EXHIBIT 10.1
PLAN AND AGREEMENT OF STOCK EXCHANGE
AMONG
HYBRID DYNAMICS CORPORATION
PUKKA USA, INC.
AND
THE SHAREHOLDERS OF
INFOMAC CORPORATION
DATED August 23, 2007
TABLE OF CONTENTS
PLAN AND AGREEMENT OF REORGANIZATION
AGREEMENT
Section 1 - Transfer of Shares
Section 2 - Issuance of EXCHANGE SHARES to OWNERS
Section 3 – Intentionally Left Blank
Section 4 – Closing
Section 5 - Representations and Warranties by ACQUIREE and
OWNERS
Section 6 - Representations and Warranties by ACQUIROR
Section 7 - Access and Information
Section 8 - Covenants of ACQUIREE and OWNERS
Section 9 - Covenants of ACQUIROR
Section 10 - Additional Covenants of the Parties
Section 11 - Non-Survival of Representations, Warranties and
Covenants
Section 12 - Conditions Precedent to Obligations of Parties
Section 13 - Termination, Amendment, Waiver
Section 14 – Miscellaneous
EXHIBIT LIST
Exhibit "A-1" UNANIMOUS WRITTEN
CONSENT OF THE BOARD OF DIRECTORS OF HYBRID DYNAMICS
CORPORATION
Exhibit “A-2” ACTION BY
UNANIMOUS WRITTEN CONSENT OF THE SHAREHOLDERS OF PUKKA USA,
INC.
Exhibit
"B" ACTION BY
UNANIMOUS WRITTEN CONSENT OF THE SHAREHOLDERS OF INFOMAC
CORPORATION
Exhibit
“C” ACQUIREE
FINANCIAL STATEMENTS
Exhibit
“D” ACQUIROR
FINANCIAL STATEMENTS
Exhibit
“E” ACQUIROR
CAPITALIZATION & SHAREHOLDERS
Exhibit
“F” FORM
OF INDIVIDUAL OWNER REPRESENTATION LETTER
PLAN AND AGREEMENT OF STOCK EXCHANGE
This Plan and Agreement of STOCK EXCHANGE ("Agreement") is
entered into on this 23rd day of August, 2007 by and between HYBRID
DYNAMICS CORPORATION, a Nevada corporation (“HYBRID”),
PUKKA USA, INC., a Utah corporation (the "ACQUIROR"), on the one
hand and INFOMAC CORPORATION (the "ACQUIREE”), a Nevada
corporation and the shareholders of ACQUIREE whose names appear
below (the “OWNER” OR “OWNNERS”).
WHEREAS, the transaction contemplated by this Agreement is
intended to be a qualified Type "B" reorganization pursuant to
Internal Revenue Code Section 368, and conforming Utah and Nevada
law, and
WHEREAS, ACQUIREE is the holder of a Distributor Agreement with
Microtrak GPS, Inc. a manufacturer of GPS enabled tracking products
for motorcycles, scooters and other mobile vehicles and equipment,
and
WHEREAS, ACQUIROR intends to acquire: 100% of ACQUIREE’s
issued and outstanding capital stock (the “ACQUIREE
SHARES”), and
WHEREAS, the ACQUIREE SHARES are to be acquired in exchange for
1,410,000 shares of the common stock HYBRID, $0.00015 par value
(post 1 for 100 reverse split), and
WHEREAS, following consummation of the transaction set forth
hereinafter, ACQUIROR would hold 100% of the then outstanding
common stock of ACQUIREE and the ACQUIREE would become the
wholly-owned subsidiary of ACQUIROR.
