EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.7
This
Executive Employment Agreement ("Agreement") is made this 29 day of June,
2006
by and between Sun Energy Solar, Inc., a Delaware corporation with offices
located at 0000 Xxxxxxxxxx Xx., Xxxxx 000, Xxxxxxxx, Xxxxxxx, 00000 (the
"Company") and Xxxxxxx X. Xxxx, residing at 0000 Xxxxxxxxx Xxxxx Xxxx.,
Xxxxxxxx, Xxxxxxx 00000 (“Executive).
WHEREAS,
the Company has created certain intellectual property ('"Intellectual
Property"), is pursuing patents for some of such Intellectual Property and
is
developing products ("Products") based on the Intellectual Property (the
"Business Venture");
WHEREAS,
the Company desires to engage Executive as its Chief Financial
Officer;
NOW
THEREFORE, in consideration of the mutual covenants hereinafter contained,
the
parties hereto agree as follows:
AGREEMENT:
1.
Employment; Duties. The Company shall employ Executive as Chief Financial
Officer and Executive accepts such employment under the terms and conditions
set
forth in this Agreement. Executive's duties shall be consistent with those
of a
Chief Financial Officer as defined from time to time by the Company’s Board of
Directors (the "Board").
2.
Full-Time Best Efforts.
(a)
Time and Effort. Executive shall devote Executive full professional
time and attention to 'the performance of Executive's obligations under this
Agreement, and shall at all times faithfully, industriously and to the best
of
Executive's ability, experience and talent perform all of Executive's
obligations hereunder. So long as this Agreement is in effect, Executive
shall
not be employed or engaged by any other person or firm other than the Company
unless otherwise authorized in writing by the Board.
(b)
Performance Standards; Underperformance. Within 30 days after the
Effective Date, the Company, through its Board of Directors, shall establish
performance expectations and standards, which shall (i) be reasonably acceptable
to Executive, (ii) may change from time to time as the needs of the Company
change) and (iii) shall serve as a basis to evaluate Executive’s performance
from time to time. Within six months following the Effective Date, and at
least
annually thereafter, the Chief Executive, President and Board of Directors
shall
meet in order for the Chief Executive to provide a formal evaluation of
Executive’s performance. “Underperformance” shall mean Executive's failure to
meet some or all of the then-current performance expectations and standards,
and
can be the basis for a change in job description, salary and benefits, or
termination of Executive's employment under this Agreement.
3.
Term. The term of this Agreement shall begin on the Effective Date and
shall end on the first anniversary of the Effective Date (the '"Initial Term")
unless terminated prior to that date as provided herein. Unless 60 days’ advance
written notice is given by one party to the other regarding termination of
Executive’s employment hereunder, at the expiration of the Initial Term, and any
renewal term, the term of this Agreement shall automatically extend for an
additional one year.
4.
Compensation and Benefits. The Company shall pay compensation to Executive
consisting of an annual base salary, bonuses and other, benefits as described
in
this Agreement. In addition to the financial compensation and benefits set
forth
below, Executive shall be reimbursed for any approved business-related expenses
and shall receive vacation, sick leave, and other time off as is customary
and
usual for executives of Executive's status ill the Company.
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(a)
Base Salary. Executive's annual base salary as of the Effective Date is
$100,000. Executive's base salary shall be reviewed annually in conjunction
with
Executive's annual performance review and may be adjusted as appropriate
in
light of Executive's performance. Executive's annual base salary shall be
paid
in a manner so as not to violate Section 16(b) short swing profit rules
resulting in payment back to the Company, and payment shall not be made until
year of service has been completed.
(b)
Incentive Compensation. The Company shall pay Executive the following
as Incentive Compensation, in addition to Base Salary:
i.
As of
November 9, 2005, Executive is the owner of two million (2,000,000) shares
of
common stock of the Company. If this Agreement is terminated prior to May
29th, 2007,
then Executive understands and agrees that Executive must return one million
(1,000,000) shares to the Company Treasury.
ii.
