FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This First
Amendment to Agreement and Plan of Merger (this “
Amendment ”), dated as of July 28, 2009, is among
TOLMAR Holding, Inc. , a Delaware corporation (“
Parent ”), Project Z Acquisition Sub, Inc. , a
Delaware corporation (“ Acquisition Sub ”), and
Zila, Inc. , a Delaware corporation (“ Target
”). Parent, Acquisition Sub and Target sometimes are referred
to collectively herein as the “ Parties .”
Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed thereto in that certain Agreement and Plan of
Merger, dated June 25, 2009, by and among the Parties (the
“ Merger Agreement ”).
A. The
Parties entered into the Merger Agreement, which contemplates a
transaction in which Parent will acquire all of Target’s
outstanding stock for cash through a reverse subsidiary merger of
Acquisition Sub with and into Target.
B. Per the
Merger Agreement, the consideration to be paid was $0.38 per share
of Target Common Stock and $0.44 per share of Target Series B
Convertible Preferred Stock.
C. Parent has
consummated the transactions contemplated under the Note Purchase
Agreement, including its purchase for cash of all of the Senior
Notes.
D. The
Parties desire to amend the Merger Agreement to, among other
things: (i) increase the per share consideration to be paid
for the Target Common Stock and the Target Series B
Convertible Preferred Stock,(ii) delete certain provisions relating
to the Note Purchase Agreement that are no longer necessary due to
Parent’s acquisition of the Senior Notes, and
(iii) amend certain conditions to their respective obligations
to consummate the transactions contemplated under the Merger
Agreement.
In consideration
of the representations, warranties, covenants and agreements
contained herein and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the Parties
agree as follows:
1. Amendment
of Per Share Merger Consideration . The reference to
“$0.38” in Section 2.4(e)(i) of the Merger Agreement
shall be deleted and inserted in lieu thereof shall be a reference
to “$0.45”. The reference to “$0.44” in
Section 2.4(e)(ii) of the Merger Agreement shall be deleted
and inserted in lieu thereof shall be a reference to
“$0.50”.
2.
Amendments of Conditions to Parent’s and Acquisition
Sub’s Obligation to Close . Section 6.1(h) of the Merger
Agreement shall be deleted and inserted in lieu thereof shall be
the following provision: “no injunction, judgment, order,
decree, ruling or charge shall be in effect that would
(i) prevent consummation of any of the transactions
contemplated by this Agreement, (ii) cause any of the
transactions contemplated by this Ag
