Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT (the "Agreement") is made this ____ day of June,
2004, by and between Centroid Consolidated Mines Co., a Nevada corporation
("CCMC"); a wholly-owned California subsidiary to be formed by CCMC (the "CCMC
Subsidiary"); and BioCal Technology, Inc., a California corporation
("BioCal").
W I T N E S S E T H :
WHEREAS, the respective Boards of Directors of CCMC and BioCal
have adopted certain resolutions whereby the CCMC Subsidiary and BioCal will
merge in a "reverse triangular merger" pursuant to the provisions of Sections
368(a)(1) and 368(a)(2)(E) of the Internal Revenue Code and the applicable
provisions of the California Corporations Code, and whereby the BioCal
stockholders (the "BioCal Stockholders") will receive shares of common stock
of CCMC and the BioCal option holders (the "BioCal Option Holders") will
receive options of CCMC in consideration of such merger; and
WHEREAS, BioCal shall be the surviving corporation under the
merger, as contemplated by this Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreement of the parties hereto, the Agreement and the terms and conditions
hereof and the mode of carrying the same into effect, together with any
provisions required or permitted to be set forth therein, are hereby
determined and agreed upon as required by the laws of the State of California
as follows, to-wit:
Section 1
Plan of Merger
1.1 Merger and Surviving Corporation. CCMC Subsidiary will merge
with and into BioCal, with BioCal being the "Surviving Corporation"; the
separate existence of CCMC Subsidiary shall cease. Until amended, modified
or otherwise altered, the Articles of Incorporation of BioCal shall continue
to be the Articles of Incorporation of the Surviving Corporation; and the
Bylaws of BioCal, with the provisions providing for cumulative voting having
been deleted, shall continue to be the Bylaws of the Surviving Corporation.
1.2 Share Conversion.
(i) Each three (3) shares of issued and outstanding common stock
of BioCal (the "BioCal Shares") shall, upon the effective
date of the Agreement, be exchanged for one (1) share of
common stock of CCMC, amounting to 10,940,718 shares of CCMC
in the aggregate; and each three (3) outstanding options to
acquire shares of BioCal common stock the "BioCal Options"),
shall, upon the effective date of the Agreement, be
exchanged for one (1) option to acquire shares of CCMC,
amounting to 821,975 options of CCMC in the aggregate, all
as outlined in Exhibit A. All fractional shares or options
shall be rounded to the nearest whole share or option.
(ii) Each share of common stock of the CCMC Subsidiary issued and
outstanding immediately prior to the Closing shall be
converted into and exchanged for one (1) validly issued,
fully paid and non-assessable share of common stock of the
Surviving Corporation and shall constitute the only shares
of capital stock of the Surviving Corporation outstanding
immediately after the Closing. Each stock certificate of
the CCMC Subsidiary evidencing ownership of any such shares
shall continue to evidence ownership of such shares of
capital stock of the Surviving Corporation.
1.3 Survivor's Succession to Corporate Rights. The Surviving
Corporation shall thereupon and thereafter possess all the rights, privileges,
powers and franchises as well of a public as of a private nature, and be
subject to all of the restrictions, disabilities and duties of the CCMC
Subsidiary; and all and singular, the rights, privileges, powers and
franchises of the CCMC Subsidiary, and all property, real, personal and mixed,
and all debts due to the CCMC Subsidiary on whatever account, as well for
stock subscriptions as all other things in action or belonging to the CCMC
Subsidiary shall be vested in the Surviving Corporation; and all property,
rights, privileges, powers and franchises, and all and every other interest
shall be thereafter as effectually the property of the Surviving Corporation
as they were of the CCMC Subsidiary, and the title to any real estate vested
by deed or otherwise in the CCMC Subsidiary shall not revert or be in any way
impaired by reason of the Agreement; but all rights of creditors and all liens
upon any property of the CCMC Subsidiary shall be preserved unimpaired, and
all debts, liabilities and duties of the CCMC Subsidiary shall thenceforth
attach to the Surviving Corporation and may be enforced against it to the same
extent as if said debts, liabilities and duties had been incurred or
contracted by it. At the Closing, there shall be no liabilities, debts or
other obligations or duties to which CCMC is subject.
1.4 Survivor's Succession to Corporate Acts, Plans, Contracts,
etc. All corporate acts, plans, policies, contracts, approvals and
authorizations of the CCMC Subsidiary and its sole stockholder, its Board of
Directors, committees elected or appointed by the Board of Directors, officers
and agents, which were valid and effective immediately prior to the effective
time of the Agreement, shall be taken for all purposes as the acts, plans,
policies, contracts, approvals and authorizations of the Surviving Corporation
and shall be as effective and binding thereon as the same were with respect to
the CCMC Subsidiary. The employees of the CCMC Subsidiary shall become the
employees of the Surviving Corporation and continue to be entitled to all the
same rights and benefits which they enjoyed as employees of the CCMC
Subsidiary.
1.5 Survivor's Rights to Assets, Liabilities, Reserves, etc.
The assets, liabilities, reserves and accounts of the CCMC Subsidiary shall be
recorded on the books of the Surviving Corporation at the amounts at which
they, respectively, shall then be carried on the books of the CCMC Subsidiary,
subject to such adjustments or eliminations of intercompany items as may be
appropriate in giving effect to the Agreement.
1.6 Directors and Executive Officers. The present directors and
executive officers of BioCal shall continue as directors and executive
officers of the Surviving Corporation.
1.7 Indemnification Agreement and Consideration. In
consideration of the Closing of the Agreement, Xxxxxx Services, Inc., a Utah
corporation ("Xxxxxx Services"), a principal stockholder of CCMC, shall
execute and deliver an Indemnity Agreement, a copy of which is attached hereto
as Exhibit B and incorporated herein by reference, regarding the payment and
personal indemnification of CCMC and BioCal from and against any breach of
warranty or false representation made herein and any and all past liabilities
of any type or nature whatsoever of CCMC existing immediately prior to the
Closing, and which will include but not be limited to the expenses of CCMC
related to the negotiation and the Closing of this Agreement, and the
compromise and settlement of any amounts due and owing to Xxxxxx Services for
advances, loans or services to or for the benefit of CCMC or otherwise that
were incurred by CCMC prior to Closing.
1.8 Share Cancellation by CCMC Principal Stockholder. In
consideration of the Closing of the Agreement, Xxxxxx Services shall also
deliver to CCMC for cancellation at the Closing an aggregate of 1,000,000
shares of common stock of CCMC, which shares shall be returned to the
authorized but unissued capital stock of CCMC.
1.9 Issuance of Warrants. CCMC shall issue to MBC Global LLC,
an Illinois limited liability company ("MBC"), and a financial advisor to
CCMC, at Closing, warrants to purchase 2,075,000 shares of CCMC common stock
at an exercise price of $0.05 per share, the exercise of which are conditioned
upon the Closing, and which warrants shall be automatically exercised or
expire on the Closing if the exercise price thereof is not paid within fifteen
(15) days of Closing. The common stock underlying these warrants shall have
"Piggy-Back" Registration Rights (as defined in Section 11 hereof).
1.10 Subscriptions for Units of CCMC. As a condition to Closing,
CCMC shall have completed the offering of 1,000,000 Units of CCMC at a
purchase price of $1.00 per Unit, to "accredited investors" only, with each
Unit consisting of one (1) share of common stock of CCMC and one (1) warrant
to purchase one-half of one share of common stock of CCMC at an exercise price
of $0.05 per share, which warrants shall also be automatically exercised or
expire on the Closing if the exercise price thereof is not paid within fifteen
(15) days of Closing. Except as indicated under Section 1.11 below, the only
condition to the acceptance of these subscriptions shall be the Closing of
this Agreement. The common stock underlying these warrants shall also have
"Piggy-Back" Registration Rights.
1.11 Bridge Loan. CCMC may loan BioCal the sum of $300,000 of
the net proceeds of the Units offering outlined in Section 1.10 hereof prior
to the Closing, on a pro rata basis from all subscribers to such offering,
provided: (i) BioCal's Board of Directors shall have unanimously adopted this
Agreement and authorized the execution and delivery of this Agreement for and
on behalf of BioCal; (ii) BioCal Stockholders owning not less than 50.01% of
the outstanding voting securities of BioCal shall have approved this Agreement
in writing; and (iii) BioCal Stockholders owning no more than 5% of the
outstanding voting securities of BioCal shall have exercised dissenters'
rights as may be applicable to the Agreement under the California Corporations
Code. Any such loan shall be pursuant to a Promissory Note due and payable on
June 30, 2004; provided, however, that in the event that this Agreement does
not close for any reason whatsoever, such Promissory Note shall immediately
become due and payable; shall become a Demand Promissory Note on or after June
30, 2004; shall bear interest at the rate of 10% per annum; and shall be owned
pro rata by such subscribers, in the event that the merger contemplated by
this Agreement is not completed.
1.12 Change in Accounting Year. Following the Closing, BioCal
shall change its accounting year from February 28 to December 31.
1.13 Principal Office. The principal executive office of the
Surviving Corporation shall be located at 0000 X. Xxxxxxx Xxx., Xxxxx X,
Xxxxxx, Xxxxxxxxxx 00000.
1.14 Adoption. The Agreement shall be adopted by the Board of
Directors of CCMC and CCMC Subsidiary, the Board of Directors of CCMC as the
sole stockholder of the CCMC Subsidiary, the Board of Directors of BioCal and
by the BioCal Stockholders owning in excess of a majority of the outstanding
voting securities of BioCal.
1.15 Dissenters' Rights and Notification. The BioCal
Stockholders shall be accorded dissenter's rights under the applicable
provisions of the California Corporations Code; provided; however, that in the
event BioCal Stockholders owning in excess of 5% of the outstanding BioCal
shares shall elect dissenter's rights, CCMC and the CCMC Subsidiary shall, in
their sole discretion, have the option to terminate this Agreement.
1.16 Resignations of Present Directors and Executive Officers of
CCMC. On Closing, the present directors and executive officers of CCMC shall
resign, in seriatim, and designate the directors and executive officers of
BioCal to serve in their place and stead, until the next respective annual
meetings of the stockholders and Board of Directors of CCMC, and until their
respective successors shall be elected and qualified or until their respective
prior resignations or terminations.
1.17 Lock-Up/Leak-Out Agreement and Demand Registration Rights.
The CCMC stockholders who are listed in Exhibit C hereof shall execute and
deliver the Lock-Up/Leak-Out Agreement appended hereto as C-1 covering public
resale of the shares of common stock of CCMC individually owned by them and
listed therein. Demand Registration Rights (as defined in Section 11 hereof)
shall be accorded the holders, present and future, of these shares and shall
cover these shares, in the event that it is determined that such securities
cannot be publicly sold by the holders thereof without registration under the
Securities Act of 1933, as amended (the "Securities Act").