For
each year of service during the term of this Agreement, beginning May 29th, 2007,
including
Extensions, Executive shall be entitled to receive one million (1,000,000)
shares of restricted common stock of the Company.
(c)
Benefits. Executive shall be entitled to participate in such insurance,
disability, medical, dental, pension, profit sharing and retirement plans
and
other programs as may be made generally available from time to time by the
Company for the benefit of executives of Executive's level or its employees
generally (the "Benefits").
5.
Documents and Materials. Executive shall not (except in the performance of
Executive’s duties in the ordinary course of business for which Executive is
employed by the Company) at any time or in any manner make or cause to be
made
any copies, or other reproductions or recordings or any abstracts or summaries
of any reports, studies, memoranda, correspondence, manuals, records, plans
or
other written, printed, computerized or otherwise recorded materials of any
kind
or nature whatsoever belonging to or in the possession of the Company or
any of
its Affiliates. Immediately upon the termination of Executive's employment
with
the Company or at any time upon the request of the Company, Executive shall
surrender all such material to the Company and execute a document acknowledging
that Executive has complied with the provisions of this Agreement.
6.
Proprietary Information. Executive shall not at any time, whether during or
after the term of this Agreement, use for Executive's own benefit or purposes
or
for the benefit or purposes of any other person or entity, or disclose (except
in the performance of Executive's duties in the ordinary course of business
for
which Executive is employed by the Company) in any manner to any person or
any
entity, any Proprietary Information. As used in this agreement, Proprietary
Information shall mean trade secrets, information) data, know how or knowledge
(including, but not limited to, that relating to service techniques, purchasing
and sales organization and methods, inventories) client lists, market
development and expansion plans, personnel training and development programs
and
client and supplier relationships)) technology, developments, designs,
techniques, inventions (whether or not patentable or reduced to practice),
devices, or procedures, whether or not conceived of, created or developed,
and/or first reduced to practice solely by Executive or jointly by Executive
and/or Company its employees, subcontractors or agents or any other Discoveries
(as defined in Section 8) belonging to or relating to the affairs of the
Company
or any of its Affiliates or to the clients of the Company or any of its
Affiliates; provided, however, that this Section 6 shall not apply to any
trade
secret, information, data, know how Discoveries or knowledge that is or becomes
generally available to the public through no fault or action of
Executive.
7.
Customers and Vendors. In furtherance of and not in limitation of Section
6, Executive acknowledges that the lists of the Company's and its Affiliates'
customers and vendors as they may exist from time to time constitute a valuable
and unique asset of the Company, and Executive shall not, during or after
the
term of Executive's employment, disclose such lists or any part there of
to any
person or entity for any reason whatsoever, nor shall Executive use such
customer or vendor lists for Executive's own benefit or purposes or for the
benefit or purposes of any business with whom Executive may become
associated.
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8.
Discoveries. Any and all inventions) discoveries, improvements, designs,
methods, systems, developments, know how, ideas, suggestions, devices, trade
secrets and processes (collectively, "Discoveries"), whether patentable or
not,
which are discovered, disclosed to or otherwise obtained by Executive during
Executive’s employment with the Company, are confidential, proprietary
information and are the sole and absolute property of the Company. Executive
shall immediately disclose and hereby assigns to the Company all such
Discoveries and shall assist the Company in making any application in the
United
States and in foreign jurisdictions for patents of any kind with respect
thereto. Whenever requested to do so by the Company, Executive shall execute
any
and all applications, assignments, or other instruments that the Company
may
deem necessary to protect the Company's interest therein. Notwithstanding
the
fact that the Company may request additional assignment and assistance in
applications, the assignments made in this Section 8 are adequate to cause
an
assignment of Executive's interesting Discoveries.
9.
Works for Hire. All works and writings of a professional nature that are
produced by Executive during Executive's employment with the Company constitute
works made for hire and are the sole and absolute property of the Company.