NOW, THEREFORE, WITNESSETH that in consideration of the mutual
promises and covenants hereinafter stipulated and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by each of the parties hereto, the parties
agree as follows:
Section 1
TRANSFER OF SECURITIES
1.1 OWNERS, as of the date
of Closing as such term is defined in Section 4 herein (the
"Closing" or the "Closing Date"), shall transfer, assign, convey
and deliver to ACQUIROR on the Closing Date, one hundred percent
(100%) of ACQUIREE’s issued and outstanding capital stock,
consisting of four million two hundred thirty thousand (4,230,000)
shares of common stock, $0.0001 par value (the “ACQUIREE
SHARES”). The transfer of the ACQUIREE SHARES
shall be made free and clear of all liens, mortgages, pledges,
encumbrances or charges, whether disclosed or undisclosed, except
as OWNERS and ACQUIROR shall have otherwise agreed in writing.
1.2 For purposes hereof,
the ACQUIREE SHARES shall include all of the issued and outstanding
shares of capital stock of ACQUIREE owned by OWNERS, which shares
shall constitute all of the issued and outstanding equity
securities of ACQUIREE. OWNERS and AQUIREE shall represent
and warrant that there are no other securities of ACQUIREE issued
and outstanding other than the ACQUIREE SHARES being conveyed
hereunder.
Section 2
ISSUANCE OF EXCHANGE SHARES TO OWNER
2.1 As consideration for
the transfer, assignment, conveyance and delivery of the ACQUIREE
SHARES hereunder, ACQUIROR shall, at the Closing, deliver to OWNERS
certificates representing one million four hundred ten thousand
(1,410,000) post 100-to-1 reverse split shares of HYBRID common
stock, $0.00015 par value, (the "EXCHANGE SHARES"), in the number
as set forth on opposite the name of each OWNER signatory
hereto. The parties hereto represent, acknowledge and agree
that the EXCHANGE SHARES being issued hereunder are being used
solely to acquire all of the ACQUIREE SHARES. (The issuance
of the EXCHANGE SHARES in consideration of the ACQUIREE SHARES
hereinafter referred to as the “EXCHANGE” or the
“EXCHANGE TRANSACTION”). HYBRID represents that
contemporaneously with this transaction, HYBRID’s common
stock
is in the process of a 100-to-1 reverse stock split, and it is the
intention of all parties hereto that the EXCHANGE SHARES being
issued hereunder shall be shares of HYBRID common stock issued
subsequent to the closing of its aforementioned reverse split.
2.2 The issuance of the
EXCHANGE SHARES shall be made free and clear of all liens,
mortgages, pledges, encumbrances or charges, whether disclosed or
undisclosed, except as OWNERS and ACQUIROR shall have otherwise
agreed in writing.
2.3 None of the EXCHANGE
SHARES issued to the OWNERS, nor any of ACQUIROR’S shares, at
the time of Closing, shall be registered under federal securities
laws but, rather, shall be issued pursuant to an exemption there
from and be considered "restricted stock" within the meaning of
Rule 144 promulgated under the Securities Act of 1933, as amended
(the "Act"). All of the respective certificates representing such
shares shall bear a legend worded substantially as
follows:
“THESE SECURITIES HAVE NOT BEEN REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”) OR THE SECURITIES LAWS OF ANY STATE. THEY MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THE SECURITIES UNDER THE ACT AND UNDER SUCH STATE
LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY TO THE
EFFECT THAT SUCH REGISTRATION AND QUALIFICATION UNDER THE ACT AND
SUCH STATE LAWS IS NOT REQUIRED.”
The respective transfer agents of ACQUIROR and ACQUIREE shall
annotate their records to reflect the restrictions on transfer
embodied in the legend set forth above. There shall be no
requirement that ACQUIROR register the OWNERS’ EXCHANGE
SHARES under the Act or any state securities laws, nor shall OWNERS
or the ACQUIREE be required to register any of the ACQUIREE SHARES
under the Act or any state securities laws.
Section 3
Intentionally Left Blank.
Section 4
CLOSING
4.1 Closing of
Transaction. Subject to the fulfillment or waiver of the conditions
precedent set forth in Sections 3 and 12 hereof, the Closing shall
take place on the Closing Date at the offices of ACQUIROR, at 10:00
A.M., local time, or at such other time on the Closing Date as
OWNERS and ACQUIROR may mutually agree in writing.
