exv4w2






Exhibit 4.2




REGISTRATION RIGHTS AGREEMENT




          This Registration Rights Agreement (the “Agreement”) is made and entered into as of this 3rd
day of June, 2008, by and among Zila, Inc., a Delaware corporation (the “Company”), Visium Balanced
Offshore Fund, Ltd., Visium Balanced Fund, LP, Visium Long Bias Offshore Fund, Ltd. and Visium Long
Bias Fund, LP (the “Visium Entities”) and Atlas Master Fund, Ltd. (“Atlas” and, collectively with
the Visium Entities, and any Affiliate or permitted transferee of any of them, the “Investors”).




          A. The Company, the Investors and Balyasny Asset Management, L.P. have entered into a Second
Amendment Agreement (the “Amendment Agreement”) pursuant to which, among other things, the Company
has agreed to issue to the Investors 4,626,595 shares (the “Investor Shares”) of Common Stock, par
value $0.001 per share of the Company;




          B. The Company has agreed to provide certain registration rights with respect to the Investor
Shares. Capitalized terms used herein have the respective meanings ascribed thereto in the
Amendment Agreement unless otherwise defined herein.




     The parties hereby agree as follows:



     1. Certain Definitions.



     As used in this Agreement, the following terms shall have the following meanings:



     “Affiliate” means, with respect to any person, any other person which directly or
indirectly controls, is controlled by, or is under common control with, such person.



     “Business Day” means a day, other than a Saturday or Sunday, on which banks in New
York City are open for the general transaction of business.



     “Common Stock” shall mean the Company’s common stock, par value $0.001 per share, and
any securities into which such shares may hereinafter be reclassified.



     “Prospectus” shall mean (i) the prospectus included in any Registration Statement, as
amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Registrable Securities covered by such Registration Statement and by all other
amendments and supplements to the prospectus, including post-effective amendments and all material
incorporated by reference in such prospectus, and (ii) any “free writing prospectus” as defined in
Rule 163 under the 1933 Act.



     “Register,” “registered” and “registration” refer to a registration
made by preparing and filing a Registration Statement or similar document in compliance with the
1933 Act (as defined below), and the declaration or ordering of effectiveness of such Registration
Statement or document.



     “Registrable Securities” shall mean (i) the Investor Shares, and (ii) any other
securities



 









 







issued or issuable with respect to or in exchange for Registrable Securities; provided, that,
a security shall cease to be a Registrable Security upon (A) sale pursuant to a Registration
Statement or Rule 144 under the 1933 Act, or (B) such security becoming eligible for sale by the
Investors without restriction pursuant to Rule 144.



     “Registration Statement” shall mean any registration statement of the Company filed
under the 1933 Act that covers the resale of any of the Registrable Securities pursuant to the
provisions of this Agreement, amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all material incorporated by reference in such
Registration Statement.



     “Required Investors” means the Investors holding a majority of the Registrable
Securities.



     “Trading Day” means (i) if the relevant stock or security is listed or admitted for
trading on The New York Stock Exchange, Inc., the Nasdaq Global Market, the Nasdaq Capital Market
or any other national securities exchange, a day on which such exchange is open for business; (ii)
if the relevant stock or security is quoted on a system of automated dissemination of quotations of
securities prices, a day on which trades may be effected through such system; or (iii) if the
relevant stock or security is not listed or admitted for trading on any national securities
exchange or quoted on any system of automated dissemination of quotation of securities prices, a
day on which the relevant stock or security is traded in a regular way in the over-the-counter
market and for which a closing bid and a closing asked price for such stock or security are
available, shall mean a day, other than a Saturday or Sunday, on which The New York Stock Exchange,
Inc. is open for trading.



     “1934 Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.



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     2. Registration.



          (a) Registration Statement. Promptly following the Closing, and in no event later
than thirty (30) days after the Closing (the “Filing Deadline”), the Company shall prepare and file
with the SEC a Registration Statement on Form S-3 (or, if Form S-3 is not then available to the
Company, on such form of registration statement as is then available to effect a registration for
resale of the Investor Shares), covering the resale of the Registrable Securities. Subject to any
SEC comments, each Registration Statement filed pursuant to Section 2(a)(i) shall include the plan
of distribution attached hereto as Exhibit A; provided however, that no Investor shall be
named as an “underwriter” without such Investors prior written consent. The Registration Statement
also shall cover, to the extent allowable under the 1933 Act and the rules promulgated thereunder
(including Rule 416), such indeterminate number of additional shares of Common Stock resulting from
stock splits, stock dividends or similar transactions with respect to the Registrable Securities to
which such Registration Statement relates. Such Registration Statement shall not include any
shares of Common Stock or other securities for the account of any other holder without the prior
written consent of the Required Investors. Each Registration Statement (and each amendment or
supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided
in accordance with Section 3(c) to the Investors and/or their counsel prior to its filing or other
submission. If a Registration Statement covering the Registrable Securities is not filed with the
SEC on or prior to the Filing Deadline, the Company will make pro rata payments to each Investor,
as liquidated damages and not as a penalty, in an amount equal to 1.0% of the Market Price (as
defined in the Amended and Restated Notes) of the Registrable Securities as of the Filing Deadline
for each 30-day period or pro rata for any portion thereof following the Filing Deadline for which
the Registration Statement is not filed. Such payments shall constitute the Investors’ exclusive
monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive
relief. Such payments shall be made to each Investor in cash.




