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Exhibit 10.1
STOCK PURCHASE AGREEMENT
AMONG
NUMOBILE, INC.,
ENHANCE NETWORK COMMUNICATION, INC.
AND
THE SHAREHOLDERS OF ENHANCE NETWORK COMMUNICATION, INC.
DATED SEPTEMBER 9, 2009
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STOCK PURCHASE AGREEMENT
THIS STOCK
PURCHASE AGREEMENT is made as of September 17th, 2009 (the
"AGREEMENT"), among NuMobile, Inc., a corporation existing under
the laws of
Nevada (the "PURCHASER"), Enhance Network Communication, Inc., a
corporation
existing under the laws of California ("ENHANCE"), and the
shareholders of
Enhance listed on SCHEDULE 1 hereof (collectively the
"SELLERS").
W I T N E S S E T H:
WHEREAS, the
Sellers own an aggregate of 1,500 shares of common stock,
$0.001 par value per share (the "Common Stock"), the "SHARES"),
which constitute
100% of the issued and outstanding shares of capital stock of
Enhance; and
WHEREAS, the
Sellers desire to sell to Purchaser, and the Purchaser
desires to purchase from the Sellers, the Shares upon the terms and
conditions
hereinafter set forth;
NOW, THEREFORE, in
consideration of the premises and the mutual
covenants and agreements hereinafter contained, the parties hereby
agree as
follows:
ARTICLE I SALE AND PURCHASE OF SHARES
1.1 SALE AND PURCHASE OF SHARES.
Upon the terms and
subject to the conditions contained herein, on the
Closing Date each Seller shall sell, assign, transfer, convey and
deliver to the
Purchaser, and the Purchaser shall purchase from each Seller, all
Shares of
Enhance owned by such Seller set forth opposite such Seller's name
on SCHEDULE 1
attached hereto. The sale and purchase are intended to be a
tax-free
reorganization under Section 368(a)(1)(B) of the Internal Revenue
Code.
ARTICLE II PURCHASE PRICE AND PAYMENT
2.1 AMOUNT AND PAYMENT OF PURCHASE
PRICE.
On the Closing
Date, the Purchaser shall issue an aggregate principal
amount of $5,000,000 notes with $1,000,000 due September 9th, 2010
and subject
to performance as set forth in Section 2.2 of this Agreement,
$4,000,000 due
September 9th, 2014 in the form attached hereto as Exhibit 1 (the
"Notes") to
the Sellers based on the percentages set forth on Schedule 1.
2.2 TERMS AND CONDITIONS OF
PAYMENT.
The $4,000,000
payment due September 9th, 2014 is subject to specific
performance as set forth in this Section 2.2. Enhance anticipates
entering into
a contract for its proprietary technology prior to April 1, 2011.
That contract
is expected to contemplate the generation of in excess of
$20,000,000 in revenue
and $8,000,000 in gross margin. If Enhance does not enter into a
contract that
contemplates the generation of at least $20,000,000 in revenue and
$8,000,000 in
gross margin (the "Performance Contract") prior to April 1, 2011,
then the
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$4,000,000 note will be canceled and the $1,000,000 note due
September 9th, 2010
will be considered payment in full for the 1,500 shares of common
stock which
constitute 100% of the issued and outstanding shares of capital
stock of
Enhance. If Enhance is successful in entering into the Performance
Contract,
then $4,000,000 of the Notes will be due September 9th, 2014
(unless such Notes
shall have been cancelled in accordance with this Section 2.2), and
the Sellers
will have an option to buy back 1,500 shares of common stock which
constitute
100% of the issued and outstanding shares of capital stock of
Enhance in
exchange for $5,000,000 in cash, and the cancelation of any
outstanding notes
due the Sellers, if the cash payment is delivered prior to
September 9, 2012.
ARTICLE III CLOSING AND TERMINATION
3.1 CLOSING DATE.
Subject to the
satisfaction of the conditions set forth in Sections 7.1
and 7.2 hereof (or the waiver thereof by the party entitled to
waive that
condition), the closing of the sale and purchase of the Notes
provided for in
Section 2 hereof (the "CLOSING") shall take place at the offices of
Sichenzia
Ross Friedman Ference LLP, 61 Broadway, New York, NY 10006 (or at
such other
place as the parties may designate in writing) on such date as the
Sellers and
the Purchaser may designate. The Closing may also take place
through the
delivery of documents in electronic or telefaxed format or through
courier
delivery of actual signatures to counsel for the parties.
