golden8k053008ex10-1.htm


    
      

      

    

    Exhibit 10.1

    AGREEMENT
AND PLAN OF MERGER

    


    


    THIS
AGREEMENT AND PLAN OF MERGER (the “Merger Agreement”) is entered into as of May
21, 2008 by and between Golden Phoenix Minerals, Inc., a Minnesota corporation
(“Golden Phoenix Minerals Minnesota”), and Golden Phoenix Minerals, Inc., a
Nevada corporation (“Golden Phoenix Minerals Nevada”).

    


    RECITALS

     

    WHEREAS,
Golden Phoenix Minerals Nevada is a corporation duly organized and existing
under the laws of the State of Nevada, its Articles of Incorporation having been
filed with the Nevada Secretary of State on November 13, 2007;

    


    WHEREAS,
Golden Phoenix Minerals Minnesota is a corporation duly organized and existing
under the laws of the State of Minnesota, Articles of Incorporation having been
filed with the Minnesota Secretary of State on June 2, 1997;

    


    WHEREAS,
as of the date of this Merger Agreement Golden Phoenix Minerals Nevada has
authority to issue four hundred million (400,000,000) shares of Common Stock,
par value $0.001, of which one thousand (1,000) shares are issued and
outstanding and owned by Golden Phoenix Minerals Minnesota, and fifty million
(50,000,000) shares of Preferred Stock, par value $0.001, of which no shares are
issued and outstanding;

    


    WHEREAS,
as of the date of this Merger Agreement Golden Phoenix Minerals Minnesota has
authority to issue four hundred million (400,000,000) shares of Common Stock,
without designated par value, of which 185,410,273 shares are issued and
outstanding, and fifty million (50,000,000) shares of Preferred Stock, without
designated par value, of which no shares are issued and
outstanding;

    


    WHEREAS,
the respective Board of Directors of Golden Phoenix Minerals Nevada and Golden
Phoenix Minerals Minnesota have determined that, for the purpose of effecting a
reincorporation of Golden Phoenix Minerals Minnesota into Nevada, it is
advisable and in the best interests of the two corporations and their
shareholders that Golden Phoenix Minerals Minnesota merge with and into Golden
Phoenix Minerals Nevada upon the terms and conditions hereinafter set
forth;

    


    WHEREAS,
the respective Board of Directors of Golden Phoenix Minerals Nevada and Golden
Phoenix Minerals Minnesota, the shareholders of Golden Phoenix Minerals
Minnesota and the sole stockholder of Golden Phoenix Minerals Nevada have
adopted and approved this Merger Agreement;

    


    AGREEMENT

    


    NOW,
THEREFORE, in consideration of the mutual agreements and covenants set forth
herein, Golden Phoenix Minerals Nevada and Golden Phoenix Minerals Minnesota
hereby agree to merge as follows:

    


    1.            Merger.  Subject
to the terms and conditions hereinafter set forth, on the Effective Date (as
defined below), Golden Phoenix Minerals Minnesota shall be merged with and into
Golden Phoenix Minerals Nevada, with Golden Phoenix Minerals Nevada surviving as
a single corporation under the laws of Nevada with the name “Golden Phoenix
Minerals, Inc.” (“Merger”).

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    2.            Effective
Date.  The Merger shall become effective on such date as an
Articles of Merger is filed with the Nevada Secretary of State in accordance
with the applicable provisions of the Nevada Revised Statutes (the “Effective
Date”).

     

    3.            Surviving
Documents.  Upon the Effective Date of the Merger, the Articles
of Incorporation of Golden Phoenix Minerals Nevada, as the surviving
corporation, shall continue in full force and effect until unless changed or
amended thereafter in accordance with the provisions thereof and applicable law.
The Bylaws of Golden Phoenix Minerals Nevada, as the surviving corporation, as
in effect on the Effective Date, will continue in full force and effect without
change or amendment until changed, altered, or amended thereafter in accordance
with the provisions thereof and applicable law.

     

    4.            Directors and
Officers.  Upon the Effective Date of the Merger, the directors
and officers of Golden Phoenix Minerals Minnesota shall become the directors and
officers of Golden Phoenix Minerals Nevada and any member of a committee of the
Board of Directors shall become a member of such committee of Golden Phoenix
Minerals Nevada.