          (b) Expenses. The Company will pay all expenses associated with each registration,
including filing and printing fees, the Company’s counsel and accounting fees and expenses, costs
associated with clearing the Registrable Securities for sale under applicable state securities
laws, listing fees, fees and expenses of one counsel to the Investors and the Investors’ reasonable
expenses in connection with the registration, but excluding discounts, commissions, fees of
underwriters, selling brokers, dealer managers or similar securities industry professionals with
respect to the Registrable Securities being sold.




          (c) Effectiveness.




               (i) The Company shall use best efforts to have the Registration Statement declared effective
as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly
as practicable, and in any event, within twenty-four (24) hours, after (A) the Registration
Statement is declared effective and (B) the filing of any related Prospectus under Rule 424(b), at
which time the Company shall also provide the Investors with copies of such related Prospectus. If
(A) a Registration Statement covering the resale of the Registrable Securities is not declared
effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have
informed the Company that no review of the Registration Statement will be made or that the SEC has
no further comments on the Registration Statement



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or (ii) the 90th day after the Closing (the 120th day after the Closing
if the Registration Statement is reviewed by the SEC), or (B) after the Registration Statement has
been declared effective by the SEC, sales cannot be made pursuant to the Registration Statement for
any reason (including without limitation by reason of a stop order, or the Company’s failure to
update the Registration Statement), but excluding the inability of any Investor to sell the
Registrable Securities and except as excused pursuant to subparagraph (ii) below, then the Company
will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an
amount equal to (i) 1.0% of the Market Price (as defined in the Amended and Restated Notes) of the
Registrable Securities as of the date such Registration Statement is required to be declared
effective for each 30-day period or pro rata for any portion thereof following the date by which
such Registration Statement should have been effective (the “Blackout Period”) and (ii) 1.0% of the
Market Price (as defined in the Amended and Restated Notes) of the Registrable Securities as of the
date the Blackout Period begins for each 30-day period or pro rata for any portion thereof that
sales could not be made thereunder as provided in clause (B) above; provided, however, that
liquidated damages shall be payable pursuant to this Section 2(c) only in the event that any delay
or blackout occurs as a result of the failure by the Company to comply with its obligations under
this Agreement. Such payments shall constitute the Investors’ exclusive monetary remedy for such
events, but shall not affect the right of the Investors to seek injunctive relief. The amounts
payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3)
Business Days of the last day of each month following the commencement of the Blackout Period until
the termination of the Blackout Period.



               (ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five
(45) days in any twelve (12) month period, the Company may delay the disclosure of material
non-public information concerning the Company, by suspending the use of any Prospectus included in
any registration contemplated by this Section containing such information, the disclosure of which
at the time is not, in the good faith opinion of the Company, in the best interests of the Company
(an “Allowed Delay”); provided, that the Company shall promptly (a) notify the Investors in writing
of the existence of (but in no event, without the prior written consent of an Investor, shall the
Company disclose to such Investor any of the facts or circumstances regarding) material non-public
information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales
under the Registration Statement until the end of the Allowed Delay and (c) use commercially
reasonable efforts to terminate an Allowed Delay as promptly as practicable.



     3. Company Obligations. The Company will use commercially reasonable efforts to
effect the registration of the Registrable Securities in accordance with the terms hereof, and
pursuant thereto the Company will, as expeditiously as practicable:



          (a) use commercially reasonable efforts to cause the Registration Statement to become
effective after 4:00 p.m. E.S.T. (the date the Registration Statement is declared effective shall
be referred to as the “Effective Date”) and to remain continuously effective for a period that will
terminate upon the earlier of (i) the date on which all Registrable Securities covered by such
Registration Statement as amended from time to time, have been sold, and (ii) the date on which all
Registrable Securities covered by such Registration Statement may be sold without restriction
pursuant to Rule 144 (the “Effectiveness Period”) and advise the Investors in writing when the
Effectiveness Period has expired;




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          (b) prepare and file with the SEC such amendments and post-effective amendments to the
Registration Statement and the Prospectus as may be necessary to keep the Registration Statement
effective for the Effectiveness Period and to comply with the provisions of the 1933 Act and the
1934 Act with respect to the distribution of all of the Registrable Securities covered thereby;




