STOCK PURCHASE AGREEMENT BY AND AMONG PLUGINZ, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, DNC MULTIMEDIA, INC., PLANETTRAKS INC. AND PLANETLINK COMMUNICATIONS, INC. Dated as of November 12, 2007
Exhibit
10.1
BY
AND
AMONG
PLUGINZ,
LLC, A CALIFORNIA LIMITED LIABILITY COMPANY,
DNC
MULTIMEDIA, INC.,
PLANETTRAKS
INC.
AND
PLANETLINK COMMUNICATIONS, INC.
Dated
as
of November 12, 2007
THIS
STOCK PURCHASE AGREEMENT (this “Agreement”) is made and
entered into as of November 12, 2007, by and among (1) Planetlink
Communications, Inc., a Georgia corporation (the “Parent”), (2) Planettraks
Inc., a Nevada corporation and wholly-owned subsidiary of the Parent
(“Purchaser”), (3) DnC Multimedia, Inc., a Delaware corporation (“DnC”), and (4)
Pluginz, LLC, a California limited liability company (the
“Seller”).
RECITALS
A. The
Seller wishes to sell to Purchaser, and Parent wishes for Purchaser to purchase
from Seller, all of the capital stock that the Seller owns in DnC (the
“Shares’), in accordance with the terms and conditions of this Agreement (the
“Stock Purchase”) and, in furtherance thereof,
have
entered into the Stock Purchase.
B. Subject
to the terms and conditions of this Agreement, Purchaser will purchase and
the
Seller will sell all of the issued and outstanding capital stock of DnC in
exchange for the consideration set forth herein.
C. DnC
and the Seller, on the one hand, and Purchaser, on the other hand, desire to
make certain representations, warranties, covenants and other agreements in
connection with the Stock Purchase.
NOW,
THEREFORE, in consideration of the mutual agreements, covenants and other
promises set forth herein, the mutual benefits to be gained by the performance
thereof, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and accepted, the parties hereby
agree as follows:
ARTICLE I
SALE
AND
PURCHASE
1.1
Sale of Capital Stock. At
the Closing and subject to and upon the terms and conditions of this Agreement,
Seller will sell, transfer, convey and deliver to Purchaser and Parent will
cause Purchaser to purchase and acquire from the Seller, good and valid title
to
all of the Shares, free and clear of any Encumbrances.
1.2
Purchase Price. In
consideration of the sale of Shares pursuant to Section 1.1 hereof, upon
the terms and subject to the conditions set forth in this Agreement, Parent
shall cause Purchaser to pay the Purchase Price to the Seller. The
stock issued to Seller as part of the Purchase Price is in exchange for the
Shares issued to Seller is additional consideration.
1.3
Closing. Upon
the terms and subject to the conditions of this Agreement, the sale and purchase
of the Shares shall take place at a closing (the “Closing”),
which will take place as promptly as practicable after the execution and
delivery of this Agreement by the parties hereto, unless another time or place
is mutually agreed upon in writing by Purchaser and the Seller. In
any event the Closing shall take place within ten days of the execution of
this
Agreement (the “Closing Deadline”). Timing is of the essence with
respect to the Closing Deadline. In the event the Closing does not
take place by the Closing Deadline, this Agreement shall be rescindable at
the
option of the party not at fault for failure to close timely (the “Non-breaching
Party”). In the event the Non-breaching party does not choose to
rescind in conjunction with a failure to close timely, this Agreement shall
continue to be binding and fully enforceable by either party. All
documents delivered and actions taken at the Closing shall be deemed to have
been delivered or taken simultaneously, and no such delivery or action shall
be
considered effective or complete unless or until all other such deliveries
or
actions are completed or waived in writing by the party against whom such waiver
is sought to be enforced. The date upon which the Closing actually
occurs shall be referred to herein as the “Closing
Date.”
1.4
Closing Deliveries of the Seller and DnC.
Upon the terms and subject to the conditions set forth in this Agreement, at
the
Closing, the Seller and DnC shall deliver, or cause to be delivered, to
Purchaser the following:
(a) stock
certificates representing all of the Shares, duly endorsed (or accompanied
by
duly executed stock powers), for transfer to Purchaser;
(b) such
other documents, instruments and certificates as are required in connection
with
the execution and delivery of this Agreement or as may be reasonably requested
by Purchaser.