     

    5.            Succession.  Upon
the Effective Date of the Merger, Golden Phoenix Minerals Nevada shall succeed
all status, rights, privileges, liabilities, powers, property, franchises and
every other interest of Golden Phoenix Minerals Minnesota in such manner and in
accordance with Section 92A.250 of the Nevada Revised Statutes.

     

    6.            Conversion of Golden Phoenix
Minerals Minnesota Securities.  Upon the Effective Date of the
Merger, without action on the part of any holder thereof, each issued and
outstanding security of Golden Phoenix Minerals Minnesota shall convert as
follows:

     

    (i)            Common
Stock.  Each issued and outstanding share of Common Stock of
Golden Phoenix Minerals Minnesota shall convert into one fully-paid and
non-assessable share of Golden Phoenix Minerals Nevada Common
Stock;

     

    (ii)            Options, Warrants,
Convertible Securities and All Other Rights to Purchase
Stock.  Each issued and outstanding option, warrant,
convertible security or other right to purchase shares of Common Stock of Golden
Phoenix Minerals Minnesota, shall be converted into such an option, warrant,
convertible security or other right to purchase shares of Common Stock of Golden
Phoenix Minerals Nevada, upon same terms and subject to the same conditions as
set forth in the original agreements, documents, certificates or other
instruments issued by Golden Phoenix Minerals Minnesota evidencing said options,
warrants, convertible securities or other rights, as may be
applicable.  Such applicable number of Common Stock shares shall be
reserved for issuance by Golden Phoenix Minerals Nevada for purposes of such
options, warrants, convertible securities or other rights as so reserved by
Golden Phoenix Minerals Minnesota on the Effective Date to acquire Common
Stock.  On the Effective Date, Golden Phoenix Minerals Nevada shall
assume all obligations of Golden Phoenix Minerals Minnesota pertaining to
options, warrants, convertible securities or other rights to purchase shares of
Common Stock.

     

    7.           Stock
Certificates.  On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of Golden
Phoenix Minerals Minnesota shall be deemed for all purposes to evidence
ownership of and to represent shares of Golden Phoenix Minerals Nevada into
which the shares of the Golden Phoenix Minerals Minnesota represented by such
certificates have been converted as herein provided.  The registered
owner on the books and records of Golden Phoenix Minerals Minnesota or its
transfer agent of any such outstanding stock certificate shall have and shall be
entitled, until such certificate shall have been surrendered for transfer or
otherwise accounted for to Golden Phoenix Minerals Minnesota or its transfer
agent, to exercise any voting and other rights with respect to and to receive
any dividend and other distributions upon the shares of Golden Phoenix Minerals
Nevada evidenced by such outstanding certificate as above provided.

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    8.            Stock Option/Equity
Incentive Plans.  On the Effective Date, Golden Phoenix
Minerals Nevada will assume all obligations of Golden Phoenix Minerals Minnesota
under any and all stock option plan, equity incentive plan or such other benefit
plan with respect to which rights or accrued benefits are
outstanding.

     

    9.            Outstanding Common Stock of
Golden Phoenix Minerals Nevada.  Upon the Effective Date, the
one thousand (1,000) shares of Golden Phoenix Minerals Nevada Common Stock
issued and outstanding in the name of Golden Phoenix Minnesota shall be
cancelled and retired, with such shares resuming the status of authorized and
unissued shares of Golden Phoenix Minerals Nevada, and no other shares of Common
Stock or other securities of Golden Phoenix Minerals Nevada shall be issued in
respect thereof.

     

    10.            Covenants of Golden Phoenix
Minerals Nevada.  On or before the Effective Date, Golden
Phoenix Minerals Nevada covenants and agrees that it will file any and all
documents or instruments necessary to assume the franchise tax liability(ies),
if any, of Golden Phoenix Minerals Minnesota in connection with filing Articles
of Merger in Minnesota.

