Attached files
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| 8-K - UNITY 8-K 11.02.09 - UNITY MANAGEMENT GROUP, INC. | form8-k.htm |
PLAN
OF REORGANIZATION
WHEREAS this PLAN OF
REORGANIZATION (hereinafter the “Agreement”) is made and entered into as of this
2nd day
of November 2009, by and among United Healthcare Solutions, Inc., a corporation
duly organized under the laws of the State of Nevada (hereinafter the
“Company”), and Unity Auto Parts, Inc., a corporation duly organized under the
laws of the State of Nevada (hereinafter “UAPI”).
RECITALS
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A.
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The
capital stock of UAPI consists of one billion (1,000,000,000) authorized
shares of Common Stock, par value $.001. As of October 30, 2009 there are
62,223,831 shares of UAPI Common Stock
outstanding.
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B.
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The
capital stock of the Company consists of fifty thousand (50,000)
authorized shares of Common Stock, par value $.001 and no authorized
shares of Preferred Stock. As of October 30, 2009 there are 50,000 shares
of the Common Stock of the Company
outstanding.
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C.
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UAPI
desires to acquire the Company and the Company desires to be acquired by
UAPI.
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D.
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UAPI
owns 100% of an operating subsidiary, Guangzhou
Du Ye Trading Company Ltd., which is a company organized under the laws of
the Republic of China (hereinafter the “UAPI
Subsidiary”)
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E.
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The
Majority Stockholder of UAPI Su, Wan Wen (hereinafter the “UAPI
Stockholder”) owns 60,000,000 shares of Common Stock of
UAPI.
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F.
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The
Boards of Directors of the Company and UAPI assume that it is in the best
interests of their respective companies and the stockholders of their
respective companies that UAPI and the Company complete a reorganization
of the Company into UAPI through a transfer of shares owned by the UAPI
Stockholder to the owners of the Company and, in furtherance thereof, have
approved the Reorganization.
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G.
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Pursuant
to the Reorganization, among other things, 60,000,000 shares of Common
Stock of UAPI (hereinafter “UAPI Common Stock”) shall be transferred to
the stockholders of the Company, in exchange for 100% of the Shares of the
Company being transferred to the UAPI
Stockholder.
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H.
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The
Company and the UAPI Stockholder desire to make certain representations
and warranties and other agreements in connection with the
Merger.
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I.
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The
parties intend, by executing this Agreement, to adopt a Plan of
Reorganization within the meaning of Section 368 of the Internal Revenue
Code of 1986, as amended (hereinafter the “Code”) and to cause the Merger
the qualify as a reorganization under the provisions of Sections
368(a)(1)(B) of the Code, so that such exchange will constitute a tax-free
share exchange under the Code.
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NOW, THEREFORE, in
consideration of the mutual covenants and premises contained herein, and for
good and valuable consideration, the receipt and adequacy of which are hereby
conclusively acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
ARTICLE
I
THE
REORGANIZATION
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1.1.
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THE
REORGANIZATION. At the Closing Date (as defined in Section 1.2
below) and subject to and upon the terms and conditions of this Agreement,
including the exchange of shares described herein, the Stockholders of the
Company shall receive 60,000,000 shares of UAPI Common Stock from the UAPI
Stockholder and the sole stockholders of the Company shall transfer their
shares of the Company to UAPI. UAPI shall continue as the surviving
corporation and the Company shall become a wholly-owned subsidiary of
UAPI.
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1.2.
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CLOSING. The
closing of the transactions contemplated hereby (hereinafter the
“Closing”) shall take place as soon as practicable after the satisfaction
or waiver of each of the conditions set forth in Articles VI and VII
hereof or at such other time as the parties hereto agree, but no later
than November 2, 2009 (the “Closing Date”). The Closing shall be held at
the offices of the Company, or at such other location as the parties
hereto agree.
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1.3.
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EFFECT OF THE
REORGANIZATION. At the closing Date, the effect of the
Reorganization shall be as provided in this Agreement. Without limiting
the generality of the foregoing, and subject thereto, at the Closing Date,
the Company shall be a wholly owned subsidiary of
UAPI.
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1.4.
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CERTIFICATE OF
INCORPORATION; BYLAWS.
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1.4.1.
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At
the Closing Date, the Articles of Incorporation of the Company shall be
the Articles of Incorporation of the subsidiary of the surviving
corporation.
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1.4.2.
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The
Bylaws of the Company, as in effect immediately prior to the Closing Date,
shall be the Bylaws of the subsidiary of the surviving corporation until
thereafter amended.
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1.5.
