Unassociated Document


     

    EXECUTIVE
      EMPLOYMENT AGREEMENT

     

    This
      EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”)
      is
      made and entered into as of the 20th day of December, 2007, by and
      between CLEAR SKIES HOLDINGS, INC., a Delaware corporation with offices at
      5020
      Sunrise Highway, Suite 227, Massapequa Park, New York 11762 (the “Corporation”),
      and
      EZRA J. GREEN, an individual residing at 757 Harrison Street, West Hempstead,
      NY
      11552 (“Executive”).

     

    W
      I T N E
      S S E T H:

     

    WHEREAS,
      the Executive desires to be employed by the Company as its Chief Executive
      Officer and Chairman and the Company wishes to employ Executive in such
      capacity;

     

    NOW,
      THEREFORE, in consideration of the foregoing recitals and the respective
      covenants and agreements of the parties contained in this document, the Company
      and Executive hereby agree as follows: 

     

    1. Employment
      and Duties.
      The
      Company agrees to employ and Executive agrees to serve as the Company's Chief
      Executive Officer and Chairman of the Board. The duties and responsibilities
      of
      Executive shall include the duties and responsibilities as the Board may from
      time to time reasonably assign to Executive. 

     

    Executive
      shall devote substantially all of his working time and efforts during the
      Company's normal business hours to the business and affairs of the Company
      and
      its subsidiaries and to the diligent and faithful performance of the duties
      and
      responsibilities duly assigned to him pursuant to this Agreement.

     

    2. Term.
      The
      term of this Agreement shall commence on the Effective Date and shall continue
      for a period of two years and shall be automatically renewed for successive
      one
      year periods thereafter unless either party provides the other party with
      written notice of his or its intention not to renew this Agreement at least
      three months prior to the expiration of the initial term or any renewal term
      of
      this Agreement. “Employment Period” shall mean the initial two year term plus
      renewals, if any.

     

    3. Place
      of Employment.
      Executive's services shall be performed at the Company's offices located in
      Massapequa, New York and any other locus where the Company now or hereafter
      has
      a business facility within 50 miles of the Massapequa office. The parties
      acknowledge, however, that Executive may be required to travel in connection
      with the performance of his duties hereunder. 

     

    4. Base
      Salary.
      For all
      services to be rendered by Executive pursuant to this Agreement, the Company
      agrees to pay Executive during the Employment Period an initial base salary
      (the
      "Base Salary") at an annual rate of $175,000. The Base Salary shall be paid
      in
      periodic installments in accordance with the Company's regular payroll
      practices. 

     

    The
      Compensation Committee (the “Compensation Committee”) of the Board (or by the
      independent members of the Board, if there is no Compensation Committee) shall
      review the Executive’s Base Salary annually after the conclusion of the initial
      two year term and shall make a recommendation to the Board as to whether such
      Base Salary should be increased but not decreased, which decision shall be
      within the Board’s sole discretion.

    
       

      
        
          
          

        

        
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    5. Bonuses.
      During
      the term of this Agreement, the Executive shall be entitled to an annual bonus
      of $50,000 in the first year of employment, if the Company records gross
      revenues in excess of $5,000,000 in the first twelve months after the Merger.
      In
      addition, the Executive shall be entitled to an annual bonus of $75,000 in
      the
      second year of employment, if the Company records gross revenues in excess
      of
      $10,000,000 in the second twelve months after the Merger. Each annual bonus
      shall be paid by the Company to the Executive promptly after determination
      that
      the relevant targets have been met, it being understood that the attainment
      of
      any financial targets shall be determined after the results of the annual audit
      are known. 

     

    6. Expenses.
      Executive shall be entitled to prompt reimbursement by the Company for all
      reasonable ordinary and necessary travel, entertainment, and other expenses
      incurred by Executive while employed (in accordance with the policies and
      procedures established by the Company for its senior executive officers) in
      the
      performance of his duties and responsibilities under this Agreement; provided,
      that Executive shall properly account for such expenses in accordance with
      Company policies and procedures. 

     

    7. Other
      Benefits.
      During
      the term of this Agreement, the Executive shall be eligible to participate
      in
      incentive, savings, retirement (401(k)), and welfare benefit plans, including,
      without limitation, health, medical, dental, vision, life (including accidental
      death and dismemberment) and disability insurance plans (collectively, "Benefit
      Plans"), in substantially the same manner and at substantially the same levels
      as the Company makes such opportunities available to the Company's managerial
      or
      salaried executive employees.

