Unassociated Document


    SETTLEMENT
      AGREEMENT AND RELEASE


    


    This
      SETTLEMENT AGREEMENT AND RELEASE (this “Agreement”) is entered into as of the
      8th
      day of
      November 2007, by and among CLEAR SKIES GROUP, INC., a New York corporation
      (the
      "Company") SUSTAINABLE PROFITABILITY GROUP, INC a New York corporation (“SPG”)
      and MAYUR V. SUBBARAO, an individual (“Subbarao”).

     

    WHEREAS,
      SPG and the Company entered into a consulting agreement, dated as of June 17,
      2005 (the “Consulting Agreement”), for certain services to be performed by SPG
      for certain compensation; and

     

    WHEREAS,
      pursuant to the Consulting Agreement, SPG is entitled to designate one member
      of
      the Board of Directors of the Company, and has designated Subbarao who was
      then
      elected to the Board of Directors and currently serves as a director of the
      Company; and

     

    WHEREAS,
      SPG provided notice of termination of the Consulting Agreement on or around
      February 16, 2007 and a disagreement exists regarding compensation which may
      be
      due SPG under the Consulting Agreement; and

     

    WHEREAS,
      SPG and the Company have made certain claims against each other concerning
      the
      responsibilities, performance and compensation under the Consulting Agreement,
      and Subbarao wishes to resign his board position; and

     

    WHEREAS,
      the parties hereto desire to settle, compromise and terminate forever all
      disputes among and between them, and to resolve any and all claims, causes
      of
      action, disputes and disagreements they may have against each other and to
      provide for the return of all Company property, including without limitation,
      documents, confidential information and trade secrets in possession of SPG
      and
      Subbarao.

     

    NOW
      THEREFORE, in consideration of the premises and the mutual agreements contained
      herein and for other good and valuable consideration, the receipt and
      sufficiency of which is hereby acknowledged, the parties hereto, intending
      to be
      legally bound do hereby agree as follows:

     

    
      	
              1

            	
              Immediate
                Payment.
                Simultaneously with SPG’s execution and delivery of this Agreement and the
                documents contemplated herein, the Company shall pay to SPG $250,000
                in
                immediately available funds, by check or wire transfer in full settlement
                of any and all claims under the Consulting Agreement against the
                Company.
                Payment by wire transfer shall be made to Frydman LLC’s trust account with
                the following wire instructions: Bank Name: ABA #: ; Acct Name: Acct.
                #: .
                The parties acknowledge that $85,000 of the payments are in satisfaction
                of cash fees claimed by SPG to be due to SPG under the Consulting
                Agreement.

            


    

     

    
      
        
        

      

      
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              2

            	
              Secured
                Promissory Note.
                Upon execution and delivery of this Agreement, Ezra Green (“Green”) shall
                deliver to SPG a promissory note in the form attached hereto as
                Exhibit
                A
                (the “Green Note”) and the share pledge and escrow agreement in the form
                attached hereto as Exhibit
                B
                (the “Pledge Agreement”) as payment in consideration of the purchase by
                Green of the Subject Shares (as hereinafter defined). Contemporaneously
                with the delivery of the Green Note, SPG and Subbarao shall be deemed
                to
                have transferred, conveyed and assigned their entire right, title
                and
                interest in and to all of the shares of common stock, preferred stock
                or
                other securities, including any and all rights to receive any securities
                through the exercise of any warrant, option or other right, of which
                SPG
                and Subbarao own or are entitled to, without any further action or
                agreement. SPG and Subbarao represent and warrant that 140,000 shares
                of
                common stock of the Company represent all of the shares of common
                stock of
                the Company owned or controlled, directly or indirectly, by SPG and/or
                Subbarao, or to which either of SPG and/or Subbarao claim any right
                or
                interest in (collectively, the “Subject Shares”). Transfer of ownership of
                the Subject Shares shall be recorded on the stock transfer records
                of the
                Company to Green or his designee as of the date of this Agreement
                and the
                secretary of the Company is authorized to record such transfer in
                the
                transfer records of the Company. The Subject Shares shall be delivered
                to
                the “Agent” pursuant to the terms of the Pledge Agreement and disposed of
                in accordance with the terms thereof for the benefit of pledgee,
                provided,
                however, that neither SPG nor Subbarao shall have any further claim
                or
                right, title or interest in or to the Subject Shares or any other
                shares
                or interests in or to any other securities of the
                Company.