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DIRECTORS AND
OFFICERS. At the Closing Date, the Directors of the Company shall
be appointed as the Directors of UAPI, in each case until their successors
are elected or appointed and qualified, or until their earlier resignation
or removal. The officers of the Company shall be appointed as officers
UAPI and of the UAPI Subsidiary, until their respective successors are
duly appointed and qualified or until their earlier resignation or
removal.
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1.6.
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EFFECT ON CAPITAL
STOCK. By virtue of the Reorganization and without any further
action on the part of the Company or the holders of any of the following
securities:
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1.6.1.
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TRANSFER OF COMPANY
COMMON STOCK. At the Closing
Date:
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1.6.1.1.
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Sixty
million (60,000,000) shares of UAPI Common Stock will be delivered to the
shareholders of Company.
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1.6.1.2.
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Fifty
thousand (50,000) shares of Common Stock of the Company shall be delivered
to UAPI.
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1.6.1.3.
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All
the outstanding shares of the UAPI Subsidiary shall
be transferred to the UAPI
Stockholder
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ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
In this
Agreement, any reference to any event, change, condition or effect being
“material” with respect to any person means any material event, change,
condition or effect related to the condition (financial or otherwise),
properties, assets (including intangible assets), liabilities, business,
operations or results of operations of such person and its subsidiaries, taken
as a whole. In this Agreement, any reference to a “Material Adverse Effect” with
respect to any person means any event, change or effect that is materially
adverse to the condition (financial or otherwise), properties, assets,
liabilities, business, operation or results of operations of such person and its
subsidiaries, taken as a whole.
In this
Agreement any reference to a party’s “Knowledge” means such party’s actual
knowledge after reasonable inquiry of executive officers and directors (within
the meaning of Rule 405 under the Securities Act of 1933, as amended
(hereinafter “Securities Act”)).
The
Company represents and warrants to UAPI as follows:
2.1.
ORGANIZATION, STANDING
AND POWER. The Company is a corporation duly organized, validly existing
and in good standing in the State of Nevada and no certificate of dissolution
has been filed under the laws of its jurisdiction of organization. The Company
has no subsidiaries. The Company has the power to own it properties and to carry
on its business as now being conducted and as presently proposed to be
conducted, and is duly authorized and qualified to do business and is in good
standing in each jurisdiction in which the failure to be so qualified and in
good standing would have a Material Adverse Effect on the Company. The Company
is not in violation of any of the provisions of its charter or bylaws or
equivalent organization documents.
2.2.
AUTHORITY. The
Company has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of the Company, subject only to the
adoption of this Agreement by the Company’s stockholders of all of the
outstanding shares of the Company’s Common Stock. This Agreement has been duly
executed and delivered by the Company and constitutes the valid and binding
obligation of Company enforceable against the Company and constitutes the valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be limited by bankruptcy
and other laws affecting the rights and remedies of creditors generally and
general principles of equity. The execution and delivery of this Agreement by
the Company does not, and the consummation of the transactions contemplated
hereby will not, conflict with or result in any violation of, or default under
(with or without notice or lapse of time, or both), or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of any
benefit under (i) any provision of the Company’s Articles of Incorporation or
Bylaws of the Company, as amended, or (ii) any mortgage, indenture, lease,
contract or other agreement or instrument, permit, concession, franchise,
license, judgment, order decree, statute, law, ordinance, rule or regulation
applicable to the Company or any of its properties or assets. No consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or omission or other governmental
authority or instrumentality (hereinafter “Government Entity”) is required by or
with respect to the Company in connection with the execution and delivery of
this Agreement by the Company or consummation by the Company of the transactions
contemplated hereby.
2.3.
COMPLIANCE WITH
LAWS. The Company has complied with and is not in violation of and has
not received any notices of violation with respect to, any federal, state, local
or foreign statute, law or regulation with respect to the conduct of its
business, or the ownership or operation of its business, except for such
violations or failures to comply as would not be reasonably expected to have a
Material Adverse Effect on the Company.
2.4.
BROKERS’ AND FINDERS’
FEES. The Company has not incurred, nor will it incur, directly or
indirectly, any liability for brokerage or finders’ fees or agents’ commissions
or investment bankers’ fees or any similar charges in connection with this
Agreement or any transaction contemplated hereby.
2.5.
BOARD AND SHAREHOLDER
APPROVAL. The Board of Directors and the holders of all of the issued and
outstanding shares of the Company have approved this Agreement.
2.6.
REPRESENTATIONS
COMPLETE. None of the representations or warranties made by the Company
herein contains or will contain at the Closing Date any untrue statement of a
material fact, or omits or will omit at the Closing Date to state any material
fact necessary in order to make the statements contained herein or therein, in
the light of the circumstances under which made, not misleading.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF UAPI
3.1.