4.2 Closing Date. The
Closing Date of the Exchange shall take place on a date chosen by
mutual agreement of OWNERS and ACQUIROR within thirty (30) days
from the date of this Agreement, but not later than the date set
forth in subsection 13.1(b) herein below or such later date upon
which OWNERS and ACQUIROR may mutually agree in writing.
4.3 Deliveries at
Closing.
(a) OWNERS shall deliver
or cause to be delivered to ACQUIROR at Closing:
(i) Certificates
representing all shares of ACQUIREE’S issued and outstanding
capital stock as described in Section 1.1, each endorsed in blank
by the registered owner;
(b) ACQUIREE shall
deliver or cause to be delivered to ACQUIROR at Closing:
(i) A copy of a consent
of the board of directors of ACQUIREE and copy of a consent of
stockholders, if required, authorizing ACQUIREE to take the
necessary steps toward Closing the transaction described by this
Agreement in the form set forth in Exhibit “B”;
(ii) A copy of a
Certificate of Good Standing for ACQUIREE issued not more than
thirty (30) days prior to Closing by the Nevada Secretary of State;
and
(iii) A copy of
ACQUIREES Articles of Incorporation and By-Laws certified as of the
Closing Date by the Secretary of ACQUIREE.
(iv) All of ACQUIROR'S
corporate records;
(v) Such other documents,
instruments or certificates as shall be reasonably requested by
ACQUIROR or its counsel.
(c) ACQUIROR shall
deliver or cause to be delivered to OWNER at Closing:
(i) A copy of a consent
of the board of directors of HYBRID and of ACQUIREE authorizing
HYBRID and ACQUIROR to take the necessary steps toward Closing the
transaction described by this Agreement in the form set forth in
Exhibit “A-1” and “A-2”;
(ii) A copy of a
Certificate of Good Standing for ACQUIROR issued not more than
thirty (30) days prior to Closing by the Secretary of State of
Nevada;
(iii) Stock certificate(s)
or a computer listing from ACQUIROR'S transfer agent representing
the EXCHANGE SHARES to be newly issued by ACQUIROR under this
Agreement, which certificates shall be in the name of the OWNERS,
each in the appropriate denomination as described in Section 2;
(iv) Articles of
Incorporation and Bylaws of ACQUIROR certified as of the Closing
Date by the Secretary of ACQUIROR;
(v) Such other documents,
instruments or certificates as shall be reasonably requested by
ACQUIREE, OWNERS or their counsel.
4.4 Filings; Cooperation.
(a) Prior to the Closing,
the parties shall proceed with due diligence and in good faith to
make such filings and take such other actions as may be necessary
to satisfy the conditions precedent set forth in Section 12
below.
(b) On and after the
Closing Date, ACQUIROR, ACQUIREE and the OWNERS shall, on request
and without further consideration, cooperate with one another by
furnishing or using their best efforts to cause others to furnish
any additional information and/or executing and delivering or using
their best efforts to cause others to execute and deliver any
additional documents and/or instruments, and doing or using their
best efforts to cause others to do any and all such other things as
may be reasonably required by the parties or their counsel to
consummate or otherwise implement the transactions contemplated by
this Agreement.
Section 5
REPRESENTATIONS AND WARRANTIES BY ACQUIREE AND OWNER
5.1 Subject to the
schedule of exceptions, attached hereto and incorporated herein by
this reference, (which schedule(s) shall be acceptable to
ACQUIROR), ACQUIREE and OWNERS represent and warrant to ACQUIROR as
follows:
(a) Organization and Good
Standing.
