AGREEMENT OF CONVEYANCE, TRANSFER AND ASSIGNMENT OF ASSETS AND ASSUMPTION OF OBLIGATIONS
AGREEMENT
OF CONVEYANCE, TRANSFER AND ASSIGNMENT OF ASSETS AND
ASSUMPTION
OF OBLIGATIONS
This
Agreement of Conveyance, Transfer and Assignment of Assets and Assumption of
Obligations (“Transfer
and Assumption Agreement”)
is
made as of December 20, 2007, by Clear Skies Holdings, Inc., a Delaware
corporation (“Assignor”),
and
BIP Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of
Assignor (“Assignee”).
WHEREAS,
Assignor is engaged in the business of importing, marketing and distributing
Greek olive oils, olives and spices in the United States (the “Business”);
and
WHEREAS,
Assignor desires to convey, transfer and assign to Assignee, and Assignee
desires to acquire from Assignor, all of the assets of Assignor relating to
the
operation of the Business, and in connection therewith, Assignee has agreed
to
assume all of the liabilities of Assignor relating to the Business, on the
terms
and conditions set forth herein.
NOW
THEREFORE, in consideration of the mutual promises and agreements contained
herein, the parties hereto, intending to be legally bound hereby, agree as
follows:
Section
1. Assignment.
1.1. Assignment
of Assets.
For
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged by Assignor, Assignor does hereby assign, grant, bargain, sell,
convey, transfer and deliver to Assignee, and its successors and assigns, all
of
Assignor’s right, title and interest in, to and under the assets, properties and
business, of every kind and description, wherever located, real, personal or
mixed, tangible or intangible, owned, held or used in the conduct of the
Business (the “Assets”),
including, but not limited to, the Assets listed on Exhibit
A
hereto,
and
identified in part by reference to Assignor’s balance sheet as of October 31,
2007, filed with the Securities and Exchange Commission as part of Assignor’s
quarterly report on Form 10-QSB on November 28, 2007 (the “Balance
Sheet”).
Notwithstanding anything to the contrary contained herein, the term Assets
shall
not include either the assets of or the business conducted by Clear Skies Group,
Inc., a New York corporation.
1.2 Further
Assurances.
Assignor shall from time to time after the date hereof at the request of
Assignee and without further consideration execute and deliver to Assignee
such
additional instruments of transfer and assignment, including without limitation
any bills of sale, assignments of leases, deeds, and other recordable
instruments of assignment, transfer and conveyance, in addition to this Transfer
and Assumption Agreement, as Assignee shall reasonably request to evidence
more
fully the assignment by Assignor to Assignee of the Assets.
Section
2. Assumption.
2.1 Assumed
Liabilities.
As of
the date hereof, Assignee hereby assumes and agrees to pay, perform and
discharge, fully and completely, (i) all
liabilities,
commitments, contracts, agreements, obligations or other claims against
Assignor, whether known or unknown, asserted or unasserted, accrued or
unaccrued, absolute or contingent, liquidated or unliquidated, due or to become
due, and whether contractual, statutory, or otherwise associated
with the Business whenever arising (the “Liabilities”),
including, but not limited to, the Liabilities listed on Exhibit
B,
and
identified in part by reference to the Balance Sheet.
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2.2 Further
Assurances.
Assignee shall from time to time after the date hereof at the request of
Assignor and without further consideration execute and deliver to Assignor
such
additional instruments of assumption in addition to this Transfer and Assumption
Agreement as Assignor shall reasonably request to evidence more fully the
assumption by Assignee of the Liabilities.
Section
3.
Headings.
The
descriptive headings contained in this Transfer and Assumption Agreement are
for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Transfer and Assumption Agreement.
Section
4. Governing
Law.
This
Transfer and Assumption Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed entirely within that state, except that any conveyances
of
leaseholds and real property made herein shall be governed by the laws of the
respective jurisdictions in which such property is located.
[The
remainder of this page is blank intentionally.]
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[SIGNATURE
PAGE TO TRANSFER AND ASSUMPTION AGREEMENT]
IN
WITNESS WHEREOF, this Transfer and Assumption Agreement has been duly executed
and delivered by the parties hereto as of the date first above
written.
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By:
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/s/
Xxxx Xxxxx
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Name:
Xxxx Xxxxx
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Title:
Chief Executive Officer
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BIP
HOLDINGS, INC.
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By:
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Clear
Skies Holdings, Inc.,
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Its
sole stockholder
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By:
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/s/
Xxxx Xxxxx
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Name:
Xxxx Xxxxx
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Title:
Chief Executive Officer
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Exhibit
A
(a) All
of
the equipment, computers, servers, hardware, appliances, implements, and all
other tangible personal property that are owned by Assignor and have been used
in the conduct of the Business;
(b) all
inventory associated with the Business;
(c) all
real
property and real property leases to which Assignor is a party, and which affect
the Business or the Assets;
(d) all
contracts to which Assignor is a party, or which affect the Business or the
Assets, including leases of personal property;
(e) all
rights, claims and causes of action against third parties resulting from or
relating to the operation of the Business or the Assets, including without
limitation, any rights, claims and causes of action arising under warranties
from vendors and other third parties;
(f) all
governmental licenses, permits, authorizations, consents or approvals affecting
or relating to the Business or the Assets;
(g) all
accounts receivable, notes receivable, prepaid expenses and insurance and
indemnity claims to the extent related to any of the Assets or the
Business;
(h) all
goodwill associated with the Assets and the Business;
(i) all
business records, regardless of the medium of storage, relating to the Assets
and/or the Business, including without limitation, all schematics, drawings,
customer data, subscriber lists, statistics, promotional graphics, original
art
work, mats, plates, negatives, accounting and financial information concerning
the Assets or Business;
(j) all
internet domain names and URLs of the Business, software, inventions, art works,
patents, patent applications, processes, shop rights, formulas, brand names,
trade secrets, know-how, service marks, trade names, trademarks, trademark
applications, copyrights, source and object codes, customer lists, drawings,
ideas, algorithms, processes, computer software programs or applications (in
code and object code form), tangible or intangible proprietary information
and
any other intellectual property and similar items and related rights owned
by or
licensed to Assignor used in the Business, together with any goodwill associated
therewith and all rights of action on account of past, present and future
unauthorized use or infringement thereof; and
(k) all
other
privileges, rights, interests, properties and assets of whatever nature and
wherever located that are owned, used or intended for use in connection with,
or
that are necessary to the continued conduct of, the Business as presently
conducted or planned to be conducted.
Exhibit
B
(a) All
liabilities in respect of indebtedness of Assignor related to the
Business;
(b) product
liability and warranty claims relating to any product or service of Assignor
associated with the Business;
(c) taxes,
duties, levies, assessments and other such charges, including any penalties,
interests and fines with respect thereto, payable by Assignor to any federal,
provincial, municipal or other government, domestic or foreign, incurred in
the
conduct of the Business;
(d) liabilities
for salary, bonus, vacation pay, severance payments damages for wrongful
dismissal, or other compensation or benefits relating to Assignor’s employees
employed in the conduct of the Business; and
(e) any
liability or claim for liability (whether in contract, in tort or otherwise,
and
whether or not successful) related to any lawsuit or threatened lawsuit or
claim
(including any claim for breach or non-performance of any contract) based upon
actions, omissions or events relating to the Business.
