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EXHIBIT 2.2
FIRST AMENDMENT TO THE
AGREEMENT OF MERGER AND PLAN OF REORGANIZATION
The First Amendment dated as of August 18, 2000 (this "First
Amendment") by and among ImageWare Systems, Inc., a California corporation (the
"Company"), ITC Acquisition Corporation, a Delaware corporation ("Newco"), and
Imaging Technology Corporation, a Delaware corporation (the "Surviving
Corporation"), to the Agreement of Merger and Plan of Reorganization dated July
6, 2000 (the "Agreement"). Capitalized terms used herein and not otherwise
defined herein shall have the meanings set forth in the Agreement.
WHEREAS, the Company, Newco and the Surviving Corporation entered into
the Agreement, pursuant to which Newco was merged with and into the Surviving
Corporation and, upon the Merger, the outstanding shares of the Common Stock of
the Surviving Corporation were converted into the right to receive shares of the
Common Stock of the Company.
WHEREAS, the Company, Newco and the Surviving Corporation desire to
modify and amend certain sections of the Agreement, as more particularly
described below.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. AMENDMENT TO THE AGREEMENT. The Company, Newco and the Surviving
Corporation acknowledge and agree that the Agreement is hereby amended as
follows:
1.1 OPTIONS. Section 1.6(b) is deleted.
1.2 ESCROW. Section 1.10 of the Agreement is modified by
deleting "156,250" and replacing it with "62,500" and deleting "eighteen (18)
after the Closing Date" and replacing it with "the earlier of (i) twelve (12)
months after the Closing Date or (ii) the date of the first audited financial
statements containing combined operations for those items that would be expected
to be encountered in the audit process."
1.3 INDEMNIFICATION. Section 11.3 of the Agreement is modified
by adding, to the end of the last sentence of the section, the following: "or
any liability arising out of or resulting from any disclosure listed in
Disclosure Schedule 2.23 (Litigation)."
2. MISCELLANEOUS.
2.1 GOVERNING LAW. This First Amendment and all questions
relating to its validity, interpretation, performance and enforcement shall be
governed by and construed in accordance with the laws of the State of
California.
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2.2 RATIFICATION. The parties hereto hereby ratify and approve
the Agreement, as amended hereby, and the parties hereto acknowledge that all of
the terms and provisions of the Purchase Agreement as amended hereby, are and
remain in full force and effect.
2.3 COUNTERPARTS. This First Amendment may be executed in
facsimile counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment on the date first written above.
IMAGEWARE SYSTEMS, INC.
By:
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Name: S. James Miller, Jr.
Title: Chairman and
Chief Executive Officer
IMAGING TECHNOLOGY CORPORATION
By:
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Name: Charles Benz
Title: Chairman and
Chief Executive Officer
ITC ACQUISITION CORPORATION
By:
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Name: S. James Miller, Jr.
Title: Chairman and
Chief Executive Officer
[SIGNATURE PAGE TO FIRST AMENDMENT TO AGREEMENT AND PLAN OF
REORGANIZATION]
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SHAREHOLDERS:
ISI International
By:
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Its:
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Ronald Wilfert, an individual
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Steven Y. Handel, an individual
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Larry Loughrey, an individual
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Gary Zucker, an individual
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Tom Gilligan, an individual
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Steven M. Burnett, an individual
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Alan J. Nickerson, an individual
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Robert Costello, an individual
[SIGNATURE PAGE TO FIRST AMENDMENT TO AGREEMENT AND PLAN OF
REORGANIZATION]