ORGANIZATION, STANDING
AND POWER. UAPI is a corporation duly organized in the State of Nevada
and no certificates of dissolution have been filed under the laws of its
jurisdiction of organization. UAPI represents and warrants that UAPI has filed
all applicable annual reports in the State of Nevada, as required. UAPI
represents that it is a non-reporting public company, and its common stock is
currently listed on the over-the-counter market and the Pink Sheets. UAPI has
the power to own its properties and to carry on its business as now being
conducted and as presently proposed to be conducted and is duly authorized and
qualified to do business and is in good standing in each jurisdiction in which
the failure to be so qualified and in good standing would have a Material
Adverse Effect on UAPI. UAPI is not in violation of any of the provisions of
their respective chapter or bylaws or equivalent organization documents. There
are no outstanding subscriptions, options, warrants, puts, calls, rights,
exchangeable or convertible securities or other commitments or agreements of any
character relating to the issued or unissued capital stock or other securities
of any such subsidiary, or otherwise obligating UAPI to issue, transfer, sell,
purchase, redeem or otherwise acquire any such securities.
3.2.
CAPITAL
STRUCTURE. The authorized capital stock of UAPI consists of 1,000,000,000
shares of Common Stock, $.001 par value. As of October 30, 2009, there are
62,223,831 shares of UAPI Common Stock outstanding. The shares of UAPI Common
Stock to be issued pursuant to the Reorganization will be duly authorized,
validly issued, fully paid, and non-assessable, free of any liens or
encumbrances by UAPI. There are no other outstanding shares of capital stock or
voting securities and no outstanding agreements to issue any shares of capital
stock or voting securities after the date hereof. All outstanding shares of UAPI
Common Stock are authorized, validly issued, fully paid, and non-assessable and
are free of any liens or encumbrances other than any liens or encumbrances
created by or imposed upon the holders thereof, and are not subject to
preemptive rights or rights of first refusal created by statute, the Articles of
Incorporation or Bylaws of UAPI or any agreement to which UAPI is a party or by
which it is bound. There are no contracts, commitments or agreements relating to
voting, purchase or sale of UAPI Common Stock (i) between or among UAPI and any
of its stockholders and (ii) to the best of UAPI’s knowledge, between or among
any of UAPI’s stockholders.
3.3.
AUTHORITY. UAPI
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 UAPI.
This Agreement has been duly executed and delivered by UAPI and constitutes the
valid and binding obligations of UAPI enforceable against UAPI in accordance
with its terms, except as enforceability may be limited by bankruptcy and other
laws affecting the rights and remedies of creditors generally and general
principles of equity. The execution and delivery of this Agreement do not, and
the consummation of the transactions contemplated hereby will not, conflict
with, or result in any violation of, or default under (with or without notice or
lapse of time, or both), or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of any benefit under:
3.3.1. Any provision of the
Articles of Incorporation or Bylaws of UAPI, as amended, or;
3.3.2.
Any mortgage, indenture, lease, contract or other agreement or instrument,
permit, concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to UAPI or its properties or assets. No
consent, approval, order or authorization of, or registration, declaration or
filing with, any Governmental Entity is required by or with respect to UAPI in
connection with the execution and delivery of this Agreement by UAPI or the
consummation by UAPI of the transactions contemplated hereby.
3.4. WHOLLY-OWNED
SUBSIDIARY. UAPI is the owner of 100% of the outstanding stock
the UAPI Subsidiary, organized under the law of the Republic of
China.
3.5
ABSENCE OF LIABILITIES
AND FINANCIAL STATEMENTS. Neither UAPI nor the UAPI Subsidiary will have,
as of the date of closing, any material obligations or liabilities of any nature
(matured or unmatured, fixed or contingent) or assets
3.5.1 (a) Neither UAPI nor the UAPI
Subsidiary are required to file forms or reports with the Securities and
exchange Commission and has no pending comment letter or other reporting
requirement with the Securities and Exchange Commission.
(b) UAPI’s
unaudited financial statements, as of September 30, 2009 are attached hereto as
Exhibit B. All
such financial statements, which include the statements of the UAPI Subsidiary,
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved. UAPI consolidated balance
sheets present fairly, as of their respective dates, the financial condition of
UAPI. As of the date of such balance sheets, any liabilities of UAPI (absolute
or contingent) which should be reflected in the balance sheets, or the notes
thereto prepared in accordance with generally accepted accounting principles,
and all assets reflected therein are properly reported and present fairly the
value of the assets of UAPI in accordance with generally accepted accounting
principles will be discharged as of the date of closing. The statements of
operations, stockholders’ equity and cash flows reflect fairly the information
required to be set forth therein by generally accepted accounting
principles.
