Exhibit 1.1
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement") is made and entered
into this 12th day of March, 2004, by and between Tintic Gold Mining Company,
a Utah corporation ("Tintic-Utah"); Tintic Gold Mining Company, a Nevada
corporation and wholly-owned subsidiary of Tintic-Utah ("Tintic-Nevada"); and
Xxxxxx X. Xxxxxxxxxxxx, Xxxx X. Xxxxxxxx and Xxxx X. Xxxxxx, the individual
principals who are the current directors and executive officers of Tintic-Utah
and Tintic-Nevada (respectively, "Xxxxxxxxxxxx," "Xxxxxxxx" and "Xxxxxx," and
collectively, the "Principals");
W I T N E S S E T H:
RECITALS
WHEREAS, Tintic-Utah is the parent of Tintic-Nevada, and Tintic-
Nevada is a wholly-owned subsidiary of Tintic-Utah; and
WHEREAS, Tintic-Utah anticipates closing an Agreement and Plan of
Merger (the "Merger") with TTGM ACQUISITION CORPORATION, a Utah corporation
("Sub"), and KIWA BIOTECH PRODUCTS GROUP LTD., a company incorporated in the
British Virgin Islands ("Kiwa")., pursuant to which Kiwa will become a wholly-
owned subsidiary of Tintic-Utah; and
WHEREAS, conditioned upon the closing of the Merger, the Board of
Directors of Tintic-Utah resolved at a special meeting held on March 5, 2004,
that it would be in the best interests of Tintic-Utah and its stockholders
that (i) the pre-Merger business, property and assets of Tintic-Utah, subject
to the assumption of all liabilities of Tintic-Utah, be conveyed to Tintic-
Nevada (the "Conveyance"); (ii) that all of the outstanding securities of
Tintic-Nevada (the "Tintic-Nevada Shares") should be distributed to the record
common stockholders of Tintic-Utah existing at the closing of business on
March 5, 2004 (the "Record Date"), subject to adjustment by the National
Association of Securities Dealers, Inc. (the "NASD") setting an ex-dividend
date, pro rata, on a one share for one share basis (the "Dividend"); and (iii)
that all shares of common stock of Tintic-Utah issued after the closing of
business on March 5, 2004, would be issued subject to waiver of the Dividend
only; and
WHEREAS, the respective Boards of Directors of Tintic-Utah and
Tintic-Nevada have adopted resolutions pursuant to which Tintic-Utah shall
deposit all of the Tintic-Nevada Shares with Cottonwood Stock Transfer, a
transfer agent registered with the Securities and Exchange Commission
("Cottonwood"), to be held by Cottonwood for the benefit of and for
distribution to the Tintic-Nevada stockholders as of the Record Date, subject
to the filing and effectiveness by Tintic-Nevada of a registration statement
on the appropriate form and related prospectus with the Securities and
Exchange Commission (the "Registration Statement" and the "Prospectus") and
such comparable applicable state agencies or an available exemption from the
applicable federal and state registration requirements as may be necessary to
lawfully effect the distribution by Dividend to the Tintic-Nevada stockholders
of all of the Tintic-Nevada Shares on Tintic-Utah's behalf, subject to the
terms and provisions hereof (the "Plan of Distribution");
NOW, THEREFORE, in consideration of the closing of the proposed
Merger and the mutual covenants and promises contained herein, it is agreed:
Section 1
Plan of Distribution
1.1 Effective Date and Stockholders Entitled to Participate. The
effective date (the "Effective Date") of the Conveyance and the Dividend shall
be the same date as the closing of the Merger, at the Conveyance shall be
effective immediately subsequent to the closing of the Merger. At the closing
of business on March 5, 2004, there were 1,009,643 outstanding shares of
common stock of Tintic-Utah. Only Tintic-Utah stockholders of record at that
time on March 5, 2004, the Record Date for the Dividend (subject to the
effects of any adjustments resulting from the NASD setting an ex-dividend date
immediately following the closing of the Merger) shall be entitled to
participate in the Dividend and distribution of the Tintic-Nevada Shares.
