AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER

Exhibit 2.6

AMENDMENT NO. 2

TO

AGREEMENT AND PLAN OF MERGER

This AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER (this “Amendment”) is made as of April 19, 2019, by and among AquaMed Technologies, Inc., a Delaware corporation (“Parent”), AQ TOP, LLC, a Delaware limited liability company (“Merger Sub”), and TO Pharmaceuticals LLC, a Delaware limited liability company (“Company”). Parent, Merger Sub and Company are sometimes referred to herein individually as a “Party” and collectively as the “Parties.” Capitalized terms used but not defined herein shall have the meanings assigned to them in the Original Agreement (defined below).

RECITALS

WHEREAS, Parent, Merger Sub and Company are parties to that certain Agreement and Plan of Merger, dated as of November 27, 2018 (including the exhibits and schedules attached thereto, the “Merger Agreement”);

WHEREAS, on January 8, 2019, Parent, Merger Sub and Company entered into Amendment No. 1 to Agreement and Plan of Merger (“Amendment No. 1”, and, the Merger Agreement, as amended by Amendment No. 1, the “Original Agreement”)

WHEREAS, the Parties desire to amend and restate Section 8.1(b) of the Original Agreement and amend Exhibit C to the Original Agreement as provided herein;

WHEREAS, the Board of Managers of the Company and the Board of Directors of the Parent have each previously approved this Amendment; and

WHEREAS, the Parties constitute all of the parties required to amend the Original Agreement in accordance with Section 9.2 thereof as provided herein.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. Amendments to the Original Agreement.

A. Section 8.1(b) of the Original Agreement is hereby amended and restated in its entirety as follows: “by either Parent or the Company if the Merger shall not have been consummated by June 10, 2019 (the “End Date”)”.

B. Section 7.1(b) of Exhibit C to the Original Agreement is hereby amended and restated in its entirety as follows: “by Alliqua if the Closing has not taken place on or before June 10, 2019 (other than as a result of any failure on the part of Alliqua to comply with or perform its covenants and obligations under this Agreement);”

C. Section 7.1(c) of Exhibit C to the Original Agreement is hereby amended and restated in its entirety as follows: “by AquaMed if the Closing has not taken place on or before June 10, 2019 (other than as a result of any failure on the part of AquaMed to comply with or perform any covenant or obligation set forth in this Agreement);”

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2. Effect of Amendments. Except as amended as set forth above, the Original Agreement shall continue in full force and effect. Nothing in this Amendment shall be construed to modify any provision of the Original Agreement other than as specifically amended as set forth above. The Original Agreement, as amended hereby, remains in full force and effect. Any reference to the Original Agreement contained in the Original Agreement shall, from and after the date hereof, be deemed to refer to the Original Agreement as amended hereby. The Original Agreement, as amended by this Amendment, represents the entire understanding and agreement of the Parties with respect to the subject matter of this Amendment, supersedes all prior negotiations between the Parties, and may not be amended, supplemented, or changed orally but only by an agreement in writing signed by the Party or Parties against whom enforcement is sought and making specific reference to this Amendment. If there are any conflicts between this Amendment and the Original Agreement, then this Amendment will govern and control.

3. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts made and performed in such State, without reference to such State’s or any other state’s or other jurisdiction’s principles of conflict of laws.

4. Binding Effect. This Amendment shall be binding upon and shall inure to the benefit of the Parties and their respective successors, heirs, executors, administrators, legal representatives, and permitted assigns.

5. Counterparts. This Amendment may be executed in multiple counterparts, each of which will be deemed to be an original copy of this Amendment and all of which, when taken together, will be deemed to constitute one and the same agreement. In the event that a signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” or other electronic format data file, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile, “.pdf,” or other electronic format signature page were an original thereof.

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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the Parties as of the date first written above.

	PARENT:
	AQUAMED TECHNOLOGIES, Inc.
	By:	/s/ Xxxxx X. Xxxxxxx
	Name:	Xxxxx X. Xxxxxxx
	Title:	Chief Executive Officer
	merger sub:
	AQ TOP, LLC
	By:	/s/ Xxxxx X. Xxxxxxx
	Name:	Xxxxx X. Xxxxxxx
	Title:	Chief Executive Officer
	company:
	TO PHARMACEUTICALS LLC
	By:	/s/ Xxxx Xxxxxxx
	Name:	Xxxx Xxxxxxx
	Title:	Chief Executive Officer

Signature Page to

Amendment No. 2 to Agreement and Plan of Merger

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