**Exhibit 2.1**

 

**FIRST AMENDMENT TO THE**

 

**AGREEMENT AND PLAN OF MERGER**

 

THIS FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER (this “Amendment”),is dated as of October 5, 2004, by and between TROY GROUP, INC., a Delawarecorporation (the “Company”), and DIRK, INC., a Delaware corporation (“Mergerco”).  Capitalized terms used herein and nototherwise defined herein have the meanings set forth in the Merger Agreement(as defined below).

 

W I T N E S S E T H:

 

WHEREAS,Mergerco and the Company executed an Agreement and Plan of Merger, dated as ofMay 26, 2004 (the “Merger Agreement”), providing for the merger of Mergercowith and into the Company upon the terms and subject to the conditions of theMerger Agreement.

 

WHEREAS,pursuant to Section 9.2 of the Merger Agreement, the parties hereto wish toamend the Merger Agreement as provided herein:

 

NOW, THEREFORE,in consideration of the covenants, promises, representations and warranties setforth herein, and for other good and valuable consideration (the receipt andsufficiency of which are hereby acknowledged by the parties), intending to belegally bound hereby, the parties agree as follows:

 

1.             Section 8.1(b) ofthe Merger Agreement is hereby amended and restated in its entirety as setforth below:

 

“(b)         byeither Mergerco or the Company (acting through the Special Committee) if theMerger has not been consummated on or before December 31, 2004; provided,however, that the party wishing to terminate under this Section 8.1(b) has notbreached in any material respect its obligations under this Agreement in anymanner that was the proximate cause of, or resulted in, the failure toconsummate the Merger by such date”

 

2.             Other than withrespect to Section 8.1(b) of the Merger Agreement, this Amendment does notmodify, change or delete any other addendum, term, provision, representation,warranty or covenant (the “Provisions”) relating to or contained in the MergerAgreement, and all such Provisions shall remain in full force and effect.

 

3.             This Amendmentshall be construed in accordance with and shall be governed by the laws of theState of Delaware, without regard to its laws as to conflict of laws.

 

4.             This Amendment maybe executed in one or more counterparts, each of which shall be deemed to be anoriginal, but all of which together shall constitute one and the sameinstrument.

 

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IN WITNESSWHEREOF, Mergerco and the Company have caused this Amendment to be signed bytheir duly authorized representatives, all as of the date first written above.

 

 
|   | TROY GROUP, INC., a Delaware corporation |
|--------|------------------------------------------|
|   |                                     |
|   | By:                                      | /s/ Stephen G. Holmes |   |
|   |                                     | Stephen G. Holmes, Chairman, Special |
|   |                                     | Committee of Board of Directors |
|   |                                     |
|   |                                     |
|   | DIRK, INC, a Delaware Corporation        |
|   |                                     |
|   | By:                                      | /s/ Patrick J. Dirk |   |
|   |                                     | Patrick J. Dirk, President |

 

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