            


    

     

    The
      Green
      Note shall be payable to SPG in the original principal amount of $150,000 and
      shall accrue interest at the fixed rate of eight (8%) percent per annum, simple
      interest. All unpaid principal and any accrued interest on the Green Note shall
      be due and payable on the date or dates set forth in the Green Note (the
“Maturity Date”); provided,
      however, that
      $50,000 of the original principal amount and accrued interest thereon (the
      “First Payment Amount”) shall be due and payable on January 2, 2008 (the “First
      Payment Date”). In the event that the First Payment Amount is not paid on or
      before the First Payment Date, then the full amount of unpaid principal and
      accrued interest outstanding under the Green Note shall become immediately
      due
      and payable five (5) days following written notice received by Green of
      non-payment of the First Payment Amount. Green may elect, in his sole
      discretion, to prepay all or any portion of the outstanding principal and/or
      interest on the Green Note at any time without premium or penalty. Upon payment
      in full of the Green Note the Pledge Agreement shall terminate and the Subject
      Shares remaining subject to the pledge, if any, shall be irrevocably delivered
      to Green and neither Green nor Company shall have any further obligation to
      SPG
      or Subbarao.

     

    The
      Pledge Agreement shall include terms providing for the possible sale, from
      time
      to time, by an independent agent named therein (who shall be selected by Green
      but shall be reasonably acceptable to SPG, provided that Stewart Management
      Company or Delaware Trust Company or its or their affiliates shall be deemed
      acceptable) through any means without further authorization of any person
      (including without any further authorization by SPG or Subbarao) of the Subject
      Shares, but shall not require such sale. The escrow agent shall have the
      authority to liquidate all or any portion of the Subject Shares pledged in
      any
      manner approved by Green, provided that the proceeds from any sales shall first
      be paid to SPG within five (5) days of receipt of funds by the agent to reduce
      the outstanding principal amount (and following payment of all principal, any
      accrued interest) under the Green Note. In the event of a default in the
      payment, when due, of the Green Note, either of interest payment on the Maturity
      Date or following the First Payment Date, the unsold Subject Shares pledged
      under the Pledge Agreement, if any, shall be delivered to SPG for sale by SPG
      in
      satisfaction of the amounts due and any excess returned to Green. Upon payment
      in full of the Green Note, including all accrued interest thereon, all unsold
      Subject Shares shall be immediately delivered to Green or his
      designee.

     

    
      
        
        

      

      
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    The
      descriptions of the Pledge Agreement and Green Note are by way of summary only
      and the terms of the Pledge Agreement and Green Note shall control. The Pledge
      Agreement and Green Note, and the rights and obligations thereunder, are
      intended to be wholly independent from and independently enforceable from any
      provisions, performance or claim of nonperformance of this
      Agreement.

     

    
      	
              3

            	
              Cancellation
                of Warrant.
                The Company shall have no obligation to issue or deliver any warrants
                pursuant to the Consulting Agreement (the “Warrants”). Any right of SPG or
                Subbarao to receive any Warrants is hereby cancelled and of no force
                or
                effect. SPG and Subbarao hereby waive any and all claims to entitlement
                to
                the issuance of any warrants or options to receive any securities
                of the
                Company.

            


    

     

    
      	
              4

            	
              Representations,
                warranties and agreements of Subbarao and SPG.

            


    

     

    4.1 
      Each of
      Subbarao and SPG represent and warrant, jointly and severally, that other than
      (i) 100,000 shares of common stock of the Company held by SPG, (ii) 40,000
      shares of common stock of the Company held by Subbarao and (iii) any claim
      or
      interest in the Warrants asserted by SPG, Subbarao and SPG which have been
      released hereby they do not, directly or indirectly, own any securities of
      the
      Company or any interest therein. Subbarao and SPG agree that for a period of
      one
      (1) year following the date of this Agreement they shall not own or acquire,
      directly or indirectly, any securities of the Company, directly or
      indirectly.

     

    4.2 Each
      of
      Subbarao and SPG represent and warrant, jointly and severally, that, neither
      the
      Subject Shares, any claims or rights to receive Warrants nor any interest in
      or
      to the Subject Shares or the Warrants, nor any rights under the Consulting
      Agreement have been transferred, assigned, endorsed, pledged, hypothecated
      or
      otherwise encumbered in any manner whatsoever, and no person or entity has
      any
      right, claim or interest (legal, equitable or otherwise) in or to the Subject
      Shares, the Warrants, any shares issuable upon exercise of the Warrants or
      under
      the Consulting Agreement.