(c) Neither UAPI nor the UAPI
Subsidiary have liabilities with respect to the payment of any federal, state,
county, local or other taxes (including any deficiencies, interest or
penalties).
(d) UAPI and the UAPI Subsidiary have
timely filed all state, federal or local income and/or franchise tax returns
required to be filed from inception to the date hereof. Each of such income tax
returns reflects the taxes due for the period covered thereby, except for
amounts, which, in the aggregate, are immaterial.
(e) The books and records, financial
and otherwise, of UAPI and the UAPI Subsidiary are, in all material aspects,
complete and correct and have been maintained in accordance with good business
and accounting practices.
(f) All of UAPI’s and the UAPI
Subsidiary’s assets are reflected on its financial statements, and, except as
set forth in the consolidated financial statements of UAPI or the notes thereto,
neither UAPI nor the UAPI Subsidiary have any material liabilities, direct or
indirect, matured or unmatured, contingent or otherwise.
(g) As of the date of closing, title to
the UAPI Subsidiary will be transferred to the UAPI Stockholder and that UAPI
will have delivered to it 60,000,000 shares of Common Stock of
UAPI.
(h) The President and Chief Financial
Officer of UAPI shall deliver Certificates confirming that the financial
statements of UAPI and the UAPI Subsidiary are true and correct and that, as of
the date of closing and that, neither Company should have any liabilities of any
nature as of the date of Closing.
3.6 LITIGATION. There is
no private or governmental action, suit, proceeding, claim, arbitration, audit
or investigation pending before any agency, court or tribunal, foreign or
domestic, or, to the knowledge of UAPI or the UAPI Subsidiary, or its officers,
directors, and majority stockholders, threatened against UAPI or against the
UAPI Subsidiary or any of their respective officers or directors (in their
capacities as such) that, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect on UAPI or the UAPI Subsidiary. There
is no injunction, judgment, decree, order or regulatory restriction imposed upon
UAPI or the UAPI Subsidiary or any of its assets or business, or, to the
knowledge of UAPI and the UAPI Subsidiary, its directors or officers (in their
capacities as such), that would prevent, enjoin, alter or materially delay any
of the transactions contemplated by this Agreement, or that could reasonably be
expected to have a Material Adverse Effect on UAPI or the UAPI
Subsidiary.
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3.7
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3.8
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CERTAIN AGREEMENTS
AFFECTED BY THE REORGANIZATION. Neither the execution and delivery
of this Agreement and Plan of Reorganization, nor the consummation of the
transaction contemplated hereby will (i) result in any entitlement,
payment or benefit (including, without limitation, severance, unemployment
compensation, golden parachute, bonus or benefit under any UAPI plan,
policy or otherwise) becoming due to any current or former director or
employee of UAPI, (ii) increase the amount of any entitlements, payments
or benefits otherwise payable by UAPI, or (ii) result in the acceleration
of the time of payment or vesting of any such entitlements, payments or
benefits.
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3.9
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INTERESTED PARTY
TRANSACTIONS. Neither UAPI nor the UAPI Subsidiary are indebted to
any director or officer of the Company, and no such person is indebted to
UAPI, and there are no other transactions of the type required to be
disclosed pursuant to Items 402 or 404 of Regulation S-B under the
Securities Act and the Exchange
Act.
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3.10
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COMPLIANCE WITH
LAWS. UAPI and the UAPI Subsidiary have complied with, are not in
violation of, and have not received any notices of violation with respect
to, any federal, state, local or foreign statute, law or regulation with
respect to the conduct of its business, or the ownership or operation of
its business, except for such violations or failures to comply as would
not be reasonably expected to have Material Adverse Effect on UAPI or the
UAPI Subsidiary.
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3.11
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COMPLETE COPIES OF
MATERIALS. UAPI has delivered or made available true and complete
copies of each document that has been requested by the Company or its
Counsel in connection with their legal and accounting review of
UAPI.
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3.12
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GOVERNMENTAL
AUTHORIZATION. UAPI does not require any governmental authorization
to carry on its business.
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3.13
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BROKERS’ AND FINDERS’
FEES. UAPI has not incurred, nor will it incur, directly or
indirectly, any liability for brokerage or finders’ fees or agents’
commissions or investment bankers’ fees or any similar charges in
connection with this Agreement or any transaction contemplated
hereby.
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3.14
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BOARD APPROVAL.
The Boards of Directors of UAPI and the UAPI Subsidiary have (i) approved
this Agreement and the Reorganization, and (ii) approved the issuance of
the shares of UAPI Common Stock pursuant to this
Agreement.
