AGREEMENT AND PLAN OF MERGER
EXHIBIT
2.1
AGREEMENT
AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF
MERGER ("Merger
Agreement" or "this
Agreement") dated March 11, 2009.
Between
(1) Tai Pan Holding, Inc. (“Tai Pan”), a Delaware
corporation.
And (2) Unicapital Acquisition Corp.
(“Unicapital”), a
Delaware corporation, a SIC-6770 -“blank checks” company as defines in the SEC
section 3 (a) (51) of the Exchange Act, listed on the United States Securities
and Exchange Commission (the "SEC").
(each a
"Party" and,
collectively the "Constituent
Corporations" or the "Parties”).
R
E C I T A L S
WHEREAS:
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A.
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Tai
Pan was incorporated on September 5, 2007. Its current
authorized capital stock consists of: (1) 217,400,000 shares of Common
Stock, with a par value of $0.01 each ("Tai Pan Common Stock"),
of which 81,000,000 shares are issued and outstanding; and (2) No
Preferred Stock are authorized or issued. Holders of Tai Pan capital
stocks are collectively referred to herein as "TP Shareholders" and,
individually "TP
Shareholder")
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B.
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Unicapital
was incorporated on January 11, 2008. Its authorized capital
stock consists of: (1) 250,000,000 shares of Common Stock, with a par
value of $0.0001 each ("Unicapital Common
Stock"), of which 31,340,000 shares are issued and outstanding; and
(2) 20,000,000 shares of Preferred Stock of $0.0001 par value each ("Unicapital Preferred
Stock"), none of which have been issued as at the date of this
Merger Agreement. Holders of capital stocks are collectively referred to
herein as "Unicapital Shareholders"
and, individually “Unicapital Shareholder")
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C.
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As
a condition to the Merger (as defined below), Unicapital will prior to the
Effective Time (as defined below) undertake and complete (a) a
capital increment exercise ("Capital Increment
Exercise") in accordance with the applicable law whereupon the par
value of the common stock of $0.0001 each in the authorized and issued
capital of the Company shall be increased to $0.01 each ("New Par Value"); and (b)
the increase in authorized capital of Unicapital from 250,000,000 to
300,000,000 Common Stock of $0.01 each ("Authorized
Capital Increment Exercise") and
20,000,000 shares of Preferred Stock of $0.01 each. The Capital
Increment Exercise and the Authorized Capital Increment Exercise shall
collectively be referred to as the "Unicapital Corporate
Exercise".
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D.
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Unicapital
proposed to change its name to "Tai Pan Holding, Inc" or such other name
as it deems fit upon completion of the Merger transaction contemplated
herein ("Proposed Name
Change").
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E.
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Conditional
upon the completion of the Unicapital Corporate Exercise, the Constituent
Corporations are desirous of entering into a merger exercise pursuant to
which Tai Pan shall merge with and into Unicapital on the terms and
subject to the conditions of this Merger
Agreement.
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F.
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Each
of the Constituent Corporations have procured the relevant board and
shareholders approval and all such requisite approval from the relevant
authorities bodies including without limitation the SEC for the Merger
transaction contemplated herein and each of the Constituent Corporations
have, by legally required vote, approved and adopted the
Merger.
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NOW, THEREFORE, the Parties do
hereby agree to undertake the Merger and adopt the plan of reorganization on the
terms and subject to the conditions set forth in this Merger
Agreement:
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1.
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THE XXXXXX.Xx the
Effective Time (as defined below), and upon the terms and subject to the
conditions of this Agreement and the applicable law, Tai Pan shall be
merged with and into Unicapital (the "Merger"), whereupon the
separate existence of Tai Pan shall cease and Unicapital shall be the
surviving corporation (the "Surviving Corporation").
Tai Pan, as the sole shareholder of Unicapital hereby undertakes to
approve the Merger by unanimous written
consent.
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2.