          (c) provide copies to and permit counsel designated by the Investors, if any, in the selling
securityholder questionnaire attached hereto as Exhibit B (the “Selling Securityholder
Questionnaire”) to review the Registration Statement and all amendments and supplements thereto no
fewer than seven (7) days prior to their filing with the SEC and not file any document to which
such counsel reasonably objects;




          (d) furnish to the Investors and their legal counsel designated by the Investors, if any, in
the Selling Securityholder Questionnaire (i) promptly after the same is prepared and publicly
distributed, filed with the SEC, or received by the Company (but not later than two (2) Business
Days after the filing date, receipt date or sending date, as the case may be) one (1) copy of the
Registration Statement and any amendment thereto, each preliminary prospectus and Prospectus and
each amendment or supplement thereto, and each letter written by or on behalf of the Company to the
SEC or the staff of the SEC, and each item of correspondence from the SEC or the staff of the SEC,
in each case relating to such Registration Statement (other than any portion of any thereof which
contains information for which the Company has sought confidential treatment), and (ii) such number
of copies of a Prospectus, including a preliminary prospectus, and all amendments and supplements
thereto and such other documents as each Investor may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Investor that are covered by the related
Registration Statement;




          (e) use commercially reasonable efforts to (i) prevent the issuance of any stop order or other
suspension of effectiveness and, (ii) if such order is issued, obtain the withdrawal of any such
order at the earliest possible moment;




          (f) prior to any public offering of Registrable Securities, use commercially reasonable
efforts to register or qualify or cooperate with the Investors and their counsel designated by the
Investors, if any, in the Selling Securityholder Questionnaire in connection with the registration
or qualification of such Registrable Securities for offer and sale under the securities or blue sky
laws of such jurisdictions requested by the Investors and do any and all other commercially
reasonable acts or things necessary or advisable to enable the distribution in such jurisdictions
of the Registrable Securities; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to (i) qualify to do business in any jurisdiction
where it would not otherwise be required to qualify but for this Section 3(f), (ii) subject itself
to general taxation in any jurisdiction where it would not otherwise be so subject but for this
Section 3(f), or (iii) file a general consent to service of process in any such jurisdiction;




          (g) use commercially reasonable efforts to cause all Registrable Securities to be listed on
each securities exchange, interdealer quotation system or other market on which similar securities
issued by the Company are then listed;




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          (h) immediately notify the Investors, at any time prior to the end of the Effectiveness
Period, upon discovery that, or upon the happening of any event as a result of which, the
Prospectus includes an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not misleading in light
of the circumstances then existing, and promptly prepare, file with the SEC and furnish to such
holder a supplement to or an amendment of such Prospectus as may be necessary so that such
Prospectus shall not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; and




          (i) otherwise use commercially reasonable efforts to comply with all applicable rules and
regulations of the SEC under the 1933 Act and the 1934 Act, including, without limitation, Rule 172
under the 1933 Act, file any final Prospectus, including any supplement or amendment thereof, with
the SEC pursuant to Rule 424 under the 1933 Act prior to 9:30 a.m. E.S.T. on the Trading Day
immediately following the Effective Date, promptly inform the Investors in writing if, at any time
during the Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172
and, as a result thereof, the Investors are required to deliver a Prospectus in connection with any
disposition of Registrable Securities and take such other actions as may be reasonably necessary to
facilitate the registration of the Registrable Securities hereunder; and make available to its
security holders, as soon as reasonably practicable, but not later than the Availability Date (as
defined below), an earnings statement covering a period of at least twelve (12) months, beginning
after the effective date of each Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the 1933 Act, including Rule 158 promulgated thereunder (for the
purpose of this subsection 3(i), “Availability Date” means the 45th day following the end of the
fourth fiscal quarter that includes the effective date of such Registration Statement, except that,
if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability Date”
means the 90th day after the end of such fourth fiscal quarter).




          (j) With a view to making available to the Investors the benefits of Rule 144 (or its
successor rule) and any other rule or regulation of the SEC that may at any time permit the
Investors to sell shares of Common Stock to the public without registration, the Company covenants
and agrees to: (i) make and keep public information available, as those terms are understood and
defined in Rule 144, until the earlier of (A) six months after such date as all of the Registrable
Securities may be sold without restriction by the holders thereof pursuant to Rule 144 or any other
rule of similar effect or (B) such date as all of the Registrable Securities shall have been
resold; (ii) file with the SEC in a timely manner all reports and other documents required of the
Company under the 1934 Act; and (iii) furnish to each Investor upon request, as long as such
Investor owns any Registrable Securities, (A) a written statement by the Company that it has
complied with the reporting requirements of the 1934 Act, (B) a copy of the Company’s most recent
Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may
be reasonably requested in order to avail such Investor of any rule or regulation of the SEC that
permits the selling of any such Registrable Securities without registration.