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3.15
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SHAREHOLDERS
APPROVAL. UAPI has received the consent to this Agreement and Plan
of Reorganization by its
shareholders.
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3.16
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REPRESENTATIONS
COMPLETE. None of the representations or warranties made by UAPI
herein, when all such documents are read together in their entirety,
contains or will contain at the Closing Date any untrue statement of a
material fact, or omits or will omit at the Closing Date to state any
material fact necessary in order to make the statements contained herein
or therein, in the light of the circumstances under which made, not
misleading. All projected, forecasted or prospective financial information
provided by UAPI to the Company has been prepared in good faith on the
basis of assumptions UAPI believes are reasonable and
supportable.
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ARTICLE
IV
MAJORITY
STOCKHOLDER OF UAPI
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4.1.
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REPRESENTATIONS OF THE
STOCKHOLDERS. The UAPI Stockholder represent and warrant that he
has valid title to 60,000,000 shares of Common Stock of UAPI (hereinafter
the “Shares”) in his names, which shares are free of all liens
and encumbrances, and that there is an opinion of counsel confirming the
free-trading status of the Shares.
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4.2.
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INDEMNIFICATION.
In exchange for the transfer of title to the UAPI Subsidiary. The UAPI
Stockholder agrees to cause UAPI and the UAPI Subsidiary to discharge all
liabilities associated with UAPI and the UAPI Subsidiary and agree to hold
harmless and indemnify UAPI, the Company and their respective Officers,
Directors and Stockholders with respect to liabilities, whether existing
or accrued prior to the date of closing, including all costs and counsel
fees.
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4.3.
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FUTURE OPERATIONS OF
SUBSIDIARY. The UAPI Stockholder agrees that he will be solely
responsible, after closing of the operation and business of the
subsidiary, which is being is transferred to them, to discharge when due
all obligations of UAPI and the UAPI Subsidiary on a going forward
basis.
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4.4.
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RESIGNATIONS AS
DIRECTORS AND OFFICERS AND RELASE OF CLAIMS. The UAPI Stockholder
agrees that at closing, he will resign as President, Chief Executive
Officer, and Directors of UAPI and the UAPI Subsidiary and will cause to
be elected the nominees of the Company to the respective Boards of
Directors and Officerships. The UAPI Stockholder also waives any right or
claim he has or could have as to UAPI or on any of its assets and agree
not to institute any lawsuit against UAPI or any of its Officers,
Directors or Stockholders with respect to any claims or disputes as
Stockholders or for any reasons.
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4.5.
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REPRESENTATIONS
COMPLETE. None of the representations or warranties made by UAPI
herein, when all such documents are read together in their entirety,
contains or will contain at the Closing Date, any untrue statement of a
material fact, or omits or will omit, at the Closing Date, to state any
material fact necessary in order to make the statements contained herein
or therein, in light of the circumstances under which made, not
misleading. All projected, forecasted or prospective financial information
provided by UAPI to the Company has been prepared in good faith on the
basis of assumptions UAPI believes are reasonable and
supportable.
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ARTICLE
V
CONDUCT
PRIOR TO THE CLOSING DATE
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5.1.
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CONDUCT OF
BUSINESS. During the period from the date of this Agreement and
continuing until the earlier of the termination of this Agreement or the
Closing date, each of UAPI, the UAPI Subsidiary, and the Company agree
(except to the extent expressly contemplated by this Agreement or as
consented to in writing by the other party), to carry on their respective
businesses in the ordinary course in substantially the same manner as
heretofore conducted, to pay and to cause its subsidiaries to pay debts
and taxes when due subject to good faith disputes over such debts or
taxes, to pay or perform other obligations when due, and to use all
reasonable efforts consistent with past practice and policies to preserve
intact its and its subsidiaries’ present business organizations, use its
reasonable best efforts consistent with past practice to keep available
the services of its present officers and key employees and use its
reasonable best efforts with past practice to preserve its relationships
with customers, suppliers, distributors, licensors, licensees, and others
having business dealings with it or its subsidiaries, to the end that its
and its subsidiaries’ goodwill and ongoing businesses shall be unimpaired
at the Closing Date. UAPI and the Company agree to promptly notify the
other of any material event or occurrence not in the ordinary course of
its or its subsidiaries’ business, and of any event that would have a
Material Adverse Effect on UAPI, the UAPI Subsidiary, or the
Company.
