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EXHIBIT 2.2
FIRST AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION
This First Amendment (the "Amendment") to that certain Agreement and
Plan of Reorganization by and among hi/fn, inc. ("hi/fn"), Apptitude Acquisition
Corporation ("Sub") and Apptitude, Inc. ("Apptitude") dated as of May 12, 2000
(the "Merger Agreement"), is made as of May 31, 2000.
RECITALS
WHEREAS, since the date of the Merger Agreement (and the transactions
contemplated thereby, the "Merger"), the parties thereto have agreed to amend
the Merger Agreement,
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1. Modifications to the Merger Agreement:
(a) Section 1.11 of the Merger Agreement is hereby amended and
restated in its entirety to read as follows:
"1.11 The parties intend for the Merger to constitute a tax-free
forward triangular reorganization within the meaning of Section 368(a)(1)(A) and
Section 368(a)(2)(D) of the Code; provided, however, that if, as of the Closing,
the value of the number of shares of Parent Common Stock issuable in respect of
the Merger Shares and the Special Merger Consideration is less than the value of
the Cash Amount, as determined by Parent in its sole discretion, the parties
agree that the Merger will be structured as a taxable reverse triangular merger
whereby Merger Sub will be merged with and into the Company, with the Company as
the surviving corporation in the merger. If the Merger is restructured as a
taxable reverse triangular merger in accordance with this Section 1.11, then all
references in this Agreement to the "Merger" shall be deemed to refer to the
merger described in this Section 1.11; all references in this Agreement to the
"Agreement of Merger" shall be deemed to refer to an agreement of merger which
reflects the merger described in this Section 1.11; and all references in this
Agreement to the "Surviving Corporation" shall be deemed to refer to the
Company. The Merger will be treated as a purchase for financial accounting
purposes."
(b) Section 5.12 of the Merger Agreement is hereby deleted in
its entirety and replaced as follows:
"5.12 [Intentionally Omitted]"
(c) The following definitions in Section 9.1 of the Merger
Agreement are hereby deleted in their entirety:
"S-3 Indemnified Party" shall have the meaning set forth in Section
5.12 of this Agreement.
"S-3 Indemnifying Party" shall have the meaning set forth in Section
5.12 of this Agreement.
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"S-3 Registration" shall have the meaning set forth in Section 5.12 of
this Agreement.
(d) The Section 5.12 reference in the Table of Contents is
hereby deleted in its entirety and replaced as follows
"5.12 [Intentionally Omitted]"
2. Survival
Except as modified hereby, the Merger Agreement continues in full force
and effect, unmodified in any way.
3. Counterparts
This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same amendment.
(Remainder of Page Intentionally Left Blank)
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed and delivered as of the date first above written.
HI/FN, INC. APPTITUDE, INC.
By: /s/ WILLIAM WALKER By: /s/ CHRIS KENBER
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Name: William Walker Name: Chris Kenber
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Title: Secretary Title: CEO
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APPTITUDE ACQUISITION CORPORATION
Print: /s/ WILLIAM WALKER
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Name: William Walker
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Title: Secretary
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