1.2 Conveyance of Assets by Tintic-Utah. Tintic-Utah, by means of a
Special Warranty Deed, hereby conveys all of the assets listed in Exhibit "A"
that is attached hereto and incorporated herein by reference to Tintic-Nevada.
These assets consist of Tintic-Utah's three patented mining claims located in
the Tintic Mining District near the town of Mammoth in Juab County, Utah.
1.3 Assumption of Liabilities and Indemnification by Tintic-Nevada and
the Principals. Effective as of the Effective Date, Tintic-Nevada hereby
assumes, and agrees to pay and indemnify and hold Tintic-Utah, Sub, and Kiwa
harmless from and against, any and all pre-Effective Date liabilities of
Tintic-Utah of every kind and nature whatsoever, whether by contract, lease,
license or otherwise, without qualification, including the costs and expenses
of the Conveyance, the Dividend, the Distribution and the Plan of Distribution
(see Section 4.7 below); provided, however, the indemnification obligations
pursuant hereto shall terminate on the expiration of two years from the
Effective Date, with the exception of all liabilities of every kind and nature
whatsoever respecting the Dividend, the Distribution and the Plan of
Distribution, which will continue until they have been satisfied or have
lapsed pursuant to the applicable statutes of limitation respecting matters of
these kinds. Effective as of the Effective Date, the Principals shall also
similarly assume, and shall indemnify and hold Tintic-Utah, Sub and Kiwa
harmless from and against, any and all pre-Effective Date liabilities of
Tintic-Utah of every kind and nature whatsoever (regardless of any
representation to the contrary herein, specifically excluded, however, are any
liabilities related to the mining properties or past mining operations of
Tintic-Utah or its predecessors respecting its mining properties and related
environmental issues or liabilities of every kind or nature whatsoever),
whether by contract, lease, license or otherwise, without qualification,
including the costs and expenses of the Conveyance, the Dividend, the
Distribution and the Plan of Distribution (see Section 4.7 below); provided,
however, the indemnification by the Principals pursuant hereto (which
specifically excludes mining-related claims) shall also terminate on the
expiration of two years from the Effective Date, also with the exception of
all liabilities of every kind and nature whatsoever respecting the Dividend,
the Distribution and the Plan of Distribution, which will continue until they
have been satisfied or have lapsed pursuant to the applicable statutes of
limitation respecting matters of these kinds.
1.4 Conditions Subsequent to the Conveyance, the Dividend, the
Distribution and the Plan of Distribution. The Conveyance, the Dividend, the
Distribution and the Plan of Distribution shall be subject to the following
conditions subsequent:
(a) All of the Tintic-Nevada Shares that are owned by Tintic-
Utah, amounting to 1,009,643 shares, shall be deposited with
Tintic-Nevada's transfer and registrar agent, Cottonwood,
and held by Cottonwood in escrow (the "Distribution Escrow")
with a list of and for the benefit of the stockholders of
Tintic-Utah at the Record Date, subject to Distribution, on
satisfaction of the following conditions:
(i) The prior filing and effectiveness of a Registration
Statement and Prospectus with the Securities and
Exchange Commission or an available exemption from the
applicable federal and state registration requirements
applicable to the Distribution of the Tintic-Nevada
Shares by Tintic-Nevada in accordance with all
applicable federal and state securities laws, rules
and regulations at its sole cost and expense within a
reasonable time but not later than twelve months from
the Closing;
(ii) Compliance with applicable "blue sky" laws, rules and
regulations respecting the Dividend and the
Distribution, by registration or exemption, in any
state in which any stockholder of Tintic-Utah resided
at the Record Date, as may be adjusted by any ex-
dividend date set by the NASD, by Tintic-Nevada, in
accordance with all applicable federal and state
securities laws, rules and regulations at its sole
cost and expense within a reasonable time but not
later than twelve months from the Closing.
