FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
FIRST
AMENDMENT TO
This
First Amendment to Agreement and Plan of Merger (this “Amendment”) is made and
entered into as of February 24, 2010 (the “Effective Date”), by and among
D Mobile, Inc., a Delaware corporation (the “Company”), Xxxxxxxx Xxxxxx
(“Xxxxxx”), Geos
Communications, Inc., a Washington corporation (“Parent”), and Duo Guo
Acquisition, Inc. a Delaware corporation and wholly-owned subsidiary of Parent
(“Merger
Sub”). Capitalized terms used herein but not otherwise defined
shall have the meanings ascribed thereto in the Merger Agreement (as defined
below).
W I T N E S S E T H:
WHEREAS, the Company, Xxxxxx,
Parent and Merger Sub are parties to that certain Agreement and Plan of Merger,
dated as of February 12, 2010 (the “Merger Agreement”);
and
WHEREAS, the Parties desire to
amend the Merger Agreement as provided herein;
NOW, THEREFORE, in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
A G R E E M E N T:
1. Amendment to Merger
Agreement.
(a) A new
Section 2.12 is hereby added to the Merger Agreement, which new Section 2.12
shall read in its entirety as follows:
Section
2.12 Cash Election
Option. Notwithstanding anything in this Agreement to the
contrary:
(a)
Within ten (10) days after the Closing (the “Cash Election Period”), each
Securityholder can elect (the “Cash Election”) to receive
$49.68 for each share of Parent Preferred Stock and each Parent Warrant to
purchase a share of Parent Preferred Stock to be received by such Securityholder
as Merger Consideration (the “Cash Election Price”);
provided, however, that the Cash Election must be for all, and not less than
all, of the shares of Parent Preferred Stock and Parent Warrants to be received
by such Securityholder as Merger Consideration. In order to exercise
the Cash Election, a Securityholder must deliver a written notice of Cash
Election to the Company in accordance with the provisions of Section 10.10
below within the Cash Election Period. In the event of a Cash
Election by a Securityholder: (i) Parent will deliver to such electing
Securityholder a check in the amount of the Cash Election Price multiplied by
the number of shares of Parent Preferred Stock and number of shares of Parent
Preferred Stock underlying the Parent Warrants which such electing
Securityholder would have received as Merger Consideration; (ii) Parent will not
issue such electing Securityholder any of the shares of Parent Preferred Stock
or Parent Warrants that such Securityholder would have received as Merger
Consideration; it being agreed and understood that the Merger Consideration paid
to such Securityholder shall be deemed to be the aggregate Cash Election Price
paid to such Securityholder; and (iii) the Indemnification Holdback will
automatically be reduced by the number of shares of Parent Preferred Stock and
Parent Warrants with respect to which any holder has made a Cash
Election.
(b) The
Merger Consideration shall not be delivered to any Securityholder until the Cash
Election Period has expired, and then only to Securityholders who have not
elected the Cash Election.
(c)
Xxxxxx hereby agrees that he will not elect the Cash Election.
(b) Section
2.9(a) of the Merger Agreement is amended by adding the following phrase at the
very beginning of such Section: “Subject to the provisions of Section
2.12(a) below, . . . .”
(c) Section
8.2 of the Merger Agreement is amended to change the references to “subparagraph
(e) and (f) of Section
8.1” with “subparagraph (d) and (e) of Section
8.1”.
(d) Section
7.3(g) of the Merger Agreement is amended to change the word “distraction”,
which is the thirteenth word of that Section, to “discretion”.
(e) Section
9.1 of the Merger Agreement is amended to change the tenth word in the last
sentence from “to” to “of”.
2. Miscellaneous.
(a) This
Amendment shall be governed by, and construed and interpreted in accordance
with, the laws of the state of Delaware.
(b) Paragraph
headings are inserted herein for convenience only and do not form a part of this
Amendment.
(c) Except as
specifically provided herein, the Merger Agreement shall remain in full force
and effect.
(d) This
Amendment may be executed in two or more original, facsimile or electronic
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[Rest of
Page Intentionally Left Blank]
IN WITNESS WHEREOF, the
Company, Xxxxxx, Parent and Merger Sub have executed this Amendment as of the
date first above written.
| GEOS COMMUNICATIONS, INC. | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxx | |
| Xxxxxx X. Xxxxxx, Chief Executive Officer | |||
| DOU GUO ACQUISITION, INC. | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxx | |
| Xxxxxx X. Xxxxxx, Chief Executive Officer | |||
| D MOBILE, INC. | |||
|
|
By:
|
/s/ Xxxxxxxx Xxxxxx | |
| Xxxxxxxx Xxxxxx, Chief Executive Officer | |||
|
|
By:
|
/s/ Xxxxxxxx Xxxxxx | |
| Xxxxxxxx Xxxxxx |