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ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF THE COMPANY
The Company’s obligation to enter into
and complete the Closing is conditioned upon satisfaction or waiver in writing
by the Company, on or before the Closing Date, of all of the following
conditions:
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6.1
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REPRESENTATIONS AND
WARRANTIES. The representations and warranties made by UAPI, the
UAPI Subsidiary and the UAPI Stockholder contained in this Agreement, the
schedules or exhibits hereto or in any certificate or document delivered
to the Company by UAPI, the UAPI Subsidiary, and/or the UAPI Stockholder
in connection with the transactions contemplated by this Agreement and
Plan of Reorganization shall be true in all respects (without giving
effect to any materiality qualifications or limitations therein) on and as
of the Closing Date, with the same effect as though such representations
and warranties were made on such date, except for such failures to be true
and correct which, in the aggregate, would not reasonable be expected to
result in a Material Adverse Effect on UAPI or the UAPI
Subsidiary.
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6.2
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PERFORMANCE OF
COVENANTS. UAPI, the UAPI Subsidiary, and the UAPI Stockholder
shall have performed and complied in all material respects with all of the
agreements and covenants required by this Agreement to be performed and
complied with prior to or on the Closing Date, except as otherwise
contemplated by this Agreement.
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6.3
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LITIGATION. No
injunction shall have been issued by any Court or Governmental Authority
that restrains or prohibits this Agreement, or the consummation of the
transactions contemplated hereby.
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6.4
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SHAREHOLDER
APPROVAL. Approval by UAPI and the Company’s Shareholders required
in connection with the consummation of the Plan of Reorganization AND
shall have been obtained, or legal counsel of the Company shall issue its
opinion that such approval is not
necessary.
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6.5
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MATERIAL
CHANGES. There shall not have been any change that has, had or
could reasonably be expected to have a Material Adverse Effect on the
assets, properties, condition (financial or otherwise), prospects or
results of operations of UAPI from the date hereof to the Closing Date,
nor shall there exist any condition which could reasonably be expected to
result in such a Material Adverse Effect, and there shall have been
delivered to UAPI a certificate, dated the Closing Date, to such effect
signed by an authorized officer of
UAPI.
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ARTICLE
VII
CONDITIONS
PRECEDENT TO THE OBLIGATIONS OF UAPI AND THE
UAPI
STOCKHOLDER
The obligations of UAPI to enter into
and complete the Closing are conditioned upon the satisfaction or waiver by the
Company, on or before the Closing Date, of the following
conditions:
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7.1
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REPRESENTATIONS AND
WARRANTIES. The representations and warranties made by the Company
contained in this Agreement and Plan of Reorganization, the schedules or
exhibits hereto or in any certificate or document delivered to UAPI by the
Company in connection with the transactions contemplated by this Agreement
and Plan of Reorganization shall be true in all respects (without giving
effect to any materiality qualifications or limitations therein) on and as
of the Closing Date with the same effect as though such representations
and warranties were made on such date, except (i) as otherwise
contemplated by this Agreement and Plan of Reorganization and (ii) for
such failures to be true and correct which in the aggregate would not
reasonably be expected to result in a Material Adverse Effect on the
Company.
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7.2
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PERFORMANCE OF
COVENANTS. The Company shall have performed and complied in all
material respects with all of the agreements and covenants required by
this Agreement and Plan of Reorganization to be performed and complied
with by it prior to or on the Closing Date, except as otherwise
contemplated by this Agreement and Plan of
Reorganization.
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7.3
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LITIGATION. No
injunction shall have been issued by any Court or Governmental Authority
that restrains or prohibits this Plan of Reorganization and Agreement, or
the consummation of the transactions contemplated
hereby.
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7.4
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SHAREHOLDER
APPROVAL. UAPI Shareholder approval required in connection with the
consummation of the Merger shall have been obtained or legal counsel of
UAPI shall issue its opinion that such approval is not
necessary.
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7.5
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MATERIAL
CHANGES. There shall not have been any change that has, had or
could reasonably be expected to have a Material Adverse Effect on the
assets, properties, condition (financial or otherwise), prospects or
results of operations of the Company from the date hereof to the Closing
Date, nor shall there exist any condition which could reasonably be
expected to result in such a Material Adverse Effect, and there shall have
been delivered to the Company a certificate, dated the Closing Date, to
such effect signed by an authorized officer of the
Company.
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ARTICLE
VIII
TERMINATION
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8.1
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TERMINATION
EVENTS. This Plan of Reorganization and Agreement may be terminated
and the Transaction may be abandoned at any time prior to the Closing Date
without prejudice to any other rights or remedies either party may have by
written agreement, duly authorized by the Boards of Directors of UAPI and
the Company.
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8.2
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EFFECT OF
TERMINATION. In the event this Agreement and Plan of Reorganization
is terminated pursuant to section 8.1 above, all further obligations of
the parties hereunder shall terminate. Each party’s right of termination
hereunder is in addition to any other rights it may have hereunder or
otherwise and the exercise of a right of termination shall not be an
election of remedies.
