ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT
10.10
This Assignment and Assumption
Agreement (this “Agreement”) is made and
entered into as of February 11, 2009, by and between Helix Wind, Inc., a Nevada
corporation (the “Assignor”), and Clearview
Acquisitions, Inc., a Nevada corporation (the “Assignee”).
WHEREAS, the Assignor is party to the
agreements listed on Schedule A attached
hereto (the “Assigned
Agreements”);
WHEREAS, in furtherance of the
transactions contemplated by the Agreement dated January __, 2009 (the “Merger Agreement”) among
Assignee, Helix Wind Acquisition Corp. and Assignor, the Assignor wishes to
assign to the Assignee, and Assignee wishes to assume from the Assignor, all of
the rights and obligations of the Assignor provided for in the Assigned
Agreements, for such consideration and on such terms as set out
below;
NOW THEREFORE, in consideration of the
above premises and the mutual representations, warranties, covenants and
agreements hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Assignment of
Agreements. Assignor hereby irrevocably and unconditionally sells,
transfers, assigns, conveys, grants, delivers, vests and confirms unto Assignee
all the right, title and interest of Assignor in and to the Assigned
Agreements.
2. Assumption of
Obligations. The Assignee hereby expressly assumes and agrees
to perform all duties and obligations of the Assignor arising under the Assigned
Agreements from and after the date hereof.
3. Indemnification of
Assignee. The Assignor shall indemnify and hold harmless
Assignee and its officers, directors, shareholders, employees, trustees, agents,
beneficiaries, affiliates, representatives and their successors and assigns from
and against any and all damages, losses, liabilities, taxes and costs and
expenses (including, without limitation, attorneys’ fees and costs) resulting
directly or indirectly from (a) any failure by the Assignor to perform
or comply with any agreement, covenant or obligation in this Agreement, (b) any
claims made by a third party against the Assignee based upon an obligation, act
or omission of the Assignor prior to the date hereof relating to an Assigned
Agreement, (c) taxes attributable to the Assignor prior to the date hereof as a
result of an Assigned Agreement or the performance thereof, or (d) any
litigation, action, claim, proceeding or investigation by any third party
relating to or arising out of an Assigned Agreement arising from an act
or omission prior to the date hereof.
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4. Indemnification of
Assignor. The Assignee shall indemnify and hold harmless Assignor and its
officers, directors, shareholders, employees, trustees, agents, beneficiaries,
affiliates, representatives and their successors and assigns from and against
any and all damages, losses, liabilities, taxes and costs and expenses
(including, without limitation, attorneys’ fees and costs) resulting directly or
indirectly from (a) any failure
by the Assignee to perform or comply with any agreement, covenant or obligation
in this Agreement, (b) any claims made by a third party against the Assignor
based upon an obligation, act or omission of the Assignee after the date hereof
relating to an Assigned Agreement, or (c) any litigation, action, claim,
proceeding or investigation by any third party relating to or arising out of an
Assigned Agreement arising from an act or omission after the date
hereof.
5. Power of
Attorney. The Assignor hereby constitutes and appoints the
Assignee its true, lawful and irrevocable attorney to demand, receive and
enforce the performance of the terms of the Assigned Agreements or to otherwise
deal in respect of the Assigned Agreements, and to give receipts, releases and
satisfactions for the same, and this may be done in the name of the Assignor
with the same force and effect as Assignor could do if this Agreement had not
been made.
6. Miscellaneous.
(a) This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Nevada.
(b) If
any covenant or agreement contained herein, or any part hereof, is held to be
invalid, illegal or unenforceable for any reason, such provision will be deemed
modified to the extent necessary to be valid, legal and enforceable and to give
effect of the intent of the parties hereto.
(c) This
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof. This Agreement supersedes all prior
agreements between the parties with respect to the subject matter hereof or
thereof. There are no representations, warranties, covenants or
undertakings with respect to the subject matter hereof other than those
expressly set forth herein or in the Merger Agreement.
(d) This
Agreement may not be amended or modified except by the express written consent
of the parties hereto. Any waiver by the parties of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach thereof or of any other provision.
(e) This
Agreement shall be binding upon, inure to the benefit of, and be enforceable by
the parties hereto and their respective successors and permitted
assignees.
(f) The
parties hereto intend that this Agreement shall not benefit or create any right
or cause of action in or on behalf of any person other than the parties
hereto.
(g) The
parties agree that this Agreement shall be deemed to have been jointly and
equally drafted by them, and that the provisions of this Agreement therefore
shall not be construed against a party or parties on the ground that such party
or parties drafted or was more responsible for the drafting of any such
provision(s). The parties further agree that they have each carefully read the
terms and conditions of this Agreement, that they know and understand the
contents and effect of this Agreement and that the legal effect of this
Agreement has been fully explained to its satisfaction by counsel of its own
choosing.
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(h) The
parties hereto agree to execute and deliver such further documents and
instruments and to do such other acts and things any of them, as the case may
be, may reasonably request in order to effectuate the transactions contemplated
by this Agreement.
(i) This
Agreement may be executed in counterparts and by facsimile, each of which shall
be deemed an original and all of which together shall constitute one and the
same instrument.
IN
WITNESS WHEREOF, each of the undersigned has caused this Agreement to be
executed by its duly authorized officer or representative as of the date first
above written.
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HELIX
WIND, INC.
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By:
/s/ Xxx
Xxxxxxx
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By:
/s/ Xxxxxxx
Xxxxxxxxx
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Name:
Xxx Xxxxxxx
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Name:
Xxxxxxx Xxxxxxxxx
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Title:
CEO
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Title:
President
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I, the
undersigned, hereby acknowledge, accept and consent to the assignment by Helix
Wind, Inc. to Clearview Acquisitions, Inc. pursuant to this Agreement of any and
all Assigned Agreements to which I am a party listed on Schedule A
hereto.
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/s/ Xxx Xxxxxxx
Xxx
Xxxxxxx
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/s/ Xxx Xxxxxxx
Xxx
Xxxxxxx
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/s/ Xxxxx Xxxxxxxxxx
Xxxxx
Xxxxxxxxxx
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/s/ Xxxxx Xxxxxxx
Xxxxx
Xxxxxxx
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/s/ Xxxxx Xxxxxxx
Xxxxx
Xxxxxxx
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/s/ Xxxx Xxxx
Xxxx
Xxxx
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3
Schedule
A
Assigned
Agreements
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1.
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Board
of Directors Service and Indemnification Agreement dated as of March 12,
2008, by and between Assignor and Xxx
Xxxxxxx.
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2.
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Board
of Directors Service and Indemnification Agreement dated as of March 13,
2008, by and between Assignor Xxxxx
Xxxxxxxxxx.
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3.
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Employment
Agreement, dated as of June 1, 2008, as amended January 26, 2009, by and
between Assignor and Xxx Xxxxxxx.
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4.
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Employment
Agreement, dated as of June 1, 2008, as amended January 26, 2009, by and
between Assignor and Xxxxx
Xxxxxxxxxx.
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5.
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Employment
Agreement, dated as of December 1, 2008, as amended January 26, 2009, by
and between Assignor and Xxxxx
Xxxxxxx.
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6.
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Employment
Agreement, dated as of October 1, 2008, by and between Assignor and Xxxxx
Xxxxxxx.
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7.
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Employment
Agreement dated August 15, 2008, between Assignor and Xxxx
Xxxx.
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