Delaware
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7372
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33-0224167
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(State or Other Jurisdiction of
Incorporation or Organization)
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(Primary
standard industrial
classification code number)
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(I.R.S. Employer
Identification Number)
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Large accelerated filer
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[ ]
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Accelerated
filer
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[X]
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Non-accelerated
filer
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[ ]
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Smaller reporting company
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[X]
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Emerging
growth company
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[ ]
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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 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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11,031,000(3)
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$10,920,690
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$1,323.59(4)
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(1)
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In
accordance with 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 common stock as may be
issuable with respect to the shares being registered hereunder as a
result of stock splits, stock dividends or similar
transactions.
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(2)
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Estimated
solely for the purpose of calculating the registration fee for the
offering pursuant to Rule 457(c) under the Securities Act, based on
the average of the high and low prices of the Registrant’s
common stock on the OTCQB Marketplace on October 4,
2018.
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(3)
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Includes
(i) 10,000,000 shares of common stock issuable upon the conversion
of shares of the Company’s Series C Convertible Preferred
Stock, par value $0.01 per share (“Series C Preferred”) held by the
selling stockholders (“Conversion Shares”), and (ii) an
estimated 1,031,000 shares of common stock issuable as payment of
accrued dividends on shares of Series C Preferred held by selling
stockholders within 12 months from the date of this Registration
Statement (any shares of common stock issuable as dividends on
shares of Series C Preferred, the “Dividend Shares”). The number of
Dividend Shares issuable over the next 12 months are estimated
based on the closing price of the Registrant’s common stock
on October 4, 2018, as reported on the OTCQB
Marketplace.
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(4)
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Previously
paid.
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Agreement and Plan of Merger, dated October 27, 2005 (incorporated
by reference to Annex A to the Company’s Definitive Proxy
Statement on Schedule 14A, filed November 15, 2005).
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Certificate of Incorporation (incorporated by reference to Annex B
to the Company’s Definitive Proxy Statement on Schedule 14A,
filed November 15, 2005).
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Certificate of Amendment to Certificate of Incorporation
(incorporated by reference to Exhibit 3.1 to the Company's Current
Report on Form 8-K, filed October 14, 2011).
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Amended
and Restated Bylaws (incorporated by reference to Exhibit 3.2 to
the Company’s Current Report on Form 8-K, filed February 16,
2017).
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Certificate of Designations, Preferences and Rights of the Series E
Convertible Preferred Stock (incorporated by reference to Exhibit
3.1 to the Company’s Current Report on Form 8-K, filed
February 2, 2015).
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Certificate of Designations, Preferences and Rights of the Series F
Convertible Preferred Stock (incorporated by reference to Exhibit
3.1 to the Company’s Current Report on Form 8-K, filed
September 9, 2016).
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Certificate of Designations, Preferences and Rights of the Series G
Convertible Preferred Stock (incorporated by reference to Exhibit
3.1 to the Company’s Current Report on Form 8-K, filed
December 30, 2016).
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Amendment No. 1 to the Certificate of Designations, Preferences and
Rights of the Series E Convertible Preferred Stock (incorporated by
reference to Exhibit 3.2 to the Company’s Current Report on
Form 8-K, filed December 30, 2016).
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Certificate of Designations, Preferences and Rights of the Series A
Convertible Preferred Stock (incorporated by reference to Exhibit
3.1 to the Company’s Current Report on Form 8-K, filed
September 19, 2017).
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Certificate of Elimination of the Series E Convertible Preferred
Stock, Series F Convertible Preferred Stock and Series G
Convertible Preferred Stock (incorporated by reference to Exhibit
3.1 to the Company’s Current Report on Form 8-K, filed
October 19, 2017).
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Certificate of Amendment to Certificate of Incorporation
(incorporated by reference to Exhibit 3.1 to the Company’s
Current Report on Form 8-K, filed February 13, 2018).
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Certificate of Designations, Preferences, and Rights of Series C
Convertible Preferred Stock (incorporated by reference to Exhibit
3.1 to the Company’s Current Report on Form 8-K, filed
September 13, 2018)
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Amendment No. 1 to the Certificate of Designations, Preferences,
and Rights of Series A Convertible Preferred Stock (incorporated by
reference to Exhibit 3.2 to the Company’s Current Report on
Form 8-K, filed September 13, 2018)
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Form of Amendment to Warrant, dated March 21, 2012, (incorporated
by reference to Exhibit 4.16 to the Company's Annual Report on Form
10-K, filed April 4, 2012).
