Attached files
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| 8-K - Orchard Enterprises, Inc. | v177705_8k.htm |
Exhibit
2.1
AMENDMENT
NO. 1 TO
AGREEMENT
AND PLAN OF MERGER
THIS
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this “Amendment”), is dated as of
March 16, 2010, among The Orchard Enterprises, Inc., a Delaware corporation (the
“Company”), Dimensional
Associates, LLC, a New York limited liability company (“Dimensional”), and Orchard
Merger Sub, Inc., a Delaware corporation (“Merger Sub”).
RECITALS
WHEREAS,
the Company, Dimensional and Merger Sub are parties to that certain Agreement
and Plan of Merger, dated as of March 15, 2010 (the “Merger Agreement”);
and
WHEREAS,
the Company, Dimensional and Merger Sub desire to amend the Merger Agreement in
accordance with the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the premises, and of the representations,
warranties, covenants and agreements contained herein, the parties hereto agree
as follows:
ARTICLE
I
1.1 Amendment. The
lead in language of Section 8.1 of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
“ 8.1 Conditions to Each Party's
Obligation to Effect the Merger. The respective obligation of
each party to effect the Merger is subject to the satisfaction or waiver
(provided that Section 8.1(a) may not be waived) at or prior to the Effective
Time of each of the following conditions:”
ARTICLE
II
MISCELLANEOUS
2.1 Counterparts. This
Amendment may be executed in any number of counterparts, each such counterpart
being deemed to be an original instrument, and all such counterparts shall
together constitute the same agreement.
2.2 Governing Law and
Venue. This
Amendment shall be deemed to be made in and in all respects shall be
interpreted, construed and governed by and in accordance with the Law of the
State of Delaware without regard to the conflicts of Law principles
thereof.
2.3 Severability. The
provisions of this Amendment shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of
this Amendment, or the application thereof to any Person or any circumstance, is
invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision,
and (b) the remainder of this Amendment and the application of such
provision to other Persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
[Signatures
on Next Page]
-2-
IN
WITNESS WHEREOF, this Amendment has been duly executed and delivered by the duly
authorized officers of the parties hereto as of the date first written
above.
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THE
ORCHARD ENTERPRISES, INC.
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By:
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/s/
Brad Navin
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Name:
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Brad
Navin
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Title:
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Chief
Executive Officer
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DIMENSIONAL
ASSOCIATES, LLC
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By:
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JDS
Capital, L.P., its Manager
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By:
JDS Capital Management, LLC,
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its
General Partner
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By:
/s/
Joseph D. Samberg
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Name: Joseph D. Samberg
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Title: Managing Member
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ORCHARD
MERGER SUB, INC.
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By:
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/s/
Daniel C. Stein
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Name:
Daniel C. Stein
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Title:
President
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[Signature
Page to Amendment]