Executive grants the Company the exclusive right to copyright all such works
and
writings in the United States and in foreign jurisdictions. To the extent
any
such works or writings are deemed to not be works for hire, Executive hereby
assigns all of interests therein to the Company or its nominee. Whenever
requested to do so by the Company, Executive shall execute any and all
applications, assignments, or other instruments that the Company may deem
necessary to protect the Company's interest therein. Notwithstanding the
fact
that the Company may request additional assignments and assistances in
applications, the assignments made in this Section 9 are deemed to be adequate
to cause an assignment of Executive's interest in works or
writings.
10.
Non-Disclosure Agreement. The parties acknowledge entering into a separate
nondisclosure agreement relating to the Company’s proprietary information,
attached as Exhibit A (Non-Disclosure Agreement). The terms of the
Non-Disclosure Agreement are incorporated herein by this reference. In the
event
of a conflict between the Non-Disclosure Agreement and this Agreement, the
terms
providing greater protection to the Company and its proprietary information
shall be determinative.
11.
Non-Competition.
(a)
Corporate Relationship. Executive acknowledges (i) that Executive's
employment as a member of the Company's executive management team creates
a
relationship of confidence and trust between Executive and the Company with
respect to confidential and proprietary information applicable to the business
of the Company, its Affiliates and its clients, and (ii) the highly competitive
nature of the business of the Company. Accordingly, the Company and Executive
agree that the restrictions contained in this Section 11 are reasonable and
necessary for the protection of the immediate interests of the Company and
that
any violation of these restrictions would cause substantial injury to the
Company.
(b)
Competitive Business Defined. For purposes of this Agreement, the term
"Competitive Business" means business which is similar to or competitive
with
the business of the Company with respect to which Executive has had direct
responsibility.
(c)
Existing Client Defined. For purposes of this Agreement, the term
"Existing Client” means a client for whom the Company or any of its Affiliates
is performing services or marketing products as of the date of the
termination of Executive's employment with the Company or for whom the Company
or any of its Affiliates performed services or marketed products within the
two year period immediately preceding the termination of Executive's
employment with the Company.
(d)
Noncompetition. During Executive’s employment with the Company and for
a period of one (1) year following the termination of Executive's employment
with the Company for any reason (other than termination by Executive for
Good
Reason during the first twelve (12) months of Executive's employment), Executive
shall not:
i.
own,
manage, operate, control, have any financial interest in, or lend Executive’s
name to any person or entity engaged in, a Competitive Business or cause
others
to Or assist others in engaging in any Competitive Business in the foregoing
manner;
ii.
employ or otherwise engage, or attempt to employ or otherwise engage, in
or on
behalf of Executive or any Competitive Business, any person who is employed
or
engaged as an employee, consultant, agent or representative of the Company
or
any of its Affiliates as of the date of Executive's termination or at time
during the one-year period following such termination; or
iii.
solicit directly or indirectly on behalf of Executive or any Competitive
Business, the customer business or account of any Existing Client.
(e)
Specific Enforcement. The foregoing covenants shall be specifically
enforceable; provided, however, that the covenants shall not be construed
to
prohibit ownership of not more than 5% of the equity of any publicly held
entity
engaged in direct competition with the Company, so long as the Executive
is not
otherwise engaged with such entity in any of the other activities specified
in
the foregoing clauses.
(f)
Severability. If any court shall determine that any provision of this
Section 11 is unreasonable arbitrary or against public policy, such covenant
will be considered to be divisible with respect to scope, time, and geographic
area, and such lesser scope, time, or geographic area) or all of them, as
a
court of competent jurisdiction may determine to be reasonable, not arbitrary,
and not against public policy, will be effective, binding, and enforceable
against Executive.