1.5
Closing Deliveries of Purchaser and the Parent.
Upon the terms and subject to the conditions set forth in this Agreement, at
the
Closing, Parent and Purchaser shall deliver, or cause to be
delivered:
(a) the
Purchase Price to Seller, including the stock certificate(s), to be delivered
not later than one (1) business day prior to the Closing; and
(b) such
other documents, instruments and certificates as may be reasonably requested
by
the Seller and DnC.
1.6
Taking of Necessary Action; Further Action.
If, at any time after the Closing, any reasonable further action is necessary
to
ensure that all of the Seller’s right, title and possession of the Shares is
effectively transferred to the Purchaser, the Seller and DnC will each take
all
such action. If, at any time after the Closing, any reasonable
further action is necessary to ensure that all right, title and possession
of
the Purchase Price is effectively transferred to the Seller, the Parent and
Purchaser will each take all such action. If, at any time after the Closing,
any
reasonable further action is necessary to ensure that all right, title and
possession of the Assets of DnC Tech have been effectively transferred to DnC,
then DnC will take all such action.
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1.7
Certain Defined Terms.
For all purposes of this Agreement, the following terms shall have the following
respective meanings:
(d)
“Knowledge” or “Known”
shall mean
(i) with respect to DnC, the knowledge of DnC’ boards of directors,
officers and other persons serving in similar roles; provided, however,
that such persons shall have made due and diligent inquiry of those employees
of
DnC and those individuals retained by DnC as consultants or contractors, in
each
case whom such officers reasonably believe would have actual knowledge of the
matters represented, and (ii) with respect to the Seller, the knowledge of
the
Seller.
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ARTICLE II
REPRESENTATIONS
AND WARRANTIES OF DNC MULTIMEDIA, INC.
DnC
Multimedia, Inc. (“DnC”) represents and warrants to Purchaser as
follows:
2.1
Organization of DnC.
DnC is a corporation duly organized, validly existing and in good standing
under
the laws of the State of Delaware. DnC has the corporate power to own
or lease its properties and to carry on its business as currently
conducted. DnC is duly qualified or licensed to do business and in
good standing as a foreign corporation in each jurisdiction in which it conducts
business, except where the failure to so qualify would not reasonably be expect
to have a material adverse effect on the business of DnC.
2.2 DnC
Capital Structure.
(a) The
authorized capital stock of DnC consists of 1,500 shares of Common Stock, of
which 1,500 shares are issued and outstanding as of the date hereof, all of
which are held of record and beneficially by the Seller. All
outstanding shares of DnC Common stock are duly authorized, validly issued,
fully paid and non-assessable and not subject to preemptive rights created
by
statute, the articles of incorporation or bylaws of DnC, or any agreement to
which DnC is a party or by which it is bound. All outstanding shares
of DnC Common stock have been issued in compliance with all applicable federal
and state securities laws.
(b) Subject
to and upon the terms and conditions of this Agreement, as a result of the
Stock
Purchase, Purchaser will be the sole record and, assuming Purchaser has not
taken and does not take any action to transfer or share beneficial ownership
of
any DnC Capital Stock, beneficial holder of all issued and outstanding DnC
Capital Stock, free and clear of any Encumbrances, such that, as of immediately
following the Closing, assuming Purchaser has not taken and does not take any
action to transfer or encumber any such shares or rights, DnC will become a
wholly-owned subsidiary of Purchaser. As of immediately following the
Closing, no person or entity that held DnC Capital Stock immediately prior
to
the Closing has any bona fide claim that such person or entity is entitled
to
any amounts whatsoever.
2.3
Subsidiaries.
DnC does not have any subsidiaries and does not otherwise own any shares of
capital stock or any interest in, or control of, directly or indirectly, any
other corporation, partnership, association, joint venture or other business
entity.
2.4
DnC Tech, Inc. Asset Purchase. DnC has consummated the
purchase of one hundred percent of the assets of DnC Tech Inc., a South Korean
corporation.
2.5
Authority.
DnC has all requisite corporate power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of DnC. This Agreement has been duly executed and
delivered by DnC and assuming the due authorization, execution and delivery
by
the other parties hereto and thereto, constitutes the valid and binding
obligations of DnC enforceable against DnC in accordance with its terms, subject
to applicable bankruptcy, insolvency, moratorium or other similar laws relating
to creditors’ rights and general principles of equity.