1.18 Stock Option Plan. The Reorganized CCMC (as defined in
Section 11 hereof) shall adopt a Stock Option Plan that will have 2,000,000
shares of the Reorganized CCMC common stock authorized for issuance thereunder
for the benefit of directors, executive officers and employees of the
Reorganized CCMC or its wholly-owned subsidiary, BioCal.
1.19 Delivery of Certificates by the BioCal Stockholders or
Option Agreements by the BioCal Option Holders. The transfer of the BioCal
Shares and the BioCal Options by the BioCal Stockholders and the BioCal Option
Holders shall be effected by the delivery to CCMC or its transfer agent of
certificates representing the BioCal Shares endorsed in blank or accompanied
by stock powers executed in blank, or Option Agreements endorsed in blank or
accompanied by assignments executed in blank, with all signatures witnessed or
guaranteed to the satisfaction of CCMC and the CCMC Subsidiary and with any
necessary transfer taxes and other revenue stamps affixed and acquired at the
expense of the BioCal Stockholders and the BioCal Option Holders, and on
receipt thereof to the satisfaction of the Surviving Corporation, a stock
certificate representing shares in CCMC or an Option as outlined in Exhibit A
shall be issued and delivered to the BioCal Stockholders and the BioCal Option
Holders, respectively; as a condition to the exchange of the BioCal Shares and
the BioCal Options, CCMC and the Surviving Corporation shall require the
BioCal Stockholders and the BioCal Option Holders to execute and deliver a
Letter of Transmittal as outlined in Section 4.12 hereof, acknowledging, among
other things, that the shares or options of CCMC to be received in exchange
for the BioCal Shares or the BioCal Options are "unregistered" and
"restricted" securities which have not been registered with the Securities and
Exchange Commission or any state regulatory agency, and which must be so
registered prior to public sale by the BioCal Stockholders or BioCal Option
Holders, unless an exemption from such registration is available for any such
sale.
1.20 Further Assurances. At the Closing and from time to time
thereafter, the parties shall execute such additional instruments and take
such other action as may be reasonably required or necessary to carry out the
terms and provisions hereof.
1.21 Effective Date. The Effective Date of the Agreement shall
be the date when the Articles of Merger are filed and accepted by the
Secretary of State of the State of California and at such time as all
applicable provisions of the California Corporations Code have been met.
1.22 Additional Funding. The Reorganized CCMC will use its best
efforts to raise $3,350,000 through the sale of a series of newly designated
preferred stock having a conversion price of $1.00 per share; forced
conversion, on the earlier of two (2) years, or if the average bid prices of
the Reorganized CCMC's common stock exceeds $2.00 for five (5) consecutive
trading days on the OTC Bulletin Board where it presently trades or any other
nationally recognized medium on which it subsequently publicly trades,
provided that the underlying conversion shares that are subject to any such
forced conversion are the subject of an effective registration statement that
has been filed with the Securities and Exchange Commission; a 10% dividend;
with the costs of such offering to be 10% in cash and 10% in five (5) year
warrants with an exercise price of $1.50 per share, and the common stock
underlying these warrants shall also have "Piggy-Back" registration rights.
1.23 Name Change. CCMC shall change its name to "eGene, Inc." by
the consent of its Board of Director and without stockholder approval pursuant
to the authority set forth in its Articles of Incorporation.
Section 2
Closing
The Closing contemplated by Section 1.1 shall be held at the
principal executive offices of the Surviving Corporation as outlined in
Section 1.13 hereof, on or before June 30, 2004, unless another place or time
is agreed upon in writing by the parties. 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 CCMC and the CCMC Subsidiary
CCMC and the CCMC Subsidiary represent and warrant to, and
covenant with, BioCal as follows:
3.1 Corporate Status. CCMC is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada
and is licensed or qualified as a foreign corporation in all states in which
the nature of its business or the character or ownership of its properties
makes such licensing or qualification necessary. It is a "reporting issuer"
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
that is required to file reports with the Securities and Exchange Commission
under Section 13 of the Exchange Act (the "SEC Reports"); it is current in the
filing of all required SEC Reports; and the SEC Reports are true and correct
in every material respect. Its common stock is quoted on the OTC Bulletin
Board of the National Association of Securities Dealers, Inc. under the symbol
"CCMC."
The CCMC Subsidiary will be organized under the laws of the State
of California immediately following the execution and delivery of this
Agreement, by the filing of the Articles of Incorporation attached hereto as
Exhibit D.
3.2 Capitalization. The authorized capital stock of CCMC
consists of 60,000,000 shares of common voting stock, having a par value of
$0.001 per share, of which 1,714,352 shares are issued and outstanding, all
fully paid and non-assessable; and 10,000,000 shares of preferred stock,
having a par value of $0.001 per share, none of which are outstanding; except
as may be provided herein, there are no outstanding options, warrants or calls
pursuant to which any person has the right to purchase any authorized and
unissued capital stock of CCMC.
The capitalization of the CCMC Subsidiary shall be as set forth in
Exhibit D, and except as provided in this Agreement, there are no outstanding
options, warrants or calls pursuant to which any person has the right to
purchase any authorized and unissued capital stock of the CCMC Subsidiary.
3.3 Financial Statements. The audited financial statements of
CCMC furnished to BioCal, consisting of a balance sheet dated December 31,
2003, and a related statement of income for the periods ended December 31,
2003 and 2002, attached hereto as Exhibit E and incorporated herein by
reference; and unaudited financial statements of CCMC for the period ended
March 31, 2004, attached hereto as Exhibit E-1 and incorporated herein by
reference, are correct and fairly present the financial condition of CCMC at
such dates and for the periods involved; such statements were prepared in
accordance with generally accepted accounting principles consistently applied,
and no material change has occurred in the matters disclosed therein, except
as indicated in Exhibit F, which is attached hereto and incorporated herein by
reference. Such financial statements do not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein not misleading.
3.4 Undisclosed Liabilities. CCMC has no liabilities of any
nature except to the extent reflected or reserved against in its balance
sheets, whether accrued, absolute, contingent or otherwise, including, without
limitation, tax liabilities and interest due or to become due, except as set
forth in Exhibit F.
3.5 Interim Changes. Since the date of its balance sheets,
except as set forth in Exhibit F, there have been no (1) changes in financial
condition, assets, liabilities or business of CCMC which, in the aggregate,
have been materially adverse; (2) damages, destruction or losses of or to
property of CCMC, payments of any dividend or other distribution in respect of
any class of stock of CCMC, or any direct or indirect redemption, purchase or
other acquisition of any class of any such stock; or (3) increases paid or
agreed to in the compensation, retirement benefits or other commitments to
employees.
3.6 Title to Property. CCMC has good and marketable title to
all properties and assets, real and personal, reflected in its balance sheets,
and the properties and assets of CCMC are subject to no mortgage, pledge, lien
or encumbrance, except for liens shown therein or in Exhibit F, with respect
to which no default exists.
3.7 Litigation. There is no litigation or proceeding pending,
or to the knowledge of CCMC, threatened, against or relating to CCMC, its
properties or business, except as set forth in Exhibit F. Further, no
officer, director or person who may be deemed to be an affiliate of CCMC is
party to any material legal proceeding which could have an adverse effect on
the Company (financial or otherwise), and none is party to any action or
proceeding wherein any has an interest adverse to CCMC.
3.8 Books and Records. From the date of this Agreement to the
Closing, CCMC will (1) give to BioCal or its representatives full access
during normal business hours to all of its offices, books, records, contracts
and other corporate documents and properties so that BioCal or its
representatives may inspect and audit them; and (2) furnish such information
concerning the properties and affairs of CCMC as BioCal or its representatives
may reasonably request.
3.9 Tax Returns. CCMC has filed all federal and state income or
franchise tax returns required to be filed or has received currently effective
extensions of the required filing dates.
3.10 Confidentiality. Until the Closing (and thereafter if there
is no Closing), CCMC and its representatives will keep confidential any
information which they obtain from BioCal concerning the properties, assets
and business of BioCal. If the transactions contemplated by this Agreement
are not consummated by June 30, 2004, CCMC will return to BioCal all written
matter with respect to BioCal obtained by CCMC in connection with the
negotiation or consummation of this Agreement.
3.11 Corporate Authority. CCMC has full corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder and will deliver to BioCal or its representatives at the Closing a
certified copy of resolutions of its Board of Directors authorizing execution
of this Agreement by its officers and performance thereunder.
3.12 Due Authorization. The execution of this Agreement and
performance by CCMC hereunder has been duly authorized by all requisite
corporate action on the part of CCMC, and this Agreement constitutes a valid
and binding obligation of CCMC and performance hereunder will not violate any
provision of the Articles of Incorporation, Bylaws, agreements, mortgages or
other commitments of CCMC.
3.13 Environmental Matters. CCMC has no knowledge of any
assertion by any governmental agency or other regulatory authority of any
environmental lien, action or proceeding, or of any cause for any such lien,
action or proceeding related to the business operations of CCMC. In addition,
to the best knowledge of CCMC, there are no substances or conditions which may
support a claim or cause of action against CCMC or any of CCMC' current or
former officers, directors, agents or employees, whether by a governmental
agency or body, private party or individual, under any Hazardous Materials
Regulations. AHazardous Materials@ means any oil or petrochemical products,
PCB's, asbestos, urea formaldehyde, flammable explosives, radioactive
materials, solid or hazardous wastes, chemicals, toxic substances or related
materials, including, without limitation, any substances defined as or
included in the definition of Ahazardous substances,@ Ahazardous wastes,@
Ahazardous materials@ or Atoxic substances@ under any applicable federal or
state laws or regulations. AHazardous Materials Regulations@ means any
regulations governing the use, generation, handling, storage, treatment,
disposal or release of hazardous materials, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act and the Federal Water Pollution Control
Act.
3.14 Access to Information Regarding BioCal. CCMC and the CCMC
Subsidiary acknowledge that they have been delivered copies of what has been
represented to be documentation containing all material information respecting
BioCal and its present and contemplated business operations, potential
acquisitions, management and other factors; that they have had a reasonable
opportunity to review such documentation and discuss it, to the extent
desired, with their legal counsel, directors and executive officers; that they
have had, to the extent desired, the opportunity to ask questions of and
receive responses from the directors and executive officers of BioCal, and
with the legal and accounting firms of BioCal, with respect to such
documentation; and that to the extent requested, all questions raised have
been answered to their complete satisfaction. CCMC and the CCMC Subsidiary
acknowledge that BioCal is a high risk early development stage company that
is subject to all the attendant risks and uncertainties of similarly situated
biotechnology companies.
Section 4
Representations, Warranties and Covenants of
BioCal
BioCal represents and warrants to, and covenant with, CCMC and the
CCMC Subsidiary as follows:
4.1 BioCal Shares and Options. To the best of its knowledge,
the BioCal Stockholders are the record and beneficial owners of the BioCal
Shares, and the BioCal Option Holders are the beneficial owners of the BioCal
Options, free and clear of adverse claims of third parties; and Exhibit A
correctly sets forth the name, address and number of BioCal Shares and BioCal
Options owned by the BioCal Stockholders and the BioCal Option Holders.
