FORM OF NOTE PURCHASE AGREEMENT
FORM
OF
This
Note
Purchase Agreement (this “Agreement”),
dated
as of November 7, 2007 (the “Closing
Date”)
by and
between Clear Skies Group, Inc, a New York corporation (the “Company”)
and
___________ (“Lender”).
WITNESSETH:
WHEREAS,
subject to the terms and conditions of this Agreement, the Company has agreed
to
sell and Lender has agreed to purchase from the Company, a promissory note
of
the Company in the principal amount of $___,000 (the “Note”).
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. Deliveries.
(a) On
the
closing date, Lender shall deliver to the Company payment in the amount of
the
principal amount of the Note by delivery of a certified check payable to the
Company or by wire transfer to the account of the Company.
(b) On
the
closing date, the Company shall deliver to Lender the Note.
2. Representations
and Warranties of the Company.
The
Company hereby represents and warrants to Lender as follows:
(a) Organization
and Standing.
The
Company is a corporation duly organized and validly existing under, and by
virtue of, the laws of the State of New York and is in good standing under
such
laws. The Company is duly qualified to conduct business as a foreign corporation
and is in good standing in each jurisdiction wherein the nature of its
activities or properties owned or lease makes such qualification necessary,
except where failure to be so qualified would not have a material adverse effect
on the Company. The Company has the requisite corporate power to own and operate
its properties and assets, and to carry on its business as presently conducted
and as proposed to be conducted and to enter into and perform this Agreement,
the Note, and each other document, agreement or instrument entered into by
it in
connection with this Agreement or the Note.0
(b) No
Conflict.
This
Agreement does not: (i) conflict with any provision of the Company’s Certificate
of Incorporation or Bylaws, both as amended to date; or (ii) conflict with,
or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture, patent,
patent license or instrument to which the Company is a party; or (iii) result
in
a violation of any federal, state, local or foreign law, rule, regulation,
order, judgment or decree (including Federal and state securities laws and
regulations) applicable to the Company or by which any property or asset of
the
Company is bound or affected.
(c) Authorization.
The
execution, delivery and performance of this Agreement by the Company has been
duly authorized by all requisite corporate action and constitutes the valid
and
binding obligations of the Company enforceable in accordance with its terms,
subject as to enforcement of remedies to applicable bankruptcy, insolvency,
reorganization, or similar laws relating to or affecting the enforcement of
creditors’ rights.
(d) Capitalization.
The
authorized capital stock of the Company consists of 10,000,000 shares of common
stock, par value $0.01 per share, of which 3,580,000 shares of Common Stock
are
issued and outstanding, and no shares of preferred stock.
(e) No
Undisclosed Liabilities.
The
Company has no material liabilities or obligations not disclosed to
Lender.
(f) Issuance.
The
Note will be duly and validly issued when issued, sold and delivered at the
closing in accordance with the terms of this Agreement.
3. Representations
and Warranties of Lender.
Lender
represents and warrants to the Company as of the closing date that:
(a) All
action on the part of Lender for the authorization, execution, delivery and
performance by Lender of this Agreement have been taken, and this Agreement
constitutes a valid and binding obligation of Lender, enforceable in accordance
with its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, or similar laws relating to or affecting the enforcement of
creditors’ rights.
(b) Lender
is
acquiring the Notes for investment for his own account and not with a view
to,
or for resale in connection with, any distribution. Lender understands that
the
Note to be acquired has not been registered under the Securities Act of 1933,
as
amended (the “Act”),
by
reason of a specific exemption from the registration provisions of the Act
which
depends upon, among other things, the bona fide nature of the investment intent
as expressed herein.
(c) Lender
represents that he is an accredited investor, as defined in Rule 501 promulgated
under the Act.
(d) Lender
is
experienced in evaluating and investing in securities of companies similarly
situated to the Company, and acknowledges that he is able to fend for himself,
can bear the economic risk of an investment in the Note, and has such knowledge
and experience in financial or business matters that he is capable of evaluating
the merits and risks of the investment in the Note.
(e) Lender
believes he has received all the information he considers necessary or
appropriate for deciding whether to purchase the Note. Lender further represents
that he has had an opportunity to ask questions and receive answers from the
Company regarding the terms and conditions of the offering of the Note and
the
business, properties, prospects and financial condition of the
Company.
