AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER, dated as of December 13, 2007 (the “Agreement”), between BIP
Oil, Inc., a Nevada corporation (the “Corporation”), and Clear Skies Holdings,
Inc., a Delaware corporation (the “Subsidiary”).
WITNESSETH:
WHEREAS,
the Subsidiary desires to acquire all the assets, and to assume all of the
liabilities and obligations, of the Corporation by means of a merger of the
Corporation with and into the Subsidiary, with the Subsidiary being the
surviving corporation (the “Merger”);
WHEREAS,
the Subsidiary is a wholly-owned subsidiary of the Corporation;
WHEREAS,
Section 92A.200 of the Nevada Revised Statutes (“Nevada Law”) and Section 253(c)
of the Delaware General Corporation Law (the “DGCL”), authorize the merger of a
Nevada corporation into a Delaware corporation;
WHEREAS,
the Subsidiary shall be the surviving entity (the “Surviving Corporation”) and
continue its existence as a Delaware corporation; and
WHEREAS,
the stockholders and Board of Directors of the Corporation and the Subsidiary
have approved this Agreement and the consummation of the Merger.
NOW
THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
THE
MERGER
SECTION
1.01. The
Merger.
(a) At
the
Effective Time (as defined below), the Corporation shall be merged, the separate
existence of the Corporation shall cease and the Surviving Corporation shall
be
the surviving entity and continue its existence as a Delaware
corporation.
(b) The
Merger shall become effective on the date that a Certificate of Ownership and
Merger with respect to the Merger, substantially in the form attached hereto
as
Exhibit A, is
accepted for filing by the Office of the Secretary of State of Delaware (the
“Effective Time”) and all other filings or recordings required by the Nevada
Revised Statutes and the Delaware General Corporation Law in connection with
the
Merger are made.
SECTION
1.02. Merger
Consideration.
At
the
Effective Time, each share of common stock, par value $0.001 per share of the
Corporation which shall be issued and outstanding immediately prior to the
Effective Time shall be converted into 9.1923 issued and outstanding shares
of
common stock, par value $0.001 per share of the Surviving Corporation, and
from
and after the Effective Time, the holders of all said issued and outstanding
shares of stock of the Corporation shall automatically become holders of shares
of the Surviving Corporation, whether or not certificates representing said
shares are then issued and delivered.
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ARTICLE II
THE
SURVIVING CORPORATION
SECTION
2.01. By-Laws;
Certificate of
Incorporation. The certificate of incorporation of the
Subsidiary, as in effect immediately prior to the Effective Time, shall be
the
certificate of incorporation of the Surviving Corporation unless and until
thereafter amended in accordance with its terms and applicable
law. The By-Laws of the Subsidiary as in effect immediately prior to
the Effective Time shall be the By-Laws of the Surviving Corporation unless
and
until thereafter amended in accordance with applicable law.
At
the
Effective Time the name of the Surviving Corporation shall be Clear Skies
Holdings, Inc.
ARTICLE III
TRANSFER
AND CONVEYANCE OF ASSETSAND
ASSUMPTION OF LIABILITIES
SECTION
3.01. Transfer,
Conveyance and
Assumption. At the Effective Time, the Subsidiary shall
continue in existence as the Surviving Corporation, and without further
transfer, succeed to and possess all of the rights, privileges and powers of
the
Corporation, and all of the assets and property of whatever kind and character
of the Corporation shall vest in the Surviving Corporation without further
act
or deed; thereafter, the Surviving Corporation, shall be liable for all of
the
liabilities and obligations of the Corporation, and any claim or judgment
against the Corporation may be enforced against the Surviving Corporation in
accordance with Section 92A.200 of the Nevada Law and Section 253(c) of the
DGCL.
SECTION
3.02. Further
Assurances. If at any time the Subsidiary shall consider or be
advised that any further assignment, conveyance or assurance is necessary or
advisable to vest, perfect or confirm of record in the Surviving Corporation
the
title to any property or right of the Corporation, or otherwise to carry out
the
provisions hereof, the proper representatives of the Corporation as of the
Effective Time shall execute and deliver any and all proper deeds, assignments,
and assurances and do all things necessary or proper to vest, perfect or convey
title to such property or right in the Surviving Corporation, and otherwise
to
carry out the provisions hereof.
ARTICLE IV
MISCELLANEOUS
SECTION
4.01. Authorized
Person. Xxxxx Xxxxxxx, Chairman, President and CEO of the
Corporation, shall be authorized, at such time in his sole discretion as he
deems appropriate to execute, acknowledge, verify, deliver, file and record,
for
and in the name of the Corporation any and all documents and instruments
including, without limitation, the certificate of incorporation of the Surviving
Corporation and the Certificate of Merger, and shall do and perform any and
all
acts required by applicable law which the Surviving Corporation deems necessary
or advisable, in order to effectuate the Merger.
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SECTION
4.02. Survival
of Representations
and Warranties. The representations and warranties and
agreements contained in any certificate or other writing delivered pursuant
hereto shall not survive the Effective Time or the termination of this
Agreement.
SECTION
4.03. Amendments;
No
Waivers. (a) Any provision of this Agreement may,
subject to applicable law, be amended or waived prior to the Effective Time
if,
and only if, such amendment or waiver is in writing and signed by the
Corporation and the Subsidiary.
(b) No
failure or delay by any party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION
4.04. Integration. All
prior or contemporaneous agreements, contracts, promises, representations,
and
statements, if any, between the Subsidiary and the Corporation, or their
representatives, are merged into this Agreement, and this Agreement shall
constitute the entire understanding between the Subsidiary and the Corporation
with respect to the subject matter hereof.
SECTION
4.05. Successors
and
Assigns. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, provided that no party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of the other party hereto.
SECTION
4.06. Governing
Law. This Agreement shall be construed in accordance with and
governed by the internal laws of the State of Delaware, without reference to
principles of conflicts of law
SECTION
4.07. Counterparts;
Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the
signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received
the
counterpart hereof signed by the other party hereto.
[Signature
Page Follows]
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[SIGNATURE
PAGE TO AGREEMENT AND PLAN OF MERGER]
IN
WITNESS WHEREOF, the undersigned have executed this instrument as of the date first written
above.
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BIP
OIL, INC.
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a
Nevada corporation
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By: /s/
Xxxxx Xxxxxxx
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Name:
Xxxxx Xxxxxxx
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Title: Chairman,
President and CEO
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CLEAR
SKIES HOLDINGS, INC.
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a
Delaware corporation
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By: /s/
Xxxxx Xxxxxxx
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Name:
Xxxxx Xxxxxxx
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Title: President
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EXHIBIT
A
CERTIFICATE
OF OWNERSHIP AND MERGER