4.2 Corporate Status. BioCal is a corporation duly organized,
validly existing and in good standing under the laws of the State of
California and is licensed or qualified as a foreign corporation in all states
in which the nature of its business or the character or ownership of its
properties makes such licensing or qualification necessary.
4.3 Capitalization. The authorized capital stock of BioCal
consists of 100,000,000 authorized shares of common voting stock with a par
value of $0.01 per share, of which 32,822,154 shares are issued and
outstanding all fully paid and non-assessable; except as may be provided in
Exhibit A, there are no outstanding options, warrants or calls pursuant to
which any person has the right to purchase any authorized and unissued capital
stock of BioCal.
4.4 Financial Statements. The audited financial statements of
BioCal furnished to CCMC, for the years ended February 28, 2004, 2003, 2002,
2001 and 2000, attached hereto as Exhibit G and incorporated herein by
reference, are correct and fairly present the financial condition of BioCal at
such dates and for the periods involved; such statements were prepared in
accordance with generally accepted accounting principles consistently applied,
and no material change has occurred in the matters disclosed therein, except
as indicated in Exhibit H, which is attached hereto and incorporated herein by
reference. Such financial statements do not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein not misleading.
4.5 Undisclosed Liabilities. BioCal has no material liabilities
of any nature except to the extent reflected or reserved against in the
balance sheets, whether accrued, absolute, contingent or otherwise, including,
without limitation, tax liabilities and interest due or to become due, except
as set forth in Exhibit H.
4.6 Interim Changes. Since the date of its balance sheets and
except for changes resulting from the ordinary course of business or as set
forth in Exhibit H, there have been no (1) changes in the financial condition,
assets, liabilities or business of BioCal which, in the aggregate, have been
materially adverse; (2) damages, destruction or loss of or to the property of
BioCal, payment of any dividend or other distribution in respect of the
capital stock of BioCal, or any direct or indirect redemption, purchase or
other acquisition of any such stock; or (3) increases paid or agreed to in the
compensation, retirement benefits or other commitments to employees.
4.7 Title to Property. BioCal has good and marketable title to
all properties and assets, real and personal, proprietary or otherwise,
reflected in its balance sheets, and the properties and assets of BioCal are
subject to no mortgage, pledge, lien or encumbrance, except for liens shown
therein or in Exhibit H, with respect to which no default exists.
4.8 Litigation. There is no litigation or proceeding pending,
or to the knowledge of BioCal, threatened, against or relating to BioCal, its
properties or business, except as set forth in Exhibit H. Further, no
officer, director or person who may be deemed to be an affiliate of BioCal is
party to any material legal proceeding which could have an adverse effect on
BioCal (financial or otherwise), and none is party to any action or proceeding
wherein any has an interest adverse to BioCal.
4.9 Books and Records. From the date of this Agreement to the
Closing, the BioCal Stockholders will cause BioCal to (1) give to CCMC and its
representatives full access during normal business hours to all of its
offices, books, records, contracts and other corporate documents and
properties so that CCMC may inspect and audit them; and (2) furnish such
information concerning the properties and affairs of BioCal as CCMC may
reasonably request.
4.10 Tax Returns. BioCal has filed all federal and state income
or franchise tax returns required to be filed or has received currently
effective extensions of the required filing dates.
4.11 Confidentiality. Until the Closing (and continuously if
there is no Closing), BioCal will keep confidential any information which it
obtain from CCMC concerning its properties, assets and business. If the
transactions contemplated by this Agreement are not consummated by June 30,
2004, BioCal will return to CCMC all written matter with respect to CCMC
obtained by it in connection with the negotiation or consummation of this
Agreement.
4.12 Investment Intent. The BioCal Stockholders and the BioCal
Option Holders shall acquire the shares or options to be exchanged delivered
to them under this Agreement by CCMC for investment purposes and not with a
view to the sale or distribution thereof, and the BioCal Stockholders and the
BioCal Option Holders shall have no commitment or present intention to dispose
of the CCMC common stock or options to acquire the CCMC common stock being
received under the Agreement. The BioCal Stockholders and the BioCal Option
Holders shall execute and deliver to CCMC, as a condition to the Closing, a
Letter of Transmittal attached hereto as Exhibit I and incorporated herein by
reference, acknowledging the "unregistered" and "restricted" nature of the
securities of CCMC being received under the Agreement in exchange for the
BioCal Shares and the BioCal Options, and receipt of certain material
information regarding CCMC, including, but not limited to the SEC Reports of
CCMC that have been filed with the Securities and Exchange Commission during
the past 12 months. This execution and delivery of the Letter of Transmittal
by the BioCal Stockholders and the BioCal Option Holders shall be a condition
precedent of the receipt of the CCMC shares and options that are to be
received in exchange for the BioCal Shares and the BioCal Options.
4.13 Corporate Authority. BioCal has full corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder and will deliver to CCMC or its representatives at the Closing a
certified copy of resolutions of its Board of Directors authorizing execution
of this Agreement by its officers and performance thereunder.
4.14 Due Authorization. The execution of this Agreement and
performance by BioCal hereunder have been duly authorized by all requisite
corporate action on the part of BioCal, and this Agreement constitutes a valid
and binding obligation of BioCal and performance hereunder will not violate
any provision of the Articles of Incorporation, Bylaws, agreements, mortgages
or other commitments of BioCal.
1.15 Environmental Matters. BioCal has no
knowledge of any assertion by any governmental agency or
other regulatory authority of any environmental lien, action
or proceeding, or of any cause for any such lien, action or
proceeding related to the business operations of BioCal or
its predecessors. In addition, to the best knowledge of
BioCal, there are no substances or conditions which may
support a claim or cause of action against BioCal or any of
its current or former officers, directors, agents, employees
or predecessors, whether by a governmental agency or body,
private party or individual, under any Hazardous Materials
Regulations. "Hazardous Materials" means any oil or
petrochemical products, PCB's, asbestos, urea formaldehyde,
flammable explosives, radioactive materials, solid or
hazardous wastes, chemicals, toxic substances or related
materials, including, without limitation, any substances
defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials" or
"toxic substances" under any applicable federal or state
laws or regulations. "Hazardous Materials Regulations" means
any regulations governing the use, generation, handling,
storage, treatment, disposal or release of hazardous
materials, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act and the Federal Water
Pollution Control Act.
4.16 Access to Information Regarding CCMC. BioCal acknowledges
that it has been delivered copies of what has been represented to be
documentation containing all material information respecting CCMC and its
present and contemplated business operations, management and other factors,
all in the form of annual and quarterly reports filed by CCMC with the
Securities and Exchange Commission that comprise the SEC Reports; that it has
had a reasonable opportunity to review such documentation and discuss it, to
the extent desired, with their legal counsel, directors and executive
officers; that it has had, to the extent desired, the opportunity to ask
questions of and receive responses from the directors and executive officers
of CCMC, and with the legal and accounting firms of CCMC, with respect to such
documentation; and that to the extent requested, all questions raised have
been answered to its complete satisfaction. BioCal further represents and
warrants that access to all such information and opportunities were provided
to the BioCal Stockholders and the BioCal Option Holders in BioCal's Proxy
Statement that was mailed to the BioCal Stockholders on June 4, 2004.
Section 5
Conduct of BioCal Pending the Closing
Except as otherwise provided herein, BioCal agrees that BioCal
will conduct itself in the following manner pending the Closing:
5.1 Certificate of Incorporation and Bylaws. No change will be
made in the Certificate of Incorporation or Bylaws of BioCal.
5.2 Capitalization, etc. BioCal will not make any change in its
authorized or issued shares of any class, declare or pay any dividend or other
distribution, or issue, encumber, purchase or otherwise acquire any of its
shares of any class.
5.3 Conduct of Business. BioCal will use its best efforts to
maintain and preserve its business organization, employee relationships and
good will intact, and will not, without the written consent of CCMC, enter
into any material commitments except in the ordinary course of business.
Section 6
Conduct of CCMC Pending the Closing
Except as otherwise provided herein, CCMC and the CCMC Subsidiary
agree that CCMC will conduct itself in the following manner pending the
Closing:
6.1 Certificate of Incorporation and Bylaws. No change will be
made in the Certificate of Incorporation or Bylaws of CCMC.
6.2 Capitalization, etc. CCMC will not make any change in its
authorized or issued shares, declare or pay any dividend or other
distribution, or issue, encumber, purchase or otherwise acquire any of its
shares of any class.
6.3 Conduct of Business. CCMC will use its best efforts to
maintain and preserve its business organization, employee relationships and
good will intact, and will not, without the written consent of BioCal, enter
into any material commitments except in the ordinary course of business.
Section 7
Conditions Precedent to Obligations of BioCal
All obligations of BioCal under this Agreement are subject, at its
option, to the fulfillment, before or at the Closing, of each of the following
conditions:
7.1 Representations and Warranties True at Closing. The
representations and warranties of CCMC and the CCMC Subsidiary 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.
7.2 Due Performance. CCMC and the CCMC Subsidiary shall have
performed and complied with all the terms and conditions required by this
Agreement to be performed or complied with by them before the Closing.
7.3 Officers' Certificate. BioCal shall have been furnished
with a certificate signed by the President of CCMC, attached hereto as Exhibit
J and incorporated herein by reference, dated as of the Closing, certifying
(1) to the effects set out in Sections 6.1 and 6.2; and (2) that since the
date of the financial statements (Exhibits C hereto), there has been no
material adverse change in the financial condition, business or properties of
CCMC, taken as a whole.
7.4 Opinion of Counsel of CCMC. BioCal shall have received an
opinion of counsel for CCMC, dated as of the Closing, to the effect that (1)
the representations of Sections 3.1, 3.2 and 3.12 are correct; (2) except as
specified in the opinion, counsel knows of no inaccuracy in the
representations in 3.5, 3.6 or 3.7; and (3) the shares or options of CCMC to
be issued and exchanged with the BioCal Stockholders and the BioCal Option
Holders under this Agreement will, when so issued, be validly issued, fully
paid and non-assessable.
7.5 Conditions Precedent to the Closing. All of the conditions
set forth in Section 1 hereof that must be complied with prior to the Closing
shall have been satisfied or otherwise provided for to the satisfaction of
BioCal.
Section 8
Conditions Precedent to Obligations of CCMC
All obligations of CCMC and the CCMC Subsidiary under this
Agreement are subject, at their option, to the fulfillment, before or at the
Closing, of each of the following conditions:
8.1 Representations and Warranties True at Closing. The
representations and warranties of BioCal 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.
8.2 Due Performance. BioCal shall have performed and complied
with all the terms and conditions required by this Agreement to be performed
or complied with by it before the Closing.
8.3 Officers' and Stockholders' Certificate. CCMC shall have
been furnished with a certificate signed by the President of BioCal, attached
hereto as Exhibit K and incorporated herein by reference, dated as of the
Closing, certifying (1) to the effects set out in Sections 5.1 and 5.2; and
(2) that since the date of the financial statements (Exhibit G), there has
been no material adverse change in the financial condition, business or
properties of BioCal taken as a whole.
