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EXHIBIT 2
AGREEMENT OF MERGER
This Agreement of Merger ("the Agreement") is made and entered into as
of March 16, 1998, by and among Summit Environmental Corporation, Inc., a Texas
corporation ("the Company"); Summit Technologies, Inc., a Texas corporation
("Summit Technologies"); and SuperCorp Inc., an Oklahoma corporation
("SuperCorp").
WHEREAS, the Directors of the Company and the Directors of Summit
Technologies have each agreed to submit to their respective shareholders, for
such shareholders' approval or rejection, the merger of Summit Technologies into
the Company ("the Merger") in accordance with the provisions of the Texas
General Corporation Act, other applicable law and the provisions of this
Agreement; and
WHEREAS, SuperCorp is the controlling shareholder of the
Company;
NOW, THEREFORE, in consideration of the promises, undertakings and
mutual covenants set forth herein, the Company, Summit Technologies, and
SuperCorp agree as follows:
1. Merger; Effective Date. Pursuant to the terms and provisions of this
Agreement and of the Texas Business Corporation Act, and subject to the prior
approval by the shareholders of each of the Company and Summit Technologies,
Summit Technologies shall be merged with and into the Company, as confirmed by
the filing of articles of merger with the Secretary of State of the State of
Texas ("the Effective Date"). The Company shall be the surviving corporation
("the Surviving Corporation"). The Company and Summit Technologies shall be
referred to hereinafter collectively as the "Constituent Corporations." On the
Effective Date, the separate existence and corporate organization of Summit
Technologies, except insofar as it may be continued by statute, shall cease and
the Company shall continue as the Surviving Corporation, which shall succeed,
without other transfer or further act or deed whatsoever, to all the rights,
property and assets of the Constituent Corporations and shall be subject to and
liable for all the debts and liabilities of each, including, without limitation,
(i) the obligation to make payment for the fair value of any shares held by a
shareholder of either of the Constituent Corporations who has complied with the
requirements of Article 5.12 of the Texas Business Corporation Act for the
recovery of the fair value of his shares, and (ii) the obligation to make
payment for all fees and franchise taxes as required by law; otherwise, the
Company's identity, existence, purposes, rights, immunities, properties,
liabilities and obligations shall be unaffected and unimpaired by
Exhibit 2
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the Merger except as expressly provided herein. This Agreement supersedes all
previous agreements among the parties hereto relating to the Merger.
2. Articles of Incorporation and Bylaws. The Articles of Incorporation
and Bylaws of the Surviving Corporation shall be the Articles of Incorporation
and Bylaws of the Company as in effect on the Effective Date.
3. Directors. The directors of Summit Technologies on the Effective
Date shall become the directors of the Surviving Corporation from and after the
Effective Date, who shall hold office subject to the provisions of the Articles
of Incorporation and Bylaws of the Surviving Corporation, until their successors
are duly elected and qualified.
4. Officers. The officers of Summit Technologies on the Effective Date
shall become the officers of the Surviving Corporation from and after the
Effective Date, subject to such powers with respect to the designation of
officers as the directors of the Surviving Corporation may have under its
Articles of Incorporation and Bylaws.
5. Manner of Conversion. The manner of converting the shares of capital
stock of the Constituent Corporations into shares of the Surviving Corporation
shall be as follows:
5.1. The shares of capital stock of Summit Technologies which
shall be issued and outstanding on the Effective Date shall, on the Effective
Date, be cancelled and exchanged for 5,000,000 shares of Common Stock ("the
Merger Shares") of the Company.
5.2. There shall be 500,000 shares of Common Stock, $0.001 par
value, of the Company issued and outstanding prior to the Effective Date ("the
Spinoff Shares") and held of record by SuperCorp, which shares shall, on the
Effective Date, continue to be outstanding and which shall have been distributed
by the record holder thereof, SuperCorp, to its shareholders ("the Spinoff").