     

    4.3 SPG
      represents and warrants that the execution and delivery of this Agreement has
      been duly authorized and is the valid and binding obligation of SPG, enforceable
      in accordance with its terms.

     

    4.4 The
      representations and warranties of each of Subbarao and SPG set forth in this
      Agreement shall survive the closing of this Agreement.

     

    
      
        
        

      

      
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              5

            	
              Representations
                of the Company.
                The Company represents and warrants that the execution and delivery
                of
                this Agreement has been duly authorized and is the valid and binding
                obligation of the Company, enforceable in accordance with its terms,
                except as such enforcement may be limited by the laws of bankruptcy
                or
                insolvency and with respect to enforceability of rights of creditors
                generally. The representations and warranties of the Company set
                forth in
                this Agreement shall survive the closing of this
                Agreement.

            


    

     

    
      	
              6

            	
              Delivery
                of Shares.
                

            


    

     

    6.1 Immediately
      upon execution of this Agreement, SPG and Subbarao shall deliver to Green the
      original stock certificates of the Company representing the Subject Shares,
      with
      executed stock powers attached, irrevocably transferring the Subject Shares
      to
      Green for delivery to the transfer agent for deposit pursuant to the Pledge
      Agreement.

     

    6.2 Immediately
      upon execution of this Agreement and the surrender of the certificates
      representing the Subject Shares in accordance with Section 6.1, the Company
      shall issue a certificate representing the Subject Shares in the name of Green
      or the escrow agent named in the Pledge Agreement (who shall vote such shares
      only upon the direction of Green) and deliver such certificate to be held in
      accordance with the Pledge Agreement. The Company and its successors, including
      any public company which may succeed to the business of the Company, shall
      issue
      or pay to the Escrow Agent or SPG as applicable any securities or payments
      replacing or representing a dividend, conversion or other byproduct of a
      transaction effecting the Subject Shares. 

     

    
      	
              7

            	
              Resignation
                of Subbarao.
                Upon the execution of this Agreement and payment of the amount as
                provided
                in Section 1 hereof, Subbarao’s resignation from the Board of Directors
                and any and all offices and positions of the Company and any of its
                subsidiaries or affiliated companies shall become immediately
                effective.

            


    

     

    
      	
              8

            	
              Company
                Information and Property.
                Each of Subbarao and SPG agrees to immediately return to the Company
                all
                documents, including electronic documents, supplied by the Company
                and all
                Company property in whatever form held in his or its possession including,
                but not limited to, Company reports, customer lists, supplier lists,
                consultant lists, formulas, files, manuals, memoranda, computer equipment,
                access codes, discs, software, and any other Company business information
                or records (including without limitation, tapes and transcripts,
                agenda,
                minutes reports and other written material or notes related thereto),
                in
                any form in which they are maintained, including records or information
                regarding Company customers, suppliers and vendors, pricing, products
                a
                development plans, budgets, business affairs and operations and agrees
                that he and it will not retain any copies, duplicates, reproductions,
                or
                excerpts thereof in any form. Each of Subbarao and SPG further agrees
                that
                he and it will not, in any manner, disclose or make use of any Company
                property or information. Each party represents that they will not
                disparage or make any negative, derogatory or defamatory statements
                about
                the other, their existing or planned business practices or activities,
                or
                about any former, current or future officer, director, consultant,
                agent,
                employee or representative of the other to any person. Each of Subbarao,
                SPG, the Company and Green acknowledge that any breach of this
                nondisparagement agreement would cause irreparable injury to the
                other for
                which there is no adequate remedy at law and in addition to any remedies
                that may be available in the event of a breach or threatened breach
                of
                this Section 8 the offended party shall be entitled to obtain a temporary
                restraining order and/or a preliminary or permanent injunction which
                would
                prevent violations of the provisions of this Section 8. In seeking
                such an
                order, any requirement to post a bond or other undertaking shall
                be
                waived. The terms of this nondisparagement will not apply to statements
                made under oath which are required in connection with any legally
                compelled statement, provided not less than 5 business days advance
                notice
                of such is provided the other party.