8.4 Opinion of Counsel of BioCal. CCMC shall have received an
opinion of counsel for BioCal, dated as of the Closing, to the effect that (1)
the representations of Sections 4.2, 4.3 and 4.14 are correct; (2) except as
specified in the opinion, counsel knows of no inaccuracy in the
representations in 4.6, 4.7 or 4.8; and (3) the BioCal Shares and the BioCal
Options to be exchanged and delivered to CCMC under this Agreement will, when
so delivered, have been validly issued, fully paid and non-assessable, and
will be free and clear of any liens or encumbrances.
8.5 Books and Records. The Board of Directors of BioCal shall
have caused BioCal to make available all books and records of BioCal,
including minute books and stock transfer records; provided, however, only to
the extent requested in writing by CCMC at Closing.
8.6 Consent of Stockholders. Persons owing not less than 50.01%
of the outstanding BioCal Shares shall have executed and delivered the
Agreement.
8.7 Dissenting Stockholders. BioCal Stockholders owning more
than 5% of the outstanding voting securities of BioCal shall not have voted
against the Agreement and elected to accept dissenters' rights under the
California Corporations Code.
8.8 Accredited Investors. No more than 35 United States
residents who are BioCal Stockholders shall not be "accredited investors" as
that term is defined under Rule 144 of the Securities and Exchange Commission.
8.9 BioCal Stockholders and BioCal Option Holders Letter of
Transmittal. The BioCal Stockholders and the BioCal Option Holders shall
execute and deliver the Letter of Transmittal attached hereto as Exhibit I as
a condition to receiving the CCMC shares and options in exchange for the
BioCal Shares and the BioCal Options.
Section 9
Termination
Prior to Closing, this Agreement may be terminated (1) by mutual
consent in writing; (2) by either the Directors of CCMC or BioCal, 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 CCMC or BioCal,
if the Closing shall not have taken place, unless adjourned to a later date by
mutual consent in writing, by the date fixed in Section 2; provided, however,
if the loan referenced in Section 1.1 hereof shall have been made by CCMC to
BioCal, then BioCal shall not have the option to terminate this Agreement if
the Closing has not occurred by June 30, 2004.
Section 10
General Provisions
10.1 Further Assurances. At any time, and from time to time,
after the Closing, 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 transferred hereunder or otherwise to carry
out the intent and purposes of this Agreement.
10.2 Waiver. Any failure on the part of any party hereto to
comply with any of their respective obligations, agreements or conditions
hereunder may be waived in writing by the party to whom such compliance is
owed.
10.3 Brokers. Each party represents to the other parties
hereunder that no broker or finder has acted for it/him in connection with
this Agreement, and agrees to indemnify and hold harmless the other parties
against any fee, loss or expense arising out of claims by brokers or finders
employed or alleged to have been employed by it/him.
10.4 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 CCMC: Xxxxx Xxxxxxx
0000 Xx. Xxxxxxxx Xx., #000
Xxxx Xxxx xxxx, Xxxx 00000
With a copy to: Xxxxxxx X. Xxxxxxxxxx, Esq.
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
If to BioCal: Xxx Xxxxxxxx
0000 X. Xxxxxxx Xxx., Xxxxx X
Xxxxxx, Xxxxxxxxxx 00000
With a copy to: Xxx X. Xxxxx, Esq.
Xxxx & Xxxxx, LLP
00000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
10.5 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.
10.6 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.
10.7 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of California,
except to the extent pre-empted by federal law, in which event (and to that
extent only), federal law shall govern.
10.8 Assignment. This Agreement shall inure to the benefit of,
and be binding upon, the parties hereto and their successors and assigns;
provided however, that any assignment by any party of any rights under this
Agreement without the prior written consent of the other parties shall be
void.
10.9 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.
10.10 Default. In the event of default hereunder, the
defaulting party shall be liable to the non-defaulting party for all costs and
reasonable attorney's fees incurred in the enforcement of any of the
provisions hereof. In the event of an unintentional default hereunder, either
party shall be liable for all its own costs, provided any unintentional
default is cured within thirty (30) days of advice thereof.
Section 11
Definitions
The following terms shall have the meanings ascribed to them below
for all purposes of this Agreement and related transactions:
11.1 "Demand Registration Rights" means that the holder of the
securities that are the subject of these rights may demand that the
Reorganized CCMC file a registration statement at the sole cost and expense of
the Reorganized CCMC with the Securities and Exchange Commission within ninety
(90) days of any such demand by a majority of the holders of the securities
that have such rights, and that the Reorganized CCMC shall diligently pursue
the filing and effectiveness of any such registration statement for the
benefit of the holders of such securities and keep such registration statement
effective and current in all respects until all such securities covered
thereby have been sold or may be sold by the holders thereof without
registration with the Securities and Exchange Commission. These Demand
Registration Rights will become effective immediately on advice from the
Securities and Exchange Commission to the Reorganized CCMC, its transfer
agent, the holders of such securities or otherwise that no sale can be made of
such securities by the holders thereof without registration under the
Securities Act.
11.2 "Material Misrepresentation" or "Material Breach" means, for
any party, an occurrence that shall have a material adverse effect, whether
individually or in the aggregate, (a) on the business, operations, financial
condition, assets and properties, liabilities or prospects of such parties, or
(b) on the ability of such party to consummate the transactions contemplated
hereby.
11.3 "'Piggy-Back' Registration Rights" means that if the
Reorganized CCMC at any time proposes to register any of its securities under
the Securities Act for sale to the public, whether for its own account or for
the account of other security holders or both, except with respect to
registration statements on Forms X-0, X-0 or another form not available for
registering the common stock comprising a portion of the Units or that common
stock underlying the warrants that also comprise a portion of the Units for
sale to the public (the "Registerable Securities"), provided these shares of
common stock are not otherwise registered for resale by the holder pursuant to
an effective registration statement, each such time it will give at least
twenty-five (25) days' prior written notice to the record holder of these
Registrable Securities of its intention so to do. Upon the written request of
the holder, received by the Reorganized CCMC within fifteen (15) days after
the giving of any such notice by the Reorganized CCMC, to register any of the
Registrable Securities, the Reorganized CCMC will cause such Registrable
Securities as to which registration shall have been so requested to be
included with the securities to be covered by the registration statement
proposed to be filed by the Reorganized CCMC, all to the extent required to
permit the sale or other disposition of the Registrable Securities so
registered by the holder of such Registrable Securities (the "Seller"). In
the event that any registration shall be, in whole or in part, an underwritten
public offering of common stock of the Reorganized CCMC, the number of shares
of Registrable Securities to be included in such an underwriting may be
reduced by the managing underwriter if and to the extent that the Reorganized
CCMC and the underwriter shall reasonably be of the opinion that such
inclusion would adversely affect the marketing of the securities to be sold by
the Company therein; provided, however, that the Reorganized CCMC shall notify
the Seller in writing of any such reduction. All costs incident to any such
registration statement shall be borne by the Reorganized CCMC, and shall be at
no cost to the holder of the Registerable Securities. If the holder of these
rights is required to bring legal action to enforce these rights, such holder
shall be entitled to recover reasonable attorney's fees and costs in the
enforcement thereof, along with all other damages as may be accorded in law or
equity.
11.4 "Reorganized CCMC" means CCMC following the Closing of
merger contemplated by this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement and
Plan of Merger effective the day and year first above written.
CENTROID CONSOLIDATED MINES CO.
By/s/Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, President
BIOCAL TECHNOLOGY, INC.
By/s/Xxx Xxxxxxxx
Xxx Xxxxxxxx, CEO
EXHIBIT A
The names, addresses and number of shares and options owned by the
BioCal Stockholders are outlined in the attached list. Each three (3) shares
of outstanding stock of BioCal shall be exchanged for one (1) share of common
stock of CCMC amounting to 10,940,718 shares of CCMC; and each three (3)
outstanding options to acquire shares of BioCal common stock shall be
exchanged for one (1) option to acquire shares of CCMC amounting to 821,975
options of CCMC in the aggregate.
NAME ADDRESS SHARES OPTIONS
Ai-Choo Xxx 0000 Xxxxxxx Xxxxx, Xxxx, XX 00000 21,200
Xxx X. Xxx 000 Xxx Xxx Xxxxx, Xxxxxxxxx, XX 00000 126,824
Xxx Xxxx 000 X.Xxxxxxx Xxxxxx Xx., Xxxx, XX 00000 721,200
Xxxxxx X. X.
Xxxx & Xxx X.
Xxx X.X. Xxx 0000 XxxxxXxxx, XX 00000 105,684
Xxxxx Xxxxxx 0000 Xxxxx Xxxxxxx Xx., Xxxxxxxxx, XX 00000 171,200
Xxxxxx Xxx 00000 Xxxxxxxxx Xxxxx, Xxxxxxx Xxx, XX 00000 200,000
Xxxx Xxxx 00000 Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxx, XX 00000 215,500 35,000
Xxxx Xxx 0000 X. 00xx Xxx., Xxxxxxxxx, X.X., X0X 0X0,
Xxxxxx 250,000
Xxxxx Xxx 20, Xxxxx Xxxxx 0, Xxxxx Xxxxxxx, 00000 Xxxxx
Baru, Johor, Malaysia 220,000
Ara
Meshkanabarians 000 Xxxxxxx Xxx. Xxxxxxxx, XX 00000 3,030
Xxxx Xxxxxxxxxxx 00000 Xxxxxxxx Xx., Xxxxxxx Xxxxx, XX 00000 4,394
Aris Meshkanbarians
& Xxxxxxx Xxxxxxxxxx 0000 Xxxxx Xxxxx Xxx. Xxxxxxxx, XX 00000 20,000
Art Xxxxxxx 0000 Xxx Xxxxxxxx Xxxx-Xxxxxx Xxxx, Xxxxx X,
Xxxxxxxxx, XX 00000 200,000
Xxxxxx Xxxxxxxxx
& Jasmine Xxxxxxx00000 Xxxxxxxxxx Xxx. Xxxxxxx Xxxxx, XX 00000 50,000
Xxxxx Xxxxxxx 0000 Xxxxxxxx Xx. Xxxxxxxx, XX 00000 3,030
Xxxxx X.
