STOCK PURCHASE AGREEMENT
THIS
STOCK PURCHASE AGREEMENT (this “Agreement”),
dated
as of December 20, 2007, is made by and between Clear Skies Holdings, Inc.,
a
Delaware corporation (“Seller”),
and
each of Xxxxx Xxxxxxx, Xxxxxx X. Xxxxx and Xxxxxxx Xxxxxx (collectively,
“Buyers”).
RECITALS
A. Seller
owns all of the issued and outstanding membership shares (the “Shares”)
of BIP
Holdings, Inc., a Delaware corporation (the “Company”),
which
Shares constitute, as of the date hereof, all of the issued and outstanding
capital stock of the Company.
B. Buyers
hold 53,866,878 shares of common stock, $0.001 par value per share, of Seller
(the “Purchase
Price Shares”),
and
Buyers have agreed to transfer such shares back to Seller for cancellation
(the
“Repurchase”).
C. In
connection with the Repurchase, Buyers wish to acquire from Seller, and Seller
wishes to transfer to Buyers, the Shares, upon the terms and subject to the
conditions set forth herein.
Accordingly,
the parties hereto agree as follows:
1. Purchase
and Sale of Stock.
(a) Purchased
Shares.
Subject
to the terms and conditions provided below, Seller shall sell and transfer
to
Buyers and Buyers shall purchase from Seller, on the Closing Date (as defined
in
Section 1(c)), all of the Shares.
(b) Purchase
Price.
The
purchase price for the Shares shall be the transfer and delivery by Buyers
to
Seller of the Purchase Price Shares, deliverable as provided in Section
2(b).
(c) Closing.
The
closing of the transactions contemplated in this Agreement (the “Closing”)
shall
take place as soon as practicable following the execution of this Agreement.
The
date on which the Closing occurs shall be referred to herein as the Closing
Date
(the “Closing
Date”).
2. Closing.
(a) Transfer
of Shares.
At the
Closing, Seller shall deliver to Buyers certificates representing the Shares,
duly endorsed to Buyers or as directed by Buyers, which delivery shall vest
Buyers with good and marketable title to all of the issued and outstanding
shares of capital stock of the Company, free and clear of all liens and
encumbrances.
(b)
Payment
of Purchase Price.
At the
Closing, Buyers shall deliver to Seller a certificate or certificates
representing the Purchase Price Shares duly endorsed to Seller, which delivery
shall vest Seller with good and marketable title to the Purchase Price Shares,
free and clear of all liens and encumbrances.
3. Representations
and Warranties of Seller.
Seller
represents and warrants to Buyers as of the date hereof as follows:
(a) Corporate
Authorization; Enforceability.
The
execution, delivery and performance by Seller of this Agreement is within the
corporate powers and has been, duly authorized by all necessary corporate action
on the part of Seller. This Agreement has been duly executed and delivered
by
Seller and constitutes the valid and binding agreement of Seller, enforceable
against Seller in accordance with its terms, except to the extent that its
enforceability may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar Laws affecting the enforcement of
creditors’ rights generally and by general equitable principles.
(b) Governmental
Authorization.
The
execution, delivery and performance by Seller of this Agreement requires no
consent, approval, Order, authorization or action by or in respect of, or filing
with, any Governmental Authority.
(c) Non-Contravention;
Consents.
The
execution, delivery and performance by Seller of this Agreement and the
consummation of the transactions contemplated hereby do not (i) violate the
certificate of incorporation or bylaws of Seller or (ii) violate any applicable
Law or Order.
4. Representations
and Warranties of Buyers.
Buyers
represent and warrant to Seller as of the date hereof as follows:
(a) Enforceability.
The
execution, delivery and performance by Buyers of this Agreement are within
Buyers’ powers. This Agreement has been duly executed and delivered by Buyers
and constitutes the valid and binding agreement of Buyers, enforceable against
Buyers in accordance with its terms, except to the extent that its
enforceability may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
(b) Governmental
Authorization.
