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Exhibit 2.1
AMENDMENT NO.
1
TO
SECOND AMENDED AND
RESTATED AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1, dated
as of November 7, 2007 (this “Amendment”), amends
the Second Amended and Restated Agreement and Plan of Merger (the
“Merger Agreement”), dated as of October 5, 2007,
by and among The Orchard Enterprises Inc., a New York corporation
(the “Orchard”), Digital Music Group, Inc., a Delaware
corporation (“DMGI”), and DMGI New York, Inc., a New
York corporation (“Merger Sub”).
WHEREAS, the Boards of
Directors of the Orchard, DMGI and Merger Sub have determined that
it is in the best interests of their respective companies and their
stockholders to consummate the strategic business combination
transaction provided for in the Merger Agreement, pursuant to which
Merger Sub will, subject to the terms and conditions set forth in
the Merger Agreement, merge with and into the Orchard (the
“Merger”), so that the Orchard is the surviving
corporation in the Merger; and
WHEREAS, to that end, the
parties entered into that certain Agreement and Plan of Merger,
dated as of July 10, 2007, as amended by that certain Amended
and Restated Agreement and Plan of Merger, dated as of
September 13, 2007, as further amended by the Merger
Agreement; and
WHEREAS, the parties now
desire to further amend certain provisions of the Merger Agreement
as set forth herein; and
WHEREAS, for Federal income
tax purposes, it is intended by the Orchard, DMGI and Merger Sub
that the Merger shall qualify as a “reorganization”
within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended, and that the Merger Agreement and this
Amendment shall constitute a “plan of reorganization”
within the meaning of Treasury Regulation
Section 1.368-2(g).
NOW, THEREFORE, in
consideration of the mutual covenants, representations, warranties
and agreements contained herein, and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknow
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