Attached files
Exhibit
3.3
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. SUCH
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
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Dated:
________, 2018
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Warrant Number: CSW-___
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WARRANT TO PURCHASE
COMMON STOCK
OF
IMAGEWARE SYSTEMS, INC.
This
certifies that ___________________________,
or its permitted assigns (each a “Holder”), for value received, is
entitled to purchase, at an exercise price equal to $0.01 per share
(the “Exercise
Price”) from IMAGEWARE SYSTEMS, INC., a Delaware
corporation (the “Company”), up to
_______________________ (_____) shares of fully paid and
nonassessable shares of the Company’s Common Stock, par value
$0.01 per share (“Common
Stock”). This Warrant is being issued as a special
dividend to the holders of the Company’s Series A Convertible
Preferred Stock, par value $0.01 per share (“Series A Preferred”), of record
as of [_____], 2018.
This
Warrant shall be exercisable from time to time, commencing on the
date hereof (the “Issuance
Date”) and ending on the Expiration Date (as defined
below), upon surrender to the Company at its principal office (or
at such other location as the Company may advise the Holder in
writing) of this Warrant properly endorsed with (i) the Notice
of Exercise attached hereto duly completed and executed and
(ii) payment of the aggregate Exercise Price for the number of
shares for which this Warrant is being exercised determined in
accordance with the provisions hereof. Any such exercise of this
Warrant shall be subject to all of the terms, conditions and
limitations set forth herein.
1. Exercise
of Warrant. This Warrant may only be exercised by the Holder
concurrently with the conversion of shares of Series A Preferred
held by the Holder into shares of Common Stock (whether such
conversion is voluntary or mandatory), such exercise to be made for
[___] shares of Common Stock for each share of Series A Preferred
that is converted by the Holder (such number of shares of Common
Stock per share of Series A Preferred, as adjusted pursuant to
Section 4 hereof, the “Conversion Rate”). Except as set
forth in the immediately preceding sentence, the Holder shall not
be entitled to exercise this Warrant at other any time or under any
other circumstances. If the Holder fails to exercise this Warrant
concurrently with the conversion of any shares of Series A
Preferred held by the Holder into shares of Common Stock, then the
number of shares of Common Stock issuable upon exercise of this
Warrant shall be reduced by a number of shares of Common Stock
equal to the product of the Conversion Rate and the number of
shares of Series A Preferred so converted, such reduction to occur
concurrently with such conversion of such shares of Series A
Preferred without any further action on the part of, or notice to,
any person or entity. The Holder shall not receive any payment,
distribution or any other amount in respect of any such reduction
of the number of shares of Common Stock issuable upon exercise of
this Warrant contemplated by the immediately preceding sentence.
Shares of Common Stock issuable upon conversion of the
Holder’s shares of Series A Preferred are referred to herein
as “Conversion
Shares.” For the avoidance of doubt, the Holder may
not elect to exercise this Warrant except in connection with the
Holder’s simultaneous conversion of Series A Preferred into
Conversion Shares.
1.1 Method
of Exercise. The Holder hereof may exercise this Warrant, in
whole or in part, by the surrender of this Warrant (with the Form
of Subscription attached hereto duly completed and executed) at the
principal office of the Company, and by the payment to the Company
of an amount of consideration therefor equal to the Exercise Price
in effect on the date of such exercise multiplied by the number of
shares of Common Stock with respect to which this Warrant is then
being exercised, payable at such Holder’s election by
certified or official bank check or by
wire transfer to an account designated by the Company. If
this Warrant should be exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and
deliver a new Warrant evidencing the right of the Holder to
purchase the balance of the shares of Common Stock purchasable
hereunder (subject to any reduction in the number of shares of
Common Stock purchasable hereunder contemplated in the immediately
preceding paragraph).
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2. Term
of Warrant. This Warrant shall expire upon the earliest to
occur of (i) the conversion of all Series A Preferred held by the
Holder into Conversion Shares, (ii) the redemption by the Company
of all shares of Series A Preferred held by the Holder, (iii) this
Warrant no longer representing the right to purchase any shares of
Common Stock (including as a result of a reduction of the number of
shares of Common Stock issuable upon exercise of this Warrant
contemplated in Section 1 or Section 2.1), and (iv) [______], 2028
(the “Expiration
Date”). Upon expiration of this Warrant, all of the
Holder’s rights hereunder shall terminate.
2.1 Effect
of Redemption by the Company of Series A Preferred. In the
event the Company exercises its right to redeem any shares of
Series A Preferred held by the Holder pursuant to Section 7 of the
Certificate of Designations, Preferences and Rights of Series A
Preferred (the “Certificate
of Designations”), then the number of shares of Common
Stock issuable upon exercise of this Warrant shall be reduced by a
number of shares of Common Stock equal to the product of the
Conversion Rate and the number of shares of Series A Preferred so
redeemed, such reduction to occur concurrently with such redemption
of such shares of Series A Preferred without any further action on
the part of, or notice to, any person or entity. The Holder shall
not receive any payment, distribution or any other amount in
respect of any such reduction of the number of shares of Common
Stock issuable upon exercise of this Warrant contemplated by the
immediately preceding sentence.