The
execution, delivery and performance by Buyers of this Agreement require no
consent, approval, Order, authorization or action by or in respect of, or filing
with, any Governmental Authority.
(c) Non-Contravention;
Consents.
The
execution, delivery and performance by Buyers of this Agreement, and the
consummation of the transactions contemplated hereby do not violate any
applicable Law or Order.
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(d) Purchase
for Investment.
Buyers
are financially able to bear the economic risks of acquiring an interest in
the
Company and the other transactions contemplated hereby, and have no need for
liquidity in this investment. Buyers have such knowledge and experience in
financial and business matters in general, and with respect to businesses of
a
nature similar to the business of the Company, so as to be capable of evaluating
the merits and risks of, and making an informed business decision with regard
to, the acquisition of the Shares. Buyers are acquiring the Shares solely for
their own account and not with a view to or for resale in connection with any
distribution or public offering thereof, within the meaning of any applicable
securities laws and regulations, unless such distribution or offering is
registered under the Securities Act of 1933, as amended (the “Securities
Act”),
or an
exemption from such registration is available. Buyers have (i) received all
the
information they have deemed necessary to make an informed investment decision
with respect to the acquisition of the Shares, (ii) had an opportunity to make
such investigation as they have desired pertaining to the Company and the
acquisition of an interest therein, and to verify the information which is,
and
has been, made available to them and (iii) had the opportunity to ask questions
of Seller concerning the Company. Buyers have received no public solicitation
or
advertisement with respect to the offer or sale of the Shares. Buyers realize
that the Shares are “restricted securities” as that term is defined in Rule 144
promulgated by the Securities and Exchange Commission under the Securities
Act,
the resale of the Shares is restricted by federal and state securities laws
and,
accordingly, the Shares must be held indefinitely unless their resale is
subsequently registered under the Securities Act or an exemption from such
registration is available for their resale. Buyers understand that any resale
of
the Shares by them must be registered under the Securities Act (and any
applicable state securities law) or be effected in circumstances that, in the
opinion of counsel for the Company at the time, create an exemption or otherwise
do not require registration under the Securities Act (or applicable state
securities laws). Buyers acknowledge and consent that certificates now or
hereafter issued for the Shares will bear a legend substantially as
follows:
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR QUALIFIED UNDER
ANY APPLICABLE STATE SECURITIES LAWS (THE “STATE ACTS”), HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
QUALIFICATION UNDER THE STATE ACTS OR PURSUANT TO EXEMPTIONS FROM SUCH
REGISTRATION OR QUALIFICATION REQUIREMENTS (INCLUDING, IN THE CASE OF THE
SECURITIES ACT, THE EXEMPTIONS AFFORDED BY SECTION 4(1) OF THE SECURITIES ACT
AND RULE 144 THEREUNDER). AS A PRECONDITION TO ANY SUCH TRANSFER, THE ISSUER
OF
THESE SECURITIES SHALL BE FURNISHED WITH AN OPINION OF COUNSEL OPINING AS TO
THE
AVAILABILITY OF EXEMPTIONS FROM SUCH REGISTRATION AND QUALIFICATION AND/OR
SUCH
OTHER EVIDENCE AS MAY BE SATISFACTORY THERETO THAT ANY SUCH TRANSFER WILL NOT
VIOLATE THE SECURITIES LAWS.
Buyers
understand that the Shares are being sold to them pursuant to the exemption
from
registration contained in Section 4(1) of the Securities Act and that Seller
is
relying upon the representations made herein as one of the bases for claiming
the Section 4(1) exemption.
(e) Liabilities.
Following the Closing, Seller will have no debts, liabilities or obligations
relating to the Company or its business or activities, whether before or after
the Closing, and there are no outstanding guaranties, performance or payment
bonds, letters of credit or other contingent contractual obligations that have
been undertaken by Seller directly or indirectly in relation to the Company
or
its business and that may survive the Closing.
(f) Title
to Purchase Price Shares.