     4. Due Diligence Review; Information. The Company shall make available, during normal
business hours, for inspection and review by the Investors, advisors to and



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representatives of the Investors (who may or may not be affiliated with the Investors and who
are reasonably acceptable to the Company), all financial and other records, all SEC Filings (as
defined in the Purchase Agreement) and other filings with the SEC, and all other corporate
documents and properties of the Company as may be reasonably necessary for the purpose of such
review, and cause the Company’s officers, directors and employees, within a reasonable time period,
to supply all such information reasonably requested by the Investors or any such representative,
advisor or underwriter in connection with such Registration Statement (including, without
limitation, in response to all questions and other inquiries reasonably made or submitted by any of
them), prior to and from time to time after the filing and effectiveness of the Registration
Statement for the sole purpose of enabling the Investors and such representatives, advisors and
underwriters and their respective accountants and attorneys to conduct initial and ongoing due
diligence with respect to the Company and the accuracy of such Registration Statement.



          Except in compliance with the provisions of Section 6 of the Amendment Agreement, the Company
shall not disclose material nonpublic information to the Investors, or to advisors to or
representatives of the Investors, unless prior to disclosure of such information the Company
identifies such information as being material nonpublic information and provides the Investors,
such advisors and representatives with the opportunity to accept or refuse to accept such material
nonpublic information for review and any Investor wishing to obtain such information enters into an
appropriate confidentiality agreement with the Company with respect thereto.




     5. Obligations of the Investors.



          (a) Each Investor has furnished to the Company a Selling Securityholder Questionnaire and
shall furnish in writing to the Company such additional information regarding itself, the
Registrable Securities held by it and the intended method of disposition of the Registrable
Securities held by it, as shall be reasonably required to effect the registration of such
Registrable Securities and shall execute such documents in connection with such registration as the
Company may reasonably request. At least five (5) Business Days prior to the first anticipated
filing date of any Registration Statement, the Company shall notify each Investor of the
information the Company requires from such Investor, to the extent not included in the Selling
Securityholder Questionnaire, if such Investor elects to have any of the Registrable Securities
included in the Registration Statement. An Investor shall provide such information to the Company
at least two (2) Business Days prior to the first anticipated filing date of such Registration
Statement if such Investor elects to have any of the Registrable Securities included in the
Registration Statement.




          (b) Each Investor, by its acceptance of the Registrable Securities agrees to cooperate with
the Company as reasonably requested by the Company in connection with the preparation and filing of
a Registration Statement hereunder, unless such Investor has notified the Company in writing of its
election to exclude all of its Registrable Securities from such Registration Statement.




          (c) Each Investor agrees that, upon receipt of any notice from the Company of either (i) the
commencement of an Allowed Delay pursuant to Section 2(c)(ii) or (ii) the



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happening of an event pursuant to Section 3(h) hereof, such Investor will immediately
discontinue disposition of Registrable Securities pursuant to the Registration Statement covering
such Registrable Securities, until the Investor is advised by the Company that such dispositions
may again be made.




     6. Indemnification.



          (a) Indemnification by the Company. The Company will indemnify and hold harmless each
Investor and its officers, directors, members, employees and agents, successors and assigns, and
each other person, if any, who controls such Investor within the meaning of the 1933 Act, against
any losses, claims, damages or liabilities, joint or several, to which they may become subject
under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon: (i) any untrue statement or omission or alleged
untrue statement or omission of any material fact in any Registration Statement, any preliminary
Prospectus or final Prospectus, or any amendment or supplement thereof required to be stated
therein or necessary to make the statements therein not misleading; (ii) any blue sky application
or other document executed by the Company specifically for that purpose or based upon written
information furnished by the Company filed in any state or other jurisdiction in order to qualify
any or all of the Registrable Securities under the securities laws thereof (any such application,
document or information herein called a “Blue Sky Application”); (iii) any violation by the Company
or its agents of any rule or regulation promulgated under the 1933 Act applicable to the Company or
its agents and relating to action or inaction required of the Company in connection with such
registration; or (iv) any failure to register or qualify the Registrable Securities included in any
such Registration in any state where the Company or its agents has affirmatively undertaken or
agreed in writing that the Company will undertake such registration or qualification on an
Investor’s behalf and will reimburse such Investor, and each such officer, director or member and
each such controlling person for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case if and to
the extent that any such loss, claim, damage or liability arises out of or is based upon (i) such
Investor’s failure to comply with the prospectus delivery requirements of the Securities Act at any
time when the Company does not meet the conditions for use of Rule 172, has advised the Investor in
writing that the Company does not meet such conditions and that therefore the Investor is required
to deliver a Prospectus in connection with any sale or other disposition of Registrable Securities
and has provided such Investor with a current Prospectus for such use, (ii) an untrue statement or
alleged untrue statement or omission or alleged omission so made in conformity with information
furnished by such Investor or any such controlling person in writing specifically for use in such
Registration Statement or Prospectus or (iii) the use by an Investor of an outdated or defective
Prospectus after the Company has notified the Investor that such Prospectus is outdated or
defective and the use of a corrected or updated Prospectus would have avoided such losses, claims,
damages, liabilities or expenses.