3.
Shares to be Fully Paid;
Reservation of Shares. The Company covenants and agrees that
all shares of Common Stock which may be issued upon the exercise of
the rights represented by this Warrant will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable and free
from all preemptive rights of any shareholder and free of all
taxes, liens and charges with respect to the issue thereof. The
Company further covenants and agrees that during the period within
which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized and reserved, for the
purpose of issue or transfer upon exercise of the subscription
rights evidenced by this Warrant, a sufficient number of shares of
authorized but unissued shares of Common Stock.
4.
Adjustment of Conversion
Rate and Number of Shares. The Conversion Rate and the
number of shares of Common Stock purchasable upon the exercise of
this Warrant shall be subject to adjustment from time to time upon
the occurrence of certain events described in this Section
4.
4.1
Subdivision or Combination
of Stock. In case the Company shall at any time subdivide
its outstanding shares of Common Stock into a greater number of
shares, then each of the Conversion Rate and the number of shares
of Common Stock purchasable upon the exercise of this Warrant, each
in effect immediately prior to such subdivision, shall be
proportionately increased. In case the Company shall combine its
outstanding shares of Common Stock into a smaller number of shares
of Common Stock, then each of the Conversion Rate and the number of
shares of Common Stock purchasable upon the exercise of this
Warrant, each in effect immediately prior to such subdivision,
shall be proportionately decreased.
4.2
Reclassification.
If any reclassification of the capital stock of the Company shall
be effected in such a way that holders of Common Stock shall be
entitled to receive stock, securities, or other assets or property,
then, as a condition of such reclassification, lawful and adequate
provisions shall be made whereby the Holder hereof shall thereafter
have the right to purchase and receive (in lieu of the shares of
the Common Stock immediately theretofore purchasable and receivable
upon the exercise of the rights represented hereby) such shares of
stock, securities or other assets or property as may be issued or
payable with respect to or in exchange for a number of outstanding
shares of such Common Stock equal to the number of shares of such
Common Stock immediately theretofore purchasable and receivable
upon the exercise of the rights represented hereby. In any
reclassification described above, appropriate provision shall be
made with respect to the rights and interests of the Holder of this
Warrant to the end that the provisions hereof (including, without
limitation, provisions for adjustments of the Conversion Rate and
of the number of shares purchasable and receivable upon the
exercise of this Warrant) shall thereafter be applicable, as nearly
as may be, in relation to any shares of stock, securities or assets
thereafter deliverable upon the exercise hereof.
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4.3
Notice of
Adjustment. Upon any adjustment of the Conversion Rate or
any increase or decrease in the number of shares purchasable upon
the exercise of this Warrant, the Company shall give written notice
thereof, by first class mail postage prepaid, addressed to the
registered Holder of this Warrant at the address of such Holder as
shown on the books of the Company. The notice shall be signed by
the Company’s chief financial officer and shall state the
Conversion Rate resulting from such adjustment and the increase or
decrease, if any, in the number of shares purchasable at such price
upon the exercise of this Warrant, setting forth in reasonable
detail the method of calculation and the facts upon which such
calculation is based.
4.4
Other Notices. If
at any time:
(1)
the Company shall declare any cash dividend upon its Common
Stock;
(2)
there shall be a voluntary or involuntary dissolution, liquidation
or winding-up of the Company; or
(3)
the Company elects to redeem all or a portion of the Series A
Preferred in accordance with Section 7 of the Certificate of
Designations (a “Redemption”);
then,
in any one or more of said cases, the Company shall give, either by
electronic mail or by first class mail, postage prepaid, addressed
to the Holder of this Warrant at the address of such Holder as
shown on the books of the Company, (a) at least twenty (20) days
prior written notice of the date on which the books of the Company
shall close or a record shall be taken for such dividend, (b) in
the case of a dissolution, liquidation or winding-up, at least ten
(10) days prior written notice of the date when the same shall take
place or (c) in the case of a Redemption, at least ten (10) days
prior written notice of the date when the same shall take place;
provided, however, that the
Holder shall make a best efforts attempt to respond to such notice
as early as possible after the receipt thereof. Any notice given in
accordance with the foregoing clause (a) shall also specify, in the
case of any such dividend, the date on which the holders of Common
Stock shall be entitled thereto. Any notice given in accordance
with the foregoing clause (b) shall also specify the date on which
the holders of Common Stock shall be entitled to exchange their
Common Stock for securities or other property deliverable upon such
dissolution, liquidation, winding-up, or conversion, as the case
may be. Any notice given in accordance with the foregoing clause
(c) shall also specify the date on which such Redemption shall take
place, the number of shares of Series A Preferred to be redeemed,
and the corresponding number of Warrants to be terminated at the
time of such Redemption.
5.