            


    

     

    
      
        
        

      

      
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              9

            	
              Mutual
                Release.
                All parties to this Agreement and any of their respective agents,
                representatives, attorneys, heirs, estates, successors and assigns
                (on
                their own behalf and which shall also be binding on behalf of such
                other
                persons) (in such capacity, the “Releasor”) hereby irrevocably, fully, and
                finally, without further word, deed, action, execution, or further
                documentation release the other, together with its officers, directors,
                employees, agents and stockholders and each of their respective agents,
                representatives, attorneys, heirs, estates, successors, assigns and
                affiliates (in such capacity, collectively, “Releasees”) from any and all
                claims, actions, causes of action, suits, debts, accounts, reckonings,
                covenants, contracts, controversies, agreements, promises, damages,
                expenses, demands and other obligations or liabilities of any nature
                whatsoever, in law or equity, whether known or unknown, which any
                Releasor
                ever had or now has against any of the Releasees, for, upon, or by
                reason
                of, any matter, course or thing whatsoever from the beginning of
                the world
                to the date of this Agreement relating to or arising out of the Consulting
                Agreement or by reason of any dealings the parties may have had with
                one
                another up until the date hereof. Nothing contained within this Agreement
                shall be deemed to release or discharge any representation, warranty
                or
                other obligation undertaken in this Agreement by any of the parties
                hereto.

            


    

     

    
      	
              10

            	
              Indemnification.
                

            


    

     

    10.1 In
      addition to any indemnification rights Subbarao may be entitled to under the
      Certificate of Incorporation or Bylaws of the Company and pursuant to applicable
      statutes, the Company shall indemnify Subbarao to the full extent permitted
      by
      law so that the Company, among other things, indemnifies and saves and holds
      harmless Subbarao from and against any and all claims, demands, liabilities,
      losses, costs and expenses, including judgments, fines, penalties, damages
      or
      amounts paid on account thereof (whether in settlement or otherwise) including
      reasonable attorneys’ fees as incurred as a result of any action, proceeding,
      investigation, subpoena or inquiry relating to Subbarao’s services as a director
      of the Company or service with any other corporation, partnership, joint
      venture, trust, employee benefit plan or other enterprise in any capacity at
      the
      request of the Company; unless the final judgment of an action in which Subbarao
      is a party finds that Subbarao engaged in intentional or illegal misconduct
      while conducting his duties as a member of the Company’s Board of Directors. In
      the event that any valid claim to indemnification is asserted hereunder,
      Subbarao shall be entitled to advancement of his actual costs and expenses
      (including reasonable attorneys’ fees as incurred) upon execution of an
      undertaking to reimburse the Company in the event that it is found that Subbarao
      was not entitled to indemnification as provided herein. Subbarao agrees that
      he
      will not settle any matter for which he shall seek and has been granted
      indemnification without the written consent of the Company. 

     

    
      
        
        

      

      
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    10.2 Each
      of
      SPG and Subbarao represents and warrants, jointly and severally, that except
      for
      the issues arising out of or relating to the Consulting Agreement, they know
      of
      no pending or threatened claim, suit or action against the Company or any of
      its
      officers, directors, or employees, or of any pending or threatened proceeding
      or
      investigation by any governmental or regulatory agency of such persons, nor
      of
      any basis upon which any such claim, suit or action or regulatory proceeding
      could be asserted.

     

    
      	
              11

            	
              Cooperation.
                It is further agreed by all parties that in addition to any express
                obligation set forth herein, they shall execute whatever additional
                documents or agreements may be necessary or desirable to effectuate
                the
                intent and purposes of this
                Agreement.

            


    

     

    
      	
              12

            	
              No
                Admission of Liability.
                It is expressly agreed and understood that this Agreement shall not
                constitute or be deemed an admission of liability by any party hereto
                but
                is designed solely to amicably resolve claims and disputes between
                and
                among the parties.

            


    

     

    
      	
              13

            	
              Governing
                Law, Jurisdiction and Venue.
                This Agreement shall be governed by and construed in accordance with
                the
                internal laws of the State of New York, without giving effect to
                principles of conflicts of laws. Actions or proceedings relating
                to this
                Agreement may only be brought in a state or federal court sitting
                in New
                York County, New York, and each of the parties irrevocably consents
                to the
                jurisdiction of such courts in any such action or proceeding. Each
                of the
                parties to this Agreement further agrees to accept service of process
                in
                any action or proceeding relating to this Agreement by the delivery
                of
                such process in the manner designated in Section 16 of this
                Agreement.

            


    

     

    
      	
              14

            	
              Successors
                and Assigns.
                Except as otherwise expressly provided herein, the provisions hereof
                shall
                inure to the benefit of and be binding upon the parties hereto and
                their
                respective heirs, successors and permitted
                assigns.