          (b) Indemnification by the Investors. Each Investor agrees, severally but not
jointly, to indemnify and hold harmless, to the fullest extent permitted by law, the Company, its
directors, officers, employees, stockholders and each person who controls the Company (within the
meaning of the 1933 Act) against any losses, claims, damages, liabilities and expense (including
reasonable attorney fees) resulting from (i) such Investor’s failure to comply with the



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prospectus delivery requirements of the Securities Act at any time when the Company does not
meet the conditions for use of Rule 172, has advised the Investor in writing that the Company does
not meet such conditions and that therefore the Investor is required to deliver a Prospectus in
connection with any sale or other disposition of Registrable Securities and has provided such
Investor with a current Prospectus for such use, (ii) the use by an Investor of an outdated or
defective Prospectus after the Company has notified the Investor that such Prospectus is outdated
or defective and the use of a corrected or updated Prospectus would have avoided such losses,
claims, damages, liabilities or expenses, and (iii) any untrue statement of a material fact or any
omission of a material fact required to be stated in the Registration Statement or Prospectus or
preliminary Prospectus or amendment or supplement thereto or necessary to make the statements
therein not misleading, to the extent, but only to the extent that such untrue statement or
omission is contained in any information furnished in writing by such Investor to the Company
specifically for inclusion in such Registration Statement or Prospectus or amendment or supplement
thereto. In no event shall the liability of an Investor be greater in amount than the dollar
amount of the proceeds (net of all expense paid by such Investor in connection with any claim
relating to this Section 6 and the amount of any damages such Investor has otherwise been required
to pay by reason of such untrue statement or omission) received by such Investor upon the sale of
the Registrable Securities included in the Registration Statement giving rise to such
indemnification obligation.




          (c) Conduct of Indemnification Proceedings. Any person entitled to indemnification
hereunder shall (i) give prompt notice to the indemnifying party of any claim with respect to which
it seeks indemnification and (ii) permit such indemnifying party to assume the defense of such
claim with counsel reasonably satisfactory to the indemnified party; provided that any
person entitled to indemnification hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and expenses of such counsel shall be at the
expense of such person unless (a) the indemnifying party has agreed to pay such fees or expenses,
or (b) the indemnifying party shall have failed to assume the defense of such claim and employ
counsel reasonably satisfactory to such person or (c) in the reasonable judgment of any such
person, based upon written advice of its counsel, a conflict of interest exists between such person
and the indemnifying party with respect to such claims (in which case, if the person notifies the
indemnifying party in writing that such person elects to employ separate counsel at the expense of
the indemnifying party, the indemnifying party shall not have the right to assume the defense of
such claim on behalf of such person); and provided, further, that the failure of
any indemnified party to give notice as provided herein shall not relieve the indemnifying party of
its obligations hereunder, except to the extent that such failure to give notice shall materially
adversely affect the indemnifying party in the defense of any such claim or litigation. It is
understood that the indemnifying party shall not, in connection with any proceeding in the same
jurisdiction, be liable for fees or expenses of more than one separate firm of attorneys at any
time for all such indemnified parties. No indemnifying party will, except with the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or litigation.




          (d) Contribution. If for any reason the indemnification provided for in the preceding
paragraphs (a) and (b) is unavailable to an indemnified party or insufficient to hold it



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harmless, other than as expressly specified therein, then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect the relative fault of the
indemnified party and the indemnifying party, as well as any other relevant equitable
considerations. No person guilty of fraudulent misrepresentation within the meaning of Section
11(f) of the 1933 Act shall be entitled to contribution from any person not guilty of such
fraudulent misrepresentation. In no event shall the contribution obligation of a holder of
Registrable Securities be greater in amount than the dollar amount of the proceeds (net of all
expenses paid by such holder in connection with any claim relating to this Section 6 and the amount
of any damages such holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission) received by it upon the sale of the Registrable
Securities giving rise to such contribution obligation.




     7. Miscellaneous.



          (a) Amendments and Waivers. This Agreement may be amended only by a writing signed by
the Company and the Required Investors. The Company may take any action herein prohibited, or omit
to perform any act herein required to be performed by it, only if the Company shall have obtained
the written consent to such amendment, action or omission to act, of the Required Investors.




          (b) Notices. All notices and other communications provided for or permitted hereunder
shall be made as set forth in Section 9.4 of the Purchase Agreement.




          (c) Assignments and Transfers by Investors. The provisions of this Agreement shall be
binding upon and inure to the benefit of the Investors and their respective successors and assigns.
An Investor may transfer or assign, in whole or from time to time in part, to one or more persons
its rights hereunder in connection with the transfer of Registrable Securities by such Investor to
such person, provided that such Investor complies with all laws applicable thereto and provides
written notice of assignment to the Company promptly after such assignment is effected.




