AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER
EXHIBIT
2.2.1
AMENDMENT
NO. 2 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT
NO. 2 TO AGREEMENT AND PLAN
OF MERGER, entered into as of January 14, 2008 (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 (the “Company”).
BACKGROUND
The
parties hereto had entered into an
Agreement and Plan of Merger dated as of August 9, 2007, and amended by
Amendment No. 1, dated as of October 16, 2007 (collectively, the “Agreement”), subject
to which the Merger Sub is to be merged with and into the Company as a result
of
which the separate corporate existence of Merger Sub would cease, and the
Company would continue as the surviving entity of the merger and become a
wholly-owned subsidiary of Parent. The parties hereto 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
4.01(b) (Required Consent). Section 4.01(b) of the Agreement
is amended by deleting clause (v)(B) in its entirety with respect to the
Company, provided that in the event the Company enters into negotiations
with
any third party whereby the Company would issue any debt securities or similar
obligations, incur indebtedness, borrow money or grant any lien or security
interest securing obligations with respect to indebtedness, or assume, guarantee
or endorse, or otherwise become responsible for, the obligation of any Person,
the Company shall promptly send written notice to the designated representative
of Parent describing the intended transaction, including the identity of
the
negotiating parties, and thereafter shall furnish such information regarding
such intended transaction and closing thereof as may be reasonably requested
by
such designated representative.”
3.
Amendment to Section
5.02 (No Solicitation). Section 5.02 of the Agreement is
deleted in its entirety. In addition, the references to Section 5.02
in Sections 7.01 and 7.03 should not be given any effect.
4.
Amendment to Section
7.01(ii) (Termination). Section 7.01(ii) of the Agreement is
amended by replacing “November 30, 2007” with “February 29,
2008.” Notwithstanding the Termination Date in Section 7.01(ii),
neither Parent nor the Company had sought termination of the Agreement.
5.
Entire
Agreement. This Amendment sets forth the entire agreement
among the parties hereto as to the subject matter herein.
6.
Effect. Except
to the extent specifically provided for herein, in all other respects the
Agreement shall remain in full force and effect.
7.
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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Name:
Title:
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UPSNAP
ACQUISITION CORP.
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By:
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Name:
Title:
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MOBILE
GREETINGS, INC.
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By:
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Name:
Title:
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