     

    8. Vacation.
      During
      the term of this Agreement, the Executive shall be entitled to accrue, on a
      pro
      rata basis, 30 paid vacation days per year. Vacation shall be taken at such
      times as are mutually convenient to the Executive and the Company and no more
      than 15 consecutive days shall be taken at any one time without Company approval
      in advance. The Executive shall not be entitled to carry over any accrued,
      unused vacation days from year to year.

     

    9. Stock
      Options.
      The
      Executive shall be eligible for such grants of awards under the Company’s 2007
      Equity Incentive Plan as the Compensation Committee or the Board may from time
      to time determine

     

    10. Termination
      of Employment.
      

     

    (a) Death.
      If
      Executive dies during the Employment Period, this Agreement and the Executive’s
      employment with the Company shall automatically terminate and the Company shall
      have no further obligations to the Executive or his heirs, administrators or
      executors with respect to compensation and benefits accruing thereafter, except
      for the obligation to pay to the Executive’s heirs, administrators or executors
      any earned but unpaid Base Salary and vacation pay, unpaid pro
      rata
      annual
      bonus through the date of death and reimbursement of any and all reasonable
      expenses paid or incurred by the Executive in connection with and related to
      the
      performance of his duties and responsibilities for the Company during the period
      ending on the termination date. The Company shall deduct, from all payments
      made
      hereunder, all applicable taxes, including income tax, FICA and FUTA, and other
      appropriate deductions. In addition, the Executive’s spouse and minor children
      shall be entitled to continued coverage for a period of one year following
      the
      termination of employment, at the Company’s expense, under all health, medical,
      dental and vision insurance plans in which the Executive was a participant
      immediately prior to his last date of employment with the Company.

     

    
      
        
        

      

      
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    (b) Disability.
      In the
      event that, during the term of this Agreement the Executive shall be prevented
      from performing his duties and responsibilities hereunder to the full extent
      required by the Company by reason of Disability (as defined below), this
      Agreement and the Executive’s employment with the Company shall automatically
      terminate and the Company shall have no further obligations or liability to
      the
      Executive or his heirs, administrators or executors with respect to compensation
      and benefits accruing thereafter, except for the obligation to pay the Executive
      or his heirs, administrators or executors any earned but unpaid Base Salary,
      unpaid pro
      rata
      annual
      bonus and unused vacation days accrued through the Executive’s last date of
      Employment with the Company and reimbursement of any and all reasonable expenses
      paid or incurred by the Executive in connection with and related to the
      performance of his duties and responsibilities for the Company during the period
      ending on the termination date. The Company shall deduct, from all payments
      made
      hereunder, all applicable taxes, including income tax, FICA and FUTA, and other
      appropriate deductions through the last date of the Executive’s employment with
      the Company. For purposes of this Agreement, “Disability”
shall
      mean a physical or mental disability that prevents the performance by the
      Executive, with or without reasonable accommodation, of his duties and
      responsibilities hereunder for a period of not less than an aggregate of three
      months during any twelve consecutive months.

     

    (c) Cause.

     

    (1)
      At
      any
      time during the Employment Period, the Company may terminate this Agreement
      and
      the Executive’s employment hereunder for Cause. For purposes of this Agreement,
“Cause” shall mean: (a) the willful and continued failure of the Executive to
      perform substantially his duties and responsibilities for the Company (other
      than any such failure resulting from Executive’s death or Disability) after a
      written demand by the Board for substantial performance is delivered to the
      Executive by the Company, which specifically identifies the manner in which
      the
      Board believes that the Executive has not substantially performed his duties
      and
      responsibilities, which willful and continued failure is not cured by the
      Executive within thirty (30) days of his receipt of such written demand; (b)
      the
      conviction of, or plea of guilty or nolo
      contendere
      to, a
      felony, (c), violation of Sections 11 or 12 of this Agreement, or (d) fraud,
      dishonesty or gross misconduct which is materially and demonstratively injurious
      to the Company. Termination under clauses (b), (c) or (d) of this Section
      10(c)(1) shall not be subject to cure.