(i) ACQUIREE. ACQUIREE
is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, with the requisite
corporate power and authority to enter into this Agreement and
consummate the transactions contemplated hereunder and to own and
operate its businesses as presently conducted, except where the
failure to be or have any of the foregoing would not have a
material adverse effect. ACQUIREE is duly qualified as a
foreign company or other entity to do business and is in good
standing in each jurisdiction where the character of its properties
owned or held under lease or the nature of its activities makes
such qualification necessary, except for such failures to be so
qualified or in good standing as would not, individually or in the
aggregate, have a material adverse effect. The Articles of
Incorporation of ACQUIREE and all Amendments thereto as presently
in effect, and the Bylaws of ACQUIREE as presently in effect, both
of which shall be certified by the Secretary of ACQUIREE, have been
delivered to ACQUIROR and are complete and correct and since the
date of such delivery, there has been no amendment, modification or
other change thereto.
(ii) OWNERS. OWNERS
are each duly organized, validly existing and in good standing
under the laws of the jurisdiction of their respective
organization. OWNERS each have the requisite corporate power
and authority to enter into this Agreement and consummate the
transactions contemplated hereunder.
(b) Capitalization.
(i) ACQUIREE’S
authorized capital consists of 99,000,000 shares of common $0.0001
par value and 1,000,000 preferred stock $0.0001 par value of which,
as of the date hereof, 4,230,000 shares of common stock and no
shares of preferred stock are issued and outstanding (with an
additional 1,155,000 reserved for issuance) and held of record
solely by OWNERS. All such outstanding shares are validly issued,
fully paid and non-assessable. Except as otherwise described
herein, there are no other outstanding securities including options
and warrants, and the 4,230,000 shares of common stock described
above represent all of the ownership equity interests of
ACQUIREE.
(ii) All securities issued
by ACQUIREE as of the date of this Agreement have been issued in
compliance with all applicable state and federal laws. Except as
set forth in the financial statements of ACQUIREE no other equity
securities or debt obligations of ACQUIREE are authorized, issued
or outstanding.
(c) Subsidiaries.
Except as set forth in the financial statements of ACQUIREE and in
this section, ACQUIREE has no subsidiaries and no other
investments, directly or indirectly, or other financial interest in
any other corporation or business organization, joint venture or
partnership of any kind whatsoever.
(d) Financial Statements.
ACQUIREE will deliver to ACQUIROR, prior to Closing, a copy of the
unaudited balance sheet and income statement of ACQUIREE for the
year ended December 31, 2006 and the six months ended June 30,
2007, as certified by the President and Treasurer of ACQUIREE as
true and complete (the “ACQUIREE FINANCIAL STATEMENTS”)
and attached hereto and incorporated herein as Exhibit
“C”.
(e) Absence of Undisclosed
Liabilities. ACQUIREE has no liabilities which are not adequately
reflected or reserved against in the ACQUIREE FINANCIAL STATEMENTS
or otherwise reflected in this Agreement and ACQUIREE shall not
have as of the Closing Date, any liabilities (secured or unsecured
and whether accrued, absolute, direct, indirect or otherwise) which
were incurred after the date of this Agreement and would be
individually or in the aggregate, material to the results of
operations or financial condition of ACQUIREE as of the Closing
Date.
(f) Litigation. Except as
disclosed in the ACQUIREE FINANCIAL STATEMENTS, there are no (i)
outstanding orders, judgments, injunctions, awards or decrees of
any court, governmental or regulatory body or arbitration tribunal
against OWNERS, ACQUIREE or their properties, and there are no (ii)
actions, suits or proceedings pending, or, to the knowledge of
OWNERS or ACQUIREE, threatened against or affecting OWNERS or
ACQUIREE, any of their officers, employees or directors relating to
their positions as such, or any of their properties, at law or in
equity, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, in connection with the
business, operations or affairs of ACQUIREE which might result in
any material adverse change in the operations or financial
condition of ACQUIREE, or which might prevent or materially impede
the consummation of the transactions under this Agreement.
(g) Compliance with Laws.