Buyers
are the sole record and beneficial owners of the Purchase Price Shares. At
Closing, Buyers will have good and marketable title to the Purchase Price
Shares, which Purchase Price Shares are, and at the Closing will be, free and
clear of all options, warrants, pledges, claims, liens and encumbrances, and
any
restrictions or limitations prohibiting or restricting transfer to Seller,
except for restrictions on transfer as contemplated by applicable securities
laws.
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(g) Capitalization.
As of
the date hereof, Seller owns the Shares, which shares represent 100% of the
authorized, issued and outstanding capital stock of the Company. The Shares
are
duly authorized, validly issued, fully-paid, non-assessable and free and clear
of any Liens.
5. Indemnification
and Release.
(a) Indemnification.
Buyers
covenant and agree to jointly and severally indemnify, defend, protect and
hold
harmless Seller, and its officers, directors, employees, stockholders, agents,
representatives and affiliates (collectively, together with Seller, the
“Seller
Indemnified Parties”)
at all
times from and after the date of this Agreement from and against all losses,
liabilities, damages, claims, actions, suits, proceedings, demands, assessments,
adjustments, costs and expenses (including specifically, but without limitation,
reasonable attorneys’ fees and expenses of investigation), whether or not
involving a third party claim and regardless of any negligence of any Seller
Indemnified Party (collectively, “Losses”),
incurred by any Seller Indemnified Party as a result of or arising from (i)
any
breach of the representations and warranties of Buyers set forth herein or
in
certificates delivered in connection herewith, (ii) any breach or nonfulfillment
of any covenant or agreement on the part of Buyers under this Agreement, (iii)
any debt, liability or obligation of the Company, whether incurred or arising
prior to the date hereof or after, (iv) any debt, liability or obligation of
Seller for actions taken prior to that certain merger by and between Seller
and
Clear Skies Group, Inc., a New York corporation (the “Merger”),
including, without limitation, any amounts due or owing to any former officer,
director or Affiliate of Seller, (v) the conduct and operations of the business
of the Company whether before or after the Closing, (vi) claims asserted against
the Company whether arising before or after the Closing, or (vii) any federal
or
state income tax payable by Seller and attributable to the transaction
contemplated by this Agreement or activities prior to the Merger or with respect
to the Company after the Merger.
(b) Third
Party Claims.
(i) If
any
claim or liability (a “Third-Party
Claim”)
should
be asserted against any of the Seller Indemnified Parties (the “Indemnitee”)
by a
third party after the Closing for which Buyers have an indemnification
obligation under the terms of Section 5(a), then the Indemnitee shall notify
Buyers (the “Indemnitor”)
within
20 days after the Third-Party Claim is asserted by a third party (said
notification being referred to as a “Claim
Notice”)
and
give the Indemnitor a reasonable opportunity to take part in any examination
of
the books and records of the Indemnitee relating to such Third-Party Claim
and
to assume the defense of such Third-Party Claim and in connection therewith
and
to conduct any proceedings or negotiations relating thereto and necessary or
appropriate to defend the Indemnitee and/or settle the Third-Party Claim. The
expenses (including reasonable attorneys’ fees) of all negotiations,
proceedings, contests, lawsuits or settlements with respect to any Third-Party
Claim shall be borne by the Indemnitor. If the Indemnitor agrees to assume
the
defense of any Third-Party Claim in writing within 20 days after the Claim
Notice of such Third-Party Claim has been delivered, through counsel reasonably
satisfactory to Indemnitee, then the Indemnitor shall be entitled to control
the
conduct of such defense, and shall be responsible for any expenses of the
Indemnitee in connection with the defense of such Third-Party Claim so long
as
the Indemnitor continues such defense until the final resolution of such
Third-Party Claim. The Indemnitor shall be responsible for paying all
settlements made or judgments entered with respect to any Third-Party Claim
the
defense of which has been assumed by the Indemnitor. Except as provided in
subsection (ii) below, both the Indemnitor and the Indemnitee must approve
any
settlement of a Third-Party Claim. A failure by the Indemnitee to timely give
the Claim Notice shall not excuse Indemnitor from any indemnification liability
except only to the extent that the Indemnitor is materially and adversely
prejudiced by such failure.