5.3 There shall be 250,000 shares of Common Stock of the
Company issued and outstanding prior to the Effective Date and held by Xxxx
Xxxxxxxxx and Xxxxxx X. Xxxx or their designees or assignees ("the Consultants'
Shares"), which shares, on the Effective Date, shall continue to be issued and
outstanding.
5.4 There shall be no options or warrants to purchase shares
of Common Stock of the Company or Summit Technologies outstanding on the
Effective Date.
Exhibit 2
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6. Representations and Warranties. SuperCorp and the
Company jointly represent and warrant to, and agree with, Summit
Technologies that:
6.1 The Company has been duly organized and is validly
existing under the Texas Business Corporation Act. The Company has no subsidiary
and does not own an equity interest in any entity.
6.2 The authorized capital of the Company is 50,000,000 shares
of capital stock, which is of two classes as follows:
Number of Par value
Class Series Shares of shares
----- ------ ---------- ---------
Common None 40,000,000 $0.001
Preferred To be designated 10,000,000 $0.001
by the directors
6.3 As of the Effective Date but immediately before giving
effect to the Merger, the Company has outstanding capital as follows: 750,000
shares of Common Stock, $0.001 par value. No other shares, options, warrants or
any rights to acquire the Company's capital stock will be issued and outstanding
as of the Effective Date but immediately before giving effect to the Merger. The
shares of Common Stock to be issued in connection with the Merger, when issued,
delivered and sold, will be duly and validly issued and outstanding, fully paid
and non-assessable, will not have been issued in violation of or subject to any
preemptive or similar rights and will be free from any lien, charge, encumbrance
or other security interest or third party right or interest.
6.4 The Company has no liabilities or obligations, whether
absolute, contingent or otherwise.
6.5 As of the Effective Date, the financial statements of the
Company shall not vary in any particular from the Company's financial statements
that appear in the registration statement described in paragraph 7 below.
6.6 As of the Effective Date, the Merger and the Agreement
will have been duly authorized and approved by the Company's directors and
shareholders.
6.7 The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the United
States Investment Company Act of 1940, as amended.
Exhibit 2
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7. Conditions of Summit Technologies' obligations. The obligations of
Summit Technologies to complete the Merger as provided herein shall be subject
to the accuracy of the representations and warranties of SuperCorp and the
Company herein contained as of the Effective Date, to the performance by the
Company and SuperCorp of their obligations hereunder and to the following
additional conditions:
7.1 The Merger Shares and the Spinoff Shares of Common Stock
of the Company to be distributed pursuant to the provisions of paragraph 5.1 and
5.2 above shall, prior to the distribution thereof, be registered pursuant to
the provisions of the Securities Act of 1933, as amended, by virtue of the
filing of the appropriate registration statements with the U.S. Securities and
Exchange Commission.
7.2 SuperCorp shall have distributed the Spinoff Shares to an
escrow agent, as described in the registration statements filed with the SEC.
7.3 The directors and the shareholders of Summit Technologies
are free to approve or disapprove the Merger in their full discretion.
8. Tax Treatment. The merger of the Company and Summit Technologies
shall be accomplished as a tax-free reorganization.
9. Certificate of Merger. Upon the approval of the merger by the
shareholders of the Company and of Summit Technologies, the officers of the
Company shall file with the Secretary of State, State of Texas either a
certified copy of this Agreement, Articles of Merger, or other required filing
containing terms and provisions consistent with this Agreement of Merger;
provided, however, that at any time prior to the filing of this Agreement (or a
certificate in lieu thereof) with the Secretary of State, State of Texas, the
Agreement may be terminated by the board of directors of Summit Technologies
notwithstanding approval of this Agreement by the shareholders of Summit
Technologies or of the Company.
Summit Environmental Corporation,
a Texas corporation
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, President
Exhibit 2
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Summit Technologies, Inc.,
a Texas corporation
By: /s/ B. Xxxxx Xxxxxx
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B. Xxxxx Xxxxxx, Chief Executive
Officer
SuperCorp Inc.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, President
Exhibit 2
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