          (d) Assignments and Transfers by the Company. This Agreement may not be assigned by
the Company (whether by operation of law or otherwise) without the prior written consent of the
Required Investors, provided, however, that the Company may assign its rights and delegate its
duties hereunder to any surviving or successor corporation in connection with a merger or
consolidation of the Company with another corporation, or a sale, transfer or other disposition of
all or substantially all of the Company’s assets to another corporation, without the prior written
consent of the Required Investors, after notice duly given by the Company to each Investor.




          (e) Benefits of the Agreement. The terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the respective permitted successors and assigns of the
parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as expressly provided in
this Agreement.




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          (f) Counterparts; Faxes. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument. This Agreement may also be executed via facsimile, which shall be deemed an
original.




          (g) Titles and Subtitles. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this Agreement.




          (h) Severability. Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof but shall be
interpreted as if it were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereby waive any provision of law which renders any
provisions hereof prohibited or unenforceable in any respect.




          (i) Further Assurances. The parties shall execute and deliver all such further
instruments and documents and take all such other actions as may reasonably be required to carry
out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein
contained.




          (j) Entire Agreement. This Agreement is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings between the parties with respect to
such subject matter.




          (k) Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement
shall be governed by, and construed in accordance with, the internal laws of the State of New York
without regard to the choice of law principles thereof. Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of the courts of the State of New York located in New York
County and the United States District Court for the Southern District of New York for the purpose
of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the
transactions contemplated hereby. Service of process in connection with any such suit, action or
proceeding may be served on each party hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably
consents to the jurisdiction of any such court in any such suit, action or proceeding and to the
laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of
venue of any such suit, action or proceeding brought in such courts and irrevocably waives any
claim that any such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY
LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED
SPECIFICALLY AS TO THIS WAIVER.




11









 









               IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized
officers to execute this Agreement as of the date first above written.



	 	 	 	 	 
	 	The Company: ZILA, INC.

 	 
	 	By:  	/s/ Gary V. Klinefelter
 	 
	 	Name:	 Gary V. Klinefelter  	 
	 	Title:	 Vice President and Secretary 	 




12









 





	 	 	 	 	 
	 	VISIUM BALANCED OFFSHORE FUND, LTD.

 	 
	 	By:  	/s/ Jacob Gottlieb
 	 
	 	Name:	 Jacob Gottlieb  	 
	 	Title:	 Chief Investment Officer 	 
	 
	 	VISIUM LONG BIAS FUND, LP

 	 
	 	By:  	/s/ Jacob Gottlieb
 	 
	 	Name:	 Jacob Gottlieb  	 
	 	Title:	 Chief Investment Officer 	 
	 
	 	VISIUM LONG BIAS OFFSHORE FUND, LTD.

 	 
	 	By:  	/s/ Jacob Gottlieb
 	 
	 	Name:	 Jacob Gottlieb  	 
	 	Title:	 Chief Investment Officer 	 
	 
	 	VISIUM BALANCED FUND, LP

 	 
	 	By:  	/s/ Jacob Gottlieb
 	 
	 	Name:	 Jacob Gottlieb  	 
	 	Title:	 Chief Investment Officer 	 
	 
	 	ATLAS MASTER FUND, LTD.

 	 
	 	By:  	/s/ Scott Schroeder
 	 
	 	Name:	 Scott Schroeder 	 
	 	Title:	 Authorized Signatory 	 




13









 








Exhibit A




Plan of Distribution





     The selling stockholders, which as used herein includes donees, pledgees, transferees or other
successors-in-interest selling shares of common stock or interests in shares of common stock
received after the date of this prospectus from a selling stockholder as a gift, pledge,
partnership distribution or other transfer, may, from time to time, sell, transfer or otherwise
dispose of any or all of their shares of common stock or interests in shares of common stock on any
stock exchange, market or trading facility on which the shares are traded or in private
transactions. These dispositions may be at fixed prices, at prevailing market prices at the time
of sale, at prices related to the prevailing market price, at varying prices determined at the time
of sale, or at negotiated prices.



     The selling stockholders may use any one or more of the following methods when disposing of
shares or interests therein:



      - ordinary brokerage transactions and transactions in which the broker-dealer solicits
purchasers;



      - block trades in which the broker-dealer will attempt to sell the shares as agent, but may
position and resell a portion of the block as principal to facilitate the transaction;



      - purchases by a broker-dealer as principal and resale by the broker-dealer for its account;



      - an exchange distribution in accordance with the rules of the applicable exchange;



      - privately negotiated transactions;



      - short sales effected after the date the registration statement of which this Prospectus is a
part is declared effective by the SEC;



      - through the writing or settlement of options or other hedging transactions, whether through
an options exchange or otherwise;



      - broker-dealers may agree with the selling stockholders to sell a specified number of such
shares at a stipulated price per share;



      - a combination of any such methods of sale; and



      - any other method permitted by applicable law.