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(ii) If
the
Indemnitor shall not agree to assume the defense of any Third-Party Claim in
writing within 20 days after the Claim Notice of such Third-Party Claim has
been
delivered, or shall fail to continue such defense until the final resolution
of
such Third-Party Claim, then the Indemnitee may defend against such Third-Party
Claim in such manner as it may deem appropriate and the Indemnitee may settle
such Third-Party Claim, in its sole discretion, on such terms as it may deem
appropriate. The Indemnitor shall promptly reimburse the Indemnitee for the
amount of all settlement payments and expenses, legal and otherwise, incurred
by
the Indemnitee in connection with the defense or settlement of such Third-Party
Claim. If no settlement of such Third-Party Claim is made, then the Indemnitor
shall satisfy any judgment rendered with respect to such Third-Party Claim
before the Indemnitee is required to do so, and pay all expenses, legal or
otherwise, incurred by the Indemnitee in the defense against such Third-Party
Claim.
(c) Non-Third-Party
Claims.
Upon
discovery of any claim for which Buyers have an indemnification obligation
under
the terms of this Section 5 which does not involve a claim by a third party
against the Indemnitee, the Indemnitee shall give prompt notice to Buyers of
such claim and, in any case, shall give Buyers such notice within 30 days of
such discovery. A failure by Indemnitee to timely give the foregoing notice
to
Buyers shall not excuse Buyers from any indemnification liability except to
the
extent that Buyers are materially and adversely prejudiced by such
failure.
(d) Release.
Buyers,
on behalf of themselves and their Related Parties, hereby release and forever
discharge Seller and its individual, joint or mutual, past and present
representatives, Affiliates, officers, directors, employees, agents, attorneys,
stockholders, controlling persons, subsidiaries, successors and assigns
(individually, a “Releasee”
and
collectively, “Releasees”)
from
any and all claims, demands, proceedings, causes of action, orders, obligations,
contracts, agreements, debts and liabilities whatsoever, whether known or
unknown, suspected or unsuspected, both at law and in equity, which Buyers
or
any of their Related Parties now have or have ever had against any Releasee.
Buyers hereby irrevocably covenant to refrain from, directly or indirectly,
asserting any claim or demand, or commencing, instituting or causing to be
commenced, any proceeding of any kind against any Releasee, based upon any
matter released hereby. “Related
Parties”
shall
mean, with respect to Buyers, (i) any Person that directly or indirectly
controls, is directly or indirectly controlled by, or is directly or indirectly
under common control with Buyers, (ii) any Person in which Buyers hold a
Material Interest or (iii) any Person with respect to which any Buyer serves
as
a general partner or a trustee (or in a similar capacity). For purposes of
this
definition, “Material
Interest”
shall
mean direct or indirect beneficial ownership (as defined in Rule 13d-3 under
the
Securities Exchange Act of 1934, as amended) of voting securities or other
voting interests representing at least ten percent (10%) of the outstanding
voting power of a Person or equity securities or other equity interests
representing at least ten percent (10%) of the outstanding equity securities
or
equity interests in a Person.
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6. Definitions.
As used
in this Agreement:
(a) “Affiliate”
means,
with respect to any Person, any other Person directly or indirectly controlling,
controlled by or under common control with the first Person. For the purposes
of
this definition, “Control,”
when
used with respect to any Person, means the possession, directly or indirectly,
of the power to (i) vote 10% or more of the securities having ordinary voting
power for the election of directors (or comparable positions) of such Person
or
(ii) direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise, and the terms “Controlling”
and
“Controlled”
have
meanings correlative to the foregoing;
(b) “Governmental
Authority”
means
any domestic or foreign governmental or regulatory authority;
(c) “Law”
means
any federal, state or local statute, law, rule, regulation, ordinance, code,
Permit, license, policy or rule of common law;
(d) “Lien”
means,
with respect to any property or asset, any mortgage, lien, pledge, charge,
security interest, encumbrance or other adverse claim of any kind in respect
of
such property or asset. For purposes of this Agreement, a Person will be deemed
to own, subject to a Lien, any property or asset which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
property or asset;
(e) “Order”
means
any judgment, injunction, judicial or administrative order or
decree;
(f) “Permit”
means
any government or regulatory license, authorization, permit, franchise, consent
or approval; and
(h) “Person”
means
an individual, corporation, partnership, limited liability company, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
7. Miscellaneous.
(a) Counterparts.
