AGREEMENT AND PLAN OF MERGER
EXHIBIT
10.25
This
Agreement and Plan of Merger (this "Agreement") is made and
entered into as of July __, 2009 by and between Mobicom USA Corporation, a
Nevada corporation ( "Mobicom
USA"), and Lenco Mobile USA Inc., a Nevada corporation ("Lenco USA"), with respect to
the following facts:
A. Lenco
Mobile Inc., a Delaware corporation ("Lenco Mobile"), the parent
corporation of Lenco USA, through its operating subsidiaries, provides
proprietary marketing solutions and services to the mobile telecommunications
markets globally.
B. Mobicom
Corporation, a Delaware corporation ("Mobicom"), the parent
corporation of Mobicom USA though a subsidiary entity operates a
telecommunications services in the country of South Korea.
C. Mobicom
Corporation desires to form a relationship with Lenco Mobile and to combine its
Mobicom USA subsidiary with and into Lenco USA.
D. The
Boards of Directors and shareholders of Mobicom USA and Lenco USA and Company
have each determined that it is in the best interests of their respective
stockholders for Lenco USA to acquire Mobicom USA upon the terms and subject to
the conditions set forth herein.
NOW
THEREFORE, in consideration for the mutual promises, covenants and conditions
set forth in this Agreement, and intending to be legally bound, the parties
mutually agree as follows:
SECTION
1
THE
MERGER
1.1 The
Merger. Upon the terms and subject to the conditions of this
Agreement and the applicable provisions of Nevada Law, at the Effective Time (as
defined below), Mobicom USA shall be merged with and into Lenco USA (the "Merger"), the separate
corporate existence of Mobicom USA shall cease, and Lenco USA shall continue as
the surviving corporation after the Merger (the "Surviving
Corporation").
1.2 Effective
Time. Upon the terms and subject to the conditions of this
Agreement, the parties hereto shall cause the Merger to be consummated by filing
a certificate of merger (the "Certificate of Merger") with
the Nevada Secretary of State in accordance with the relevant provisions of the
Nevada Revised Statutes("Nevada
Law") (the time of such filing being the "Effective Time" and the date
of such filing being the "Closing Date")
1.3 Effect of the
Merger. At the Effective Time, the effect of the Merger shall
be as provided in this Agreement and the applicable provisions of Nevada
Law. Without limiting the generality of the foregoing, at the
Effective Time, all the property, rights, privileges, powers and franchises of
Mobicom USA and Lenco USA shall be those of the Surviving Corporation, and all
debts, liabilities and duties of Mobicom USA and Lenco USA shall be the debts,
liabilities and duties of the Surviving Corporation.
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1.4 Capital
Stock. Subject to the terms and conditions of this Agreement,
at the Effective Time, by virtue of the Merger and without any action on the
part of Lenco USA or Mobicom USA: (i) each share of common stock of Mobicom
USA issued and outstanding as of the Effective Time will be canceled, without
any consideration therefor; and (ii) each share of the Lenco USA's common
stock issued and outstanding immediately prior to the Effective Time shall
remain as outstanding shares of the Surviving Corporation. Following
the Effective Time, each certificate evidencing ownership of shares of Lenco USA
common stock shall evidence ownership of such shares of capital stock of the
Surviving Corporation.
1.5 Officers. At
the effective time, the directors and executive officer of Mobicom USA shall
become the directors and executive officers of the Surviving
Corporation.
1.6 Deliveries. On
the Closing Date Seller shall have delivered or shall deliver to Lenco USA the
stock certificate or certificates representing all of the shares of the common
stock of Mobicom USA, all corporate minute books, business records and documents
related to Mobicom USA to Lenco USA at the Closing.
SECTION
2
REPRESENTATIONS
AND WARRANTIES OF MOBICOM USA
Mobicom
USA hereby represents and warrants to Lenco USA as follows:
2.1 Power and
Authority. Mobicom USA has the requisite power and authority
to execute and deliver this Agreement, to perform its obligations under this
Agreement and to consummate the transactions contemplated by this
Agreement. No consent, approval, or authorization of or designation,
declaration or filing with any third party or any governmental authority is
required in connection with the valid execution and delivery of this
Agreement.