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ARTICLE
IX
INDEMNIFICATION
9.1 INDEMNIFICATION.
9.1.1. To the
extent, if any, not provided by an existing right under one of the parties,
directors and officers liability insurance policies, from and after the Closing,
UAPI and the UAPI Stockholder shall, to the fullest extent permitted by
applicable law, indemnify, defend and hold harmless each person who is now, or
has been at any time prior to the date hereof, or who becomes prior to the
Closing, a director, officer or employee of the parties hereto or any subsidiary
thereof (each an “Indemnified Party” and collectively, the “Indemnified
Parties”) against all losses, expenses (including reasonable attorneys’ fees and
expenses), claims, damages, or liabilities or, subject to the proviso of the
next succeeding sentence, amounts paid in settlement arising out of actions or
omissions occurring at or prior to the closing and whether asserted or claimed
prior to, at or after the Closing) that are, in whole or in part, (i) based on
or arising out of the fact that such person is or was a directors, officer or
employee of such party or a subsidiary of such party or (ii) based on, arising
out of or pertaining to the transactions contemplated by this
Agreement.
9.1.2. To the
fullest extent permitted by law, from and after the Closing, all rights to
indemnification now existing in favor of the employees, agents, directors or
officers of UAPI and the Company and their subsidiaries, if any, with respect to
their activities as such prior to the Closing, as provided in UAPI’s and the
Company’s Articles of Incorporation or bylaws, in effect on the date thereof or
otherwise in effect on the date hereof, shall survive the Plan of Reorganization
and shall continue in full force and effect for a period of not less than three
years from the Closing.
9.1.3. The
provisions of this Article 9 are intended to be for the benefit of and shall be
enforceable by, each indemnified Party, his or her heirs and his or her
representatives.
ARTICLE
X
CLOSING
10.1.
DELIVERIES BY
UAPI. At Closing, UAPI and the UAPI Stockholder shall deliver to the
Company the following:
10.1.1. Certificates
evidencing the UAPI Stockholder’s Common Shares to the be delivered to the
Company pursuant to the terms herein, including, but not limited to Board of
Directors and Stockholder;
10.1.2. The
Articles of Incorporation and Amendments thereto, as certified by the applicable
state authority, Bylaws, and Business Plan of UAPI;
10.1.3. A legal
opinion that UAPI is a corporation in good standing, has no outstanding, actual
or contingent, liabilities, is compliance with all SEC regulations and has
fulfilled all legal requirements for the Merger;
10.1.4. Minutes
and stock books of UAPI;
10.1.5. Certificate
of good standing;
10.1.6. Incumbency
Certificate of Officers and Directors and Resignations of Officers and
Directors;
10.1.7. Federal
and State tax returns of UAPI for the prior 3 fiscal years;
10.1.8. Most
recent year-to-date and interim financial statements and any material
off-balance sheet items;
10.1.9. Such
other agreements, documents and instruments reasonably requested by the Company
or its Counsel to effectuate the transactions contemplated in this Agreement,
including, but not limited to subscription agreements, private placement
memoranda, stock purchase agreements, and convertible notes;
10.1.10. Outstanding
options, warrants, stock bonuses, or other agreements to issue
shares
10.1.11. Shareholder
Agreements, including any restrictions on the transfer of stock.
10.1.12. Loan
agreements, including material terms, defaults, deeds and/or leases; contracts
with insiders;
10.1.13. Material
license agreements running to and from UAPI and/or the UAPI
subsidiary;
10.1.14. All
insurance contracts;
10.1.15. Complete
list of pending or threatened litigation, arbitration, regulatory or
administrative proceedings;
10.1.16. Certificates
of the President and Chief Financial Officer of UAPI confirming that the
financial statements of UAPI and the UAPI subsidiary are true and correct and
that, as of the date of closing, neither Company shall have any liabilities of
any nature;
10.1.17. Certificates
of the President and Chief Financial Officer of UAPI that UAPI has no
liabilities;
10.1.18. Opinion
of counsel as to the trading status of the UAPI Shares being transferred;
and
10.1.19. Recent
press releases and research reports.
ARTICLE
XI
MISCELLANEOUS
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11.1
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CAPTIONS AND
HEADINGS. The article and paragraph headings throughout this
Agreement are for convenience and reference only, and shall in no way be
deemed to define, limit, or add to the meaning of any provision of this
Agreement.
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11.2
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NO ORAL CHANGE.
This Agreement and any provision hereof, may not be waived, changed,
modified, or discharged orally, but only by an agreement in writing signed
by the party against whom enforcement of any waiver, change modification,
or discharge is sought.