     

    (2)
      Upon
      termination of this Agreement for Cause, the Company shall have no further
      obligations or liability to the Executive or his heirs, administrators or
      executors with respect to compensation and benefits thereafter, except for
      the
      obligation to pay the Executive any earned but unpaid Base Salary and vacation
      pay, and reimbursement of any and all reasonable expenses paid or incurred
      by
      the Executive in connection with and related to the performance of his duties
      and responsibilities for the Company during the period ending on the termination
      date. The Company shall deduct, from all payments made hereunder, all applicable
      taxes, including income tax, FICA and FUTA, and other appropriate
      deductions.

     

    
      
        
        

      

      
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    (d) Change
      of Control.
      For
      purposes of this Agreement, “Change of Control” shall mean the occurrence of any
      one or more of the following: (i) the accumulation, whether directly,
      indirectly, beneficially or of record, by any individual, entity or group
      (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
      Act of 1934, as amended) of 50% or more of the shares of the outstanding Common
      Stock of the Company, whether by merger, consolidation, sale or other transfer
      of shares of Common Stock (other than a merger or consolidation where the
      stockholders of the Company prior to the merger or consolidation are the holders
      of a majority of the voting securities of the entity that survives such merger
      or consolidation), or (ii) a sale of all or substantially all of the assets
      of the Company, provided,
      however,
      that
      the following acquisitions shall not constitute a Change of Control for the
      purposes of this Agreement: (A) any acquisitions of Common Stock or securities
      convertible into Common Stock directly from the Company, or (B) any acquisition
      of Common Stock or securities convertible into Common Stock by any employee
      benefit plan (or related trust) sponsored by or maintained by the
      Company.

     

    (e) Good
      Reason.
      

     

    (1)
      At
      any
      time during the term of this Agreement, subject to the conditions set forth
      in
      Section 10(e)(2) below, the Executive may terminate this Agreement and the
      Executive’s employment with the Company for “Good Reason.” For purposes of this
      Agreement, “Good Reason” shall mean the occurrence of any of the following
      events: (A) the assignment, without the Executive’s consent, to the Executive of
      duties that are significantly different from, and that result in a substantial
      diminution of, the duties that he assumed on the Effective Date; (B) the
      assignment, without the Executive’s consent, to the Executive of a title that is
      different from and subordinate to the title Chief Executive Officer; (C) any
      termination of the Executive’s employment by the Company within 12 months after
      a Change of Control, other than a termination for Cause, death or Disability;
      or
      (D) material breach by the Company of this Agreement.

     

    (2)
      The
      Executive shall not be entitled to terminate this Agreement for Good Reason
      unless and until he shall have delivered written notice to the Company of his
      intention to terminate this Agreement and his employment with the Company for
      Good Reason, which notice specifies in reasonable detail the circumstances
      claimed to provide the basis for such termination for Good Reason, and the
      Company shall not have eliminated the circumstances constituting Good Reason
      within 30 days of its receipt from the Executive of such written
      notice.

     

    
      
        
        

      

      
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    (3)
      In
      the
      event that the Executive terminates this Agreement and his employment with
      the
      Company for Good Reason, the Company shall pay or provide to the Executive
      (or,
      following his death, to the Executive’s heirs, administrators or executors): (A)
      any earned but unpaid Base Salary, unpaid pro
      rata
      annual
      bonus and unused vacation days accrued through the Executive’s last day of
      employment with the Company; (B) continued coverage, at the Company’s expense,
      under all Benefits Plans in which the Executive was a participant immediately
      prior to his last date of employment with the Company, or, in the event that
      any
      such Benefit Plans do not permit coverage of the Executive following his last
      date of employment with the Company, under benefit plans that provide no less
      coverage than such Benefit Plans, for a period of one year following the
      termination of employment; (C) reimbursement of any and all reasonable expenses
      paid or incurred by the Executive in connection with and related to the
      performance of his duties and responsibilities for the Company during the period
      ending on the termination date; and (D) the Base Salary, as in effect
      immediately prior to the Executive’s termination hereunder, and any bonuses
      earned, during the remainder of the Employment Period. All payments due
      hereunder shall be payable according to the Company’s standard payroll
      procedures. The Company shall deduct, from all payments made hereunder, all
      applicable taxes, including income tax, FICA and FUTA, and other appropriate
      deductions.