            


    

     

    
      	
              15

            	
              Entire
                Agreement; Amendment.
                This Agreement constitutes the full and entire understanding and
                agreement
                among the parties with regard to the subject matter hereof. Neither
                this
                Agreement nor any term hereof may be amended, waived, discharged
                or
                terminated except by a written instrument signed by all of the parties.
                Except for any indemnification provisions contained in the Certificate
                of
                Incorporation or Bylaws of the Company, this Agreement supersedes
                any and
                all prior agreements and negotiations between the parties hereto
                and
                supersedes any and all obligations the parties hereto may have to
                one
                another under any prior agreements, including, without limitation,
                the
                Consulting Agreement.

            


    

     

    
      	
              16

            	
              Notices.
                Any notices, demands and other communications to be given or delivered
                hereunder shall be in writing and shall be deemed to have been given
                when
                delivered personally or when mailed by certified or registered mail,
                return receipt requested and postage prepaid, or by a nationally
                recognized overnight courier service and addressed to the addresses
                of the
                respective parties set forth below or to such changed address for
                any
                party as such party may have fixed by notice sent in accordance with
                this
                Section 16:

            


    

     

    
      
        
        

      

      
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    If
      to the
      Company or Green, to:

     

    Clear
      Skies Group, Inc

    5020
      Sunrise Highway, Suite 227

    Massapequa
      Park, NY 11762

     

    with
      a
      copy to:

     

    Haynes
      and Boone, LLP

    153
      East
      53rd Street, Suite 4900

    New
      York,
      New York 10022 

    Attention:
      Harvey J. Kesner, Esq.

     

    If
      to SPG
      or Subbarao, to:

     

    Sustainable
      Profitability Group, Inc

    18
      Millbrook Terrace

    New
      Paltz, NY 12561

     

    with
      a
      copy to:

     

    Frydman
      LLC

    18
      East
      48th Street, 10th Floor

    New
      York,
      NY 10017

    Att:
      David S. Frydman, Esq.

     

    
      	
              17

            	
              Disclosure.
                The parties shall not disclose, directly or indirectly, the terms
                and
                existence of this Agreement or the negotiations or underlying facts
                that
                led up to this Agreement, except to their attorneys and accountants
                and to
                the extent such disclosure is required to be made by compulsion of
                legal
                process or to enforce the terms of this Agreement and the agreements
                contemplated herein under any applicable law, rule or regulation.
                Notwithstanding the foregoing, either party may disclose such matters
                as
                are necessary or appropriate to be disclosed in any report or other
                document required to be filed with the Securities and Exchange Commission
                and any drafts of such documents. 

            


    

     

    
      	
              18

            	
              Costs
                and Expenses.
                The parties agree that each is to bear its own costs and expenses,
                including attorneys’ fees, in connection with this Agreement. In the event
                that either party brings an action for enforcement of any of the
                terms or
                provisions of this Agreement that is unsuccessful, the prevailing
                party
                shall be paid all of the costs and expenses (including reasonable
                attorneys fees) incurred in defense of such
                action.

            


    

     

    
      	
              19

            	
              Construction.
                The parties have mutually participated in the drafting of this Agreement,
                and neither this Agreement nor any Section hereof shall be construed
                against any party due to the fact that it was drafted by said
                party.

            


    

     

    
      	
              20

            	
              Counterparts.
                This Agreement may be executed in any number of counterparts, each
                of
                which shall be an original, but all of which together shall constitute
                one
                instrument. Facsimile signatures shall be deemed
                originals.

            


    

     

    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
      day
      and year first written above.

     

    
      	 	 	 
	 	CLEAR
              SKIES GROUP, INC.
	 
 	 
 	 
 
	 	By:  	/s/ Ezra
              Green                                                                            
              
	 	
            
	 	
              Name: Ezra
                Green

              Title:  
                 Chief Executive Officer

            


    

    
      	 	 	 
	 	 	 
	 	SUSTAINABLE
              PROFITABILITY GROUP, INC.
	 
 	 
 	 
 
	 	By:  	/s/
              David
              Dell                                                                             
              
	 	
            
	 	
              Name: David
                Dell

              Title: 
                 President
                and Chief Executive Officer

            


      	 	 	 
	 	/s/
              Mayur V.
              Subbarao                                                                    
	 	Mayur
              V. Subbarao
	 	
            


    

    


    AGREED
      AND ACCEPTED WITH RESPECT TO PARAGRAPHS 2, 8 AND 9 ONLY:

    

      

        
          	/s/
                  Ezra
                  Green                	 
	
                  Ezra
                    Green

                


        

         

        
          
            
            

          

          
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