Xxxxxxxxxxx 00000 Xxxxxxxx Xxx., Xxxxxxxxxx, XX 00000 49,244
Bart Wonder 00000 Xxxxxx Xxxxxx Xxxxx, Xxx Xxxxxx, XX 00000 0 64,100
Bee Xx Xxx Xxxxx 00X #00-00, Xxxxxxx Xxxx 000000 Xxxxxxxxx 16,667 50,000
Chao-Ti Lin 00 Xxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx
Xxxxxx, Xxxxxx 20,000
Chen Xxx Xxxx 000 Xxx Xxxxx, Xxxx Xxxx, XX 00000 60,000
Chen-Xxxx Xx 10F., Xx. 000, Xxx. 0, Xxxxxx Xx., Xx-Xx
Xxxxxxxx, Xxxxxx 000, Xxxxxx 200,000
Chi Xxxx Xxxx #0 Xxxx-Xxxx Xxxx, Xxx.0 Xx-Xxxx Rd. Xxxx-Xxx
Village, Ne-Pu, Xxxx Xxxx, Taiwan 160,000
Chiawey Chen 0X, #00, Xxx. 0, Xxxxx-Xx X. Xxxx, Xxxxxx, Xxxxxx000,000
Chin-Xxxx Xxx
(Daco) 00-0 Xxxxx Xxx Xxxx, Xx Xxxxx, Xxxxxx, Xxxxxx,
X.X.X. 320,004
Xxxx-Xxxxxx
Kuan 0000 Xxxxxxx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0,
Xxxxxx 151,516
Xxxxxx-Xxx
Xxxx 3, Lane 209, Section 3, Hwan-Nan Rd., Pin-Xxxxx,
Tau-Yan, Taiwan, R.O.C. 242,424
Chun-Xxxx Xx 0000 Xxxxx Xxxxxxx Xx., Xxxxxxxxx, XX 00000 21,180
Xxxxx & Xxxx
Xxxx 00000 Xx Xxxxxxx Xxxx Xx., Xx Xxxxx, XX 00000 30,304
Xxxxx Xxxxxx 00000 Xxxxx Xxxxxxx Xx., Xxxxxx, XX 00000 150,000
Xxxxx Senitzer1293 Xxx Xxxxxxxx Xxxx-Xxxxxx Xxxx, Xxxxx X,
Xxxxxxxxx, XX 00000 33,334
Xxxxx Xxxxxxx 0000 Xxx Xxxxxxxx Xxxx-Xxxxxx Xxxx, Xxxxx X,
Xxxxxxxxx, XX 00000 33,334
Xxxxxx X. Xxxx0000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000 300,000
Ee-Xxxx Xxxxx 00000 Xxx Xx Xxxxxxx, Xxxxxx Xxxxxx, XX 00000 6,060
Xxxxx Xxx 0000 Xxxxxxx Xxxxx, Xxxx, XX 00000 121,200
Xxxxx Xxxxxxx 0000 Xxxxx Xxx., Xxxx Xxxxx, XX 00000 50,000
Xxxxx Xxx &
Xxxxxx Xxx 00000 Xxxx Xxx., Xxxx xx Xxxxxxxx, XX 00000 944,000
Fu Xxxx Xxxx #5 Xxxx-Xxxx Xxxx, Sec.2 Xx-Xxxx Rd. Xxxx-Xxx
Village, Ne-Pu, Xxxx Xxxx, TaiWan 100,000
Fu-Tai A. Xxxx000 X.Xxxxxxx Xxxxxx Xx., Xxxx, XX 00000 698,000
Xxxxx X. Xxx 000 Xxx Xxx Xxxxx, Xxxxxxxxx, XX 00000 126,824
Xxxxxxx Xxx 0000 X. 00xx Xxx., Xxxxxxxxx, X.X., X0X 0X0,
Xxxxxx 260,000
Xxxxx Xxxxx 000 Xxx Xxxxx, Xxxx Xxxx, XX 00000 20,000
Xxxxx-Xxxxx
Chow 2Fl., #00, Xxxx 00, Xxxx Xxxx Xx., Xxxxxx,
Xxxxxx 150,000
Ing-Xxx Xxxxx 0000 Xxxxxxx Xxxx, Xxx Xxxxxx, XX 00000 75,000
Jan-Xxxx Xxx 00000 Xxxxxxx Xxxxx, Xxx Xxxxx, XX 00000 30,304
Xxxx Xxxxx 0000 X. Xxxxxxx Xxx., Xxxxx X, Xxxxxx, XX 00000 0 50,000
Xxxxxxxx Xxx 0000 Xxxxxxx Xxxxx, Xxxx, XX 00000 121,200
Jeong-Jer
Chiang 00000 Xxxxxxxxxxx Xxxx, Xxxxxxx Xxx, XX 00000 96,200
Jia-Xxxxxx
Xxxxx 000 Xxx Xxxxx, Xxxx Xxxx, XX 00000 60,000
Xxx Xxxxx 000 X Xxxxxxxx, Xxx #000. Xxx Xxxxxxx, XX 00000 121,212
Xxxx X.
Xxxxxxxxxxx &
Xxxxxxx
Xxxxxxxxxxx 0000 Xxxxxxxx Xxx. #000. Xxxxxxxx, XX 00000 73,030
Xxxxxxxx Xxx 00000 Xxxx Xxx., Xxxx xx Xxxxxxxx, XX 00000 100,000
Xxxxxx X. Xxxx0000 Xxxx Xxxxx, Xxxxxx Xxxx, XX 00000 12,122
Xxxxx X. Xxxxx00000 Xxxxx Xxxxxx, Xxxxxxx, XX 00000-0000 15,000
Xxxxx Xxx 0000 Xxx Xx Xx Xxx, Xxxxxxxxx, XX 00000 67,804
Xxxxxx Xxx 0000 Xxxxxxx Xxxxx, Xxxx, XX 00000 121,200
Xxxx Xxxxxxx 0000 Xxxxxx Xxxxxx, #X, Xxxxxxx, XX 00000 58,900 34,000
Xxxxx Xxxx 0000 Xxxxx Xxx Xxx, Xxxxx Xxxxx, XX 00000 217,500
Xxxxx Xxx 00000 Xxxx Xxx., Xxxx xx Xxxxxxxx, XX 00000 100,000
Xxxxx Xxxx
Feng 7F-2, No 79, Hsin Xxx Xx Road, Xxx 0, Xxx-Xxxx,
Xxxxxx Xxxxx, Xxxxxx 200,000
Xxx Xxxxx Chen5F, No 24, Alley 21, Lane 000, Xxxx Xxx Xx.,
Xxx. 0, Xxxxxx, Xxxxxx 100,000
Li Chuan Xxxxx000 Xxxx 00xx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0,
Xxxxxx 151,516
Li-Xxxxx Xxxx 000 X.Xxxxxxx Xxxxxx Xx., Xxxx, XX 00000 121,200
Xxx-Xx Xx Xxx 00-0 Xxxx 000, Xx-X Xx., Xxxxxxx, Xxxxxx 280,000
Li-Xxx Xxx 0000 Xxxxxxx Xxxx, Xxxxxxxxx. X.X. X0X 0X0,
Xxxxxx 2,009,090
Li-Ling Chiang4993 Xxxxx Xxxxxxx Xx., Xxxxxxxxx, XX 00000 96,200
Xxxxxxxx
Xxxxxxx 0000 Xxxx Xx, Xxxxxx Xxxx, XX 00000 10,000
Xxxxxxx
Xxxxxxx 0000 Xxx Xxxxxxxx Xxxx-Xxxxxx Xxxx, Xxxxx X,
Xxxxxxxxx, XX 00000 166,667
Man-Ting Hwang4th Fl., 24, Lane 177, Shih Ping Road, Xxxx Xxx,
Taiwan, R.O.C. 40,000
Man-Yuan Huang119 Xxx Xxxxx, Xxxx Xxxx, XX 00000 60,000
Xxxxxxx
Xxxxxxx 0000 Xxx Xxxxxxxx Xxxx-Xxxxxx Xxxx, Xxxxx X,
Xxxxxxxxx, XX 00000 166,667
Xxx-Xxxxx Xxxx
Xxx 9Fl., #689, Sec. 0, Xxxxx-Xxxx X. Xxxx, Xxxxxx,
Xxxxxx 300,000
Xxxx X. Xxxx 0000 X. Xxxxxx Xx., Xxxxxx, XX 00000 50,000
Ming Xxxxx
Xxxx #00, Xxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxx
Xxxxxx, Xxxxxx 150,000
Ming-Sun Liu 0000 Xxxxxxx Xxxxx, Xxxx, XX 00000 3,271,036 140,000
Ming-Xxx Xxxx 0000 X. Xxxxxx Xx., Xxxxxx, XX 00000 20,000
Xxxxx Xxxxxx 0000 Xxx Xxxxxxxx Xxxx-Xxxxxx Xxxx, Xxxxx X,
Xxxxxxxxx, XX 00000 33,334
Ocean Xxxx Xxx0000 Xxxxx Xxxxxx, Xxxxxxxx, XX 00000 25,000
Xxxx Xxxxxx 00000 Xxxxxxxx Xxxx, Xxxxxxx Xxxxxx, XX 00000 0 274,500
Xxxx Xx 0X, #00-0, X. X-Xxx Xxxxxx, Xxxxxx, Xxxxxx 110,000
Xxxxx Xxxx 000 X.Xxxxxxx Xxxxxx Xx., Xxxx, XX 00000 721,200
Xxxxx & Xxxxx
X. Xxxxx 0000 Xxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000 18,182
Xxxxx X. X.