     

    (f) Without
      “Good Reason” by Executive or Without “Cause” by the Company.

     

    (1)
      By
      the
      Executive.
      At any
      time during the term of this Agreement, the Executive shall be entitled to
      terminate this Agreement and the Executive’s employment with the Company without
      Good Reason by providing prior written notice of at least 30 days to the
      Company. Upon termination by the Executive of this Agreement and the Executive’s
      employment with the Company without Good Reason, the Company shall have no
      further obligations or liability to the Executive or his heirs, administrators
      or executors with respect to compensation and benefits thereafter, except for
      the obligation to pay the Executive any earned but unpaid Base Salary, unused
      vacation days accrued through the Executive’s last day of employment with the
      Company and reimbursement of any and all reasonable expenses paid or incurred
      by
      the Executive in connection with and related to the performance of his duties
      and responsibilities for the Company during the period ending on the termination
      date. The Company shall deduct, from all payments made hereunder, all applicable
      taxes, including income tax, FICA and FUTA, and other appropriate
      deductions.

     

    (2)
      By
      the
      Company.
      At any
      time during the term of this Agreement, the Company shall be entitled to
      terminate this Agreement and the Executive’s employment with the Company without
      Cause by providing prior written notice of at least 30 days to the Executive.
      Upon termination by the Company of this Agreement and the Executive’s employment
      with the Company without Cause, the Company shall pay or provide to the
      Executive (or, following his death, to the Executive’s heirs, administrators or
      executors): (A) any earned but unpaid Base Salary, unpaid pro
      rata
      annual
      bonus and unused vacation days accrued through the Executive’s last day of
      employment with the Company; (B) continued coverage, at the Company’s expense,
      under all Benefits Plans in which the Executive was a participant immediately
      prior to his last date of employment with the Company, or, in the event that
      any
      such Benefit Plans do not permit coverage of the Executive following his last
      date of employment with the Company, under benefit plans that provide no less
      coverage than such Benefit Plans, for a period of one year following the
      termination of employment; (C) reimbursement of any and all reasonable expenses
      paid or incurred by the Executive in connection with and related to the
      performance of his duties and responsibilities for the Company during the period
      ending on the termination date; and (D) the Base Salary, as in effect
      immediately prior to the Executive’s termination hereunder, and any bonuses
      earned, during the remainder of the Employment Period. All payments due
      hereunder shall be payable according to the Company’s standard payroll
      procedures. The Company shall deduct, from all payments made hereunder, all
      applicable taxes, including income tax, FICA and FUTA, and other appropriate
      deductions.

     

    
      
        
        

      

      
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    11. Confidential
      Information.

     

    (a) Disclosure
      of Confidential Information.
      The
      Executive recognizes, acknowledges and agrees that he has had and will continue
      to have access to secret and confidential information regarding the Company,
      its
      subsidiaries and their respective businesses (“Confidential
      Information”),
      including but not limited to, its products, formulae, patents, sources of
      supply, customer dealings, data, know-how and business plans, provided such
      information is not in or does not hereafter become part of the public domain,
      or
      become known to others through no fault of the Executive. The Executive
      acknowledges that such information is of great value to the Company, is the
      sole
      property of the Company, and has been and will be acquired by him in confidence.
      In consideration of the obligations undertaken by the Company herein, the
      Executive will not, at any time, during or after his employment hereunder,
      reveal, divulge or make known to any person, any information acquired by the
      Executive during the course of his employment, which is treated as confidential
      by the Company, and not otherwise in the public domain. The provisions of this
      Section
      11
      shall
      survive the termination of the Executive’s employment hereunder.

     

    (b) The
      Executive affirms that he does not possess and will not rely upon the protected
      trade secrets or confidential or proprietary information of any prior
      employer(s) in providing services to the Company.

     

    (c) In
      the
      event that the Executive’s employment with the Company terminates for any
      reason, the Executive shall deliver forthwith to the Company any and all
      originals and copies, including those in electronic or digital formats, of
      Confidential Information.

