FIRSTAMENDMENT TO AGREEMENTAND PLAN OF MERGER DATEDAS OF SEPTEMBER 13, 2010 BYAND AMONG WILLIAMDEMANT HOLDING A/S OIMERGER SUB, INC. AND OTIXGLOBAL, INC. FIRST AMENDMENTTO AGREEMENT AND PLAN OFMERGER

 

 

 

 

 

 

 

 

 

 

 

This FIRST AMENDMENT (this “Amendment”) to the Agreement and Plan of Merger dated as of September 13, 2010 (the “Merger Agreement”) by and among William Demant Holding A/S (“Parent”), OI Merger Sub, Inc. (“Merger Sub”), and Otix Global, Inc. (the “Company”) is dated as of October 6, 2010.

WHEREAS, the parties entered into the Merger Agreement;

WHEREAS, the Company received a competing bid to purchase the Company following execution of the Merger Agreement;

WHEREAS, the parties desire to enter into this Amendment to the Merger Agreement to increase the Merger Consideration and eliminate certain conditions to the closing of the transaction contemplated by the Merger Agreement.

NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements contained in the Merger Agreement and this Amendment, and such other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, on the terms and subject to the conditions set forth in this Amendment, and intending to be legally bound hereby, Parent, Merger Sub and the Company hereby agree as follows:

The Merger Agreement is hereby amended as follows:

1.

In Section 2.07(a), the figure “$8.60” is replaced with “$10.00”.

2.

Section 6.03(d) is deleted in its entirety and replaced to read as follows: “Intentionally Omitted”.

 

3.

Section 6.03(e) is deleted in its entirety and replaced to read as follows: “Intentionally Omitted”.

4.

The following paragraph shall be added to the Merger Agreement as Section 3.01(u):

(u)           Competing Offers.  The Company has provided Parent with complete and accurate information regarding any and all Acquisition Proposals, as provided in Section 4.13, received by the Company on or before the date of this Amendment, including all material terms and conditions of such Acquisition Proposals and any material changes thereto.

5.

All other terms and conditions of the Merger Agreement not expressly amended as set forth above remain unchanged.

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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their duly authorized officers as of the day and year first above written.