3.2 TERMINATION OF AGREEMENT.
This Agreement may
be terminated prior to the Closing by either (a)
mutual written consent of the Sellers and the Purchaser or (b) the
failure to
complete the Closing by September 30, 2009. In the event that this
Agreement is
validly terminated as provided herein, then each of the parties
shall be
relieved of their duties and obligations arising under this
Agreement after the
date of such termination and such termination shall be without
liability to the
Purchaser, Enhance or any Seller; PROVIDED, HOWEVER, that nothing
in this
Section 3.2 shall relieve the Purchaser or any Seller of any
liability for a
breach of this Agreement.
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each of the
Sellers represents and warrants to the Purchaser that as of
the Closing Date:
4.1 ORGANIZATION AND GOOD STANDING OF
ENHANCE.
Enhance is a
corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation as
set forth
above.
4.2 AUTHORITY.
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(a) Enhance has full power and
authority (corporate and otherwise)
to carry on its business and has all permits and licenses that
are necessary to the conduct of its business or to the
ownership, lease or operation of its properties and assets,
except where the failure to have such permits and licenses
would not have a material adverse effect on the Company's
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business or operations taken as a whole ("MATERIAL ADVERSE
EFFECT").
(b) The execution of this Agreement
and the delivery hereof to the
Purchaser and the sale contemplated herein have been, or will
be prior to Closing, duly authorized by Enhance's Board of
Directors and, if necessary, by Enhance's stockholders having
full power and authority to authorize such actions.
(c) Neither the execution and
delivery of this Agreement, the
consummation of the transactions herein contemplated, nor
compliance with the terms of this Agreement will violate,
conflict with, result in a breach of, or constitute a default
under any statute, regulation or other agreement to which
Enhance or any Seller is a party or by which it or any of them
is bound, any charter, regulation, or bylaw provision of
Enhance, or any decree, order, or rule of any court or
governmental authority or arbitrator that is binding on
Enhance or any Seller in any way, except where such would not
have a Material Adverse Effect.
4.3 SHARES.
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(a) Enhance's authorized capital
stock consists of 1,500,000
shares of Common Stock of which 1,500 shares are issued and
outstanding. All of the Shares are duly authorized, validly
issued, fully paid
and non-assessable.
(b) There are no authorized or
outstanding subscriptions, options,
warrants, calls, contracts, demands, commitments, convertible
securities or other agreements or arrangements of any
character or nature whatever under which or Enhance is or may
become obligated to issue, assign or transfer any shares of
capital stock of Enhance. Based upon the representations and
warranties of the Sellers in this Agreement, upon the delivery
to Purchaser on the Closing Date of the certificate(s)
representing the Shares, Purchaser will have good, legal,
valid, marketable and indefeasible title to 100% of the then
issued and outstanding shares of capital stock of Enhance,
free and clear of any liens, pledges, encumbrances, charges,
agreements, options, claims or other arrangements or
restrictions of any kind, other than those imposed by
applicable securities laws.
4.4 BASIC CORPORATE
RECORDS.
The copies of the
Certificate of Incorporation of Enhance (certified by
the Secretary of State or other authorized official of the
jurisdiction of
incorporation), and the Bylaws of Enhance, all of which have been
delivered to
the Purchaser, are true, correct and complete as of the date of
this Agreement.
The minute books
of Enhance, which shall be exhibited to the Purchaser
between the date hereof and the Closing Date, each contain true,
correct and
materially complete minutes and records of all meetings,
proceedings and other
actions of the shareholders and Board of Directors of Enhance,
except where such
would not have a Material Adverse Effect and, on the Closing Date,
will, contain
true, correct and materially complete minutes and records of any
meetings,
proceedings and other actions of the shareholders and the Board of
Directors of
Enhance.
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4.5 SUBSIDIARIES AND
AFFILIATES.
Any and all
businesses, entities, enterprises and organizations in
which Enhance has any ownership, voting or profit and loss sharing
percentage
interest (the "SUBSIDIARIES") are identified in Schedule 4.5
hereto, together
with Enhance's interest therein.