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EFFECTIVE TIME.Subject
to the terms and conditions of this Agreement, the Merger shall become
effective at the time of Closing (as defined below) when a duly executed
copy of this Agreement, along with the Certificate of Merger and all other
related documents and/or certificates executed in accordance, with the
applicable law, is filed with the Secretary of State of the State of
Delaware, (the "Effective
Time").
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3.
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CLOSING. The Closing of
the Merger (the "Closing") will take place at such time, place and date
(the "Closing Date") to be specified by the Constituent Corporations
subject to the satisfaction of Recital C and Clause 10 (other than
conditions that by their nature are to be satisfied at the Closing (unless
otherwise waived by the relevant
Party).
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4.
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EFFECT OF
MERGER. At the Effective Time, the effect of the Merger
shall be as provided in this Agreement and under the applicable
law. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time, all the property, rights, powers,
franchises, privileges and immunities of Tai Pan shall vest in the
Surviving Corporation; and all the debts, liabilities, obligations,
restrictions and duties of Tai Pan, shall become the debts, liabilities,
obligations, restrictions and duties of the Surviving Corporation all
without further act or deed.
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5.
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GOVERNING
DOCUMENTS. At the Effective Time, Articles of
Incorporation and by laws of the Surviving Corporation shall constitute
the effective Articles of Incorporation and bylaws of the Constituent
Corporation post Merger unless and until amended in accordance with the
applicable law.
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6.
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DIRECTORS AND
OFFICERS. At the Effective Time, the directors and
officers of Tai Pan shall resign but shall be eligible for election or
appointment as the directors and officers (holding the same titles and
positions) of the Surviving Corporation and after the Effective Time shall
serve in that office until their earlier death, resignation or removal in
accordance with the articles of association and/or bylaws of the Surviving
Corporation.
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7.
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EFFECT ON CAPITAL
STOCK. At the Effective Time, by virtue of the
Merger and without further action on the part of Tai Pan or TP
Shareholders:
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(a)
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CONVERSION OF SECURITIES OF TAI
PAN. Subject to the terms and conditions of this
Agreement, at the Effective Time, each Tai Pan Common Stock of par value
$0.01 per share (individually a "Share" and collectively
"Shares") issued
and outstanding immediately prior to the Effective Time, shall be
automatically converted into the right to receive from the Surviving
Corporation, one fully paid and non-assessable, issued and
outstanding share of the Surviving Corporation at the New Par Value per
share upon surrender by TP or TP Shareholders of the stock certificate(s)
formerly representing the Share(s). The shares to be issued by
the Surviving Corporation to Tai Pan and/or TP Shareholders shall rank
passu basis with
the registration rights being granted to the investors purchasing shares
of the Surviving Corporation on or about the date of this
Agreement.
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(b)
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CANCELLATION OF SECURITIES OF
TAI PAN. At the Effective Time, and subject to clause
5(a) above, each Share owned by TP Shareholders (whether direct or
indirect) of Tai Pan immediately prior to the Effective Time shall be
canceled, and no payment shall be made with respect
thereto.
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(c)
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CANCELLATION OF
UNICAPITAL. At the Effective Time, all of the Unicapital
Common Stock that were issued to Tai Pan and outstanding immediately prior
to the Effective Time shall automatically retire and be
canceled.
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8.
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STOCK
CERTIFICATES. At and after the Effective Time, all of
the outstanding certificates that, prior to that date, represented shares
of Tai Pan Common Stock shall be deemed for all purposes to evidence
ownership of and to represent the number of shares of the Surviving
Corporation into which such shares of Tai Pan Common Stock are converted
as provided herein. The registered owner on the books and
records of Tai Pan of any such outstanding stock certificate for Tai Pan
Common Stock shall, until such certificate shall have been surrendered for
transfer or otherwise accounted for to the Surviving Corporation or its
transfer agent, be entitled to exercise any voting and other rights with
respect to, and to receive any dividend and other distributions upon, the
shares of the Surviving Corporation evidenced by such outstanding
certificate as above provided.
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9.