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Form of Warrant, dated September 10, 2018 (incorporated by
reference to Exhibit 3.3 to the Company’s Current Report on
Form 8-K, filed September 13, 2018)
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5.1*
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Opinion of Disclosure Law Group, a Professional
Corporation
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Employment Agreement, dated September 27, 2005, between the Company
and S. James Miller (incorporated by reference to Exhibit 10.1 to
the Company’s Current Report on Form 8-K, filed September 30,
2005).
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Form of Indemnification Agreement entered into by the Company with
its directors and executive officers (incorporated by reference to
Exhibit 10.4 to the Company’s Registration Statement on Form
SB-2 (No. 333-93131), filed December 20, 1999, as
amended).
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Amended and Restated 1999 Stock Plan Award (incorporated by
reference to Appendix B of the Company’s Definitive Proxy
Statement on Schedule 14A, filed November 21, 2007).
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Form of Stock Option Agreement (incorporated by reference to
Exhibit 10.2 to the Company’s Current Report on Form 8-K,
filed July 14, 2005).
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2001 Equity Incentive Plan (incorporated by reference to Exhibit
10.2 to the Company’s Quarterly Report on Form 10-QSB, filed
November 14, 2001).
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Securities Purchase Agreement, dated September 25, 2007, by and
between the Company and certain accredited investors (incorporated
by reference to Exhibit 10.1 to the Company’s Current Report
on Form 8-K, filed September 26, 2007).
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Office Space Lease between I.W. Systems Canada Company and GE
Canada Real Estate Equity, dated July 25, 2008 (incorporated by
reference to Exhibit 10.39 to the Company’s Annual Report on
Form 10-K, filed February 24, 2010).
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Form of Securities Purchase Agreement, dated August 29, 2008 by and
between the Company and certain accredited investors (incorporated
by reference to Exhibit 10.40 to the Company’s Annual Report
on Form 10-K, filed February 24, 2010).
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Change of Control and Severance Benefits Agreement, dated September
27, 2008, between Company and Charles Aubuchon (incorporated by
reference to Exhibit 10.41 to the Company’s Annual Report on
Form 10-K, filed February 24, 2010).
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Change of Control and Severance Benefits Agreement, dated September
27, 2008, between Company and David Harding (incorporated by
reference to Exhibit 10.42 to the Company’s Annual Report on
Form 10-K, filed February 24, 2010).
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First Amendment to Employment Agreement, dated September 27, 2008,
between the Company and S. James Miller (incorporated by reference
to Exhibit 10.43 to the Company’s Annual Report on Form 10-K,
filed February 24, 2010).
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Form of Convertible Note dated November 14, 2008 (incorporated by
reference to Exhibit 10.45 to the Company’s Annual Report on
Form 10-K, filed February 24, 2010).
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Second Amendment to Employment Agreement, dated April 6, 2009,
between the Company and S. James Miller (incorporated by reference
to Exhibit 10.50 to the Company’s Annual Report on Form 10-K,
filed February 24, 2010).
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Office Space Lease between the Company and Allen W. Wooddell, dated
July 25, 2008 (incorporated by reference to Exhibit 10.54 to the
Company’s Annual Report on Form 10-K, filed February 24,
2010).
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Third Amendment to Employment Agreement, dated December 10, 2009,
between the Company and S. James Miller (incorporated by reference
to Exhibit 10.60 to the Company’s Annual Report on Form 10-K,
filed February 24, 2010).
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Securities Purchase Agreement, dated December 12, 2011, by and
between the Company and certain accredited investors (incorporated
by reference to Exhibit 10.1 to the Company’s Current Report
on Form 8-K, filed December 21, 2011).
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Note Exchange Agreement, dated December 12, 2011, by and between
the Company and certain accredited investors (incorporated by
reference to Exhibit 10.2 to the Company’s Current Report on
Form 8-K, filed December 21, 2011).
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Fourth Amendment to Employment Agreement, dated March 10, 2011,
between the Company and S. James Miller, (incorporated by reference
to Exhibit 10.40 to the Company’s Annual Report on Form 10-K,
filed January 17, 2012).