(g)
Employability. Executive acknowledges (i) that Executive has sufficient
abilities and talents to be able to obtain, upon the termination of Executive's
employment, comparable employment from another business while fully honoring
and
complying with the above covenants concerning confidential information and
contacts with the Company’s or any of its Affiliates' customers or employees,
and (ii) the importance to the Company and its Affiliates of the above
covenants. Accordingly, for a period of one (1) year following the termination
of Executive's employment with the Company and upon the Company's reasonable
request of Executive, Executive shall advise the Company of the identity
of
Executive's new employer and shall provide a general description in reasonable
detail, of Executive’s new duties and responsibilities sufficient to inform the
Company of its need to request a court order to enforce the above
covenants.
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(h)
Remedies. The parties acknowledge that the damages sustained by the
Company or its Affiliates as a result of a breach of the agreements contained
herein will subject the Company or its Affiliates to immediate, irreparable
harm
and damage) the amount of which, although substantial, cannot be reasonably
ascertained, and that recovery of damages at law will not be an adequate
remedy.
Executive therefore agrees that the Company and its Affiliates, in addition
to
any other remedy they may have under this Agreement or at law, shall be entitled
to injunctive and other equitable relief to prevent or curtail any breach
of any
provision of this Agreement. If an action is instituted to enforce this
Agreement or any of the terms and conditions hereof, including, but not limited
to, suit for preliminary injunction, the prevailing party shall be entitled
to
costs and reasonable attorneys' fees. Executive waives any right to the posting
of a bond in the event of an issuance of a temporary restraining order)
preliminary injunction or permanent injunction upon the issuance of said
order
by a court of competent jurisdiction.
12.
Disability. The Company may terminate this Agreement upon written notice to
Executive if Executive is physically or mentally incapacitated and unable
to
perform Executive’s duties under this Agreement for a period of (i) any 180 days
out of any 360 days, if the Common Stock of the Company is not then publicly
traded, or (ii) 90 out of any 180 days if the Common Stock of the Company
is
then publicly traded. If at any time a question arises as to the incapacity
of
Executive, then the Company shall promptly employ one physician who is a
member
of the American Medical Association and who is reasonably acceptable to
Executive to examine Executive and determine if Executive's physical or mental
condition is such as to render Executive unable to perform Executive's duties
under this Agreement. The decision of the physician shall be certified in
writing to the Company, shall be sent by the Company to Executive or Executive's
representative and shall be conclusive for purposes of this Agreement. Any
compensation payments payable to Executive hereunder shall be reduced by
the
amount of any disability payments Executive receives as a result of disability
policies on which the Company has paid the premiums.
13.
Death During Employment. This Agreement shall terminate upon Executive’s
death, and the Company shall pay a death benefit equal to Executive’s base
monthly salary for the balance of the month of Executive's death and for
three
months following Executive's death. Such amounts shall be paid to the
beneficiary named in writing by Executive, or if none, to Executive’s surviving
spouse, or if none, to the executors and administrators of Executive's estate
and shall be paid within 60 days after Executive's death.
14.
Termination for Other Than for Disability or Death.
(a)
By the Corporation. The Company may terminate Executive's employment
under this Agreement prior to the expiration of the Initial Term or any renewal
term as follows:
(i).
immediately upon the showing of Cause. For purposes of this Agreement “Cause”
shall mean (a) Executive's breach of this Agreement, if the Executive has
been
given a reasonable opportunity to cure his breach (which reasonable opportunity
must be granted during the fourteen (14)-day period preceding termination
of
this Agreement); (b) Executive's failure to adhere to any written Company
policy
if the Executive has been given a reasonable opportunity to comply with such
policy or cure his failure to comply (which reasonable opportunity must be
granted during the fourteen (14)-day period preceding termination of this
Agreement); (c) misrepresentation or concealment of a material fact for the
purpose of securing or maintaining employment with the Company; (d) the
appropriation (or attempted appropriation) of a material business opportunity
of
the Company, including attempting to secure or securing any personal profit
in
connection with any transaction entered into on behalf of the Company; (e)
the
misappropriation (or attempted misappropriation) of any of the Company's
funds
or property; (f) the conviction of, the indictment for (or its procedural
equivalent), or the entering of a guilty plea or plea of no contest with
respect
to, violation of a securities law or a felony, the equivalent thereof, or
any
other crime with respect to which imprisonment is a possible punishment;
(g)
violation of the policies of the Company with respect to non-discrimination,
sexual harassment, or similar policies affecting workers and the workplace;
or
(h) a breach of Sections 6 through 11 of this Agreement.
