Exhibit 3.2
AGREEMENT OF MERGER
OF
BIOCAL TECHNOLOGY, INC.
AND
CENTROID ACQUISITION CO.
THIS AGREEMENT OF MERGER is entered into on this 24th day of June, 2004,
by Biocal Technology, Inc., a California corporation ("Biocal" or the
"Surviving Corporation") and Centroid Acquisition Co., a California
corporation ("Centroid Acquisition" or the "Disappearing Corporation") (Biocal
and Centroid Acquisition being hereinafter collectively referred to as the
"Constituent Corporations").
1. This Agreement of Merger, together with the officers= certificates
of each of the Constituent Corporations required by the General Corporation
Law of the State of California (the "California Law"), shall be filed with the
Secretary of State of the State of California at the time specified in the
Plan and Agreement of Merger dated June 24, 2004.
2. The Merger shall become effective at the time this Agreement of
Merger is filed with and accepted by the Secretary of State of the State of
California (the "Effective Time").
3. At the Effective Time, Centroid Acquisition shall be merged into
Biocal and the separate corporate existence of Centroid Acquisition shall
thereupon cease. Biocal shall be the Surviving Corporation in the Merger and
the separate corporate existence of Biocal, with all of its purposes, objects,
rights, privileges, powers, immunities and franchises, shall continue
unaffected and unimpaired by the Merger.
4. From and after the Effective Time and until thereafter amended as
provided by law, the Articles of Incorporation of the Surviving Corporation
shall hereby be amended and restated in full as set forth in Exhibit Aattached
hereto.
5. The bylaws of the Surviving Corporation upon the Effective Time,
with the provisions providing for cumulative voting having been deleted, shall
be the bylaws of said Surviving Corporation and shall continue in full force
and effect until changed, altered or amended as therein provided and in the
manner prescribed by the provisions of the General Corporation Law of the
State of California.
6. The directors and officers in office of the Surviving Corporation
upon the Effective Time shall continue to be the members of the Board of
Directors and the officers of the Surviving Corporation, all of whom shall
hold their directorships and offices until the election, choice, and
qualification of their respective successors or until their tenure is
otherwise terminated in accordance with the bylaws of the Surviving
Corporation.
7. Each issued share of common stock, no par value, of the
Disappearing Corporation outstanding immediately prior to the Effective Time
shall, upon the Effective Time, be converted into the right to receive one
share of common stock, no par value, of the Surviving Corporation. Each three
(3) issued shares of common stock of the Surviving Corporation outstanding
immediately prior to the Effective Time shall be exchanged for one (1) share
of common stock of Centroid Consolidated Mines Co., a Nevada corporation and
the parent of the Disappearing Corporation ("CCMC").
8. At the Effective Time, holders of certificates representing shares
of Biocal's capital stock that were outstanding immediately prior to the
Effective Time shall cease to have any rights as shareholders of Biocal, and
the stock transfer books of Biocal shall be closed with respect to all shares
of such capital stock outstanding immediately prior to the Effective Time. No
further transfer of any such shares of Biocal's capital stock shall be made on
such stock transfer books after the Effective Time.
9. Notwithstanding anything to the contrary contained in this
Agreement of Merger, any shares of capital stock of Biocal that, as of the
Effective Time, are or may become "dissenting shares" within the meaning of
Section 1300(b) of the California Corporations Code shall not be converted
into or represent the right to receive CCMC's common stock in accordance with
Section 7, and the holder or holders of such shares shall be entitled only to
such rights as may be granted to such holder or holders in Chapter 13 of the
California Corporations Code. Biocal shall give CCMC (i) prompt notice of any
written demand received by Biocal prior to the Effective Time to require
Biocal to purchase shares of capital stock of Biocal pursuant to Chapter 13 of
the California Law and of any other demand, notice or instrument delivered to
Biocal prior to the Effective Time pursuant to the California Corporations
Code, and (ii) the opportunity to participate in all negotiations and
proceedings with respect to any such demand, notice or instrument. Biocal
shall not make any payment or settlement offer prior to the Effective Time
with respect to any such demand unless CCMC shall have consented in writing to
such payment or settlement offer.
10. If at any time after the Effective Time any further action is
necessary or desirable to carry out the purposes of this Agreement of Merger
or to vest the Surviving Corporation with the full right, title and possession
to all assets, property, rights, privileges, immunities, powers and franchises
of either or both of the Constituent Corporations, the officers and directors
of the Surviving Corporation are fully authorized in the name of either or
both of the Constituent Corporations or otherwise to
take all such action.
11. Prior to the Effective Time, and notwithstanding the approval of
this Agreement of Merger by the shareholders of Centroid Acquistion and
Biocal, this Agreement of Merger shall terminate forthwith in the event that
the Plan and Agreement of Merger shall be terminated as therein provided.
12. Prior to the Effective Time, this Agreement of Merger may be
amended by the parties hereto at any time before or after approval hereof by
the shareholders of either Centroid Acquisition or Biocal, but, after any such
approval, no amendment shall be made which without the further approval of
such shareholders would (i) have a material adverse effect on the shareholders
of either Centroid Acquisition or Biocal, (ii) change any of the principal
terms of the Agreement of Merger, or (iii) change any term of the Articles of
Incorporation of the Surviving Corporation. This Merger Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties hereto.
IN WITNESS WHEREOF, the parties have duly executed this Merger Agreement
as of the date first written above.
