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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 ROBERT PARKER, an individual residing at 108 East 96th Street,
Apartment 5F, New York, New York 10128 (“
Executive ”).
WITNESSETH:
WHEREAS,
the Executive desires to be employed by the Company as its
Chief Operating Officer 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 Operating Officer. 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 $125,000. 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.
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.
(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.
(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 Agre
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