2.2 No Material
Changes. Mobicom USA has provided to Lenco USA is financial
statements for the period through and including January 31,
2009. Mobicom USA has not entered into any material transactions
since January 31, 2009, including without limitation:
(a) any
change in Mobicom USA's authorized or issued capital stock; grant of any stock
option or right to purchase shares of capital stock of Mobicom USA; issuance of
any security convertible into such capital stock;
(b) entry
into, termination of, or receipt of notice of termination of any material
contract or agreement;
(c) sale,
lease, or other disposition of any asset or property of Mobicom USA (except for
sales in the ordinary course of business);
(d) the
incurrence of any debt, mortgage, pledge, or imposition of any lien or other
encumbrance on any material asset or property of any Mobicom USA;
(e) material
change in the accounting methods used by Mobicom USA; or
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(f) agreement,
whether oral or written, by Mobicom USA to do any of the foregoing.
SECTION
3
REPRESENTATIONS
AND WARRANTIES OF LENCO USA
Lenco USA
hereby represents and warrants to Mobicom USA as follows:
3.1 Power and
Authority. Lenco USA has the requisite power and authority to
execute and deliver this Agreement, to perform its obligations under this
Agreement and to consummate the transactions contemplated by this
Agreement. No consent, approval, or authorization of or designation,
declaration or filing with any third party or any governmental authority is
required in connection with the valid execution and delivery of this
Agreement.
3.2 No
Warranty. Lenco USA has conducted, and is relying exclusively
on, the Lenco USA’s own investigation and review of Mobicom USA and its current
and proposed business, management, properties and financial
condition. Lenco USA acknowledges that Mobicom USA is making only the
representations and warranties contained in this Agreement and is not making any
other representations or warranties concerning its business, operations or
prospects.
SECTION
4
TECHNOLOGY
LICENSE
4.1 Promptly
following the Closing Date and in no event later than 90 days from the date of
this Agreement, Lenco USA shall use good faith efforts to cause Lenco Mobile and
its affiliated entities to enter into a license agreement with Mobicom granting
Mobicom the right and license to use Lenco Mobile's FlightDeckTM,
FlightPlanTM,
CompanionTM, MMS
messaging and mobile statements platform (the "MMS Products"), for use in
the South Korean market. The license agreement shall be based on
Lenco Mobile's standard Master License Agreement currently in use in the United
Kingdom and Australian markets and with such other terms and conditions as are
mutually acceptable to both Lenco Mobile and Mobicom.
SECTION
5
MISCELLANEOUS
5.1 Further
Assurances. Each party will take such actions and execute such
further documents, certificates or instruments as may be reasonably necessary to
carry out the transactions contemplated by this Agreement.
5.2 Entire
Agreement. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter contained in this
Agreement and merges all prior and contemporaneous discussions and agreements
between them. Any modification of any of the provisions of this
Agreement shall not be valid unless in writing and signed by authorized
representatives of the party against whom such modification is sought to be
enforced.
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5.3 Interpretation. Both
parties have had the opportunity to consult with an attorney of their choice
before executing this Agreement. Accordingly, this Agreement shall be
interpreted in accordance with its plain meaning and shall not be construed
strictly for or against any party.
5.4 Governing
Law. This Agreement shall be interpreted and governed by the
laws of the State of Nevada and, as applicable, the laws of the United States,
without giving effect to the principles of choice of law or conflicts of
laws. In the event of any disputes arising out of this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees and other fees
and costs related thereto.
5.5 Counterparts. This
Agreement may be executed in multiple counterparts and transmitted by facsimile
or by electronic mail in "portable document format" ("PDF") form, or by any other
electronic means intended to preserve the original graphic and pictorial
appearance of a party's signature. Each such counterpart and
facsimile or PDF signature shall constitute an original and all of which
together shall constitute one and the same original.
[Signature
page follows]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first written above.
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MOBICOM
USA CORPORATION
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LENCO
MOBILE USA INC.
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By:
/s/ Xxxxxxx
Xxxxxxxxx
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By:
/s/ Xxxxxxx
Xxxxxxxxx
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Name:
Xxxxxxx Xxxxxxxxx
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Name:
Xxxxxxx Xxxxxxxxx
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Its:
Chief Executive Officer
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Its:
Chief Executive Officer
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