iwsy_s8d12312020
As filed with the Securities and
Exchange Commission on January 6, 2021
Registration
No. 333- _______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
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
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Incorporation or Organization)
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Identification No.)
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13500 Evening Creek Dr. N., Suite 550
San Diego, California 92128
(Address of Principal Executive Offices)
2020 Omnibus Equity Incentive Plan
(Full title of the plan)
Kristin Taylor
ImageWare Systems, Inc.
13500 Evening Creek Dr. N., Suite 550
San Diego, California 92128
(Name and address of agent for service)
(858) 673-8600
(Telephone number, including area code, of agent for
service)
Copies to:
Daniel W. Rumsey, Esq.
Jessica R. Sudweeks, Esq.
Disclosure Law Group,
a Professional Corporation
655 West Broadway, Suite 870
San Diego, California 92101
Tel: (619) 272-7050
Fax: (619) 330-2101
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2
of the Exchange Act.
Large
accelerated filer [ ]
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Accelerated
filer [ ]
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Non-accelerated
filer [X]
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Smaller
reporting company [X]
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Emerging
growth company [ ]
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(Do not check if a smaller reporting company)
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 Section 7(a)(2)(B) of the Securities Act.
[ ]
CALCULATION OF REGISTRATION FEE
Title
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, $0.01
par value per share to be issued under the 2020 Omnibus Equity
Incentive Plan
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25,000,000
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$0.075
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$1,875,000
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$204.57
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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”), this registration
statement on Form S-8 (the “Registration
Statement”) also covers
an indeterminate number of shares of the Common Stock, par value
$0.01 (the “Common
Stock”) of ImageWare
Systems, Inc., a Delaware corporation (the
“Company”), shall also be deemed to cover any
additional securities that may from time to time be offered or
issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions. In addition, any shares subject
to outstanding options or other equity (as defined in the
Company’s 2020 Omnibus Equity Incentive Plan (the
“Plan”) (“Awards”)) under the Plan that are cancelled,
forfeited, expired, terminated, unearned or settled in cash, in any
such case does not result in the issuance of shares, shall be again
available for issuance pursuant to Awards granted under the
Plan.
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(2)
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Estimated
in accordance with Rules 457(c) and (h) solely for the purpose
of calculating the registration fee based on the average of the
high and low prices of the Company’s Common Stock as reported
on the OTCQB Marketplace on December 28, 2020.
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EXPLANATORY NOTE
This Registration Statement on Form S-8 (this
“Registration
Statement”) is filed by
ImageWare Systems, Inc. (the “Registrant”) to register a total of 25,000,000 shares
of its common stock, $0.01 par value per share
(“Common
Stock”), that may be
issued under the Registrant’s 2020 Omnibus Equity Incentive
Award Plan (the “2020 Plan”).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. Plan
Information
The Registrant has prepared this Registration
Statement in accordance with the requirements of Form S-8 under the
Securities Act of 1933, as amended
(the “Securities Act”), to register a total of 25,000,000 shares
of the Company’s Common Stock that may be issued as awards
under the Company’s 2020 Plan.
The Plan provides for the grant of incentive stock
options, non-qualified stock options, shares of our Common Stock,
restricted shares of Common Stock, restricted stock units, stock
appreciation rights, dividend equivalent rights and other
stock-based awards (collectively, “Awards”). Awards, other than incentive stock
options, may be granted to the Company’s employees, officers,
directors and independent contractors. The documents containing the
information specified in Part I of Form S-8 will be sent or given
to each participant in the Plan as specified by Rule 428(b)(1) of
the Securities Act. These documents and the documents incorporated
by reference herein pursuant to Item 3 of Part II hereof, taken
together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act. Such documents are not filed
as part of this Registration Statement in accordance with the Note
to Part I of the Form S-8 Registration
Statement.
Item
2.
Registrant Information and Employee Plan Annual
Information.
The
Company will provide to each Recipient a written statement advising
of the availability of documents incorporated by reference in Item
3 of Part II of this Registration Statement (which documents are
incorporated by reference in this Section 10(a) prospectus) and of
documents required to be delivered pursuant to Rule 428(b) under
the Securities Act without charge and upon written or oral request
by contacting:
Sheryl
Edwards
ImageWare
Systems, Inc.
13500 Evening Creek Dr. N., Suite 550
San Diego, California 92128
Tel.