4.6 CONSENTS.
No consents or
approvals of any public body or authority and no
consents or waivers from other parties to leases, licenses,
franchises, permits,
indentures, agreements or other instruments are (i) required for
the lawful
consummation of the transactions contemplated hereby, or (ii)
necessary in order
that the business currently conducted by Enhance can be conducted
by the
Purchaser in the same manner after the Closing as heretofore
conducted by
Enhance, nor will the consummation of the transactions contemplated
hereby
result in creating, accelerating or increasing any liability of
Enhance, except
where the failure of any of the foregoing would not have a Material
Adverse
Effect.
4.7 FINANCIAL STATEMENTS.
The Sellers have
delivered, or will deliver prior to Closing, to the
Purchaser copies of the financial statements dated 06/30/2009 and
the period
then ended, all of which are true, complete and correct, have been
prepared from
the books and records of Enhance. The records and books of Enhance
reflect all
material assets and liabilities.
There are no
liabilities or obligations of Enhance of any kind
whatsoever exceeding $10,000, individually or in the aggregate,
whether accrued,
fixed, absolute, contingent, determined or determinable, except as
identified in
Schedule 4.14.
4.8 TAXES.
For purposes of
this Agreement, "TAX" or "TAXES" refers to any and all
federal taxes, assessments and other governmental charges, duties,
impositions
and liabilities relating to taxes, including taxes based upon or
measured by
gross receipts, income, profits, sales, use and occupation, and
value added, ad
valorem, transfer, franchise, withholding, payroll, recapture,
employment,
excise and property taxes and escheatment payments, together with
all interest,
penalties and additions imposed with respect to such amounts and
any obligations
under any agreements or arrangements with any other person with
respect to such
amounts and including any liability for taxes of a predecessor
entity.
Enhance has timely
filed all federal returns, estimates, information
statements and reports ("TAX Returns") relating to Taxes required
to be filed by
Enhance with any Tax authority effective through the Closing Date.
All such Tax
Returns are true, correct and complete in all respects, except for
immaterial
amounts where such would not have a Material Adverse Effect.
Enhance has not
been delinquent in the payment of any Tax nor is there
any Tax deficiency outstanding or assessed against Enhance. Enhance
has not
executed any unexpired waiver of any statute of limitations on or
extending the
period for the assessment or collection of any Tax.
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4.9 REAL PROPERTY MATTERS.
Enhance does not
own any real property as of the date hereof and has
not owned any real property during the three years preceding the
date hereof.
4.10 PATENTS, SOFTWARE, TRADEMARKS,
ETC.
Enhance owns, or
possesses adequate licenses or other rights to use,
all patents, software, trademarks, service marks, trade names and
copyrights and
trade secrets, if any, necessary to conduct its Business as now
operated by it.
The patents, software, trademarks, service marks, copyrights, trade
names and
trade secrets, if any, registered in the name of or owned or used
by or licensed
to Enhance and applications for any thereof, other than
commercial,
off-the-shelf products, (hereinafter the "INTANGIBLES") are
described or
referenced in SCHEDULE 4.10. Sellers hereby specifically
acknowledge that all
right, title and interest in and to all patents and software listed
on SCHEDULE
4.10 as patents owned by Enhance are owned by Enhance or Enhance
has a right to
use same and that the ownership of such patents and software will
be transferred
as part of Enhance to Purchaser as part of the transaction
contemplated hereby,
subject to any filings required by the USPTO. No officer, director,
shareholder
or employee of Enhance or any relative or spouse of any such person
owns any
patents or patent applications or any inventions, software, secret
formulae or
processes, trade secrets or other similar rights, nor is any of
them a party to
any license agreement, used by or useful to Enhance or related to
its business
except as listed in SCHEDULE 4.10.
All of said
Intangibles are enforceable and are free and clear of all
liens, security interests, charges, restrictions and encumbrances
of any kind
whatsoever, and have not been licensed to any third party except as
described in
SCHEDULE 4.10. Enhance has not been charged with, nor has it
infringed or is it
threatened to be charged with infringement of, any patent,
proprietary rights or
trade secrets of others in the conduct of its business, and, to the
date hereof,
neither the Sellers nor Enhance has received any notice of conflict
with or
violation of the asserted rights in intangibles or trade secrets of
others.
Enhance is not now manufacturing any goods under a present permit,
franchise or
license. The consummation of the transactions contemplated hereby
will not alter
or impair any rights of Enhance in any such Intangibles or in any
such permit,
franchise or license, except as described in SCHEDULE 4.10. The
Intangibles are
in such form and of such quality and will be maintained in such a
manner that
Enhance can, following the Closing, design, produce, manufacture,
assemble and
sell the products and provide the services heretofore provided by
it so that
such products and services meet applicable specifications and
conform with the
standards of quality and cost of production standards heretofore
met by it.