To the best of their knowledge, the operations and affairs of
ACQUIREE do not violate any law, ordinance, rule or regulation
currently in effect, or any order, writ, injunction or decree of
any court or governmental agency, the violation of which would
substantially and adversely affect the business, financial
conditions or operations of ACQUIREE.
(h) Absence of Certain
Changes. Except as set forth in the ACQUIREE FINANCIAL STATEMENTS
or otherwise disclosed in writing to ACQUIROR, since the date of
this Agreement:
(i) ACQUIREE has not
entered into any material transaction;
(ii) There has been no
change in financial or other condition, business, property,
prospects, assets or liabilities of ACQUIREE as shown on the
ACQUIREE FINANCIAL STATEMENTS, other than changes that both
individually and in the aggregate do not have a consequence that is
materially adverse to such condition, business, property,
prospects, assets or liabilities;
(iii) There has been no
damage to, destruction of or loss of any of the properties or
assets of ACQUIREE (whether or not covered by insurance) materially
and adversely affecting the financial or other condition, business,
property, prospects, assets or liabilities of ACQUIREE;
(iv) ACQUIREE has not
declared, or paid any dividend or made any distribution on their
capital stock or member interests, redeemed, purchased or otherwise
acquired any of their capital stock or member interests, granted
any options to purchase shares of their stock or member interests,
or issued any shares of their capital stock or member
interests;
(v) There has been no
material change, except in the ordinary course of business, in the
contingent obligations of ACQUIREE by way of guaranty, endorsement,
indemnity, and warranty or otherwise;
(vi) There have been no
loans made by ACQUIREE to its employees, officers or directors;
(vii) There have been no
waivers or compromises by ACQUIREE of a valuable right or of a
material debt owed to them;
(viii) There have been no
extraordinary increases in the compensation of any of ACQUIREE
employees, officers or directors;
(ix) There has been no
agreement or commitment by ACQUIREE to do or perform any of the
acts described in this Section 5.1(h); and
(x) There has been no
other event or condition of any character, which might reasonably
be expected either to result in a material and adverse change in
the condition (financial or otherwise), business, property,
prospects, assets or liabilities of ACQUIREE or to impair
materially the ability of ACQUIREE to conduct the business now
being conducted.
(i) Employees. There
are, except as disclosed in the ACQUIREE FINANCIAL STATEMENTS no
collective bargaining, bonus, profit sharing, compensation, or
other plans, agreements or arrangements between ACQUIREE and any of
its directors, officers or employees. Employee agreements will be
supplied at the Closing.
(j) Assets. All of the
assets reflected on the ACQUIREE FINANCIAL STATEMENTS or acquired
and held as of the Closing Date, will be owned by ACQUIREE on the
Closing Date. ACQUIREE owns outright and have good and
marketable title, or holds valid and enforceable leases, to all of
such assets. None of ACQUIREE’s equipment used by ACQUIREE in
connection with its business has any material defects and all of
them are in all material respects in good operating condition and
repair, and are adequate for the uses to which they are being put;
none of ACQUIREE’s equipment is in need of maintenance or
repairs, except for ordinary, routine maintenance and repair.
ACQUIREE represents that, except to the extent disclosed in or
reserved against on the ACQUIREE FINANCIAL STATEMENTS, it is not
aware of any accounts and contracts receivable existing that, in
its judgment, would be uncollectible.
(k) Tax Matters. All
federal, foreign, state and local tax returns, reports and
information statements required to be filed by or with respect to
the activities of ACQUIREE have been timely filed. On the date of
this Agreement, ACQUIREE is not delinquent in the payment of any
such tax or assessment, and no deficiencies for any amount of such
tax have been proposed or assessed.
(l) Operating Authorities.
To the best knowledge of OWNER and ACQUIREE, ACQUIREE has all
material operating authorities, governmental certificates and
licenses, permits, authorizations and approvals ("Permits")
required to conduct its business as presently conducted.