2
(f) Lender
acknowledges that the Notes must be held indefinitely unless subsequently
registered under the Act or unless an exemption from such registration is
available. Lender is aware of the provisions of Rule 144 promulgated under
the
Act which permits limited resale of securities purchased in a private placement
subject to the satisfaction of certain conditions, including, unless Lender
is
an affiliate of the Company, among other things, the availability of certain
current public information about the Company, the resale occurring not less
than
one year after a party has purchased and paid for the securities to be sold,
the
sale being through a “broker’s transaction” or in transactions directly with a
“market maker,” and the number of shares being sold during any three-month
period not exceeding specified limitations.
4. Legends.
Any
certificate representing the Note issued pursuant to the terms hereof shall
have
endorsed thereon a legend substantially as follows:
“THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE NOTE UNDER SAID ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.”
5. General
Provisions.
(a) Governing
Law; Jurisdiction.
THIS
AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY THE INTERNAL LAWS OF THE STATE
OF
DELAWARE WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS. COMPANY CONSENTS
TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL OR STATE COURT LOCATED IN NEW
YORK,
NEW YORK, WITH RESPECT TO ANY CLAIM OR CONTROVERSY RELATED TO THE ENFORCEMENT
OR
INTERPRETATION OF THIS NOTE.
(b) Notices.
Any
notice or other communication required or permitted to be given hereunder shall
be in writing by mail, facsimile or personal delivery and shall be effective
upon actual receipt of such notice. The addresses for such communications shall
be as set forth below until notice is received that any such address or contact
information has been changed:
|
If
to the Company:
|
|
Clear
Skies Group, Inc
0000
Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx
Xxxx XX, 00000
Attn:
Xxxx Xxxxx
|
3
|
If
to Lender:
_________________
_________________
_________________
Fax:
_____________
|
|
In
either case with a copy to:
|
|
Xxxxxx
and Xxxxx, LLP
000
Xxxx 00xx
Xxxxxx
Xxxxx
0000
Xxx
Xxxx, Xxx Xxxx 00000
Fax:
(000) 000-0000
Attn:
Xxxxxx Xxxxxx, Esq.
|
(c) Entire
Agreement.
Except
as otherwise provided herein, this Agreement, the Note and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and
thereof.
(d) Amendment.
This
Agreement may only be amended, waived, discharged or terminated by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge or termination is sought.
(e) Successors
and Assigns.
This
Agreement and the Note may be transferred or assigned by Lender in whole or
in
part, in Lender’s sole and absolute discretion. Except as otherwise expressly
provided in this Agreement, the provisions of this Agreement shall inure to
the
benefit of, and be binding upon, the successors, assigns, heirs, executors
and
administrators of the parties hereto.
(f) Severability.
In case
any provision of this Agreement shall be invalid, illegal or unenforceable,
the
validity, legality and enforceability of the remaining provisions shall not
in
any way be affected or impaired thereby.
(g) Titles
and Subtitles.
The
titles of the Sections of this Agreement are for convenience of reference only
and are not to be considered in construing this Agreement.
(h) Expenses.
The
Company and Lender shall each bear their own expenses incurred with respect
to
this transaction.
(i) Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original, but all of which together shall be deemed to constitute one
instrument.
(j) Counsel.
All
parties hereto have been represented by counsel, and no inference shall be
drawn
in favor of or against any party by virtue of the fact that such party’s counsel
was or was not the principal draftsman of this Agreement. The Company and Lender
each have agreed that they have requested that Xxxxxx Xxxxxx, Esq. of Xxxxxx
and
Xxxxx, LLP (“Counsel”)
assist
in documenting the terms of the agreement of the parties contained in this
Agreement and related agreements. The parties acknowledge that Counsel has
previously represented Lender and currently is counsel to Company in connection
with the Transaction and related matters, and may continue to represent each
of
the parties. Each of the parties has been provided the opportunity to be
represented by counsel of its choice and has been encouraged by Counsel to
seek
separate representation to the extent that it deems such desirable, but the
absence of such shall not be asserted as a basis for the enforceability or
interpretation of any of the terms or provisions of this Agreement, or as a
reason to seek disqualification of Counsel in any controversy or proceeding.
4
IN
WITNESS WHEREOF, the parties have caused this agreement to be executed by its
officers thereunto duly authorized.
| CLEAR SKIES GROUP, INC | ||
| |
|
|
| By: | __________________________________________ | |
| Name: | ||
| Title: | ||
| LENDER | ||
| |
|
|
5
Exhibit
A
Form
of Promissory Note
6