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ARTICLE III
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
The
Seller hereby represents and warrants to Purchaser as follows:
3.1
Ownership of DnC’s Capital Stock.
The Seller is the sole record and beneficial owner of the Shares. The
Shares are not subject to any Encumbrances or to any rights of first refusal
of
any kind, and the Seller has not granted any rights to purchase such Shares
to
any other person. The Seller has the sole right to transfer the
Shares to Purchaser. The Shares constitute all of DnC’s Capital Stock
owned, beneficially or of record, by the Seller, and the Seller has no options,
warrants or other rights to acquire Companies Capital
Stock.
3.2
Absence of Claims by the Seller.
The Seller does not have any claim against DnC, whether present or future,
contingent or unconditional, fixed or variable under any contract or on any
other basis whatsoever, whether in equity or at law, arising out of any action,
inaction or omission by DnC, or for which either Company is liable, on or prior
to the Closing Date.
3.3
Authority. The Seller has all requisite corporate power to enter
into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of the Seller. This
Agreement has been duly executed and delivered by the Seller, and assuming
the
due authorization, execution and delivery by the other parties hereto and
thereto, constitutes the valid and binding obligations of the Seller, subject
to
applicable bankruptcy, insolvency, moratorium or other similar laws relating
to
creditors’ rights and general principles of equity.
3.4
No Conflict. The execution and delivery by the Seller of
this Agreement and the consummation of the transactions contemplated hereby
will
not conflict with (a) the Certificate of Incorporation of the Seller, or
(b) to the Knowledge of the Seller, any judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to the Seller or his
properties or assets (whether tangible or intangible).
-5-
ARTICLE IV
REPRESENTATIONS
AND WARRANTIES OF PARENT
4.1
Organization, Standing and Power.
Parent is a duly organized, validly existing corporation and in good
standing under the laws of the State of Georgia.
4.2
Authority.
Parent has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Parent. This Agreement has been duly
executed and delivered by Parent and constitutes the valid and binding
obligations of Parent, enforceable against Parent in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium or other similar laws
relating to creditors’ rights and general principles of equity.
4.3
Parent Capital Structure.
(a)
Parent is authorized to issue 4,850,000,000 shares of Common stock, and
150,000,000 shares of preferred stock. Parent currently has 2,793,683,760 shares
of common stock and 2,583,334 shares of preferred stock issued and outstanding
as of the date hereof. All outstanding shares of Parent Capital Stock
are duly authorized, validly issued, fully paid and non-assessable and not
subject to preemptive rights created by statute, the certificate of
incorporation or bylaws of Parent, or any agreement to which Parent is a party
or by which it is bound. All outstanding shares of Parent Capital
Stock have been issued in compliance with all applicable federal and state
securities laws.
(b)
Subject to and upon the terms and conditions of this Agreement and not counting
any shares of Parent common stock already held by Seller, as a result of the
Stock Purchase, Seller will be the sole record and, assuming Seller has not
taken and does not take any action to transfer or share beneficial ownership
of
any Purchaser Capital Stock, beneficial holder of 250,000,000 shares of Parent
common stock and 1,250,000 shares of Parent Series A preferred stock shares
Parent Common Stock, free and clear of any Encumbrances, such that, as of
immediately following the Closing, Seller will become the majority stockholder
of Parent.
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ARTICLE V
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
Purchaser
hereby represents and warrants to DnC and the Seller, as follows:
5.1
Organization, Standing and Power.
Purchaser is a duly organized, validly existing corporation and in
good standing under the laws of the State of Nevada.
5.2
Authority.
Purchaser has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Purchaser. This Agreement has been
duly executed and delivered by Purchaser and constitutes the valid and binding
obligations of Purchaser, enforceable against Purchaser in accordance with
its
terms, subject to applicable bankruptcy, insolvency, moratorium or other similar
laws relating to creditors’ rights and general principles of
equity.
5.3
Purchaser Capital Structure.
