Exhibit 2.1
SECOND AMENDMENT TO AGREEMENT
AND PLAN OF MERGER
THIS SECOND AMENDMENT TO AGREEMENT AND PLAN OF
MERGER (this “Amendment”) is made effective as of
September 12, 2008, among Onstream Media Corporation, a Florida
corporation (“Parent’), Onstream Merger Corp., a
Delaware corporation (“Merger Sub”) and Narrowstep
Inc., a Delaware corporation (the
“Company”).
BACKGROUND
WHEREAS, the Parent, Merger Sub, the Company and
W. Austin Lewis IV are parties to that certain Agreement and Plan
of Merger, dated as of May 29, 2008 as amended August 13, 2008 (the
“Agreement”); and
WHEREAS, pursuant to Section 8.4 of the
Agreement, the Agreement may be amended by a written instrument
executed by parent, Merger Sub and the Company.
AGREEMENTS
NOW, THEREFORE, in consideration of the
foregoing and the mutual covenants and agreements contained herein,
and intending to be legally bound hereby, the parties hereto agree
as follows:
1. Exchange
Ratio . The third sentence of Section 1.6(a)(i) of the
Agreement is hereby amended by deleting the phrase “NINE
MILLION ONE HUNDRED THOUSAND (9,100,000)” and inserting
“EIGHT MILLION ONE HUNDRED THOUSAND (8,100,000)” in
lieu thereof.
2.
Operations . Notwithstanding anything to the
contrary contained in the Contingent Value Rights Agreement
(“CVR Agreement”), Parent may require Company to
promptly discontinue its European operations and the entity prior
to the Effective Time or Parent may terminate the Business of the
Surviving Corporation at any time prior to the third month
anniversary of the Effective Time, based solely upon Parent’s
evaluation of (i) the Company’s or the Surviving
Corporation’s, as the case may be, “cash burn
rate” and/or (ii) the terms and conditions of existing
provisions in certain identified contracts of Company or the
Surviving Corporation as the case may be. In the event
that the European operations and/or entity are discontinued prior
to the effective time as a result of Parent’s directives, (i)
the first sentence of Section 4.1(c) of the CVR Agreement shall be
amended by deleting t