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11.3
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GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Nevada, without regard to the laws that might
otherwise govern under applicable principles of conflicts of law. Each of
the parties hereto irrevocably consents to the exclusive jurisdiction of
any Court located within the State of Nevada in connection with any matter
based upon or arising out of this Agreement or the matters contemplated,
agrees that process may be served upon them in any manner authorized by
the laws of the State of Nevada for such persons and waives and covenants
not to assert or plead any objection which they might otherwise have to
such jurisdiction and such process.
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11.4
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PUBLIC
ANNOUNCEMENTS. Subject to any requirement of applicable law or
stock exchange listing agreement, all public announcements or similar
publicity with respect to this Merger Agreement or the transactions
contemplated hereby shall be issued only with the consent of UAPI, the
UAPI Stockholder, and the Company. Unless consented to by each party
hereto in advance prior to the Closing, all parties hereto shall keep the
provisions of this Agreement and Plan of Reorganization strictly
confidential and make no disclosure thereof to any Person, other than such
party’s respective legal and financial advisors, subject to the
requirements or applicable law or securities exchange
regulations.
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11.5 SUCCESSORS. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
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11.6
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FURTHER
ASSURANCES. Each of the parties hereto agrees that it will, from
time to time after the date of this Agreement, execute and deliver such
other certificates, documents and instruments and take such other action
as may be reasonably requested by the other party to carry out the actions
and transactions contemplated by this
Agreement.
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11.7
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NOTICES. All
notices, requests, demands and other communications under this Agreement
shall be in writing and shall be deemed to have been duly given on the
date of service of served personally on the party to whom notice is to be
given, or on the third day after mailing, if mailed to the party to whom
notice is to be given, by first class mail, registered or certified,
postage prepaid, and properly addressed, and by fax, as
follows:
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To
UAPI:
Su, Wan Wen, President
7951 SW 6th
Street, Suite 216
Plantation,
FL 33324
To
Company: Alex
Berkovich, President
United Healthcare Solutions, Inc.
1348 E. Hillsboro Blvd
Deerfield Beach, FL 33441
Copy
To:
John B. Frohling, Esq.
Frohling Associates,
LLC
17 Fulton
Street
Facsimile:
973-622-2866
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11.8
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NON-WAIVER.
Except as otherwise expressly provided herein, no waiver of any covenant,
condition, or provision of this Agreement shall be deemed to have been
made unless expressly in writing and signed by the party against whom such
waiver is charged; and (i) the failure of any party to insist in any one
or more cases upon the performance of any of the provisions, covenants, or
conditions of this Agreement or to exercise any option herein contained
shall not be construed as a waiver or relinquishment for the future of any
such provisions, covenants or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach of failure of a covenant, condition, o provision
hereof shall not be deemed a waiver of such breach or failure, and (iii)
no waiver by any party of one breach by another party shall be construed
as a waiver with respect to any other or subsequent
breach.
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11.9 TIME OF ESSENCE. Time
is of the essence of this Agreement and of each and every provision
hereof.
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11.10
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REMEDIES
CUMULATIVE. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative
with and not exclusive of any other remedy conferred hereby, or by law or
equity upon such party, and the exercise by a party of any one remedy will
not preclude the exercise of any other
remedy.
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11.11
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SEVERABILITY.
If any provision of this Agreement, or the application thereof, becomes is
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 to reasonably 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.
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11.12 ENTIRE AGREEMENT.
This Agreement contains the entire agreement and understandings between the
parties hereto, and supersedes all prior agreements and
understandings.
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11.13
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RULES OF
CONSTRUCTION. The parties hereto agree that they have been
represented by counsel during the negotiation, preparation 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.
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11.14
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EXPENSES.
Except as expressly otherwise provided herein, each party shall bear its
own expenses incurred in connection with the preparation, execution and
performance of this Agreement and Plan of Reorganization and the
transactions contemplated hereby, including all fees and expenses of
agents, representatives, counsel and
accountants.
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11.15
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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 parties, it being understood that all parties need
not sign the same counterpart.
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IN
WITNESS WHEREOF, the parties have executed this Merger Agreement on this 3rd day
of November 2009.
Unity
Auto Parts,
Inc. United Healthcare
Solutions, Inc.
By: /s/ Su, Wan
Wen
/s/ Alex
Berkovich
Name: Su,
Wan
Wen Name:
Alex Berkovich
Title:
President
Title: President
Stockholder
UAPI: Stockholders
of the Company:
/s/ Su, Wan
Wen
/s/ Michael Oliver
Su, Wan
Wen
Michael Oliver
/s/ Alex Berkovich
Alex
Berkovich