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(b)
By Executive. Executive may terminate employment under this Agreement
upon 30 days’ written notice to the Company. An Executive's termination shall be
deemed for "Good Reason” if such termination is due to: (i) a change materially
adverse to Executive in the nature of scope of Executive’s position, status,
responsibilities or duties with the Company as they existed as of the Effective
Date (other than for Underperformance), (ii) a material reduction by the
Company
in Executive's base salary as in effect on the Effective Date or as the same
may
be increased from time to time, other than pursuant to an across the board
reduction of an equal or greater percentage affecting all of the Company's
executive officers or due to Underperformance; Or (iii) a change, exceeding
a
fifty-mile radius, in Executive's principal work location established on
the
Effective Date, except for required travel on the Company's business to an
extent substantially consistent with business travel obligations of the other
officers of the Company.
(c)
Termination Obligations. Upon termination of Executive's employment
with the Company, the Company shall have no further obligation to Executive
except as specifically provided under this Agreement; provided, however,
that
termination of Executive’s employment shall not affect right to receive any
compensation Or bonuses which have accrued but have not been paid through
the
date of termination. Executive shall return to the Company any and all equipment
including, without limitation, electronic equipment, keys, credit cards,
and the
like, owned by the Company and used by Executive.
(d)
Severance. Upon the termination of Executive's employment with the
Company under this Section 14 prior to the expiration of the Initial Term
(A) by
the Company for reasons other than Cause or Underperformance, or (B) by
Executive for Good Reason, the Company shall pay Executive a severance benefit
equal to 50% of the annual base salary Executive would have received if
Executive had remained in the employ of the Company through the end of the
Initial Term, but no other Benefit. Any such payment due to Executive shall
be
paid in cash or by check on the same dates on which Executive would otherwise
have received payment of Executive’s annual base salary hereunder if employment
had continued.
(e)
Withholding Tax. The Company shall be entitled to withhold from any
compensatory payments that it makes to Executive under this Agreement or
otherwise an amount sufficient to satisfy all state and local income and
employment tax withholding requirements with respect to any and all compensation
paid to Executive by the Company.
15.
No Conflicting Agreements. Executive represents and warrants that he is
not a party to any agreement, contract or understanding, whether employment
or
otherwise which would in any way restrict or prohibit him from undertaking
or
performing employment in accordance with the terms and conditions of this
Agreement.
16.
Arbitration. Except for (i) any claim for unemployment compensation or
workers' compensation, and (ii) any relief sought for breach by Executive
of
Sections 6-11 and/or under Section 20 of this Agreement, in which case a
claim
may be brought before any court in the State of Florida having jurisdiction
over
the matter, any controversy or claim arising out of or related to this Agreement
shall be settled by arbitration in Florida under the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association
in
effect at the same time such controversy or claim arises (the “rules”) by one
arbitrator appointed by the American Arbitration Association in accordance
with
the Rules, the arbitrator also apportioning the costs of arbitration. The
award
of the arbitrator shall be in writing, shall be final and binding upon the
parties, shall not be appealed from or contested in any court and may, in
appropriate circumstances, include injunctive relief. Should a party fail
to
appear or be represented at the arbitration proceedings after due notice
in
accordance with the Rules, then the arbitrator may nevertheless render a
decision in the absence of such party, and such decision shall have the same
force and effect as if the absent party had been present, whether or not
it
shall be adverse to the interests of such party. Any award rendered hereunder
may be entered for enforcement, if necessary, in any court of competent
jurisdiction, and the party against whom enforcement is sought shall bear
the
expenses, including attorneys fees, of enforcement.