     

    12. Non-Competition
      and Non-Solicitation.

     

    (a) The
      Executive agrees and acknowledges that the Confidential Information that the
      Executive has already received and will receive is valuable to the Company
      and
      that its protection and maintenance constitutes a legitimate business interest
      of the Company, to be protected by the non-competition restrictions set forth
      herein. The Executive agrees and acknowledges that the non-competition
      restrictions set forth herein are reasonable and necessary and do not impose
      undue hardship or burdens on the Executive. The Executive also acknowledges
      that
      the products and services developed or provided by the Company, its affiliates
      and/or its clients or customers are or are intended to be sold, provided,
      licensed and/or distributed to customers and clients in and throughout the
      United States (the “Territory”)
      (to
      the extent the Company comes to operate, either directly or through the
      engagement of a distributor or joint or co-venturer, or sell a significant
      amount of its products and services to customers located, in areas other than
      the United States during the term of the Employment Period, the definition
      of
      Territory shall be automatically expanded to cover such other areas), and that
      the Territory, scope of prohibited competition, and time duration set forth
      in
      the non-competition restrictions set forth below are reasonable and necessary
      to
      maintain the value of the Confidential Information of, and to protect the
      goodwill and other legitimate business interests of, the Company, its affiliates
      and/or its clients or customers.

     

    
      
        
        

      

      
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    (b) The
      Executive hereby agrees and covenants that he shall not, without the prior
      written consent of the Company, directly or indirectly, in any capacity
      whatsoever, including, without limitation, as an employee, employer, consultant,
      principal, partner, shareholder, officer, director or any other individual
      or
      representative capacity (other than a holder of less than two percent (2%)
      of
      the outstanding voting shares of any publicly held company), or whether on
      the
      Executive's own behalf or on behalf of any other person or entity or otherwise
      howsoever, during the Employment Period and thereafter to the extent described
      below, within the Territory: 

     

    (1)
      Engage,
      own, manage, operate, control, be employed by, consult for, participate in,
      or
      be connected in any manner with the ownership, management, operation or control
      of any business in competition with the business of the Company;

     

    (2)
      Recruit,
      solicit or hire, or attempt to recruit, solicit or hire, any employee, or
      independent contractor of the Company to leave the employment (or independent
      contractor relationship) thereof, whether or not any such employee or
      independent contractor is party to an employment agreement;

     

    (3)
      Attempt
      in any manner to solicit or accept from any customer of the Company, with whom
      the Company had significant contact during Executive’s employment by the Company
      (whether under this Agreement or otherwise), business of the kind or competitive
      with the business done by the Company with such customer or to persuade or
      attempt to persuade any such customer to cease to do business or to reduce
      the
      amount of business which such customer has customarily done or might do with
      the
      Company, or if any such customer elects to move its business to a person other
      than the Company, provide any services (of the kind or competitive with the
      Business of the Company) for such customer, or have any discussions regarding
      any such service with such customer, on behalf of such other person;
      or

     

    (4)
      Interfere
      with any relationship, contractual or otherwise, between the Company and any
      other party, including, without limitation, any supplier, distributor,
      co-venturer or joint venturer of the Company to discontinue or reduce its
      business with the Company or otherwise interfere in any way with the Business
      of
      the Company. 

     

    With
      respect to the activities described in Paragraphs
      (2),
      (3)
      and
(4)
      above,
      the restrictions of this Section
      12(b)
      shall
      continue beyond the Employment Period until one year following the termination
      of this Agreement or of the Executive’s employment with the Company, whichever
      occurs later. Furthermore, if the Company terminates Executive’s employment for
      Cause or if Executive terminates his employment without Good Reason, then the
      restrictions of this Section
      12(b)
      shall
      continue with respect to the activities described in Paragraph
      (1),
      above,
      beyond the Employment Period until one year following the termination of this
      Agreement or of the Executive’s employment with the Company, whichever occurs
      later.

     

    
      
        
        

      

      
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    13. Miscellaneous.