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EMPLOYEE BENEFIT
PLANS. As at the date of this Agreement, there are no
Employee Benefit Plans in force in Tai Pan. However, if any
Employee Benefit Plans are or have been adopted by Tai Pan as at the
Effective Time, the obligations of Tai Pan under or with respect to every
plan, trust, program and benefit then in effect or administered by Tai Pan
for the benefit of the directors, officers and employees of Tai Pan or any
of its subsidiaries shall become the lawful obligations of the Surviving
Corporation and shall be implemented and administered in the same manner
and without interruption until the same are amended or otherwise lawfully
altered or terminated.
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10.
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FURTHER
ASSURANCES. From time to time, as and when required by
the Surviving Corporation or by its successors or assigns, there shall be
executed and delivered on behalf of Tai Pan such deeds, assignments and
other instruments, and there shall be taken or caused to be taken by it
all such further action as shall be appropriate, advisable or necessary in
order to vest, perfect or confirm, of record or otherwise, in the
Surviving Corporation the title to and possession of all property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of Tai Pan, and otherwise to carry out the purposes of this
Merger Agreement. The officers and directors of the Surviving Corporation
are fully authorized in the name of and on behalf of Tai Pan, or
otherwise, to take any and all such actions and to execute and deliver any
and all such deeds and other instruments as may be necessary or
appropriate to accomplish the
foregoing.
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11.
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CONDITION. The
consummation of the Merger is subject to the approval of this Merger
Agreement and the Merger contemplated hereby by the shareholders of the
Constituent Corporations, the approval of the SEC, the relevant governing
bodies and all such other requisite consent and approvals being obtained
prior to or at the Effective Time and such consent and approval being
valid and subsisting as at the Effective
Time.
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12.
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ABANDONMENT. At
any time before the Effective Time, this Merger Agreement may be
terminated and the Merger abandoned by the Board of Directors of Tai Pan
or Unicapital by mutual agreement in writing, notwithstanding approval of
this Merger Agreement by the Boards of Directors and shareholders of Tai
Pan and Unicapital.
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13.
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AMENDMENT. At
any time before the Effective Time, this Merger Agreement may be amended,
modified or supplemented by the Boards of Directors of the Constituent
Corporations, notwithstanding approval of this Merger Agreement by the
shareholders of each of the Constituent Corporations; provided, however,
that any amendment made subsequent to the adoption of this Agreement by
the shareholders of the Constituent Corporation shall not: (i) alter or
change the amount or kind of shares, securities, cash, property and/or
rights to be received in exchange for or upon conversion of any shares of
common stock of Tai Pan; (ii) alter or change any of the terms of the
Articles or Certificate of Incorporation of the Surviving Corporation to
be effected by the Merger; or (iii) alter or change any of the terms or
conditions of this Merger Agreement if such alteration or change would
adversely affect the holders of any shares of any common stocks of the
Constituent Corporations. For the avoidance of doubt, the
Proposed Name Change by Unicapital shall be subject only to the approval
of the Board and shareholders of Unicapital and the relevant authorities
(if applicable).
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14.
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TAX-FREE
REORGANIZATION. The Merger is intended to be a tax-free
plan of reorganization within the meaning of Section 368(a)(1)(F) of the
Internal Revenue Code.
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15.
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GOVERNING
LAW. This Agreement shall be governed by and construed
under the internal laws of the State of Delaware as applied to agreements
among California residents entered into and to be performed entirely
within California, without reference to the principles of conflicts of law
or choice of laws, except to the extent that the laws of the State of
Delaware would apply in matters relating to the internal affairs of
Unicapital and the Merger.
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16.
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COUNTERPARTS. In
order to facilitate the filing and recording of this Merger Agreement, it
may be executed in any number of counterparts, each of which shall be
deemed to be an original.
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IN WITNESS WHEREOF, this
Merger Agreement is hereby executed on behalf of each of the Constituent
Corporations and attested by their respective officers hereunto duly
authorized.
