Wayne
G. Wetherell
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Wayne G. Wetherell
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Chief Financial Officer
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4
Exhibit Index
Exhibit#
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Description
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4.1
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Amendment No. 1 to Registration Rights
Agreement, dated March 28, 2008, by and among the Company, Sol Logic,
and the Representative.
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10.1
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Amendment No. 1 to Asset Purchase Agreement,
dated March 28, 2008, by and between the Company and the Representative.
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5
Imageware (AMEX:IW)
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