(iii) In the event that Tintic-Nevada, using its best
efforts, cannot accomplish or achieve the foregoing
conditions subsequent within twelve months of closing,
it shall so notify Tintic-Utah. However, in such
event, this agreement shall NOT become void or
voidable. That is to say, under no circumstances
shall this Distribution Agreement or the Conveyance be
rescinded or the assets so conveyed hereby to Tintic-
Nevada be re-conveyed, or re-conveyable, to Tintic-
Utah. If Tintic-Nevada is unable to register the
Distribution transaction with the Securities and
Exchange Commission on a Form SB-2, for example,
Tintic-Nevada will be required to find another
registration form that will enable it to do so or, it
will be required to effectuate the proposed spin-off
in some other manner or fashion. If the proposed
spin-off or Distribution cannot be lawfully
accomplished for reasons now unknown, Tintic-Nevada
will be required to sell the mining claim assets and
distribute the net proceeds to those shareholders that
would have been entitled to receive the stock Dividend
and consequent Distribution.
1.5 Required Filings. Tintic-Utah shall timely file (i) an amended
Form 10b-17 with the NASD advising it of the closing of the Merger so that an
ex-dividend date can be set; and timely file (ii) a Form 8-K Current Report
with the Securities and Exchange Commission regarding the Merger that will
include an adequate description of this Distribution Agreement and the Plan of
Distribution.
Section 2
Closing
The closing contemplated by Section 1 (the "Closing") shall be deemed to
occur immediately subsequent to the closing of the Merger. The Closing may be
accomplished by wire, express mail or other courier service, conference
telephone communications or as otherwise agreed by the respective parties or
their duly authorized representatives.
Section 3
Representations and Warranties of Tintic-Utah
Tintic-Utah represents and warrants to, and covenants with, Tintic-
Nevada as follows:
3.1 Corporate Status. Tintic-Utah is a corporation duly organized,
validly existing and in good standing under the laws of the State of Utah.
3.2 Capitalization. The current pre-Dividend and pre-Distribution
authorized capital stock of Tintic-Utah consists of 50,000,000 shares of
$0.001 par value common voting stock, of which 1,009,643 shares shall have
been issued and outstanding on the Record Date, all fully paid and non-
assessable and issued in accordance with applicable state corporate law and
federal and state securities laws, rules and regulations.
3.3 Corporate Authority. Tintic-Utah has full corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder and will deliver to Tintic-Nevada or its representatives at the
Closing a certified copy of resolutions of its Board of Directors authorizing
execution of this Agreement by Tintic-Utah's officers and performance
thereunder, subject to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights, and
subject to the application of general equity principles. Tintic-Utah also has
full corporate power and authority to convey its mining claim assets to
Tintic-Nevada in exchange for the stock it will be issued and which shall be
held in escrow by Cottonwood Stock Transfer and will deliver an appropriate
Special Warranty Deed to Tintic-Nevada at Closing in recordable form. The
corporate resolution at Closing authorizing execution of this Agreement by
Tintic-Utah's Board of Directors shall also authorize the signing of an
appropriate Special Warranty Deed so conveying its mining claim assets to
Tintic-Nevada.
3.4 Due Authorization. Execution of this Agreement and performance by
Tintic-Utah hereunder have been duly authorized by all requisite corporate
action on the part of Tintic-Utah, and this Agreement constitutes a valid and
binding obligation of Tintic-Utah and performance hereunder will not violate
any provision of the Articles of Incorporation, Bylaws, agreements, mortgages
or other commitments of Xxxxxx-Xxxx.