During the period encompassed by the ACQUIREE FINANCIAL STATEMENTS,
there have not been any notice or adverse development regarding
such Permits; such Permits
are in full force and effect; no material violations are or have
been recorded in respect of any permit; and no proceeding is
pending or threatened to revoke or limit any Permit.
(m) Continuation of Key
Management. To the best knowledge of ACQUIREE, all key management
personnel of ACQUIREE do not intend to continue their employment
with ACQUIREE after the Closing.
(n) Books and Records. The
books and records of ACQUIREE are complete and correct, are
maintained in accordance with good business practice and accurately
present and reflect, in all material respects, all of the
transactions therein described, and there have been no transactions
involving ACQUIREE which properly should have been set forth
therein and which have not been accurately so set forth.
(o) Authority to Execute
Agreement. The Board of Directors of ACQUIREE, pursuant to the
power and authority legally vested in them, have duly authorized
the execution and delivery by ACQUIREE of this Agreement, and have
duly authorized each of the transactions hereby contemplated.
ACQUIREE has the power and authority to execute and deliver this
Agreement, to consummate the transactions hereby contemplated and
to take all other actions required to be taken by it pursuant to
the provisions hereof. ACQUIREE has taken all actions required by
law, its Articles of Incorporation and By-Laws, as amended, the
respective partnership or operating agreements of any joint venture
in which ACQUIREE owns an interest, or otherwise to authorize the
execution and delivery of this Agreement. This Agreement is valid
and binding upon ACQUIREE and the OWNERS in accordance with its
terms. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will
constitute a violation or breach of the Articles of Incorporation,
as amended, or the Bylaws, as amended, or the partnership or
operating agreements of any joint venture in which ACQUIREE owns an
interest, as the case may be, of ACQUIREE, or any agreement,
stipulation, order, writ, injunction, decree, law, rule or
regulation applicable to ACQUIREE.
(p) Finder's Fees. Both
ACQUIREE and OWNERS have not paid, and on the Closing Date will not
be liable or obligated to pay, any finder's, agent's or broker's
fee arising out of or in connection with this Agreement or the
transactions contemplated by this Agreement.
5.2 Disclosure. At the
date of this Agreement, ACQUIREE and the OWNERS, and at the Closing
Date they will have, disclosed all events, conditions and facts
materially affecting the business and prospects of ACQUIREE.
ACQUIREE and OWNERS have not now and will not have at the Closing
Date, withheld knowledge of any such events, conditions or facts
which they know, or have reasonable grounds to know, may materially
affect ACQUIREE business and prospects. Neither this Agreement nor
any certificate, exhibit, schedule or other written document or
statement, furnished to ACQUIROR by ACQUIREE and/or by OWNERS in
connection with the transactions contemplated by this Agreement
contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to be stated
in order to make the statements contained herein or therein not
misleading.
Section 6
REPRESENTATIONS AND WARRANTIES BY ACQUIROR AND HYBRID
6.1 Subject to the
schedule of exceptions, attached hereto and incorporated herein by
this reference, (which schedules shall be acceptable to OWNERS),
ACQUIROR and HYBRID represent and warrant to ACQUIREE and the
OWNERS as follows:
(a) Organization and Good
Standing. ACQUIROR and HYBRID are each currently a corporation duly
organized, validly existing and in good standing under the laws of
the States of Utah and Nevada, respectively, and have full
corporate power and authority to own or lease their properties and
to carry on their business as now being conducted and as proposed
to be conducted. ACQUIROR and HYBRID are qualified to conduct
business as foreign corporations in no other jurisdiction, and the
failure to so qualify in any other jurisdiction does not
materially, adversely affect the ability of ACQUIROR and HYBRID to
carry on their business as most recently conducted. The Articles of
Incorporation of ACQUIROR and HYBRID and all amendments thereto as
presently in effect, and the Bylaws of ACQUIROR and HYBRID as
presently in effect, both of which shall be certified by the
Secretary of ACQUIROR and HYBRID. respectively, have been delivered
to OWNERS and are c
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