Enhance has the sole and exclusive right to use its corporate and
trade names in
the jurisdictions where it transacts business.
4.11 MACHINERY AND EQUIPMENT.
Except for items
disposed of in the ordinary course of business, all
machinery, tools, furniture, fixtures, equipment, vehicles,
leasehold
improvements and all other tangible personal property (hereinafter
"FIXED
ASSETS") of the Company currently being used in the conduct of its
business (the
"BUSINESS"), together with any machinery or equipment that is
leased or operated
by the Company, are in fully serviceable working condition and
repair. Schedule
4.11 describes all Fixed Assets owned by Enhance. All Fixed Assets
owned, used
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or held by the Company are situated at its business premises and
are currently
used in its Business.
4.12 LISTS OF CONTRACTS, ETC.
There is included
in SCHEDULE 4.12 a list of the following items
(whether written or oral) relating to Enhance, which list
identifies and fairly
summarizes each item (collectively, "CONTRACTS"):
(a) All joint venture contracts of
Enhance or affiliates relating
to the Business;
(b) All contracts of Enhance relating
to (a) obligations for
borrowed money and (b) obligations under capital leases, (e)
debt of others secured by a lien on any asset of Enhance, and
(f) debts of others guaranteed by Enhance;
(c) All agreements of Enhance
relating to the supply of raw
materials for and the distribution of the products of its
business, including without limitation all sales agreements,
manufacturer's representative agreements and distribution
agreements of whatever magnitude and nature, and any
commitments therefor;
(d) All contracts that individually
provide for aggregate future
payments to or from Enhance of $25,000 or more, to the extent
not included in (a) through (c) above;
(e) All contracts of Enhance that
have a term exceeding one year
and that may not be cancelled without any liability, penalty
or premium, to the extent not included in (a) through (d)
above;
(f) All contracts, agreements and
commitments of Enhance set forth
in SCHEDULE 4.12 are valid, binding and in full force and
effect, and (ii) neither Enhance nor, any other party to any
such contract, agreement, or commitment has materially
breached any provision thereof or is in default thereunder.
Immediately after the Closing, each such contract, agreement
or commitment will continue in full force and effect without
the imposition or acceleration of any burdensome condition or
other obligation on Enhance resulting from the sale of the
Shares by the Sellers.
4.13 COMPLIANCE WITH THE LAW.
Enhance is not in
violation of any applicable federal, state, local or
foreign law, regulation or order or any other, decree or
requirement of any
governmental, regulatory or administrative agency or authority or
court or other
tribunal (including, but not limited to, any law, regulation order
or
requirement relating to securities, properties, business,
products,
manufacturing processes, advertising, sales or employment
practices, terms and
conditions of employment, occupational safety, health and welfare,
conditions of
occupied premises, product safety and liability, civil rights, or
environmental
protection, including, but not limited to, those related to waste
management,
air pollution control, waste water treatment or noise abatement),
except where
such would not have a Material Adverse Effect. Enhance has not been
and is not
now charged with, or to Enhance's knowledge under investigation
with respect to,
any violation of any applicable law, regulation, order or
requirement relating
to any of the foregoing, nor, to Enhance's knowledge after due
inquiry, are
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there any circumstances that would or might give rise to any such
violation.
Enhance has filed all reports required to be filed with any
governmental,
regulatory or administrative agency or authority, except where the
failure to
file such would not have a Material Adverse Effect.
4.14 LITIGATION.
Except as
specifically identified on the Balance Sheet or footnotes
thereto or set forth in SCHEDULE 4.14:
(a) There are no legal,
administrative, arbitration or other
proceedings or governmental investigations pending or, to
Enhance's knowledge, threatened, against the Sellers or
Enhance, relating to its Business or Enhance or its properties
(including leased property), or the transactions contemplated
by this Agreement, nor is there any basis known to Enhance for
any such action.
(b) There are no judgments, decrees
or orders of any court, or any
governmental department, commission, board, agency or
instrumentality binding Enhance relating to its Business or
Enhance the effect of which is to prohibit any business
practice or the acquisition of any property or the conduct of
any business by Enhance or which limit or control or otherwise
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