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Fifth Amendment to Employment Agreement, dated January 31, 2012,
between the Company and S. James Miller, Jr., (incorporated by
reference to Exhibit 10.44 to the Company’s Annual Report on
Form 10-K, filed April 4, 2012.
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Employment Agreement, dated January 1, 2013, between the Company
and Wayne Wetherell (incorporated by reference to Exhibit 10.1 to
the Company's Current Report on Form 8-K, filed March 7,
2013).
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Employment Agreement, dated January 1, 2013, between the Company
and David Harding (incorporated by reference to Exhibit 10.1 to the
Company's Current Report on Form 8-K, filed March 7,
2013).
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Convertible Promissory Note dated March 27, 2013 issued by the
Company to Neal Goldman (incorporated by reference to Exhibit 10.41
to the Company's Annual Report on Form 10-K, filed April 1,
2013).
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Amendment to Convertible Promissory Note, dated March 12, 2014
(incorporated by reference to Exhibit 10.1 to the Company's Current
Report on Form 8-K, filed March 13, 2014).
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Note Exchange Agreement, dated January 29, 2015 (incorporated by
reference to the Company’s Current Report on Form 8-K, filed
February 2, 2015).
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Sixth
Amendment to Employment Agreement, by and between S. James Miller
and the Company, dated November 1, 2013 (incorporated by reference
to Exhibit 10.1 to the Company's Current Report on Form 8-K, filed
November 7, 2013).
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Seventh Amendment to Employment Agreement, by and between S. James
Miller, Jr. and the Company, dated January 9, 2015 (incorporated by
reference to the Company’s Current Report on Form 8-K, filed
January 15, 2015).
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Second Amendment to Employment Agreement, by and between Wayne
Wetherell and the Company, dated January 9, 2015 (incorporated by
reference to the Company’s Current Report on Form 8-K, filed
January 15, 2015).
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Second
Amendment to Employment Agreement, by and between David E. Harding
and the Company, dated January 9, 2015 (incorporated by reference
to the Company’s Current Report on Form 8-K, filed January
15, 2015).
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Amendment
No. 3 to Convertible Promissory Note, dated December 8, 2014
(incorporated by reference to the Company’s Current Report on
Form 8-K, filed December 10, 2014).
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Third
Amendment to Employment Agreement, by and between Wayne Wetherell
and the Company, dated December 14, 2015 (incorporated by reference
to Exhibit 10.2 to the Company's Current Report on Form 8-K, filed
December 21, 2015).
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Third
Amendment to Employment Agreement, by and between David E. Harding
and the Company, dated December 14, 2015 (incorporated by reference
to Exhibit 10.3 to the Company's Current Report on Form 8-K, filed
December 21, 2015).
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Eighth
Amendment to Employment Agreement, by and between S. James Miller
and the Company, dated December 14, 2015 (incorporated by reference
to Exhibit 10.1 to the Company's Current Report on Form 8-K, filed
December 21, 2015).
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Amendment No. 4 to Convertible Promissory Note, dated March 8, 2016
(incorporated by reference to the Company's Current Report on Form
8-K, filed March 10, 2017).
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Convertible Promissory Note, dated March 9, 2016 (incorporated by
reference to the Company's Current Report on Form 8-K, filed March
10, 2017).
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Form of Securities Purchase Agreement, dated September 7, 2016
(incorporated by reference to Exhibit 10.1 to the Company’s
Current Report on Form 8-K, filed September 9, 2016).
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Amendment No. 5 to Convertible Promissory Note, dated January 23,
2017 (incorporated by reference to Exhibit 10.1 to the
Company’s Current Report on Form 10-K, filed January 26,
2017).
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Form of Subscription Agreement for Series G Convertible Preferred
Stock (incorporated by reference to Exhibit 10.1 to the
Company’s Current Report on Form 8-K, filed December 30,
2016).
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Form of Exchange Agreement (incorporated by reference to Exhibit
10.2 to the Company’s Current Report on Form 8-K, filed
December 30, 2016).
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Ninth Amendment to Employment Agreement, by and between James
Miller, Jr. and the Company, dated October 20, 2016 (incorporated
by reference to Exhibit 10.3 to the Company’s Current Report
on Form 8-K, filed December 30, 2016).