     

    (a) The
      Executive acknowledges that the services to be rendered by him under the
      provisions of this Agreement are of a special, unique and extraordinary
      character and that it would be difficult or impossible to replace such services.
      Furthermore, the parties acknowledge that monetary damages alone would not
      be an
      adequate remedy for any breach by the Executive of Section
      11
      or
Section 12
      of this
      Agreement. Accordingly, the Executive agrees that any breach or threatened
      breach by him of Section
      11
      or
Section 12
      of this
      Agreement shall entitle the Company, in addition to all other legal remedies
      available to it, to apply to any court of competent jurisdiction to seek to
      enjoin such breach or threatened breach. The parties understand and intend
      that
      each restriction agreed to by the Executive hereinabove shall be construed
      as
      separable and divisible from every other restriction, that the unenforceability
      of any restriction shall not limit the enforceability, in whole or in part,
      of
      any other restriction, and that one or more or all of such restrictions may
      be
      enforced in whole or in part as the circumstances warrant. In the event that
      any
      restriction in this Agreement is more restrictive than permitted by law in
      the
      jurisdiction in which the Company seeks enforcement thereof, such restriction
      shall be limited to the extent permitted by law. The remedy of injunctive relief
      herein set forth shall be in addition to, and not in lieu of, any other rights
      or remedies that the Company may have at law or in equity.

     

    (b) Neither
      the Executive nor the Company may assign or delegate any of their rights or
      duties under this Agreement without the express written consent of the other;
      provided,
      however,
      that
      the Company shall have the right to delegate its obligation of payment of all
      sums due to the Executive hereunder, provided that such delegation shall not
      relieve the Company of any of its obligations hereunder.

     

    (c) This
      Agreement constitutes and embodies the full and complete understanding and
      agreement of the parties with respect to the Executive’s employment by the
      Company, supersedes all prior understandings and agreements, whether oral or
      written, between the Executive and the Company, and shall not be amended,
      modified or changed except by an instrument in writing executed by the party
      to
      be charged. The invalidity or partial invalidity of one or more provisions
      of
      this Agreement shall not invalidate any other provision of this Agreement.
      No
      waiver by either party of any provision or condition to be performed shall
      be
      deemed a waiver of similar or dissimilar provisions or conditions at the same
      time or any prior or subsequent time.

     

    (d) This
      Agreement shall inure to the benefit of, be binding upon and enforceable
      against, the parties hereto and their respective successors, heirs,
      beneficiaries and permitted assigns.

     

    (e) The
      headings contained in this Agreement are for convenience of reference only
      and
      shall not affect in any way the meaning or interpretation of this
      Agreement.

     

    
      
        
        

      

      
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    (f) All
      notices, requests, demands and other communications required or permitted to
      be
      given hereunder shall be in writing and shall be deemed to have been duly given
      when personally delivered, sent by registered or certified mail, return receipt
      requested, postage prepaid, or by reputable national overnight delivery service
      (e.g. Federal Express) for overnight delivery to the party at the address set
      forth in the preamble to this Agreement, or to such other address as either
      party may hereafter give the other party notice of in accordance with the
      provisions hereof. Notices shall be deemed given on the sooner of the date
      actually received or the third business day after deposited in the mail or
      one
      business day after deposited with an overnight delivery service for overnight
      delivery.

     

    (g) This
      Agreement shall be governed by and construed in accordance with the internal
      laws of the State of New York without reference to principles of conflicts
      of
      laws and each of the parties hereto irrevocably consents to the jurisdiction
      and
      venue of the federal and state courts located in the County and State of New
      York.

     

    (h) This
      Agreement may be executed simultaneously in two or more counterparts, each
      of
      which shall be deemed an original, but all of which together shall constitute
      one of the same instrument. The parties hereto have executed this Agreement
      as
      of the date set forth above.

     

    (i) The
      Executive represents and warrants to the Company, that he has the full power
      and
      authority to enter into this Agreement and to perform his obligations hereunder
      and that the execution and delivery of this Agreement and the performance of
      his
      obligations hereunder will not conflict with any agreement to which Executive
      is
      a party.

     

    


    [Signature
      page follows immediately]

     

    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, the Executive and the Company have caused this Executive
      Employment Agreement to be executed as of the date first above
      written.

     

    
      	
              EZRA
                J. GREEN

            
	 
	
              /s/
                Ezra J.
                Green                                                   

            
	 
	 	 
	
              CLEAR
                SKIES HOLDINGS, INC.

            
	 	 
	
              By:

            	
              /s/
                Robert F.
                Parker                                      

            
	 	
              Name:
                Robert F. Parker

            
	 	
              Title:  
                Chief Operating Officer

            


    

    


    
      
        
        

      

      
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