     The selling stockholders may, from time to time, pledge or grant a security interest in some
or all of the shares of common stock owned by them and, if they default in the performance of their
secured obligations, the pledgees or secured parties may offer and sell the shares of common stock,
from time to time, under this prospectus, or under an amendment to this prospectus under Rule
424(b)(3) or other applicable provision of the Securities Act amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest as



A-1









 







selling stockholders under this prospectus. The selling stockholders also may transfer the
shares of common stock in other circumstances, in which case the transferees, pledgees or other
successors in interest will be the selling beneficial owners for purposes of this prospectus.



     In connection with the sale of our common stock or interests therein, the selling stockholders
may enter into hedging transactions with broker-dealers or other financial institutions, which may
in turn engage in short sales of the common stock in the course of hedging the positions they
assume. The selling stockholders may also sell shares of our common stock short and deliver these
securities to close out their short positions, or loan or pledge the common stock to broker-dealers
that in turn may sell these securities. The selling stockholders may also enter into option or
other transactions with broker-dealers or other financial institutions or the creation of one or
more derivative securities which require the delivery to such broker-dealer or other financial
institution of shares offered by this prospectus, which shares such broker-dealer or other
financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect
such transaction).



     The aggregate proceeds to the selling stockholders from the sale of the common stock offered
by them will be the purchase price of the common stock less discounts or commissions, if any. Each
of the selling stockholders reserves the right to accept and, together with their agents from time
to time, to reject, in whole or in part, any proposed purchase of common stock to be made directly
or through agents. We will not receive any of the proceeds from this offering. Upon any exercise
of the warrants by payment of cash, however, we will receive the exercise price of the warrants.



     The selling stockholders also may resell all or a portion of the shares in open market
transactions in reliance upon Rule 144 under the Securities Act of 1933, provided that they meet
the criteria and conform to the requirements of that rule.



     The selling stockholders and any underwriters, broker-dealers or agents that participate in
the sale of the common stock or interests therein may be “underwriters” within the meaning of
Section 2(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn
on any resale of the shares may be underwriting discounts and commissions under the Securities Act.
Selling stockholders who are “underwriters” within the meaning of Section 2(11) of the Securities
Act will be subject to the prospectus delivery requirements of the Securities Act.



     To the extent required, the shares of our common stock to be sold, the names of the selling
stockholders, the respective purchase prices and public offering prices, the names of any agents,
dealer or underwriter, any applicable commissions or discounts with respect to a particular offer
will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes this prospectus.



     In order to comply with the securities laws of some states, if applicable, the common stock
may be sold in these jurisdictions only through registered or licensed brokers or dealers. In
addition, in some states the common stock may not be sold unless it has been registered or
qualified for sale or an exemption from registration or qualification requirements is available and
is complied with.



A-2









 





     We have advised the selling stockholders that the anti-manipulation rules of Regulation M
under the Exchange Act may apply to sales of shares in the market and to the activities of the
selling stockholders and their affiliates. In addition, to the extent applicable we will make
copies of this prospectus (as it may be supplemented or amended from time to time) available to the
selling stockholders for the purpose of satisfying the prospectus delivery requirements of the
Securities Act. The selling stockholders may indemnify any broker-dealer that participates in
transactions involving the sale of the shares against certain liabilities, including liabilities
arising under the Securities Act.



     We have agreed to indemnify the selling stockholders against liabilities, including
liabilities under the Securities Act and state securities laws, relating to the registration of the
shares offered by this prospectus.



     We have agreed with the selling stockholders to keep the registration statement of which this
prospectus constitutes a part effective until the earlier of (1) such time as all of the shares
covered by this prospectus have been disposed of pursuant to and in accordance with the
registration statement or (2) the date on which the shares may be sold without restriction pursuant
to Rule 144 of the Securities Act.




A-3









 








Exhibit B




Zila, Inc.

Selling Securityholder Questionnaire




     The undersigned beneficial owner (the “Selling Securityholder”) of common stock (the “Common
Stock”), of Zila, Inc. (the “Company”) understands that the Company has filed or intends to file
with the Securities and Exchange Commission (the “Commission”) one or more Registration Statements
for the registration and resale of the Registrable Securities, in accordance with the terms of the
Registration Rights Agreement, dated as of June 3, 2008 (the “Registration Rights Agreement”),
among the Company and the Investors named therein. A copy of the Registration Rights Agreement is
available from the Company upon request at the address set forth below. All capitalized terms used
and not otherwise defined herein shall have the meanings ascribed thereto in the Registration
Rights Agreement.