No Voting or Dividend
Rights. Nothing contained in this Warrant shall be construed
as conferring upon the Holder hereof the right to vote or to
consent to receive notice as a shareholder of the Company or any
other matters or any rights whatsoever as a shareholder of the
Company. No dividends or interest shall be payable or accrued in
respect of this Warrant or the interest represented hereby or the
shares purchasable hereunder until, and only to the extent that,
this Warrant shall have been exercised.
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6.
Transfer of
Warrants. If the Holder shall sell, assign or otherwise
transfer any shares of Series A Preferred held by the Holder, then
a portion of this Warrant representing the right to purchase a
number of shares of Common Stock equal to the product of the
Conversion Rate and the number of shares of Series A Preferred so
sold, assigned or transferred shall be transferred to the
purchaser, assignee or transferee of such shares of Series A
Preferred Stock. Any such transfer of this Warrant (or the
applicable portion hereof) described in the immediately preceding
sentence shall occur concurrently with the sale, assignment or
other transfer of the applicable shares of Series A Preferred,
without any further action on the part of, or notice to, any person
or entity. Except for an assignment of this Warrant (or any portion
hereof) contemplated by this Section 6, this Warrant shall not be
assigned, pledged, sold, encumbered, transferred or otherwise
disposed of by the Holder, either voluntarily or by operation of
law, and any such attempted assignment, pledge, sale, encumbrance,
transfer or other disposition of this Warrant, other than in
accordance with the terms set forth in this Section 6, shall be
null and void, and of no effect.
7.
Lost Warrants. Upon
receipt of evidence reasonably satisfactory to the Company of the
loss, theft, destruction, or mutilation of this Warrant and, in the
case of any such loss, theft or destruction, upon receipt of an
indemnity reasonably satisfactory to the Company, or in the case of
any such mutilation upon surrender and cancellation of this
Warrant, the Company, at its expense, will make and deliver a new
Warrant, of like tenor, in lieu of the lost, stolen, destroyed or
mutilated Warrant.
8.
Modification and
Waiver. Any term of this Warrant may be amended and the
observance of any term of this Warrant may be waived (either
generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the Company
and the Holder hereof. Any amendment or waiver affected in
accordance with this Section 8 shall be binding upon the Company
and the Holder.
9.
Notices. All
notices and other communications from the Company to the Holder, or
vice versa, shall be deemed delivered and effective when given
personally, delivered via electronic mail or mailed by first-class
registered or certified mail, postage prepaid, at such address as
may have been furnished to the Company or the Holder, as the case
may be, in writing by the Company or such holder from time to
time.
10.
Titles and Subtitles;
Governing Law; Venue. The titles and subtitles used in this
Warrant are used for convenience only and are not to be considered
in construing or interpreting this Warrant. This Warrant is to be
construed in accordance with and governed by the internal laws of
the State of California without giving effect to any choice of law
rule that would cause the application of the laws of any
jurisdiction other than the internal laws of the State of
California to the rights and duties of the Company and the Holder.
All disputes and controversies arising out of or in connection with
this Warrant shall be resolved exclusively by the state and federal
courts located in San Diego in the State of California, and each of
the Company and the Holder hereto agrees to submit to the
jurisdiction of said courts and agrees that venue shall lie
exclusively with such courts.
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IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its officers, thereunto duly authorized as of the date
first above written.
ImageWare Systems,
Inc.
By:
S.
James Miller
Chief
Executive Officer
[Signature
Page To Warrant]
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FORM OF SUBSCRIPTION
(To be
signed only upon exercise of Warrant)
To:
IMAGEWARE SYSTEMS, INC.
The
undersigned, the holder of a right to purchase shares of Common
Stock of ImageWare Systems, Inc. (the “Company”) pursuant to that
certain Warrant to Purchase Common Stock of ImageWare Systems, Inc.
number _____ (the “Warrant”), dated as of
____________ hereby irrevocably elects to exercise the purchase
right represented by such Warrant for, and to purchase thereunder,
__________________________ (_________) shares of Common Stock of
the Company and herewith makes payment of ________________________
Dollars ($__________) therefor in cash.
The
undersigned represents that it is acquiring such securities for its
own account for investment and not with a view to or for sale in
connection with any distribution thereof.
DATED:
________________
____________________________
By:
Name:
Its:
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ACKNOWLEDGMENT
To:
HOLDER
The
undersigned hereby acknowledges that as of the date hereof,
__________________ (___________) shares of Common Stock remain
subject to the right of purchase in favor of _____________ pursuant
to that certain Warrant to Purchase Common Stock of ImageWare
Systems, Inc., number ___ dated as of ____________.
DATED:
________________
ImageWare
Systems, Inc.
By:
Name:
Its:
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Warrant Receipt
The
undersigned, ___________________, does hereby acknowledge receipt
of Warrant number _____ dated, ________________, representing
_____________ (________) shares of the Common Stock Warrants of
ImageWare Systems, Inc.
IN
WITNESS WHEREOF, the undersigned has executed this Receipt as of
the date set forth below.
Type:
Common Stock
Warrants
Warrant Number:
______
Number
of Shares:
Name:
Date:
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