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EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (hereinafter referred to as the "Plan")
is adopted and agreed to as of this 1st day of August, 1998, by and between
Power Exploration, Inc., a Nevada corporation (hereinafter referred to as
"NEVADA"), Power Exploration, Inc., a Colorado corporation (hereinafter
referred to as "COLORADO"). Together, NEVADA and COLORADO are hereinafter
sometimes referred to as the "Constituent Corporations."
WHEREAS, the respective Boards of Directors of the Constituent
Corporations deem it advisable for the mutual benefit of the Constituent
Corporations and the mutual benefit of the stockholders of the Constituent
Corporations that COLORADO be merged with and into the NEVADA in accordance
with the provision of the Corporation Law of the State of Nevada and Colorado
upon the terms and conditions hereinafter provided (the "Merger"), and such
Boards of Directors and stockholders have approved and adopted this Plan.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, provisions and covenants contained herein, the Constituent
Corporations adopt and agree to this Plan and prescribe the terms and
conditions of the Merger and the mode of carrying the same into effect as
follows:
ARTICLE I. MERGER
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1.1 The Merger shall be effective upon the issuance of a Certificate of
Merger by the Nevada Secretary of State with respect thereto (sometimes
hereinafter referred to as the "Effective Time"), at which time the Constituent
Corporations shall merge and become a single corporation.
1.2 NEVADA shall be the surviving corporation and shall succeed to all
the rights, privileges, immunities, franchises, debts due, liabilities,
obligations and powers of COLORADO and shall continue to be subject to all the
duties and liabilities of a corporation organized under the Corporation Law of
the State of Nevada (hereinafter, NEVADA will sometimes be referred to as the
"Surviving Corporation" as of the Effective Time or thereafter).
l.3 The effect of the Merger shall be as provided in the applicable
provisions of the Corporation Law of the State of Nevada.
ARTICLE II. SURVIVING CORPORATION
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2.1 The Certificate of Incorporation of NEVADA as amended and restated to
read as set forth in Attachment A hereto shall be in full force and effect as
the Certificate of Incorporation of the Surviving Corporation, until it shall
thereafter be further amended in accordance with law.
2.2 The Bylaws of NEVADA as amended and restated to read as set forth in
Attachment B hereto, shall be in full force and effect as the Bylaws of the
Surviving
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Corporation until they shall thereafter be further amended in accordance with
law.
2.3 The officers and Board of Directors of the Surviving Corporation
shall be:
Directors: M.O. Xxxx III, Guy Xxxxx, Xxx Xxxx Xxxxxxx, Xxxx Xxxxxxxxx and
Xxxx Xxxxxxx
Officers: Guy Xxxxx, Xxx Xxxx Xxxxxxx, Xxxx Xxxxxx and Xxxxxx Xxxx
Such persons shall serve in such positions until their successors are duly
elected and qualified under the provisions of the Bylaws of the Surviving
Corporation, or until their earlier death, resignation or removal.
ARTICLE III. EFFECT OF MERGER AND INVESTMENT UPON THE SHARES OF THE
CONSTITUENT CORPORATIONS
3.1 (a) Conversion of NEVADA Shares. As of the Effective Time, all of
the shares of NEVADA common stock (the "Old NEVADA Stock"), $0.02 par value,
issued and outstanding prior to the Effective Time shall be converted into and
become as a matter of law and without any action on the part of the holder
thereof 10 shares of the Surviving Stock (the "NEVADA Shares"). At the
Effective Time, the former stockholder of record of the Old NEVADA stock shall
receive that number of the shares of the Surviving Stock.
(b) Conversion of COLORADO Shares. As of the Effective Time, all of
the shares of COLORADO common stock (the "Old COLORADO Stock"), $0.02 par
value, issued and outstanding prior to the Effective Time shall be converted
into and become as a matter of law and without any action on the part of the
holder thereof 11,060,925 shares of the Surviving Stock (the "NEVADA Shares").
At the Effective Time, each former stockholder of record of the Old COLORADO
Stock shall receive the same number of the shares of the Surviving Stock as
they previously owned.
(c) As a result of paragraphs 3.1(a) and 3.1(b), the stockholders of
the Surviving Corporation shall be as follows:
Surviving Corporation
Name Shares %
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COLORADO 11,060,925 100
Current Shareholders of NEVADA 10 0
Total 11,060,935 100
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3.2 Within ten (10) days after execution of this Agreement, the Surviving
Corporation shall cause a Certificate of Merger to be issued by the Nevada
Secretary of State.
3.3 As of the Effective Time, the retained earnings of the Surviving
Corporation shall be increased by the stated capital, capital surplus and
retained earnings of COLORADO.
3.4 Upon receipt of certificates representing the shares of NEVADA and
COLORADO common stock issued and outstanding immediately prior to the Effective
Time, NEVADA shall cause a certificate representing the number of shares of the
Surviving Corporation stock which such holder is entitled to receive
respectively.
ARTICLE IV. TERMINATION
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4.1 This Agreement may be terminated at any time prior to the Effective
Time:
(a) by the mutual consent of the parties; or
(b) by either NEVADA or COLORADO if any permanent injunction or other
order of a court or other competent Governmental Authority preventing the
consummation of the Merger shall have become final and non-appealable.
4.2 In the event of the termination, this Agreement shall become void and
have no effect, without any liability on the part of any part or its directors,
officers or stockholders.
ARTICLE V. MISCELLANEOUS
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5.1 The Surviving Corporation shall cause the Surviving Stock to become
eligible for the trading on the OTC Bulletin Board as soon as practicable
following the Effective Time. In the event that such common stock does not
become so eligible for trading, each of the holders of shares of the Old NEVADA
Stock at the Effective Time shall surrender to the Surviving Corporation all
shares of the Surviving Corporation's common stock received under Section 3.1
for cancellation.
5.2 This Plan shall be construed and interpreted according to the laws of
the State of Nevada.
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5.3 This Plan may be executed in any number of counterparts, each of
which shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, NEVADA and COLORADO have caused their respective
corporate seals to be hereunto affixed and these presents to be signed by their
respective officers thereunto duly authorized, all as of the day and year first
above written.
POWER EXPLORATION, INC. POWER EXPLORATION, INC.
A COLORADO CORPORATION A NEVADA COLORADO
By: /s/ XXX XXXX XXXXXXX By: /s/ XXXX XXXXXX
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Xxx Xxxx Xxxxxxx, Executive Vice Xxxx Xxxxxx, Incorporator
President