Xxx 000 Xxx Xxx Xxxxx, Xxxxxxxxx, XX 00000 126,824
Quantum Design
Xxxxx Xxxxxx Xxxxxxxxx Xxxx., 0-00-0 Xxxxxxxxx,
Xxxxxxx-xx, Xxxxx 000-0000, Xxxxx 1,000,000
Xxxxxx Xxxxxx 000 Xxxxxxx Xxx, Xxxxxx Xxxxx, XX 00000 0 72,326
Xxxxxx Xxxx 0000 X. Xxxxxxx Xxx., Xxxxx X, Xxxxxx, XX 00000 0 50,000
Xxxxxx
Xxxxxxxxxx 00000 Xxxxx Xxx., Xxxxxxxxxx, XX 00000 100,000
Xxxxxx
Xxxxxxxx Xxxxxxxxxxxxxxxxxx 0, XX-0000 Xxxxx, Xxxxxxxxxxx 66,667
Xxxx Xxxxxx 000 Xxxxxx, Xxx Xxxxxxxx, XX 00000 54,260
Xxxxx Xxxxxxx 0000 Xxx Xxxxxxxx Xxxx-Xxxxxx Xxxx, Xxxxx X,
Xxxxxxxxx, XX 00000 83,334
Xxxxxxx Xxxx
(AKA Xxxx-Xxxx
Xxxx) 0000 Xxxxxxxx Xxx, Xxxxxx, XX 00000 158,530
Sheng Xxxx
Xxxx #0 Xxxx-Xxxx Xxxx, Xxx.0 Xx-Xxxx Rd. Xxxx-Xxx
Village, Ne-Pu, Xxxx Xxxx, TaiWan 60,000
Shih Xxxxx
Xxxxxx 25 Ascension, Xxxxxx, XX 00000 500,000
Shih-Kung Lo 0000 X. Xxxxxxx Xxx., Xxxxx X, Xxxxxx, XX 00000 240,000
Shin-Cheh Chen7F, #000-0, Xx-Xxx Xxxxxx, Xxxxxx, Xxxxxx 250,000
Xxxxx-Xxxxx Lu8F-B, 277, Xxxxxxx 0, Xxxxxxxxx Xx., Xxxxxx,
Xxxxxx, X.X.X. 2,562,426 36,000
Xxx-Xxxx Xxx 8 Xx-Xx 0xx Xxxxxx, Xxxxxx Xxxx, 000 Xxxxxx 10,000
Shu-Xxx Xxxxx 000 Xxx Xxxxx, Xxxx Xxxx, XX 00000 60,000
Shui-Xxxx
Xxxxxx 0000 Xxxxx Xxxxxxx Xx., Xxxxxxxxx, XX 00000 21,200
Shwu Xxx Xxxx 0X, Xx. 00, Xxxxxx Xxxxxx, Xxxxxx, Xxxxxx 300,000
Sing-Xxxx
Xxxxxx 0000 Xxxxx Xxxxxxx Xx., Xxxxxxxxx, XX 00000 1,769,220
Speedy Century
International,
Ltd. 8F., #00 Xx Xxxxx X. Xxxx, Xxx. 0, Xxxxxx,
Xxxxxx 100,000
Su-Xxxx Xxxxx #8 Alley 16, Lane 80, Xxxxx Xxx XX St., Xxxx
Xxx, Taiwan, R.O.C. 60,000
Xxxx Xxxx Xxx 00-0 Xxxx 00, Xxx-Xx Xx., Xxx-Xxx Xxxxxxxx,
Xxxxxx, Xxxxxx 1,275,316
Xxxxx Xxxxxxxx000 Xxxxxxxx Xxx., Xxxxxxxxx, XX 00000 230,000 120,000
Xxxxx Xxx 0000 X. 00xx Xxx., Xxxxxxxxx, X.X., X0X 0X0,
Xxxxxx 250,000
Xxxxxx Xxx 0000 Xxx Xx Xx Xxx, Xxxxxxxxx, XX 00000 240,000
Xxx S.T. Xxx 000 Xxx Xxx Xxxxx, Xxxxxxxxx, XX 00000 172,500
Ting-Xxxx Xxx 0xx Xxxxx, 00-0 Xxxxxxx Xxxxxx, Xxx Xxxx Xxxx,
Xxxxxx 330 40,000
Tsai Family
Trust 7/8/99 00000 Xxxxxxxxx Xxx, Xxx Xxxxx, XX 00000 80,000
Tsu-Xxx Xx #0, Xxxx 00, Xxx-Xxxx Xx., Xxxx Xxx Xxxx, Xxxxxx 200,000
Xxxx Viet
Xxxxx &
Xxxx-Xxxx Xxx
Xxxx 000 X. Xxxxx Xxxxxx, Xxxxxxx, XX 00000 834,546
Tze-Chiang &
Ming-Yuh Chung1143 X. Xxxxxx Xx., Xxxxxx, XX 00000 31,706
Xxx Xxxxxxxx 0000 XX 000xx Xxxxxx, Xxxxx, Xx 00000 2,486,283 140,000
Xxxxxx X
Xxxxxxxx 000 Xxxxxxx Xx, Xxxx 0. Xxxxxxxx, XX 00000-000 12,000
Xxxxxxxx
Xxxxxxxxxxx 0000 Xx Xxxxxxxx Xxxxxx, Xx Xxxxxxxxx, XX 00000
2,657,336 1,350,000
Xxxxxx
Xxxxxxxx 000 Xxxxxxx Xx, Xxxx 0. Xxxxxxxx, XX 00000-000 12,000
Wanmeitec
Electronic Co.
Ltd. 8F-B, 000, Xxxxxxx 0, Xxxxxxxxx Xx., Xxxxxx,
Xxxxxx, X.X.X. 200,000
Wei-Zon Chiang4993 Xxxxx Xxxxxxx Xx., Xxxxxxxxx, XX 00000 171,200
Wen-Xxx Xxxx 0X, #0-0, Xxxx 00, Xxxx-Xxx X. Xx., Xxxxxx,
Xxxxxx 150,000
Xxxxxxx
Xxxxxxxxx 0000 X. Xxxxxxx Xxx., Xxxxx X, Xxxxxx, XX 00000 0 50,000
You-Xxxxx Xxx 0000 X. Xxxxx Xxxxx Xxxxx, Xxxxxx, XX 00000 36,000
Yu Xxx Xxx
Xxxxx 00000 Xxxxxxx Xx., Xxx Xxxxx, XX 00000 9,090
Xxxx Xxxx Chiu335 Via Del Astro, Xxxxxxxxx, XX 00000 6,000
Yueh Xxx Xxxx 0000 Xxxxx XX. Xxxxxx, XX 00000 40,000
Yuenn Xxx
Xxxxx 0000 X. Xxxxxxx Xxx., Xxxxx X, Xxxxxx, XX 00000 10,000
Yuhua Xxxxxx
Xxxxx 00000 Xxxxxxxxxx Xxxxx, Xxx Xxxxx, XX 00000 100,000
Yung-Xx Xxxxx 000 Xx-Xxx Xxxxxx, Xxx-Xx Xxxxxx, Xx. 00, Xxxxx
00-0, XxxXxxx Xxxxxx, Xxxxxx 10,000
Total 32,822,155
2,465,926
EXHIBIT B
INDEMNITY AGREEMENT
BioCal Technology, Inc.
0000 X. Xxxxxxx Xxx., Xxxxx X
Xxxxxx, Xxxxxxxxxx 00000
Centroid Consolidated Mines Co.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Re: Indemnity Agreement under Section 1.7 of the Agreement
and Plan of Merger (the "Agreement"), among Centroid
Consolidated Mines Co., a Nevada corporation ("CCMC"),
a wholly-owned California subsidiary to be formed by
CCMC (the "CCMC Subsidiary"), and BioCal Technology,
Inc., a California corporation ("BioCal")
Ladies and Gentlemen:
In consideration of the Closing (as defined in the Agreement)
of the Agreement, Xxxxxx Services, Inc., a Utah corporation ("Xxxxxx
Services"), shall indemnify and hold of CCMC and BioCal harmless from and
against any and all past liabilities of any type or nature whatsoever of CCMC
existing prior to the Closing of the Agreement, and the compromise and
settlement of any amounts due and owing to Xxxxxx Services for advances or
otherwise that were incurred by CCMC in this respect prior to the Closing of
the Agreement.
1. Xxxxxx Services hereby agrees to indemnify and hold BioCal,
its officers, directors, employees and agents and each
person, if any, who controls BioCal within the meaning of
Section 15 of the Securities Act of 1933, as amended (the
"Securities Act") or Section 20 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and, following
the Closing, CCMC and all of its then officers, directors,
employees and agents and each person, if any, who then
controls CCMC within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, harmless
from and against any and all past liabilities of any type or
nature whatsoever of CCMC existing prior to the Closing,
which includes all expenses related to the Agreement and the
compromise and settlement of any amounts due and owing to
Xxxxxx Services for advances or otherwise that were incurred
by CCMC in this respect prior to the Closing.
2. In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant hereto
(the "Indemnified Party"), the Indemnified Party shall
promptly notify the person against whom such indemnity may
be sought (the "Indemnifying Party") in writing. A delay
in giving notice shall only relieve the Indemnifying Party
of liability to the extent the Indemnifying Party suffers
actual prejudice because of the delay. The Indemnifying
Party shall have the right, at its option and expense, to
participate in the defense of such a proceeding or claim,
but not to control the defense, negotiation or settlement
thereof, which control shall at all times rest with the
Indemnified Party, unless the proceeding or claim involves
only money damages or relates to a corporate restructuring,
recapitalization or stock issuance prior to the Closing, not
an injunction or other equitable relief, and unless the
Indemnifying Party:
(i) irrevocably acknowledges in writing complete
responsibility for and agrees to indemnify the
Indemnified Party; and
(ii) furnishes satisfactory evidence of the financial
ability to indemnify the Indemnified Party;
in which case the Indemnifying Party may assume such
control through counsel of its choice and at its
expense, but the Indemnified Party shall continue to
have the right to be represented, at its own expense,
by counsel of its choice in connection with the
defense of such a proceeding or claim. If the
Indemnifying Party does not assume control of the
defense of such a proceeding or claim, (i) the entire
defense of the proceeding or claim by the Indemnified
Party, (ii) any settlement made by the Indemnified
Party, and
(iii)any judgment entered in the proceeding or claim shall
be deemed to have been consented to by, and shall be
binding on, the Indemnifying Party as fully as though
it alone had assumed the defense thereof and a
judgment had been entered in the proceeding or claim
in the amount of such settlement or judgment, except
that the right of the Indemnifying Party to contest
the right of the Indemnified Party to indemnification
under the Agreement with respect to the proceeding or
claim shall not be extinguished. If the Indemnifying
Party does assume control of the defense such a
proceeding or claim, it will not, without the prior
written consent of the Indemnified Party settle the
proceeding or claim or consent to entry of any
judgment relating thereto which does not include as
an unconditional term thereof the giving by the
claimant to the Indemnified Party a release from all
liability in respect of the proceeding or claim. The
parties hereto agree to cooperate fully with each
other in connection with the defense, negotiation or
settlement of any such proceeding or claim.
3. The parties agree that all of the representations and
warranties contained herein shall survive the Closing and
continue to be binding regardless of any investigation made
at any time by any party.
4. At any time, and from time to time, each party will execute
such additional instruments and take such action as may be
reasonably requested by the other party to carry out the
intent and purposes of this Agreement.
5. Any failure on the part of any party hereto to comply with
any of its obligations, agreements or conditions hereunder
may be waived in writing by the party to whom such
compliance is owed.
6. 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 Xxxxxx Services: 0000 Xxxxx Xxxxxxxx Xx., #000
Xxxx Xxxx Xxxx, Xxxx 00000
If to BioCal: 0000 X. Xxxxxxx Xxx., Xxxxx X
Xxxxxx, Xxxxxxxxxx 00000
If to CCMC: 0000 Xxxxx Xxxxxxxx Xx., #000
Xxxx Xxxx Xxxx, Xxxx 00000
7. 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 transaction
contemplated herein or the subject matter hereof.
8. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Utah,
without giving effect to principles of conflicts of laws;
and all actions to enforce the terms and provisions hereof
shall be brought only in the United States and state courts
situated in the State of Utah.
9. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their successors and assigns.
10. 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.
11. In the event of default hereunder by either party, the
prevailing party in any proceeding to enforce this Agreement
shall be entitled to recover attorney's fees and costs and
such other damages as may have been caused by the default of
the defaulting party.
XXXXXX SERVICES, INC.