     The undersigned hereby provides the following information to the Company and represents and
warrants that such information is accurate:



QUESTIONNAIRE





	1.	 	Name.






	 	(a)	 	Full legal name of Selling Securityholder:
	 
	 	 	 	 






          (b) Full legal name of registered Holder (if not the same as (a) above) through which
Registrable Securities listed in Item 3 below are held:





	 	 	 	 






          (c) Full legal name of Natural Control Person (which means a natural person who directly or
indirectly alone or with others has power to vote or dispose of the securities covered by the
questionnaire):





	 	 	 	 






          (d) State of organization or domicile of Selling Securityholder:





	 	 	 	 






B-1









 









	2.	 	Address for Notices to Selling Securityholder:





 





 





 





Telephone:

Fax:

Contact Person:

Email:





			
	Note:	 	By providing an email address, the undersigned hereby consents to receipt of notices by
email.




Any such notice shall also be sent to the following address (which shall not constitute notice):




 





 





 





Telephone:

Fax:

Contact Person:

Email:





	3.	 	Beneficial Ownership of Registrable Securities:






	 	 	 	Type and principal amount of Registrable Securities beneficially owned:
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	If applicable, provide the information required by Items 1 and 2 for each beneficial
owner.
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 







	4.	 	Broker-Dealer Status:






	 	(a)	 	Are you a broker-dealer?





Yes o      No o




B-2









 






			
	Note:	 	If yes, the Commission’s staff has indicated that you should be
identified as an underwriter in any Registration Statement filed
pursuant to the Registration Rights Agreement.






	 	(b)	 	Are you an affiliate of a broker-dealer?





Yes o      No o




          (c) If you are an affiliate of a broker-dealer, do you certify that you bought the Registrable
Securities in the ordinary course of business, and at the time of the purchase of the Registrable
Securities to be resold, you had no agreements or understandings, directly or indirectly, with any
person to distribute the Registrable Securities?




Yes o      No o





			
	Note:	 	If no, the Commission’s staff has indicated that you should be identified as
an underwriter in any Registration Statement filed pursuant to the Registration Rights
Agreement.





If you checked “Yes” to either of the questions in Item 4(a) or Item 4(b) above, please
state (a) the name of any such broker-dealer, (b) the nature of your affiliation or
association with such broker-dealer, (c) information as to such broker-dealer’s
participation in any capacity in the offering or the original placement of the Securities,
(d) the number of shares of equity securities or face value of debt securities of the
Company owned by you, (e) the date such securities were acquired and (f) the price paid for
such securities.



5.      Beneficial Ownership of Other Securities of the Company Owned by the Selling Securityholder.



	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 







          Except as set forth below in this Item 5, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable Securities
listed above in Item 3.




	 	 	 	Type and amount of other securities beneficially owned by the Selling
Securityholder:
	 
	 	 	 	 

	 
	 	 	 	 






B-3









 






	6.	 	Relationships with the Company:






          Except as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity securities of the
undersigned) has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.




	 	 	State any exceptions here:
	 
	 	 	 

	 
	 	 	 

	 
	7.	 	Plan of Distribution:
	 
	 	 	Except as set forth below, the undersigned intends to distribute the Registrable Securities
listed above in Item 3 only as set forth in Exhibit B to the Registration Rights Agreement
(if at all):
	 
	 	 	 

	 
	 	 	 






          The undersigned agrees to promptly notify the Company of any inaccuracies or changes in the
information provided herein that may occur subsequent to the date hereof and prior to the effective
date of any applicable Registration Statement filed pursuant to the Registration Rights Agreement.




          By signing below, the undersigned consents to the disclosure of the information contained
herein in its answers to Items 1 through 7 and the inclusion of such information in each
Registration Statement filed pursuant to the Registration Rights Agreement and each related
prospectus. The undersigned understands that such information will be relied upon by the Company
in connection with the preparation or amendment of any such Registration Statement and the related
prospectus.




          By signing below, the undersigned acknowledges that it understands its obligation to comply,
and agrees that it will comply, with the provisions of the Exchange Act and the rules and
regulations thereunder, particularly Regulation M. The undersigned also acknowledges that it
understands that the answers to this Questionnaire are furnished for use in connection with
Registration Statements filed pursuant to the Registration Rights Agreement and any amendments or
supplements thereto filed with the Commission pursuant to the Securities Act.




          I confirm that, to the best of my knowledge and belief, the foregoing statements (including
without limitation the answers to this Questionnaire) are correct.




B-4









 








     IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Questionnaire to
be executed and delivered either in person or by its duly authorized agent.



	 	 	 	 	 	 	 	 	 
	Dated:	 	 	 	Beneficial Owner:	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	Title:	 	 





PLEASE FAX A COPY OF THE COMPLETED AND EXECUTED QUESTIONNAIRE, AND RETURN THE ORIGINAL BY OVERNIGHT
MAIL, TO:



Zila, Inc.

5227 N. 7th Street

Phoenix, AZ 84014

Fax No.: (602) 234 2264

Attn: Gary V. Klinefelter



with a copy to:



Snell & Wilmer L.L.P.

400 East Van Buren Street

Phoenix, AZ 85004

Fax No.: (602) 382 6070

Attn: Michael M. Donahey, Esq.





B-5