(858) 673-8600
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
Incorporation of Documents by Reference.
The following documents, which have been
previously filed by the Company with the Securities and Exchange
Commission (the “SEC”), are hereby incorporated by reference in
this Registration Statement:
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our
Annual Report on Form 10-K for the year ended December 31, 2019,
filed on May 15, 2020, as amended May 19, 2020;
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our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2020,
filed on June 26, 2020, as amended June 29, 2020;
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our
Quarterly Report on Form 10-Q for the quarter ended June 30, 2020,
filed on August 19, 2020;
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our Quarterly
Report on Form 10-Q for the quarter ended September 30, 2020, filed
on November 23, 2020
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our
Current Report on Form 8-K, filed on February 27,
2020;
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our
Current Report on Form 8-K, filed on March 3,
2020;
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our Current Report
on Form 8-K, filed on March 16, 2020;
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our
Current Report on Form 8-K, filed on April 6, 2020;
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our
Current Report on Form 8-K, filed on April 15, 2020;
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our
Current Report on Form 8-K, filed on May 1, 2020;
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our
Current Report on Form 8-K, filed on May 6, 2020;
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our
Current Report on Form 8-K, filed on May 11, 2020;
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our
Current Report on Form 8-K, filed on May 27, 2020;
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our
Current Report on Form 8-K, filed on June 8, 2020;
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our
Current Report on Form 8-K, filed on June 12,
2020;
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our Current Report
on Form 8-K, filed on June 26, 2020;
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our
Current Report on Form 8-K, filed on July 1, 2020;
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our
Current Report on Form 8-K, filed on July 6, 2020;
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our
Current Report on Form 8-K, filed on July 15, 2020;
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our
Current Report on Form 8-K, filed on July 28, 2020, as amended July
29, 2020;
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our
Current Report on Form 8-K, filed on August 21, 2020;
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our
Current Report on Form 8-K, filed on September 30
2020;
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our
Current Report on Form 8-K, filed on November 18,
2020;
●
our
Current Report on Form 8-K, filed on November 27,
2020;
●
our
Current Report on Form 8-K, filed on December 30,
2020;
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our
Current Report on Form 8-K, filed on December 31, 2020;
and
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The description of our Common Stock contained in
the Registration Statement on Form 8-A filed pursuant to Section
12(b) of the Exchange Act on March 21, 2000, including any
amendment or report filed with the SEC for the purpose of updating
this description.
Until
such time that a post-effective amendment to this Registration
Statement has been filed which indicates that all securities
offered hereby have been sold or which deregisters all securities
remaining unsold at the time of such amendment, all documents
subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of
filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which is
also deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration
Statement.
Item
4.
Description of Securities.
Not
applicable
Item
5.
Interests of Named Experts and Counsel.
Not
applicable.
Item 6.
Indemnification of Directors and Officers
Our
certificate of incorporation and bylaws contain provisions relating
to the limitation of liability and indemnification of directors and
officers. Our certificate of incorporation provides that a director
will not be personally liable to us or our stockholders for
monetary damages for breach of fiduciary duty as a director, except
for liability:
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for any
breach of the director’s duty of loyalty to us or our
stockholders;
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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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under
Section 174 of the Delaware General Corporation Law (the
“DGCL ”);
or
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for any
transaction from which the director derived any improper personal
benefit.
Our
certificate of incorporation also provides that if the DGCL is
amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of
our directors will be eliminated or limited to the fullest extent
permitted by the DGCL.
Our bylaws provide that we will indemnify our
directors and officers to the fullest extent not prohibited by the
DGCL; provided, however,
that we may limit the extent of such
indemnification by individual contracts with our directors and
executive officers; and provided, further, that we are not required
to indemnify any director or executive officer in connection with
any proceeding (or part thereof) initiated by such person or any
proceeding by such person against us or our directors, officers,
employees or other agents unless:
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such
indemnification is expressly required to be made by
law;
●
the
proceeding was authorized by the Board of Directors;
or
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such
indemnification is provided by us, in our sole discretion, pursuant
to the powers vested in us under the DGCL.
Our
bylaws provide that we shall advance, prior to the final
disposition of any proceeding, promptly following request therefor,
all expenses by any director or executive officer in connection
with any such proceeding upon receipt of any undertaking by or on
behalf of such person to repay said amounts if it should be
determined ultimately that such person is not entitled to be
indemnified under Article XIII of our bylaws or otherwise.