BIOCAL TECHNOLOGY, INC.,
a California corporation
By:/s/Xxx X. Xxxxxxxx
Xxx X. Xxxxxxxx, Chief Executive Officer
By:/s/Xxxxxx X. Xxxxxxxxxxx
Xxxxxx X. Xxxxxxxxxxx, Secretary
CENTROID ACQUISITION CO.,
a California corporation
By:/s/Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, President and
Chairman of the Board
By:/s/Xxxxx Xxxxxx
Xxxxx Xxxxxx, Secretary
EXHIBIT A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
BIOCAL TECHNOLOGY, INC.
I.
The name of this corporation is BIOCAL TECHNOLOGY, INC.
II.
The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General
Corporation Law of California other than the banking business, the trust
company business or the practice of a profession permitted to be incorporated
by the California Corporations Code.
III.
The corporation is authorized to issue only one class of stock, to
be designated Common Stock. The total number of shares of Common Stock
presently authorized is one thousand (1,000), no par value.
IV.
(a) The liability of the directors of this corporation for
monetary damages shall be eliminated to the fullest extent permissible under
California law.
(b) This corporation is authorized to provide
indemnification of agents (as defined in Section 317 of the California
Corporations Code) for breach of duty to the corporation and its shareholders
through bylaw provisions or through agreements with the agents, or through
shareholder resolutions, or otherwise, in excess of the indemnification
otherwise permitted by Section 317 of the Corporations Code, subject to the
limits on such excess indemnification set forth in Section 204 of the
Corporations Code.
(c) Any repeal or modification of this Article shall only be
prospective and shall not affect the rights under this Article in effect at
the time of the alleged occurrence of any act or omission to act giving rise
to liability or indemnification.
CENTROID ACQUISITION CO.
(Disappearing Corporation)
OFFICER'S CERTIFICATE
Xxxxx Xxxxxxx and Xxxxx Xxxxxx state and certify that:
1. They are the President and Secretary, respectively, of Biocal
Technology, Inc., a California corporation (the "Company").
2. The Agreement of Merger to which this Certificate is attached (the
"Merger Agreement") has been duly approved by the Board of Directors of the
Corporation.
3. The Company has only one class of stock outstanding, designated
"Common Stock" of which 1,000 shares are outstanding and entitled to vote on
the Merger.
4. The vote required for approval of the merger was a majority of the
outstanding shares of the Common Stock entitled to vote.
5. The principal terms of the Merger Agreement were approved by the
Company by a vote of a number of shares of Common Stock, which equaled or
exceeded the vote required.
6. The vote of the shareholders of Centroid Consolidated Mines Co.,
the parent of the Company, which parent corporation is issuing equity
securities to the shareholders of Biocal Technology, Inc. pursuant to the
Merger Agreement, was not required.
On the date set forth below, in the City of Salt Lake, in the State of
Utah, each of the undersigned does hereby declare under the penalty of perjury
under the laws of the State of California that he signed the foregoing
certificate in the official capacity set forth beneath his signature, and that
the statements set forth in said certificate are true of his own knowledge.
Signed on the 1st day of July, 2004.
/s/Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, President
/s/Xxxxx Xxxxxx
Xxxxx Xxxxxx, Secretary
BIOCAL TECHNOLOGY, INC.
(Surviving Corporation)
OFFICER'S CERTIFICATE
Xxx Xxxxxxxx and Xxxxxx Xxxxxxxxxxx state and certify that:
1. They are the Chief Executive Officer and Secretary, respectively,
of Biocal Technology, Inc., a California corporation (the "Company").
2. The Agreement of Merger to which this Certificate is attached (the
"Merger Agreement") has been duly approved by the Board of Directors of the
Corporation.
3. The Company has only one class of stock outstanding, designated
"Common Stock" of which 32,822,155 shares are outstanding and entitled to vote
on the Merger.
4. The vote required for approval of the merger was a majority of the
outstanding shares of the Common Stock entitled to vote.
5. The principal terms of the Merger Agreement were approved by the
Company by a vote of a number of shares of Common Stock, which equaled or
exceeded the vote required.
On the date set forth below, in the City of Orange, in the State of
California, each of the undersigned does hereby declare under the penalty of
perjury under the laws of the State of California that he signed the foregoing
certificate in the official capacity set forth beneath his signature, and that
the statements set forth in said certificate are true of his own knowledge.
Signed on the 1st day of July, 2004.
/s/Xxx Xxxxxxxx
Xxx Xxxxxxxx, Chief Executive Officer
/s/Xxxxxx Xxxxxxxxxxx
Xxxxxx Xxxxxxxxxxx, Secretary
CERTIFICATE OF APPROVAL OF AGREEMENT OF MERGER
Xxxxx Xxxxxxx and Xxxxx Xxxxxx state and certify that:
1. They are the President and Secretary, respectively, of Centroid
Consolidated Mines Co., a Nevada corporation.
2. The Agreement of Merger in the form attached was duly approved by
the Board of Directors of the corporation.
3. No vote of the shareholders of the corporation was required.
On the date set forth below, in the City of Salt Lake, in the State of
Utah, each of the undersigned does hereby declare under the penalty of perjury
under the laws of the State of California that he signed the foregoing
certificate in the official capacity set forth beneath his signature, and that
the statements set forth in said certificate are true of his own knowledge.
Signed on the 1st day of July, 2004.
/s/Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, President
/s/Xxxxx Xxxxxx
Xxxxx Xxxxxx, Secretary