Xxxxxxx 0
Xxxxxxxxxxxxxxx, Xxxxxxxxxx and Covenants of Tintic-Nevada
Tintic-Nevada represents and warrants to, and covenant with, Tintic-Utah
as follows:
4.1 Corporate Status. Tintic-Nevada is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada.
4.2 Capitalization. The current authorized capital stock of Tintic-
Nevada consists of 50,000,000 shares of $0.001 par value common voting stock,
of which 1,009,643 shares are and will be issued and outstanding on Closing,
all owned by Tintic-Utah. There are no outstanding options, warrants or calls
pursuant to which any person has the right to purchase any authorized and
unissued common stock or other securities of Tintic-Nevada.
4.3 Corporate Authority. Tintic-Nevada has full corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder and will deliver to Tintic-Utah or its representative at the Closing
a certified copy of resolutions of its Board of Directors authorizing
execution of this Agreement by its officers and performance thereunder,
subject to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights, and subject to the
application of general equity principles.
4.6 Due Authorization. Execution of this Agreement and performance by
Tintic-Nevada hereunder have been duly authorized by all requisite corporate
action on the part of Tintic-Nevada, and this Agreement constitutes a valid
and binding obligation of Tintic-Nevada and performance hereunder will not
violate any provision of the Articles of Incorporation, Bylaws, agreements,
mortgages or other commitments of Tintic-Nevada.
4.7 Tintic-Nevada's Responsibility for Costs. Tintic-Nevada shall be
responsible for all costs incident to preparing and filing an appropriate
registration statement with the Commission in order to lawfully distribute the
stock Dividend to Tintic-Utah shareholders as of the Record Date. These costs
and expenses include but are not limited to the cost of filing the Form 10b-
17, the registration statement and any amendments thereto, all accounting,
legal and other professional fees, all stock transfer agent fees, all other
filings or actions required of Tintic-Nevada in connection with the spin-off
and Distribution and Tintic-Utah shall have no liability for these costs, fees
and expenses.
Section 5
Conditions Precedent to Obligations of Tintic-Nevada
All obligations of Tintic-Nevada under this Agreement are subject, at
its option, to the fulfillment, before or at the Closing, of each of the
following conditions:
5.1 Representations and Warranties True at Closing. The
representations and warranties of Tintic-Utah contained in this Agreement
shall be deemed to have been made again at and as of the Closing and shall
then be true in all material respects.
5.2 Due Performance. Tintic-Utah shall have performed and complied
with all of the terms and conditions required by this Agreement to be
performed or complied with by it before the Closing.
5.3 Satisfaction of Certain Conditions by Tintic-Utah Precedent to the
Closing. All of the conditions respecting Tintic-Utah that are outlined in
Section 1 hereof shall have been satisfied by Tintic-Utah prior to the
Closing.
5.4 Closing of the Kiwa Merger. The Merger between Tintic-Utah and
Kiwa shall have been completed and closed.
Section 6
Conditions Precedent to Obligations of Tintic-Utah
All obligations of Tintic-Utah under this Agreement are subject, at
Tintic-Utah's option, to the fulfillment, before or at the Closing and/or the
Distribution, of each of the following conditions:
6.1 Representations and Warranties True at Closing. The
representations and warranties of Tintic-Nevada contained in this Agreement
shall be deemed to have been made again at and as of the Closing and shall
then be true in all material respects and shall survive the Closing as
provided herein.
6.2 Due Performance. Tintic-Nevada shall have performed and complied
with all of the terms and conditions required by this Agreement to be
performed or complied with by it before the Closing and/or the Distribution.
6.3 Satisfaction of Certain Conditions by Tintic-Nevada Precedent to
the Closing. All of the conditions respecting Tintic-Nevada that are outlined
in Section 1 hereof shall have been satisfied by Tintic-Nevada prior to the
Closing and/or the Distribution.
6.4 Closing of the Kiwa Merger. The Merger between Tintic-Utah and
Kiwa shall have been completed and closed.