     

    11.            Rights and Duties of Golden
Phoenix Minerals Nevada.  On the Effective Date and for all
purposes the separate existence of Golden Phoenix Minerals Minnesota shall cease
and shall be merged with and into Golden Phoenix Minerals Nevada which, as the
surviving corporation, shall thereupon and thereafter possess all the rights,
privileges, immunities, licenses and franchises (whether of a public or private
nature) of Golden Phoenix Minerals Minnesota; and all property (real, personal
and mixed), all debts due on whatever account, all causes in action, and all and
every other interest of or belonging to or due to Golden Phoenix Minerals
Minnesota shall continue and be taken and deemed to be transferred to and vested
in Golden Phoenix Minerals Nevada without further act or deed; and the title to
any real estate, or any interest therein, vested in Golden Phoenix Minerals
Minnesota shall not revert or be in any way impaired by reason of such Merger;
and Golden Phoenix Minerals Nevada shall thenceforth be responsible and liable
for all the liabilities and obligations of Golden Phoenix Minerals Minnesota;
and, to the extent permitted by law, any claim existing, or action or proceeding
pending, by or against Golden Phoenix Minerals Minnesota may be prosecuted as if
the Merger had not taken place, or Golden Phoenix Minerals Nevada may be
substituted in the place of such corporation.  Neither the rights of
creditors nor any liens upon the property of Golden Phoenix Minerals Nevada
shall be impaired by the Merger.  If at any time Golden Phoenix
Minerals Nevada shall consider or be advised that any further assignment or
assurances in law or any other actions are necessary or desirable to vest the
title of any property or rights of Golden Phoenix Minerals Minnesota in Golden
Phoenix Minerals Nevada according to the terms hereof, the officers and
directors of Golden Phoenix Minerals Nevada are empowered to execute and make
all such proper assignments and assurances and do any and all other things
necessary or proper to vest title to such property or other rights in Golden
Phoenix Minerals Nevada, and otherwise to carry out the purposes of this Merger
Agreement.

     

    12.            Amendment.  At
any time prior to or after approval of the Merger and adoption of the Merger
Agreement by the shareholders of Golden Phoenix Minerals Minnesota, this Merger
Agreement may be amended in any manner as may be determined in the judgment of
the respective Board of Directors of Golden Phoenix Minerals Minnesota and
Golden Phoenix Minerals Nevada to be necessary, desirable or expedient to effect
or further facilitate the Merger or purposes and intent of the Merger
Agreement.

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    13.            Abandonment.  At
any time prior to the Effective Date, this Merger Agreement may be terminated
and the Merger transaction abandoned by resolution of the Board of Directors of
either Golden Phoenix Minerals Nevada, Golden Phoenix Minerals Minnesota or
both, notwithstanding approval of this Merger Agreement by the sole stockholder
of Golden Phoenix Minerals Nevada and the shareholders of Golden Phoenix
Minerals Minnesota.

     

    14.            Service of
Process.  Golden Phoenix Minerals Nevada agrees that it may be
served with process in the State of Nevada in any proceeding for enforcement of
any obligation of Golden Phoenix Minerals Minnesota as well as for enforcement
of any obligation of Golden Phoenix Minerals Nevada arising from the Merger,
including any suit or other proceeding to enforce the rights of any stockholders
as determined in appraisal proceedings pursuant to Section 92A.490 of the Nevada
Revised Statutes, and irrevocably appoints the Secretary of State of Nevada as
its agent to accept service of process in any such suit or
proceeding.  The Secretary of State shall mail any such process
to:   Golden Phoenix Minerals Nevada, 1675 E. Prater Way, Suite
102, Sparks, Nevada, 89434.

     

    15.           Plan of
Reorganization.  This Merger Agreement constitutes a plan of
reorganization to be carried out in the manner, on the terms, and subject to the
conditions herein set forth.

    


     

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    IN
WITNESS WHEREOF, the parties hereto have executed this Merger Agreement as of
the date first written above.

    


    


     

     

     

     

    Golden
Phoenix Minerals, Inc., a Nevada corporation

    


    


    _/s/ David A.
Caldwell_________________


    David A.
Caldwell – Chief Executive Officer

    


    


    _/s/ Robert P.
Martin__________________


    Robert P.
Martin, President and Secretary

    


    


    


    


    


    Golden
Phoenix Minerals, Inc., a Minnesota corporation

    


    


    _/s/ David A.
Caldwell_________________


    David A.
Caldwell, Chief Executive Officer

    


    


    _/s/ Robert P.
Martin__________________


    Robert P.
Martin, President and Secretary