Notwithstanding the foregoing, unless otherwise determined, no
advance shall be made by us if a determination is reasonably and
promptly made by the Board of Directors by a majority vote of a
quorum of directors who were not parties to the proceeding, or if
such a quorum is not obtainable, or even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in
a written opinion, that the facts known to the decision-making
party at the time such determination is made demonstrate clearly
and convincingly that such person acted in bad faith or in a manner
that such person did not believe to be in or not opposed to our
best interests.
Our
bylaws also authorize us to purchase insurance on behalf of any
person required or permitted to be indemnified pursuant to Article
XIII of our bylaws.
Section
145(a) of the DGCL authorizes a corporation to indemnify any person
who was or is a party, or is threatened to be made a party, to a
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation), by reason of
the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action,
suit or proceeding, if the person acted in good faith and in a
manner the person reasonably believed to be in, or not opposed to,
the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
the person’s conduct was unlawful.
Section
145(b) of the DGCL provides in relevant part that a corporation may
indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit
by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that the person is or was a director,
officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust
or other enterprise against expenses (including attorneys’
fees) actually and reasonably incurred by the person in connection
with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation
and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action
or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
The
DGCL also provides that indemnification under Section 145(d) can
only be made upon a determination that indemnification of the
present or former director, officer or employee or agent is proper
in the circumstances because such person has met the applicable
standard of conduct set forth in Section 145(a) and
(b).
Section
145(g) of the DGCL also empowers a corporation to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any
such capacity, or arising out of such person’s status as
such, whether or not the corporation would have the power to
indemnify such person against such liability under Section 145 of
the DGCL.
Section
102(b)(7) of the DGCL permits a corporation to provide for
eliminating or limiting the personal liability of one of its
directors for any monetary damages related to a breach of fiduciary
duty as a director, as long as the corporation does not eliminate
or limit the liability of a director for acts or omissions which
(1) which breached the director’s duty of loyalty to the
corporation or its stockholders, (2) which were not in good faith
or which involve intentional misconduct or knowing violation of
law, (3) under Section 174 of the DGCL; or (4) from which the
director derived an improper personal benefit.
We
have obtained directors’ and officers’ insurance to
cover our directors and officers for certain
liabilities.
Item 7.
Exemption from Registration Claimed
Not
applicable.
Item 8.
Exhibits
Exhibit No.
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Document Description
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Incorporation by Reference
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Opinion
of Disclosure Law Group, a Professional Corporation.
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Filed
herewith.
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ImageWare Systems,
Inc. 2020 Omnibus Equity Incentive Plan
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Incorporated by
reference from the Registrant’s Definitive Proxy Statement,
filed with the SEC on
April 30, 2020, and as revised on
May 1, 2020.
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Consent
of Mayer Hoffman McCann
P.C.
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Filed
herewith.
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Consent
of Disclosure Law Group, a Professional Corporation.
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Included in Exhibit
5.1.
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Power
of Attorney
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Included in the
signature page of this Registration Statement
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Item 9.
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; and
(ii) To
reflect in the prospectus any facts or events arising after the
effective date of this 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; and
(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; and
(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; and
(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.
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the Company
pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act that are incorporated by reference in the Registration
Statement.
(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 Exchange Act (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by
reference in this 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 SEC such
indemnification is against public policy as expressed in the
Securities 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 Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
city of San Diego, State of California, on January 6,
2021.
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ImageWare Systems, Inc.
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By: /s/ Kristin
Taylor.
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Kristin Taylor
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Chief Executive Officer
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KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kristin Taylor and Jonathan
Morris, and each one of them, as his or her true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in their name,
place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and to sign any registration statement for
the same offering covered by this registration statement that is to
be effective on filing pursuant to Rule 462(b) under the Securities
Act of 1933, as amended, and all post-effective amendments thereto,
and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of
them, or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
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Signature
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Title(s)
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Date
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/s/ Kristin
Taylor
Kristin
Taylor
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Chief
Executive Officer, Principal Financial and Accounting Officer, and
Director
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January 6, 2021
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/s/ Douglas
Morgan
Douglas
Morgan
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Director
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January 6, 2021
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/s/ James
Demitrieus
James
Demitrieus
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Director
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January 6, 2021
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