FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
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”).
Recitals
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.
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 Agreement to be rescinded following consummation, (iii)
adversely affect the right of Parent to own the capital stock of Surviving Corporation and to
control Surviving Corporation and its Subsidiaries or (iv) adversely affect the
right of any of Surviving Corporation, together with its Subsidiaries, to own its assets and to
operate its business,”.
3. Amendment of Conditions to Target’s Obligation to Close. Section 6.2(c) 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, or (ii) cause any of the
transactions contemplated by this Agreement to be rescinded following consummation,”.
4. Amendment of Covenant Relating to Date of Special Meeting. The first sentence of
Section 5.4(b) of the Merger Agreement shall be deleted and inserted in lieu thereof shall be the
following sentence: “Target will call a special meeting of its stockholders (the “Special
Meeting”) to be held as soon as practicable (but in no event later than September 30, 2009) in
order that the stockholders of Target may consider and vote upon the adoption of this Agreement and
the approval of the Merger in accordance with the DGCL.”
5. Deletion of Condition (regarding Note Purchase Agreement) to Parent’s and Acquisition Sub’s
Obligation to Close. Section 6.1(n) of the Merger Agreement shall be deleted.
6. Deletion of Termination Right (regarding Note Purchase Agreement). Clause (iii) of
Section 7.1(b) of the Merger Agreement shall be deleted.
7. Amendment of Disclosure Schedule. The Disclosure Schedule shall be amended as set forth
on Exhibit A.
8. No Other Modifications. Except as expressly modified hereby, all other terms and
conditions of the Merger Agreement shall remain unchanged and in full force and effect and none of
the rights of the Parties under the Merger Agreement is or shall be deemed to be prejudiced by
reason of this Amendment.
9. References, Titles and Construction. References in the Merger Agreement to “this
Agreement,” “herein,” “hereby,” “hereunder” and words of similar import shall be deemed to include
the Merger Agreement as amended by this Amendment. Titles and section headings contained in this
Amendment are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Amendment. The Parties have participated jointly in the negotiation and
drafting of this Amendment. In the event an ambiguity or question of intent or interpretation
arises, this Amendment shall be construed as if drafted jointly by the Parties and no presumption
or burden of proof shall arise favoring or disfavoring a Party by virtue of the authorship of any
of the provisions of this Amendment.
10. Counterparts. This Amendment may be executed in one or more counterparts, (including
by means of facsimile or other electronic transmission), each of which shall be deemed an original
but all of which together will constitute one and the same instrument.
11. Governing Law. This Amendment shall be governed by and construed in accordance with
the domestic laws of the State of Delaware without giving effect to a choice or conflict of law
provision or rule (whether of the State of Delaware or another jurisdiction) that would cause the
application of the laws of a jurisdiction other than the State of Delaware.
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The Parties have executed this First Amendment to Agreement and Plan of Merger as of the date
first above written.
| PARENT: TOLMAR Holding, Inc., a Delaware corporation |
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| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
| ACQUISITION SUB: Project Z Acquisition Sub, Inc., a Delaware corporation |
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| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
| TARGET: Zila, Inc., a Delaware corporation |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Chairman and Chief Executive Officer | |||
[Signature Page to First Amendment to Merger Agreement]