Dated: 7/1/04 By/s/Xxxxx X. Xxxxxx
Its CEO
EXHIBIT C
CCMC STOCKHOLDERS SUBJECT TO LOCK-UP/LEAK-OUT AGREEMENT
Certificate
Name Shares Number
Xxxxxx Xxxxxxx 57,000 3185
Xxxxx X. Xxxxxx 133,653 3188
Xxxxxxx X. Xxxxxx 143,000 3183
Xxxxxx Xxxxxx 95,000 3184
Total: 428,653
EXHIBIT C-1
LOCK-UP/LEAK-OUT AGREEMENT
THIS LOCK-UP/LEAK-OUT AGREEMENT (the "Agreement") is made and
entered into as of the 1st day of July, 2004, between Centroid Consolidated
Mines Co., a Nevada corporation ("CCMC"), and the individuals that execute and
deliver a Counterpart Signature Page hereof, each a shareholder of CCMC, and
sometimes collectively referred to herein as the "Shareholders" and each, a
"Shareholder."
WHEREAS, CCMC intends to enter into an Agreement and Plan of
Merger between CCMC, a wholly-owned California subsidiary of CCMC to be formed
(the "CCMC Subsidiary"), and BioCal Technology, Inc., a California
corporation ("BioCal") (the "Merger Agreement"), pursuant to which the
execution and delivery of this Agreement is a condition precedent to the
closing of the Merger Agreement; and
WHEREAS, in order to facilitate the consummation of the
transactions contemplated by the Merger Agreement and to provide for an
orderly market for the Common Stock of CCMC subsequent to the Closing of the
Merger Agreement (as defined therein), the Shareholders have agreed to enter
into this Agreement and to restrict the public sale, assignment, transfer,
conveyance, hypothecation or alienation of the Common Stock, all on the terms
set forth below.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants contained herein, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Notwithstanding anything contained in this Agreement, a
Shareholder may transfer his/her/its shares of Common Stock to his/her/its
affiliates, partners in a partnership, subsidiaries and trusts, or spouses and
lineal descendants for estate planning purposes, or pursuant to bona fide non-
public transactions, provided that the transferee (or the legal representative
of the transferee) executes an agreement to be bound by all of the terms and
conditions of this Agreement.
2. Except as otherwise expressly provided herein, and except
as each Shareholder may be otherwise restricted from selling shares of Common
Stock, each Shareholder may only publicly sell Common Stock subject to the
following conditions for the twelve (12) month period from the Closing of the
Merger Agreement (the "Lock-Up/Leak-Out Period"):
2.1 Each Shareholder shall be allowed to sell 1/12th of such
Shareholder's shares of Common Stock per month during the
Lock-Up/Leak-Out Period, on a cumulative basis, meaning
that if no Common Stock was sold during one month while
Common Stock was qualified to be sold, up to 2/12ths of
such Shareholder's shares of Common Stock could be sold in
the next successive month and so forth. Each Shareholder
agrees that all sales will be made at no less than the
best "asked" prices, and no sales will be made at "bid"
prices for the Common Stock.
2.2 Except as otherwise provided herein, all Common Stock
shall be sold in "broker's transactions" and each
Shareholder will comply with the "manner of sale"
requirements as those terms are defined in Rule 144 of the
Securities and Exchange Commission during the
Lock-Up/Leak-Out Period.
2.3 An appropriate legend describing this Agreement shall be
imprinted on each stock certificate representing Common
Stock covered hereby, and the transfer records of CCMC's
transfer agent shall reflect such appropriately
restrictions.
2.4 The Shareholders agree that they will not engage in any
short selling of the Common Stock during the Lock-Up/Leak-
Out Period.
2.5 During the Lock-Up/Leak/Out Period, CCMC shall maintain
its "reporting" status with the Securities and Exchange
Commission; file all reports that are required to be filed
by it during such period; and use its "best efforts" to
ensure that the Common Stock is continually quoted for
public trading on a nationally recognized medium of no
less significance than the OTC Electronic Bulletin Board
of the National Association of Securities Dealers, Inc.
(the "NASD"), the NASDAQ Small Cap or a recognized
national stock exchange.
3. All shares that are the subject of this Agreement shall be
deposited, to the extent that they can be then sold hereunder, with the
broker/dealer selected by CCMC for any secondary offering of its securities
during the Lock-Up/Leak-Out Period. The delivery of a duly executed copy of
the Broker/Dealer Agreement by a selling Shareholder's broker and a duly
executed Seller's Resale Agreement by the selling Shareholder in the form
attached hereto shall be satisfactory evidence for all purposes of this
Agreement that such selling Shareholder and its broker will comply with the
"broker's transactions" and "manner of sale" requirements of this Agreement,
and no further evidence thereof will be required of any selling Shareholder.
4. Notwithstanding anything to the contrary set forth herein,
CCMC may, in its sole discretion, at any time and from time to time, waive any
of the conditions or restrictions contained herein to increase the liquidity
of the Common Stock or if such waiver would otherwise be in the best interests
of the development of the trading market for the Common Stock.
5. In the event of a tender offer to purchase all or
substantially all of CCMC's issued and outstanding securities, or a merger,
consolidation or other reorganization with or into an unaffiliated entity, and
if the requisite number of the record and beneficial owners of CCMC securities
then outstanding are voted in favor of such tender offer, merger,
consolidation or reorganization, and such tender offer, merger, consolidation
or reorganization is completed, this Agreement shall terminate as of the
closing of such event and the Common Stock restricted pursuant hereto shall be
released from such restrictions.
6. Except as otherwise provided in this Agreement or any
other agreements between the parties, the Shareholders shall be entitled to
their respective beneficial rights of ownership of the Common Stock, including
the right to vote the Common Stock for any and all purposes.
7. The Common Stock and per share price restrictions covered
by this Agreement shall be appropriately adjusted should CCMC make a dividend
or distribution, undergo a forward split or a reverse split or otherwise
reclassify its shares of Common Stock.
8. No transfer of any of the shares of Common Stock that are
subject to this Agreement shall be made in any transaction other than a
"broker's transaction" in which the Shareholder has complied with the "manner
of sale" requirements of Rule 144 unless the transferee executes and delivers
a copy of this Agreement prior to the transfer of any stock certificate
representing any of the Common Stock so transferred.
9. This Agreement may be executed in any number of
counterparts with the same force and effect as if all parties had executed the
same document.
10. All notices, instructions or other communications required
or permitted to be given pursuant to this Agreement shall be given in writing
and delivered by certified mail, return receipt requested, overnight delivery
or hand-delivered to all parties to this Agreement, to CCMC, at 0000 Xxxxx
Xxxxxxxx Xxxxx, #000, Xxxx Xxxx xxxx, Xxxx 00000, and to the Shareholders, at
the addresses in their Counterpart Signature Pages. All notices shall be
deemed to be given on the same day if delivered by hand or on the following
business day if sent by overnight delivery or the second business day
following the date of mailing.
11. The resale restrictions on the Common Stock set forth in
this Agreement shall be in addition to all other restrictions on transfer
imposed by applicable United States and state securities laws, rules and
regulations.
12. CCMC or each Shareholder who fails to fully adhere to the
terms and conditions of this Agreement shall be liable to every other party
for any damages suffered by any party by reason of any such breach of the
terms and conditions hereof. Each Shareholder agrees that in the event of a
breach of any of the terms and conditions of this Agreement by any such
Shareholder, that in addition to all other remedies that may be available in
law or in equity to the non-defaulting parties, a preliminary and permanent
injunction, without bond or surety, and an order of a court requiring such
defaulting Shareholder to cease and desist from violating the terms and
conditions of this Agreement and specifically requiring such Shareholder to
perform his/her/its obligations hereunder is fair and reasonable by reason of
the inability of the parties to this Agreement to presently determine the
type, extent or amount of damages that CCMC or the non-defaulting Shareholders
may suffer as a result of any breach or continuation thereof.
13. This Agreement sets forth the entire understanding of the
parties hereto with respect to the subject matter hereof, and may not be
amended except by a written instrument executed by the parties hereto.
14. This Agreement shall be governed by and construed in
accordance with the laws of the State of Utah applicable to contracts entered
into and to be performed wholly within said State; and CCMC and the
Shareholders agree that any action based upon this Agreement may be brought in
the United States and state courts of Utah only, and each submits
himself/herself/itself to the jurisdiction of such courts for all purposes
hereunder.
15. The holders or successor holders of these securities shall
have the conditional Demand Registration Rights that are set forth in the
BioCal Merger Agreement, which provisions on incorporated herein by reference.
16. In the event of default hereunder, the non-defaulting
parties shall be entitled to recover reasonable attorney's fees incurred in
the enforcement of this Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed and
delivered this Agreement as of the day and year first above written.
Date: 7/1/04. CENTROID CONSOLIDATED MINES CO.
By/s/Xxxxx Xxxxxxx
Its President
LOCK-UP/LEAK-OUT AGREEMENT
COUNTERPART SIGNATURE PAGE
This Counterpart Signature Page for that certain
Lock-Up/Leak-Out Agreement (the "Agreement") dated as of the 1st day of July,
2004, among Centroid Consolidated Mines Co., a Nevada corporation ("CCMC");
and certain persons who are "Shareholders" of CCMC, by which the undersigned,
through execution and delivery of this Counterpart Signature Page, intends to
be legally bound by the terms of the Agreement, as a Shareholder, of the
number of shares of CCMC set forth below or hereafter acquired during the
Lock-Up/Leak-Out Period as defined in the Agreement.
Xxxxxxx X. Xxxxxx
(Printed Name)
/s/Xxxxxxx X. Xxxxxx
(Signature)
0000 X. Xxxxxxxx Xx. Xxxxx #000
(Street Address)
Xxxx Xxxx Xxxx, Xxxx 00000
(City and State)
143,000
(Number of Shares Owned or
Underlying Other Securities)
1 July 2004
(Date)
LOCK-UP/LEAK-OUT AGREEMENT
COUNTERPART SIGNATURE PAGE
This Counterpart Signature Page for that certain
Lock-Up/Leak-Out Agreement (the "Agreement") dated as of the 1st day of July,
2004, among Centroid Consolidated Mines Co., a Nevada corporation ("CCMC");
and certain persons who are "Shareholders" of CCMC, by which the undersigned,
through execution and delivery of this Counterpart Signature Page, intends to
be legally bound by the terms of the Agreement, as a Shareholder, of the
number of shares of CCMC set forth below or hereafter acquired during the
Lock-Up/Leak-Out Period as defined in the Agreement.
Xxxxx X. Xxxxxx
(Printed Name)
/s/Xxxxx X. Xxxxxx
(Signature)
0000 Xxxxxxxxx Xxxx
(Xxxxxx Xxxxxxx)
Xxxx Xxxx, Xxxx
(City and State)
133,653
(Number of Shares Owned or
Underlying Other Securities)
7/1/04
(Date)
LOCK-UP/LEAK-OUT AGREEMENT
COUNTERPART SIGNATURE PAGE
This Counterpart Signature Page for that certain
Lock-Up/Leak-Out Agreement (the "Agreement") dated as of the 1st day of July,
2004, among Centroid Consolidated Mines Co., a Nevada corporation ("CCMC");
and certain persons who are "Shareholders" of CCMC, by which the undersigned,
through execution and delivery of this Counterpart Signature Page, intends to
be legally bound by the terms of the Agreement, as a Shareholder, of the
number of shares of CCMC set forth below or hereafter acquired during the
Lock-Up/Leak-Out Period as defined in the Agreement.