This
Agreement may be signed in any number of counterparts, each of which will be
deemed an original but all of which together shall constitute one and the same
instrument.
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(b) Amendments
and Waivers.
(i) Any
provision of this Agreement may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment,
by
each party to this Agreement, or in the case of a waiver, by the party against
whom the waiver is to be effective.
(ii) No
failure or delay by any party in exercising any right, power or privilege
hereunder will operate as a waiver thereof nor will 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
will be cumulative and not exclusive of any rights or remedies provided by
Law.
(c) Successors
and Assigns.
The
provisions of this Agreement will 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 (including by operation of
Law)
any of its rights or obligations under this Agreement without the consent of
each other party hereto.
(d) No
Third Party Beneficiaries.
This
Agreement is for the sole benefit of the parties hereto and their permitted
successors and assigns and nothing herein expressed or implied will give or
be
construed to give to any Person, other than the parties hereto, those referenced
in Section 5 above, and such permitted successors and assigns, any legal or
equitable rights hereunder.
(e) Governing
Law.
This
Agreement will be governed by, and construed in accordance with, the internal
substantive law of the State of Delaware.
(f) Headings.
The
headings in this Agreement are for convenience of reference only and will not
control or affect the meaning or construction of any provisions
hereof.
(g) Entire
Agreement.
This
Agreement constitutes the entire agreement among the parties with respect to
the
subject matter of this Agreement. This Agreement supersedes all prior agreements
and understandings, both oral and written, between the parties with respect
to
the subject matter hereof of this Agreement.
(h) Severability.
If any
provision of this Agreement or the application of any such provision to any
Person or circumstance is held invalid, illegal or unenforceable in any respect
by a court of competent jurisdiction, the remainder of the provisions of this
Agreement (or the application of such provision in other jurisdictions or to
Persons or circumstances other than those to which it was held invalid, illegal
or unenforceable) will in no way be affected, impaired or invalidated, and
to
the extent permitted by applicable Law, any such provision will be restricted
in
applicability or reformed to the minimum extent required for such provision
to
be enforceable. This provision will be interpreted and enforced to give effect
to the original written intent of the parties prior to the determination of
such
invalidity or unenforceability.
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(i) Notices.
Any
notice, request or other communication hereunder shall be given in writing
and
shall be served either personally, by overnight delivery or delivered by mail,
certified return receipt and addressed to the following addresses:
| (a) |
If
to Buyers:
|
Xxxxx
Xxxxxxx
Xxxx
Xxxxxx Xxx 0000
Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000
With
a
copy to:
Xxxxxx
& Jaclin, LLP
000
Xxxxx
0 Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxx Xxxxxx 00000
Attention:
Xxxxx Xxxxxx, Esq.
| (b) |
If
to Seller:
|
Clear
Skies Holdings, Inc.
0000
Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxx Xxxxx
With
a
copy to:
Xxxxxx
and Xxxxx, LLP
000
Xxxx
00xx
Xxxxxx,
Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxx, Esq.
[Signature
Page Follows]
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[SIGNATURE
PAGE TO STOCK PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered, effective as of the date first above
written.
|
By:
|
/s/ Xxxx Xxxxx |
|
Name:
Xxxx Xxxxx
|
|
|
Title:
President
|
|
| /s/ Xxxxx Xxxxxxx | |
|
Xxxxx
Xxxxxxx
|
|
| /s/ Xxxxxx X. Xxxxx | |
|
Xxxxxx
X. Xxxxx
|
|
| /s/ Xxxxxxx Xxxxxx | |
|
Xxxxxxx
Xxxxxx
|
|