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Fourth
Amendment to Employment Agreement, by and between Wayne Wetherell
and the Company, dated October 20, 2016 (incorporated by reference
to Exhibit 10.4 to the Company’s Current Report on Form 8-K,
filed December 30, 2016).
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Fourth Amendment to Employment Agreement, by and between David E.
Harding and the Company, dated October 20, 2016 (incorporated by
reference to Exhibit 10.5 to the Company’s Current Report on
Form 8-K, dated December 30, 2016).
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Amendment No. 2 to Convertible Promissory Note, dated May 10, 2017
(incorporated by reference to Exhibit 10.1 to the Company’s
Quarterly Report on Form 10-Q, filed May 12, 2017).
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Amendment No. 6 to Convertible Promissory Note, dated May 10, 2017
(incorporated by reference to Exhibit 10.2 to the Company’s
Quarterly Report on Form 10-Q, filed May 12, 2017).
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Form of Subscription Agreement for Series A Convertible Preferred
Stock (incorporated by reference to Exhibit 10.1 to the
Company’s Current Report on Form 8-K, filed September 19,
2017).
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Form of Exchange Agreement (incorporated by reference to Exhibit
10.2 to the Company’s Current Report on Form 8-K, filed
September 19, 2017).
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Fifth Amendment to Employment Agreement, by and between David E.
Harding and the Company, dated February 7, 2018 (incorporated by
reference to Exhibit 10.1 to the Company’s Current Report on
Form 8-K, dated February 13, 2018).
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Tenth Amendment to Employment Agreement, by and between James
Miller, Jr. and the Company, dated February 8, 2018 (incorporated
by reference to Exhibit 10.2 to the Company’s Current Report
on Form 8-K, dated February 13, 2018).
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Form of Securities Purchase Agreement for Series C Convertible
Preferred Stock (incorporated by reference to Exhibit 10.1 to the
Company’s Current Report on Form 8-K, filed September 13,
2018)
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Form of Registration Rights Agreement (incorporated by reference to
Exhibit 10.2 to the Company’s Current Report on Form 8-K,
filed September 13, 2018)
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Placement Agency Agreement, by and between the Company and
Northland Capital Markets (incorporated by reference to Exhibit
10.3 to the Company’s Current Report on Form 8-K, filed
September 13, 2018)
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Form of Exchange Agreement (incorporated by reference to Exhibit
10.4 to the Company’s Current Report on Form 8-K, filed
September 13, 2018)
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List of Subsidiaries (incorporated by referenced to Exhibit 21.1 to
the Company’s Annual Report on Form 10-K filed February 24,
2010).
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23.1*
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Consent of Disclosure Law Group, a Professional Corporation
(included in Exhibit 5.1)
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Consent of Independent Registered Public Accounting Firm
– Mayer Hoffman McCann P.C.
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Power of Attorney (included on the
signature page of the Registration Statement on Form S-1, filed on
October 11, 2018.)
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*
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Filed
herewith.
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**
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Previously filed as
an exhibit to the Company's Registration Statement on Form S-1,
filed on October 11, 2018.
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IMAGEWARE SYSTEMS, INC.
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By:
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/s/ S. James
Miller, Jr.
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S.
James Miller, Jr.
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Chief
Executive Officer, President
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Signature
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Title(s)
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Date
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/s/
*
S.
James Miller, Jr.
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President,
Chief Executive Officer and Chairman
(Principal
Executive Officer)
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October
19, 2018
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/s/
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Wayne
Wetherell
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Chief
Financial Officer
(Principal
Financial and Accounting Officer)
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October
19, 2018
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/s/
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David
Loesch
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Director
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October
19, 2018
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/s/
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Steve
Hamm
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Director
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October
19, 2018
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/s/
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David
Carey
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Director
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October
19, 2018
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/s/
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John
Cronin
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Director
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October
19, 2018
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/s/
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Neal
Goldman
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Director
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October
19, 2018
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/s/
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Charles
Crocker
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Director
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October
19, 2018
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/s/
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Dana
Kammersgard
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Director
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October
19, 2018
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/s/
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Charles
Frischer
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Director
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October
19, 2018
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/s/
*
Robert
Clutterbuck
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Director
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October
19, 2018
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