Xxxxxx X. Xxxxxxx
(Printed Name)
/s/Xxxxxx X. Xxxxxxx
(Signature)
0000 Xxxxxxx Xx.
(Xxxxxx Xxxxxxx)
Xxxxx, Xxxx 00000
(City and State)
57,000
(Number of Shares Owned or
Underlying Other Securities)
July 1, 2004
(Date)
LOCK-UP/LEAK-OUT AGREEMENT
COUNTERPART SIGNATURE PAGE
This Counterpart Signature Page for that certain
Lock-Up/Leak-Out Agreement (the "Agreement") dated as of the 1st day of July,
2004, among Centroid Consolidated Mines Co., a Nevada corporation ("CCMC");
and certain persons who are "Shareholders" of CCMC, by which the undersigned,
through execution and delivery of this Counterpart Signature Page, intends to
be legally bound by the terms of the Agreement, as a Shareholder, of the
number of shares of CCMC set forth below or hereafter acquired during the
Lock-Up/Leak-Out Period as defined in the Agreement.
Xxxxxx X. Xxxxxx
(Printed Name)
/s/Xxxxxx X. Xxxxxx
(Signature)
0000 Xxxxxx Xxxxx Xxxx
(Xxxxxx Xxxxxxx)
Xxxx Xxxx, Xxxx
(City and State)
95,000
(Number of Shares Owned or
Underlying Other Securities)
7/1/04
(Date)
Broker/Dealer Agreement
Centroid Consolidated Mines Co.
0000 Xx. Xxxxxxxx Xx., #000
Xxxx Xxxx Xxxx, Xxxx 00000
Atlas Stock Transfer
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxx
Re: Resale restriction of certain shares of common stock
of Centroid Consolidated Mines Co., a Nevada
corporation ("CCMC" or the "Company")
Dear Ladies and Gentlemen:
The undersigned broker hereby acknowledges receipt of stock
certificates representing ________________ shares of common stock of the
Company that are owned by ______________________________________________ (the
"Customer").
In consideration of transferring these securities free of any
legend or other notation respecting the resale of these securities so that the
undersigned broker can effect a sale of such shares (a "Company Approved
Sale"), the undersigned broker agrees:
(i) That all sales of these securities or any other
securities of CCMC on deposit in the accounts of the
Customer will be made in "broker's transactions" only as
that term is defined in Rule 144 of the Securities and
Exchange Commission until _____________, 2005 (the "Resale
Restriction Period");
(ii) That there will be no legend removal or DTC's of any
securities of the Customer prior to a Company Approved
Sale during the "Resale Restrictions Period";
(iii) That if any of the securities of the Company are
ordered out by the Customer for delivery prior to the
expiration of the Resale Restriction Period, that
instructions will be given to the Company's transfer agent
to re-issue the stock certificates for the Customer with
the appropriate restriction or restrictions as are
outlined in the Letter Agreement of the Customer, and to
the effect that such securities can only be sold in
"broker's transactions."
The undersigned broker further agrees that we will provide you
with reasonable documentation on your request to verify our compliance with
this Letter Agreement.
Very truly yours,
_____________________________________
Broker/Dealer
_____________________________________
Address
_____________________________________
City, State, Zip
Date: ______________________ By___________________________________
Its___________________________________
Seller's Resale Agreement
Centroid Consolidated Mines Co.
0000 Xx. Xxxxxxxx Xx., #000
Xxxx Xxxx Xxxx, Xxxx 00000
Atlas Stock Transfer
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxx
Dear Ladies and Gentlemen:
The undersigned agrees to effect all sales of shares of common
stock of Stock Certificate No. ______________ representing _______________
shares of common stock of Centroid Consolidated Mines Co. in accordance with
the "manner of sale" requirements of Rule 144 as outlined in Schedule 1 hereto
until on or before ______________, 2005.
DATED this ________ day of _____________________, 200__.
Very truly yours,
_____________________________________
Date: ______________________ By___________________________________
Its___________________________________
_____________________________________
Address
_____________________________________
City, State, Zip
SCHEDULE 1
SELLER'S REQUIREMENTS IN "BROKERS' TRANSACTIONS"
RULE 144 "MANNER OF SALE" REQUIREMENTS
The securities shall be sold in "brokers' transactions" within the
meaning of Section 4(4) of the Securities Act or in transactions directly with
a "market maker," as that term is defined in Section 3(a)(38) of the
Securities Exchange Act of 1934, and the person selling the securities shall
not (1) solicit or arrange for the solicitation of orders to buy the
securities in anticipation of or in connection with such transaction, or (2)
make any payment in connection with the offer or sale of the securities to any
person other than the broker who executes the order to sell the securities.
EXHIBIT D
ARTICLES OF INCORPORATION
OF
CENTROID ACQUISITION CO.
I
The name of this corporation is "Centroid Acquisition Co."
II
The purpose of the 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 name and address in the State of California of this
corporation's initial agent for service of process is:
Corporation Service Company which will do business in
California as CSC-Lawyers Incorporating Service
IV
This corporation is authorized to issue only one class of shares of
stock; and the total number of shares which this corporation is authorized to
issue is 1,000 shares at $0.001 par value per share.
/S/Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxx, Esq., Incorporator
EXHIBIT E
CENTROID CONSOLIDATED MINES CO.
FINANCIAL STATEMENTS
FOR THE YEARS ENDED
DECEMBER 31, 2003 AND 2002
Incorporated by reference from the 10-KSB Annual Report of eGene
for the year ended December 31, 2003.
EXHIBIT E-1
CENTROID CONSOLIDATED MINES CO.
UNAUDITED FINANCIAL STATEMENTS
FOR THE QUARTERLY PERIOD ENDED
MARCH 31, 2004
Incorporated by reference from the 10-QSB Quarterly Report of
eGene for the quarter ended June 30, 2004.
EXHIBIT F
None.
EXHIBIT G
BIOCAL TECHNOLOGY, INC.
AUDITED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
FEBRUARY 28, 2004, 2003, 2002, 2001 and 2000
See the caption "Financial Statements of BioCal".
EXHIBIT H
None.
EXHIBIT I
BIOCAL STOCKHOLDER AND BIOCAL OPTION HOLDER
LETTER OF TRANSMITTAL
In consideration and as a condition of the merger (the "Merger")
between Centroid Consolidated Mines Co., a Nevada corporation ("CCMC"), a
wholly-owned subsidiary to be formed by CCMC in the State of California ("CCMC
Subsidiary"), and BioCal Technology, Inc., a California corporation ("BioCal")
(the "Merger Agreement"), by which CCMC Subsidiary shall merge with and into
BioCal and the BioCal Stockholders and Option Holders shall exchange their
respective securities in BioCal for securities of CCMC thereunder (the
"Exchange"), the undersigned BioCal Stockholder or BioCal Option Holder
acknowledges as follows, to-wit:
1. If an United States resident, that he/she/it is an
"accredited investor" as that term is defined under
Regulation D of the Securities and Exchange Commission;
2. That he/she/it has had access to all material information
regarding CCMC through the Xxxxx Archives of theSecurities
and Exchange Commission at xxx.xxx.xxx or by the delivery
of requested copies of all reports and/or registration
statements filed by CCMC with the Securities and Exchange
Commission during the past 12 months;
3. That he/she/it has had access to all material information
regarding BioCal by virtue of he/she/it being a holder of
outstanding securities or the right to acquire securities
of BioCal.
4. That he/she/it has had access to all material information
regarding the Merger, the Merger Agreement and theExchange
in the BioCal Proxy Statement dated June 4, 2004;
5. That he/she/it is receiving the securities that he/she/it
will receive pursuant to the Merger and under the Merger
Agreement and in the Exchange for "investment purposes and
not with a view toward the further distribution thereof,"
and that he/she/it acknowledges and understands that the
securities of CCMC are "restricted securities" as that
term is defined under Rule 144 of the United States
Securities and Exchange Commission;
6. That he/she/it waives any dissenters' rights of appraisal
under the California Corporations Code (the "California
Law");
7. That he/she/it owns the securities being exchanged free of
any liens or encumbrances whatsoever; and
8. That he/she/it has the right power and authority to
deliver this Acknowledgment, without qualification.
BIOCAL INDIVIDUAL STOCKHOLDER
OR OPTION HOLDER:
Dated: ______________________. ____________________________________
Print Name
____________________________________
Signature
BIOCAL CORPORATE STOCKHOLDER
OR OPTION HOLDER:
Dated: ______________________. By__________________________________
Print Name
____________________________________
Signature
EXHIBIT J
CERTIFICATE OF OFFICER PURSUANT TO
AGREEMENT AND PLAN OF MERGER
The undersigned, the President of Centroid Consolidated Mines
Co., a Nevada corporation ("CCMC"), represents and warrants the following as
required by the Agreement and Plan of Merger (the "Agreement") between CCMC, a
wholly-owned California subsidiary to be formed by CCMC and BioCal Technology,
Inc., a California corporation ("BioCal"):
1. That he is the President of CCMC and has been authorized
and empowered by its Board of Directors to execute and deliver this
Certificate to BioCal.
2. Based on his personal knowledge, information, belief and
opinions of counsel for CCMC regarding the Agreement:
(i) All representations and warranties of CCMC contained
within the Agreement are true and correct;
(ii) CCMC has complied with all terms and provisions
required of it pursuant to the Agreement; and
(iii) There have been no material adverse changes in the
financial position of CCMC as set forth in its financial
statements for the periods ended December 31, 2003 and
2002, and March 31, 2004, except as set forth in Exhibit F
to the Agreement.
CENTROID CONSOLIDATED MINES CO.
By_________________________________
Xxxxx Xxxxxxx, President
EXHIBIT K
CERTIFICATE OF OFFICER PURSUANT TO
AGREEMENT AND PLAN OF MERGER
The undersigned, the CEO of BioCal Technology, Inc., a California
corporation ("BioCal"), represents and warrants the following as required by
the Agreement and Plan of Merger (the "Agreement") between BioCal, Centroid
Consolidated Mines Co., a Nevada corporation ("CCMC"), and a wholly-owned
California subsidiary to be formed by CCMC:
1. That he is the CEO of BioCal and has been authorized and
empowered by its Board of Directors to execute and deliver this Certificate to
CCMC.
2. Based on his personal knowledge, information, belief:
(i) All representations and warranties of BioCal contained
within the Agreement are true and correct;
(ii) BioCal has complied with all terms and provisions
required of it pursuant to the Agreement; and
(iii) There have been no material adverse changes in the
financial position of BioCal as set forth in its financial
statements for the years ended February 28, 2004, 2003,
2002, 2001 and 2000, except as set forth in Exhibit H to
the Agreement.
BIOCAL TECHNOLOGY, INC.
By_________________________________
Xxx Xxxxxxxx, CEO
