AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
Exhibit
2.1
AMENDMENT
NO. 1 TO AGREEMENT AND PLAN OF MERGER
This
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER is entered into as of October
16, 2007 (this “Amendment”) among UPSNAP, INC., a Nevada corporation
(“Parent”), UPSNAP ACQUISITION CORP., a California corporation and wholly-owned
subsidiary of Parent (“Merger Sub”), and MOBILE GREETINGS, INC., a California
corporation (“MGI”).
BACKGROUND
The
Parties entered into that certain Agreement and Plan of Merger dated as of
August 9, 2007 (the “Agreement”), subject to which the Merger Sub shall
be merged with and into MGI as a result of which the separate corporate
existence of Merger Sub shall cease and MGI shall continue as the surviving
entity of the merger. The Parties now desire to enter into this
Amendment to further modify the terms of the Agreement as more specifically
set
forth herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual promises of the parties hereto,
and of
good and valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged, the parties hereto agree as follows:
1. Definitions;
Construction. Capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the Agreement. Section
headings used in this Amendment are for convenience only and shall not affect
the construction of this Amendment.
2. Amendment
to Section 6.01(iii) (Mutual Conditions to the Merger). Section
6.01(iii) of the Agreement is amended in its entirety to read “intentionally
omitted” and Section 6.02(x) is added to read: “not more than two percent (2%)
of the issued and outstanding shares of Company Common Stock shall be Dissenting
Shares.”
3. Amendment
to Section 7.01(ii) (Termination). Section 7.01(ii) of the
Agreement is amended by replacing “September 30, 2007” with “November 30,
2007.”
4. Agreement. In
all other respects, the Agreement shall remain in full force and
effect.
5. Counterparts. This
Amendment 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.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Amendment as
of the
date first above written.
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By:
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/s/ Xxxx Xxxxxxx | ||
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Name:
Xxxx Xxxxxxx
Title: CEO
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UPSNAP
ACQUISITION CORP.
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By:
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/s/ Xxxxxxx Xxxxx | ||
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Name:
Xxxxxxx Xxxxx
Title:
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MOBILE
GREETINGS, INC.
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By:
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/s/ Xxxxx Xxxxx | ||
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Name:
Xxxxx Xxxxx
Title:
CEO
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