17.
Survival. The covenants contained in this Agreement shall survive any
termination of Executive's employment with the Company and any termination
of
this Agreement. The existence of any claim or cause of action of Executive
against the Company, whether predicated on this Agreement or otherwise, shall
not constitute a defense to the enforcement by the Company of any of the
covenants contained in this Agreement.
18.
Severability. If the scope of any restriction contained in this Agreement
is too broad to permit enforcement of such restriction to its fullest extent,
then such restriction shall be enforced to the maximum extent permitted by
law,
and Executive and the Company hereby consent and agree that the scope of
such
restriction may be judicially modified in any proceeding brought to enforce
such
restriction. To the extent any provision of this Agreement shall be invalid
or
unenforceable, it shall be considered deleted from this Agreement and the
remainder of this Agreement shall remain in full force and effect.
19.
Notice. Any notices required or permitted to be given under this Agreement
shall be sufficient if in writing and delivered by personal delivery, air
courier, or if mailed by registered or certified first-class mail, return
receipt requested, to the residence of Executive as it appears in the corporate
records for notice to Executive, or to the principal office of the Company
for
notice to the Company. All notices delivered in accordance with this Section
shall be deemed to have been received and shall be deemed effective if delivered
in person or by air courier, upon actual receipt by the intended recipient,
or
if mailed, upon the date of delivery or refusal to accept delivery as shown
by
the return receipt therefore.
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20.
Affiliate. An “Affiliate” means any person or entity that directly
indirectly controls, is controlled by, or is under common control with another.
Control shall mean beneficial ownership of 50.01% or more of the outstanding
voting securities or other ownership interests.
21.
No Waiver. No term or condition of this Agreement shall be deemed to
have been waived nor there any estoppel to enforce any provision of this
agreement, except by a statement in writing signed by the party against whom
enforcement of the waiver or estoppel is sought. Any written waiver shall
not be
deemed a continuing waiver unless specifically stated, and shall operate
only as
to the specific term or condition waived and shall not constitute a waiver
of
such term or condition for the future or as to any act other than that
specifically waived.
22.
Amendments. No amendment or modification of this Agreement shall be deemed
effective unless made in writing and signed by the parties hereto.
23.
Assignment. The rights and obligations of the Company under this Agreement
shall, without the prior written consent of Executive, inure to the benefit
of
and be binding upon the successors and assigns of the Company. This is a
personal service contract and may not be assigned by Executive.
24.
Governing Law. This Agreement is made under and shall be governed by and
construed in accordance with the internal laws of the State of Florida. By
execution of this Agreement, each party submits to in personam
jurisdiction of the courts of the State of Florida.
25.
Headings. The headings of sections in this Agreement are solely for
convenience of reference and shall not control the meaning or interpretation
of
any provision of this Agreement.
26.
Counterparts and Facsimile This Agreement may be executed in any number of
counterparts, each of which shall be deemed original and all of which, taken
together, shall constitute one agreement. Any counterpart may be delivered
by
any party by transmission of signature pages to the other parties at the
addresses set forth herein, and delivery shall be effective and complete
upon
completion of such transmission; manually signed copies of signature pages
shall
be nonetheless be delivered promptly after any such facsimile
delivery.
27.
Entire Agreement. This Agreement, and the Non-Disclosure Agreement contain
the entire agreement of the parties relating to the subject matter hereof
and
supersede all prior and simultaneous agreements, communications, and
understandings with respect to such subject matter, whether oral or
written.
This
Agreement is executed and delivered on the day and year first above
written.
Company:
_____________________________
By:
Xxxx
Xxxxx, Chief Executive Officer
_____________________________
By:
Xxxxx
Xxxx, President
Executive:
_____________________________
Xxxxxxx
X. Xxxx
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