(a)
Purchaser is authorized to issue 800,000,000 shares of Common stock, and
100,000,000 shares of preferred stock. Purchaser currently has 500
shares of common stock and 0 shares of preferred stock issued and outstanding
as
of the date hereof. All outstanding shares of Purchaser Capital Stock
are duly authorized, validly issued, fully paid and non-assessable and not
subject to preemptive rights created by statute, the certificate of
incorporation or bylaws of Purchaser, or any agreement to which Purchaser is
a
party or by which it is bound. All outstanding shares of Purchaser
Capital Stock have been issued in compliance with all applicable federal and
state securities laws.
Subject
to and upon the terms and conditions of this Agreement, as a result of the
Stock
Purchase, Seller will be the sole record and, assuming Seller has not taken
and
does not take any action to transfer or share beneficial ownership of any
Purchaser Capital Stock, beneficial holder of 1,700,000,000 shares Parent Common
Stock, free and clear of any Encumbrances, such that, as of immediately
following the Closing, Seller will become the majority common stockholder of
Parent.
ARTICLE VI
ADDITIONAL
AGREEMENTS
6.1
Parent’s
Board of
Directors. With the exception of M. Xxxxx Xxxx, each member of
the Parent’s current Board of Directors shall resign from such position
effective immediately upon the Closing. Upon Closing Parent shall
also appoint Hanseo Park, Xxxxx Xxxxxx, Xxxxxx Xxxx and Xxxxxx Xxx to Parent’s
Board of Directors. Xxxxx Xxxxxx shall serve as Parent’s Chairman of
the Board.
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6.3
Tax Treatment. The exchange of the Shares for shares of
common stock in Planetlink Communications, Inc. described herein is intended
to
comply with all of the provisions of Section 351 of the Internal Revenue Code
of
1986, as amended and all applicable regulations thereunder. In order
to ensure compliance with said provisions, the parties agree to take whatever
steps may be necessary, including, but not limited to, the amendment of this
Agreement.
ARTICLE VII
CONDITIONS
TO CLOSING
7.1
Conditions to Obligations of Each Party to Effect the Stock
Purchase.
The respective obligations of DnC, Purchaser and the Seller to consummate and
effect the Stock Purchase, this Agreement and the transactions contemplated
hereby shall be subject to the satisfaction, at or prior to the Closing, of
the
following conditions:
(a) No
Order. No Governmental Entity shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation, executive order,
decree, injunction or other order (whether temporary, preliminary or permanent)
which is in effect and which has the effect of making the Stock Purchase, this
Agreement and the transactions contemplated hereby illegal or otherwise
prohibiting consummation of the Stock Purchase, this Agreement and the
transactions contemplated hereby.
(b) No
Injunctions or Restraints; Illegality. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court
of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Stock Purchase, this Agreement and the transactions
contemplated hereby shall be in effect, nor shall any proceeding brought by
an
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign, seeking any of the foregoing be threatened
or pending.
7.2
Conditions to the Obligations of Purchaser.
The obligations of Purchaser to consummate and effect the Stock Purchase, this
Agreement and the transactions contemplated hereby shall be subject to the
satisfaction at or prior to the Closing of each of the following conditions,
any
of which may be waived, in writing, exclusively by Purchaser:
(a) Representations
and Warranties. The representations and warranties of DnC and the
Seller in this Agreement (other than the representations and warranties of
DnC
and the Seller as of a specified date, which shall be true and correct as of
such date) shall be true and correct on and as of the Closing Date.
(b) Litigation. There
shall be no action, suit, claim, order, injunction or proceeding of any nature
pending, or overtly threatened, against Purchaser or DnC, their respective
properties or any of their respective officers or directors arising out of,
or
in any way connected with, the Stock Purchase or the other transactions
contemplated by the terms of this Agreement.
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(c) Certificate
of Secretary of Companies. Purchaser shall have received a
certificate, validly executed by the Secretary of DnC, certifying as to
(i) the terms and effectiveness of the articles of incorporation and the
bylaws of DnC, and (ii) the valid adoption of resolutions of the Board of
Directors of DnC approving this Agreement and the consummation of the
transactions contemplated hereby.
(d) Certificate
of Good Standing. Purchaser shall have received a certificate of
good standing from the appropriate South Korean government authority for
DnC.
(e) Closing
of Additional Agreements. On or before the Closing, DnC shall
have completed the purchase of one hundred percent of the assets of DnC Tech,
Inc., a South Korean corporation.