Section 7
Termination
Prior to Closing, this Agreement may be terminated (1) by mutual consent
of Tintic-Utah and Tintic-Nevada in writing; (2) by either the directors of
Tintic-Utah or Tintic-Nevada, if there has been a material misrepresentation
or material breach of any warranty or covenant by the other party; or (3) by
either the directors of Tintic-Utah or Tintic-Nevada, if the Merger shall not
have timely taken place, unless adjourned to a later date by mutual consent in
writing, by the date fixed in the Merger.
Section 8
General Provisions
8.1 Further Assurances. At any time, and from time to time, after the
Closing and/or the Distribution, each party will execute such additional
instruments and take such action as may be reasonably requested by the other
party to confirm or perfect title to any property or assets transferred
hereunder or otherwise to carry out the intent and purposes of this Agreement.
8.2 Waiver. Any failure on the part of any party hereto to comply
with any of its or their obligations, agreements or conditions hereunder may
be waived in writing by the party to whom such compliance is owed.
8.3 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given if delivered in person or
sent by prepaid first-class registered or certified mail, return receipt
requested, as follows:
If to Tintic-Utah: Xxxxxx X. Xxxxxxxxxxxx, President
0000 Xxxxx Xxxxx
Xxxx Xxxx Xxxx, XX 00000
With a copies to: Xxxxxxx X. Xxxxxxxxxx, Esq.
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Xxxx Xxxxxx, Esq.
XXXXXX XXXXXXXX & MARKILES, LLP
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
If to Tintic-Nevada:Xxxxxx X. Xxxxxxxxxxxx, President
0000 Xxxxx Xxxxx
Xxxx Xxxx Xxxx, XX 00000
8.4 Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes and cancels any other agreement,
representation or communication, whether oral or written, between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof.
8.5 Headings. The section and subsection headings in this
Agreement are inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
8.6 Governing Law and Venue of Actions. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the
State of Utah, except to the extent pre-empted by federal law, in which event
(and to that extent only), federal law shall govern. Any actions to enforce
any term or provision hereof may be brought in any federal and state court
sitting in Utah, and all parties agree to submit to the jurisdiction of these
courts.
8.7 Assignment. This Agreement shall inure to the benefit of, and
be binding upon, the parties hereto and their successors and assigns.
8.8 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
8.9 Default. In the event of any default hereunder, the prevailing
party in any action to enforce the terms and provisions hereof shall be
entitled to recover reasonable attorney's fees and related costs.
8.10 Survival of Representations and Warranties. Other than those
of Tintic-Utah, the representations, warranties, covenants and agreements
contained herein shall survive the Closing and be fully binding on the parties
until the expiration of the applicable statute of limitations period.
IN WITNESS WHEREOF, the parties have executed this Distribution
Agreement effective the day and year first above written.
TINTIC GOLD MINING COMPANY,
a Utah corporation
S/
Date: March 12, 2004 By__________________________________
Xxxxxx X. Xxxxxxxxxxxx, President
TINTIC GOLD MINING COMPANY,
a Nevada corporation
S/
Date: March 12, 2004 By__________________________________
Xxxxxx X. Xxxxxxxxxxxx, President
PRINCIPALS:
S/
Date: March 12, 2004 _____________________________________
Xxxxxx X. Xxxxxxxxxxxx
S/
Date: March 12, 2004 _____________________________________
Xxxx X. Xxxxxxxx
S/
Date: March 12, 2004. _____________________________________
Xxxx X. Xxxxxx
Exhibit "A" to March 12, 2004 Distribution Agreement
Three (3) patented mining claims knows as the EMERALD, the RUBY, and the
DIAMOND LODE MINING CLAIMS located in the Central portion of the Tintic Mining
District, Juab County, Utah, embracing a portion of Sections 19 and 30,
Township 10 South, Range 2 West and Sections 24 and 25, Township 10 South,
Range 3 West, Salt Lake Base and Meridian, bearing Mineral Survey Number 188,
and designated as Xxx Xx. 000, more particularly described in the patent
recorded in Book 60, Page 406, of the records of Juab County, Utah.
