EXHIBIT 2.1
AMENDMENT NO. 1 TO AGREEMENT AND
PLAN OF MERGER
AMENDMENT NO. 1 TO AGREEMENT AND
PLAN OF MERGER , dated as
of June 1, 2009 (this “ Amendment ”), by
and among Alesco Financial Inc., a Maryland corporation (“
AFN ”), Fortune Merger Sub, LLC, a Delaware limited
liability company and a wholly owned subsidiary of AFN (“
Fortune ”), Cohen Brothers, LLC, a Delaware limited
liability company (d/b/a Cohen & Company) (“
C&C ”), and, as assignee of Fortune, Alesco
Financial Holdings, LLC, a wholly owned subsidiary of AFN (“
New Merger Sub ”).
BACKGROUND
WHEREAS, AFN, Fortune and C&C
entered into an Agreement and Plan of Merger, dated as of
February 20, 2009 (the “ Merger Agreement
”), which provides for the merger of Fortune with and into
C&C, with C&C as the surviving limited liability company
(the “ Merger ”);
WHEREAS, pursuant to
Section 8.7 of the Merger Agreement, Fortune desires to
assign to New Merger Sub, and New Merger Sub desires to accept and
perform, all of Fortune’s rights, interests and obligations
under the Merger Agreement;
WHEREAS, the parties to the Merger
Agreement agreed that the obligation of AFN and Fortune to effect
the Combination is subject to the satisfaction or waiver on or
prior to the Closing Date of certain conditions;
WHEREAS, the parties desire to amend
two of these conditions;
WHEREAS, the board of managers of
New Merger Sub has, by resolutions duly adopted, approved the
Merger Agreement and determined that the Merger Agreement is
advisable;
WHEREAS, the board of directors of
AFN, a special committee of the board of directors of AFN and the
boards of managers of Fortune and New Merger Sub have, by
resolutions duly adopted, approved this Amendment and determined
that this Amendment is advisable; and
WHEREAS, the board of managers of
C&C has, by resolutions duly adopted, approved this Amendment
and determined that this Amendment is advisable.
NOW, THEREFORE, in consideration of
the foregoing and the representations, warranties, covenants and
agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
AMENDMENT OF MERGER
AGREEMENT
1.1
Assignment . Pursuant to Section 8.7 of the
Merger Agreement, Fortune hereby assigns to New Merger Sub, and New
Merger Sub hereby accepts and agrees to perform, all of
Fortune’s rights, interests and obligations under the Merger
Agreement. C&C and AFN hereby consent to such assignment. All
references to “Merger Sub” in the Merger Agreement
shall hereinafter refer to New Merger Sub.
1.2
Transfer of Assets and Liabilities .
(a)
Section 1.1(a)(i) of the Merger Agreement is hereby
amended and restated in its entirety to read as follows:
“Except as set forth in
Schedule 1.1 , AFN shall contribute to Merger Sub all of the
assets and liabilities of AFN not already owned, directly or
indirectly, by Merger Sub prior to the Effective Time (the “
Contribution ”).”
(b)
Schedule 1.1 of the Merger Agreement is attached hereto as
Annex A .
1.3
Organizational Documents .
(a)
Section 1.3 of the Merger Agreement is hereby amended
and restated in its entirety to read as follows:
“ Organizational
Documents . At the Effective Time, (i) the certificate of
formation of C&C as in effect immediately prior to the
Effective Time shall be the certificate of formation of the C&C
Surviving Company until amended in accordance with the DLLCA; and
(ii) the limited liability company operating agreement of
Merger Sub, substantially in the form attached hereto as Exhibit C,
as in effect immediately prior to the Effective Time shall be the
limited liability company operating agreement of the C&C
Surviving Company and shall be amended promptly following the
Closing to identify the recipients of New C&C Units and the
percentage interests represented by such New C&C Units. Such
operating agreement shall remain in effect until further amended in
accordance with the DLLCA.”
(b) The
limited liability company operating agreement of Merger Sub as set
forth on Exhibit C to the