7.3
Conditions to Obligations of DnC and the Seller.
The obligations of DnC and the Seller to consummate and effect the Stock
Purchase, this Agreement and the transactions contemplated hereby shall be
subject to the satisfaction at or prior to the Closing of each of the following
conditions, any of which may be waived, in writing, exclusively by both DnC
and
the Seller:
(a) Representations
and Warranties. The representations and warranties of Purchaser in
this Agreement (other than the representations and warranties of Purchaser
as of
a specified date, which shall be true and correct as of such date) shall be
true
and correct on and as of the Closing Date.
(b) Clarification
and Ratification of Anti-dilution Rights of Parent’s Series A Preferred
Stock. On or before the Closing, the Parent shall have clarified and
ratified anti-dilution rights associated with the Parent’s Series A preferred
stock to the satisfaction of the Parent and the Seller.
(b) Closing
of Additional Agreements. On or before the Closing, the Parent
shall have executed a Settlement Agreement between the Parent, Xxxxxxx Xxxxx
and
Xxxx Xxxxx that is satisfactory to both Parent and Seller. The Parent shall
also
have executed a Settlement Agreement between the Parent and M. Xxxxx Xxxx that
is satisfactory to both Parent and Seller.
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ARTICLE VIII
GENERAL
PROVISIONS
8.1
Notices.
All notices and other communications hereunder shall be in writing and shall
be
deemed given if delivered personally or by commercial messenger or courier
service, or mailed by registered or certified mail (return receipt requested)
or
sent via facsimile (with acknowledgment of complete transmission) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice); provided, however, that notices
sent by mail will not be deemed given until received:
(a) if
to Purchaser, to:
Planettraks
Inc.
c/o
Planetlink Communications, Inc.
0000
Xxxxxxxxx Xxxxx
Xxxxxxx,
XX 00000
(b) if
to DnC or the Seller, to:
Pluginz,
LLC
000
Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxx
Xxxx, XX 00000
8.2
Interpretation.
The words “include,” “includes” and “including” when used herein shall be deemed
in each case to be followed by the words “without limitation.” The
table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of
this Agreement.
8.3
Counterparts.
This Agreement may be executed in one or more counterparts, all of which shall
be considered one and the same agreement and shall become effective when one
or
more counterparts have been signed by each of the parties and delivered to
the
other party, it being understood that all parties need not sign the same
counterpart.
8.4 This
Agreement and the documents and instruments and other agreements among the
parties hereto referenced herein: (a) constitute the entire agreement among
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings both written and oral, among the parties with
respect to the subject matter hereof, (b) are not intended to confer upon
any other person any rights or remedies hereunder, and (c) shall not be
assigned by operation of law or otherwise, except that Purchaser may assign
its
rights and delegate its obligations hereunder to
its affiliates.
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8.5
Severability.
In the event that any provision of this Agreement or the application thereof,
becomes or is declared by a court of competent jurisdiction to be illegal,
void
or unenforceable, the remainder of this Agreement will continue in full force
and effect and the application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of
the
parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
8.6
Amendment.
This Agreement may be amended or terminated by the parties hereto at any time
by
execution of an instrument in writing signed on behalf of the party against
whom
enforcement is sought.
8.7
Governing Law; Exclusive Jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws
of
the State of California, regardless of the laws that might otherwise govern
under applicable principles of conflicts of laws thereof.
8.8
Rules of Construction.
The parties hereto agree that they have been represented by counsel during
the
negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction providing
that ambiguities in an agreement or other document will be construed against
the
party drafting such agreement or document.
[remainder
of page intentionally left blank]
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IN
WITNESS WHEREOF, Parent, Purchaser, DnC, and the Seller have caused this
Agreement to be signed, all as of the date first written above.
| PLANETLINK COMMUNICATIONS, INC. (PARENT) | ||
| By: | ||
| Name: Xxxxxx Xxxx | ||
| Title: CEO | ||
| PLANETTRAKS, INC. (PURCHASER) | ||
| By: | ||
| Name: Xxxxxx Xxxx | ||
| Title: CEO | ||
| PLUGINZ, LLC (SELLER) | ||
| By: | ||
| Name: Xxxxx Xxxxxx | ||
| Title: Manager | ||
SIGNATURE
PAGE TO STOCK PURCHASE AGREEMENT
